United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
se plaintiff Armand Baker is proceeding in this civil
lawsuit against defendant Deputy Doherty on claims under the
First and Fourteenth Amendment related to an incident where
Doherty stood in front of Baker while he was trying to pray
and told Baker that “normal people don't pray with
their face on the floor.” Now before the court is
Doherty's motion for summary judgment on the ground that
Baker failed to exhaust his administrative remedies. (Dkt.
#21.) Since he filed this action before receiving a final
decision on his grievance, the law of this circuit mandates
that the court grant defendant's motion and dismiss this
lawsuit without prejudice to Baker's ability to re-file a
timely lawsuit bringing this claim.
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 speaking, a prisoner must
“properly take each step within the administrative
process” to comply with § 1997e(a). 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), and 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
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); Turley v. Rednour, 729 F.3d 645, 650
(7th Cir. 2013) (prison staff need notice of a problem and an
opportunity to address it). If a prisoner fails to exhaust
his administrative remedies before filing a lawsuit, then the
court must dismiss the case. Perez v. Wisconsin
Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999).
Because exhaustion is an affirmative defense, however,
defendants bear the burden of establishing
plaintiff's failure to exhaust. Jones v. Bock,
549 U.S. 199, 216 (2007).
the relevant time period, the Dane County Jail had policies
and procedures in place that governed inmate grievances.
Policy 607.07 lays out the proper way for inmates to file
grievances and grounds by which grievances may be rejected by
Jail Administration. Explicit in this procedure is an appeal
process, which requires inmates who are dissatisfied with the
response they received from a complaint to appeal the
decision of the grievance within five business days of when
they received the response. The appeal must be marked
“Appeal” and use a standard grievance form.
August 3, 2016, Baker filed a grievance about the incident
where Doherty interrupted his prayer, laughed at him and told
him he could not pray in the dayroom. His grievance was
assigned a number, 22243, and jail staff dismissed it,
finding that Doherty's actions were appropriate. It
appears that Baker received the response on August 13, 2016.
(Dkt. #23-2, at 2.) Instead of filing an appeal of that
result within the jail, Baker filed this lawsuit on August
15, 2016. Then, three days later, on August 18,
2016, Baker filed his appeal of grievance 22243. On August
23, 2016, Baker's appeal was denied and the initial
finding that Doherty's actions were lawful was affirmed.
failure to completely exhaust this claim prior to filing this
lawsuit requires dismissal, and the fact that it appears that
Baker sufficiently exhausted his administrative remedies
within the Dane County Jail shortly after filing suit does
not change this result. To conclude otherwise would discount
the purpose of exhaustion, which is to permit the parties the
opportunity to resolve disputes informally without
being overshadowed by a federal lawsuit. See Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (noting that
courts routinely dismiss a “suit that begins too soon,
even if the plaintiff exhausts his administrative remedies
while the litigation is pending”); Perez v.
Wisconsin Dept. of Corrections, 182 F.3d 532, 537 (7th
Cir.1999) (“[A] case filed before exhaustion has been
accomplished must be dismissed.”). Accordingly, the
motion will be granted and this case will be dismissed
without prejudice. Fluker v. County of Kankakee, 741
F.3d 787, 791 (7th Cir. 2013) (dismissals for failure to
exhaust are always without prejudice, “even if
exhausting administrative remedies will prove to be
impossible”). Should Baker decide that he wishes to
file a new lawsuit related to this incident, it would appear
that his claims would not be time-barred, but he should bear
in mind that filing a new lawsuit will trigger a new filing
fee, and, if he remains incarcerated, subject him to the
requirements of the PLRA.
Defendant Doherty's motion for summary judgment for
failure to exhaust administrative remedies (dkt. #21) is