United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Timothy Coleman, an inmate at the Green Bay Correctional
Institution, brings this lawsuit alleging that Wisconsin
Department of Corrections staff forced him to serve an
illegally lengthy sentence for misdemeanor convictions.
Defendants have filed a motion for summary judgment alleging
that Coleman failed to exhaust his administrative remedies
for his claims. Dkt. 30. Because the only inmate grievance
that arguably exhausts Coleman's claims postdates the
filing of this case, I will grant defendants' motion and
dismiss this case. But I will give Coleman an opportunity to
open a brand-new case using his existing complaint.
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 administrative 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, 524 (2002). Its
purpose is not to protect defendants but to give prison
officials an opportunity to resolve complaints without
judicial intervention. Perez v. Wis. Dep't of
Corr., 182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion
serves purposes of “narrow[ing] a dispute [and]
avoid[ing] the need for litigation”).
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), which 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. However,
“[i]f administrative remedies are not
‘available' to an inmate, then the inmate cannot be
required to exhaust.” Kaba v. Stepp, 458 F.3d
678, 684 (7th Cir. 2006).
say that the only grievance Coleman filed about the allegedly
illegal sentences at issue was No. DCI-2016-16099, which
Coleman submitted on August 1, 2016, about a month
after he filed his original complaint in this
lawsuit. That grievance stated:
I got illegal sentence by [the Dodge Correctional
Institution] ¶ 06CM1162 & 06CM1461. I got 1 [month]
for CM1162 & 2 [months] for CM1461. Dodge gave me 2/3 of
my time in and 1/3 on [extended supervision]. All illegal.
. . .
I wrote Records seeking answers, so now I filed suit and I
just want to exhaust all administrative remedies before I get
32-3, at 11. He litigated the grievance all the way through
the DOC Inmate Complaint Review System, with the Office of
the Secretary dismissing his appeal on October 11, 2016.
Id. at 6.
response, Coleman does not argue that there was an
earlier-filed grievance that served to exhaust his claims.
Rather, he argues that the '16099 grievance was fully
exhausted by the time this court allowed him to proceed with
claims in his first amended complaint, and suggests that the
exhaustion requirement does not apply to the date of his
original complaint because I dismissed that complaint as
violating Federal Rule of Civil Procedure 8. See
Dkt. 10. But Coleman is incorrect about the law on
exhaustion. As stated above, a prisoner cannot
“bring” a lawsuit until exhaustion has been
accomplished. The Court of Appeals for the Seventh Circuit
has held that “an action is ‘brought' for
purposes of § 1997e(a) when the complaint is tendered to
the district clerk.” Ford v. Johnson, 362 F.3d
395, 400 (7th Cir. 2004). Only in rare circumstances may a
prisoner exhaust remedies on claims after his
lawsuit has been filed, see Barnes v. Briley, 420
F.3d 673, 678 (7th Cir. 2005) (exhausted § 1983 claims
added to complaint previously stating only Federal Tort
Claims Act claims), but those circumstances are not present
here: in his original complaint, Coleman stated roughly the
same claims he now brings. He needed to exhaust those claims
before he filed his original complaint.
also states that he “was under the impression that he
could not complain about any subject matter in the
case” because he was being held subject to both his
illegal sentences and a pending revocation of other, felony
cases. He cites to DOC regulations outlining a
parallel grievance process for probation-related complaints.
See Wis. Admin. Code § DOC 328.12 (2006). But
his pending revocation was for felony cases unrelated to the
misdemeanor cases at the heart of this case, so it is unclear
why Coleman thought the revocation affected his ability to
grieve his illegal misdemeanor sentences. This theory also
does not square with the fact that Coleman did file
an inmate grievance about a month after he filed his
complaint, explicitly for the purpose of exhausting his
administrative remedies. I conclude that defendants have met
their burden of showing that Coleman failed to properly
exhaust his administrative remedies before filing this
lawsuit, and that Coleman does not provide a persuasive
rationale for those remedies being unavailable to him.
Therefore, I will grant defendants' motion for summary
judgment and dismiss this case.
dismissal will be without prejudice, meaning that Coleman is
free to refile the case. See Ford, 362 F.3d at 401
(“[I]f the prisoner does exhaust, but files suit early,
then dismissal of the premature action may be followed by a
new suit that unquestionably post-dates the administrative
decision.”). I will give Coleman a short time to state
whether he would like to have his current operative pleading
(the amended complaint, Dkt. 11 and 27) opened as a brand-new
lawsuit. This is not an expense-free proposition: Coleman
will be on the hook for a new filing fee for his new lawsuit.
I assume he would seek in forma pauperis status in a
new lawsuit, so if he chooses to have his amended complaint
opened into a new lawsuit, he should also submit a trust fund
account statement covering September 2017 to the present.
have filed a motion to stay the dispositive motions deadline,