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Byrd v. Vernon County

United States District Court, W.D. Wisconsin

December 1, 2017

LEWIS EDWARD BYRD III, Plaintiff,
v.
VERNON COUNTY and MORGAN NESS, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         Pro se plaintiff Lewis Edward Byrd III is proceeding on constitutional claims against defendants Vernon County and Morgan Ness, an employee of the Vernon County Sheriff's Office, concerning the denial of telephone access to a lawyer and interference with legal mail that occurred during Byrd's incarceration at the Vernon County Jail. Defendants move for summary judgment based on Byrd's failure to exhaust his administrative remedies. Dkt. 28. Because Byrd failed to appeal the denial of his grievances, I will grant defendants' motion and dismiss the case.

         UNDISPUTED FACTS

         I draw the following facts from defendants' submissions in support of their motion and the court's April 17 and May 25 screening orders, Dkt. 6 and Dkt. 8.

         In late 2016, Byrd was arrested and incarcerated at the Vernon County Jail. Notification of the jail's procedure for filing grievances and appeals was posted in each cell block at the jail, which read:

1. An inmate wishing to submit a grievance may do so in writing to the jail sergeant. The grievance must be submitted within 2 days of the event being grieved. Seal the letter in an unstamped envelope and ask the duty jailer to forward it. If the event being grieved involves the jail sergeant, then the initial grievance will go to the jail administrator.
2. The jail sergeant will review the grievance and will reply in writing to the inmate with his findings.
3. If the inmate is not satisfied with the jail sergeant's findings, the inmate may then, in writing, appeal the finding to the jail administrator. If after receiving the jail administrator's findings, the inmate may follow the same procedure and file an appeal with the chief deputy. If after receiving the findings of the chief deputy, the inmate may file an appeal with the sheriff. All appeals must be submitted within 1 day of receiving the written response from the jail sergeant, jail administrator or chief deputy.

Dkt. 30-2, at 2.

         Byrd alleges that while incarcerated, he asked to call his lawyer several times, but his requests were denied because of jail policy. Byrd filed a grievance about this in February 2017. Dkt. 30-5, at 2. Sergeant Michael Davig responded to the grievance by calling Byrd's lawyer on Byrd's behalf without Byrd's knowledge or consent. The same day, Byrd filed a grievance about Davig's call. Dkt. 30-6, at 2. Captain Charles Jacobson denied the grievance. Defendant Morgan Ness, the legal secretary for the Vernon County Sheriff's Office, then opened mail from Byrd's lawyer to Byrd outside Byrd's presence. Byrd alleges that she did so in retaliation for Byrd's grievance. Byrd filed a grievance about this, asking to talk to Jacobson's supervisor. Dkt. 30-7, at 2. Davig responded that Ness opened the mail “by mistake.” Id. at 3.

         I granted Byrd leave to proceed on a Sixth Amendment denial of telephone access claim against Vernon County. I also allowed Byrd to proceed on a First Amendment retaliation claim and a claim concerning interference with legal mail against Ness.

         ANALYSIS

         To succeed on a motion for summary judgment, defendants, as the moving party, must show that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must be drawn in Byrd's favor, as the nonmoving party. Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999). Because exhaustion is an affirmative defense, defendants bear the burden of establishing that Byrd failed to exhaust his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).

         Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Generally, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process, ” which includes filing grievances and appeals “in the place, and at the time, the prison's administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1024, 1025 (7th Cir. 2002). The grievance itself need not provide “a detailed factual narrative, articulate legal theories, or demand particular relief to exhaust [the prisoner's] ...


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