United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE.
plaintiff and prisoner Jermichael Carroll is proceeding on
Eighth Amendment claims against defendants employed at the
Columbia Correctional Institution, based on allegations that
he was forced to sleep on a “deplorable” mattress
on a concrete floor. Now before the court is defendants'
motion for summary judgment for plaintiff's alleged
failure to exhaust his administrative remedies before filing
suit. Dkt. #22. For the reasons set out below, I am denying
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.” Generally, to comply with § 1997e(a),
a prisoner must “properly take each step within the
administrative process.” Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). This includes following
instructions for filing the initial grievance, Cannon v.
Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well
as filing all necessary appeals, Burrell v. Powers,
431 F.3d 282, 284-85 (7th Cir. 2005), “in the place,
and at the time, the prison's administrative rules
require.” Pozo, 286 F.3d at 1025. The purpose of these
requirements is to give the prison administrators a fair
opportunity to resolve the grievance without litigation.
Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). If a
prisoner fails to exhaust his administrative remedies before
filing his lawsuit, the court must dismiss the case.
Perez v. Wisconsin Dept. of Corrections, 182 F.3d
532, 535 (7th Cir. 1999). Because exhaustion is an
affirmative defense, defendants bear the burden of
establishing that plaintiff failed to exhaust. Jones v.
Bock, 549 U.S. 199, 216 (2007).
exhaust administrative remedies in Wisconsin, inmates must
follow the inmate complaint review process set forth in the
Wisconsin Administrative Code ch. DOC 310. Under these
provisions, prisoners start the complaint process by filing
an inmate complaint with the institution complaint examiner
within 14 days after the occurrence giving rise to the
complaint. Wis. Admin. Code § DOC 310.09. The complaint
examiner may investigate inmate complaints, reject them for
failure to meet filing requirements, recommend a disposition
to the appropriate reviewing authority (the warden or the
warden's designee) or direct the inmate to attempt to
resolve the complaint informally. Id. §§
310.07(2), 310.09(4), 310.11, 310.12. If the institution
complaint examiner makes a recommendation that the complaint
be granted or dismissed on its merits, the appropriate
reviewing authority may dismiss, affirm or return the
complaint for further investigation. Id. §
310.12. If an inmate disagrees with the decision of the
reviewing authority, he may appeal. Id. §
310.13. If the institution complaint examiner rejects a
grievance for procedural reasons without addressing the
merits, an inmate may appeal the rejection. Id.
§ 310.11(6). The reviewing authority's decision on
the rejection is final. Id.
case, it is undisputed that plaintiff filed an inmate
complaint on September 26, 2016, alleging that he was being
required to sleep on the floor in the restrictive housing
unit. On November 28, 2016, an inmate complaint examiner
rejected plaintiff's inmate complaint as
“moot” under Wis.Stat. § DOC 310.11(5)(f),
because by that date, plaintiff had been moved out of the
restricted housing unit and was no longer sleeping on the
floor. The examiner concluded that “[t]he issue listed
in this complaint has been resolved.” Dkt. #23-1.
Plaintiff did not appeal the rejection. He filed this lawsuit
on February 21, 2017. Defendants' only argument in their
motion for summary judgment is that plaintiff failed to
exhaust his administrative remedies because he did not appeal
the rejection of his inmate complaint as allowed under
Wis.Stat. DOC § 310.11(6). In response, plaintiff states
that he did not appeal the rejection because he understood
the examiner's rejection to mean that he could not obtain
relief through the inmate complaint system. Indeed, plaintiff
agrees that his specific complaint had been resolved as he
had been moved off of the floor as he had requested.
Defendants argue that plaintiff's agreement with the
resolution of his complaint is not enough, however, because
prisoners must complete the entire grievance process even if
they believe it would be futile.
argument is not persuasive. “If a grievance is rejected
as moot because the issue has been resolved and there is no
relief that can be provided through the grievance system,
then there is no ‘available' administrative remedy
to exhaust.” Elkins v. Schrubbe, No. 04 C 85,
2006 WL 1663779, at *55 (E.D. Wis. June 15, 2006) (citing
Thornton v. Snyder, 428 F.3d 690, 695-97 (7th Cir.
2005)). For example, in Thornton, the prisoner had filed an
emergency grievance with the warden, complaining about his
mattress. Id. at 692. After the warden responded
with a letter stating that the prisoner's grievance was
not an emergency, the prisoner did not appeal or file a new
grievance, as permitted by the prison regulations. A few
weeks later, the prisoner was moved to a new cell.
Id. at 693. The defendants argued that the prisoner
did not exhaust his administrative remedies because he failed
to file an appeal from the warden's letter. Id.
at 695. The court of appeals rejected this argument because,
before the prisoner's time for appeal expired, he had
received the relief he had requested. The court of appeals
explained that the requirement to exhaust “all
available remedies” does not require an inmate to
“appeal grievances that were resolved as he requested
and where money damages were not available.”
facts of Thornton are strikingly similar to those in this
case. Here, plaintiff's complaint was rejected as moot
because he had been moved to a new cell by the time his
complaint was reviewed. The regulations define
“moot” as meaning that “the issue or
complaint is one which seeks to determine an abstract
question which does not arise upon existing facts or rights,
or where there would be no practical effect to any remedy
because the issue or complaint is already resolved.”
Wis. Admin. Code § 310.03(13). Thus, the complaint
examiner concluded that plaintiff had received the available
relief he had requested in his inmate complaint and could
obtain no further relief through the grievance process.
defendants suggest that on appeal, the warden may have
disagreed with the mootness finding and ordered additional
relief, Dft.'s Br., dkt. #24, at 4, this argument does
not make much sense. Defendants do not concede that
plaintiff's complaint was not moot, do not speculate
about what additional relief plaintiff might have received or
suggest that plaintiff could have obtained money damages.
Thus, defendants are essentially arguing that prisoners must
file appeals of inmate complaints that are (a) properly
rejected as falling outside the grievance system, or (b)
resolved in their favor because there is a possibility the
prison will grant relief above and beyond what the inmate
requested. No reasonable prison official would want a
prisoner to file appeals in such circumstances, after an
issue has been resolved. At that point, the grievance has
served the primary purposes of § 1997e(a), to give
prison officials notice of the prisoner's problem and
give them an opportunity to resolve it before a lawsuit is
filed. Perez, 182 F.3d at 537-38. See also Shaw v.
Jahnke, 607 F.Supp.2d 1005, 1010 (W.D. Wis. 2009)
(“[P]laintiff would have no reason to appeal the
decision in which the examiner concluded that plaintiff's
issue had been ‘addressed' previously.”).
defendants also argue that plaintiff's situation is no
different from those cases in which courts have rejected a
prisoner's futility defense to exhaustion. E.g.,
Booth v. Churner, 532 U.S. 731 (2001); Perez, 182
F.3d 532. However, the court of appeals distinguished those
cases in Thornton, explaining that unlike the situation in
which a prisoner receives his requested relief, Booth and
Perez were cases in which there was “still the
possibility of some relief that prison officials could have
offered.” Thornton, 428 F.3d at 696. As discussed
above, defendants do not articulate any additional relief
plaintiff could have received by continuing to pursue his
grievance through the appeals process. For these reasons,
defendants' motion for summary judgment will be denied.
ORDERED that the motion for summary judgment filed by
defendants Sergeant Chapman, Sergeant Royce, Lindsy Walker,
J. Gohde, Kathy Whalen, Melissa Thorne, ...