United States District Court, W.D. Wisconsin
THOMAS J. BLAKE, Plaintiff,
MICHAEL DONOVAN, KELLI R. WILLARD-WEST, SCOTT ECKSTEIN, JODIE PERTTU, and BRADLEY HOMPE, Defendants.
D. PETERSON DISTRICT JUDGE.
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.
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.
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
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).
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.
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
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.
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.
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
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
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.
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