United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, District Judge
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.
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.
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.
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.
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.
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).
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