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Blake v. Donovan

United States District Court, W.D. Wisconsin

February 7, 2019

THOMAS J. BLAKE, Plaintiff,



         Plaintiff Thomas Blake, a state of Wisconsin prisoner currently housed at Green Bay Correctional Institution, alleges that prison officials are violating his right to practice the Asatru religion by prohibiting him from possessing certain religious items, in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise and Establishment clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

         Currently before the court are motions from both sides: defendants have filed a motion for partial summary judgment contending that Blake failed to exhaust his administrative remedies with regard to some of his claims. Blake has filed a motion asking to be considered as an expert witness on Asatru and more generally on Pagan religions.[2]

         A. Exhaustion

         Defendants seek summary judgment on exhaustion grounds concerning two sets of Blake's claims: his claims regarding the deprivation of prayer oil, and his claims against defendant grievance examiners Jodie Perttu and Bradley Hompe.[3]

         Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and “applies to all inmate suits.” Woodford v. Ngo, 548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion requirement's primary purpose is to “alert[ ] the state” to the problem “and invit[e] corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).

         Section 1997e(a) requires “proper exhaustion, ” Woodford, 548 U.S. at 93; Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which means that the prisoner must follow prison rules when filing the initial grievance and all necessary appeals, “in the place, and at the time, the prison's administrative rules require.” Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). “[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies.” Pozo, 286 F.3d at 1024. The Wisconsin Department of Corrections uses a four-step process called the Inmate Complaint Review System (ICRS) to review inmate grievances. See Wis. Admin. Code Ch. DOC 310.

         Because exhaustion is an affirmative defense, defendants bear the burden of establishing that Blake failed to exhaust his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). At the summary judgment stage, they 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).

         First, the prayer-oil claims. Blake filled out a “Request for New Religious Practice or Property” form asking for new types of Pagan prayer oil to be allowed. At the conclusion of the multi-step process in which those types of requests are reviewed, Blake's request was denied; prison officials said that there were already different types of approved oils that he could use. He filed a grievance about the deprivation of his prayer oil. But after the grievance was dismissed, he didn't file an appeal. That would ordinarily be enough to grant defendants' motion, because Blake did not exhaust all the steps of the ICRS process.

         Blake contends that he thought his administrative remedies were already exhausted because of the final response he got on his religious-item-request form: the official checked the boxes “ISSUE IS MOOT” and “allowable under current policy or pending policy revision.” Dkt. 23-2. The official did not check the box stating that the request was denied and that the inmate could file a grievance.

         Because inmates must exhaust only remedies that are “available” to them, courts have sometimes excused an inmate's failure to complete the exhaustion process where the inmate is led astray by confusing regulations or incorrect directions from prison officials. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (“Prison officials may not take unfair advantage of the exhaustion requirement . . . and a remedy becomes ‘unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.”); Naseer v. Belz, No. 13-cv-821-jdp, 2015 WL 519760, at *2 (W.D. Wis. Feb. 9, 2015) (denying summary judgment to prison officials unable to explain why failure to exhaust under one grievance system was dispositive, where grievance was routed though separate grievance mechanism).

         Here, the choice of the “moot” option as the final response to Blake's religious-item request was not ideal. Prison officials didn't really mean that Blake's request was moot, because Blake was in fact denied the item he actually wanted. Their point was that various oils were already available to him under existing policies. But that response is not reason to deny defendants' summary judgment motion. Given the facts here, no reasonable factfinder could conclude that Blake was misled into thinking he had done all he could do, because he didn't stop when he received that denial. He went on to file a grievance about the denial, so it is clear that he knew that option was available to him. Blake's failure to follow though with the entire ICRS process cannot be blamed on the religious-item-request form.

         Blake also argues that the religious-item-request process was enough to exhaust his administrative remedies, because that process included a denial by defendant Kelli Willard-West on the Religious Practice Advisory Committee. Blake suggests that Willard-West was, practically speaking, the final DOC authority on religious items, so it makes no sense to force him to exhaust through the ICRS system, when the chaplain, warden, and institution or corrections complaint examiners could not overrule Willard-West. I'm not convinced that the officials Blake names would truly be forbidden from overruling a decision by Willard-West in the religious-item-request process. But regardless, Blake leaves out the final decision-maker in the ICRS system, the secretary of the DOC, who clearly has final say over department operations. So I reject Blake's argument that Willard-West's decision should be considered to be the last step in the exhaustion process. I conclude that Blake failed to exhaust his available administrative remedies on his prayer-oil claims, so I will grant defendants' motion for summary judgment on those claims. That dismissal will be without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to exhaust is always without prejudice). This means that Blake can refile his prayer-oil claims if he can successfully exhaust them.

         The second set of claims on which defendants seek summary judgment is a series of claims against defendants Perttu and Hompe. I granted Blake leave to proceed on constitutional claims against them in their roles as grievance examiners for ...

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