United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.
Prison Litigation Reform Act (PLRA) applies to this case
because plaintiff Jesse Daul was incarcerated when he filed
his complaint. Under the PLRA, “No 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.” 42 U.S.C. § 1997e(a).
to the Supreme Court, exhaustion of administrative remedies
must be done “properly” because “no
adjudicative system can function effectively without imposing
some orderly structure on the course of its
proceedings.” Woodford v. Ngo, 548 U.S. 81,
90-91 (2006). To properly exhaust administrative remedies,
prisoners must file their inmate complaints and appeals in
the place, at the time, and in the manner that the
institution’s administrative rules require. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
said, a prisoner is not required to exhaust his
administrative remedies if those remedies are not
“available.” Kaba v. Stepp, 458 F.3d
678, 684 (7th Cir. 2006). Administrative remedies will be
deemed “unavailable” when prison officials do not
respond to a properly-filed inmate complaint or when they
prevent a prisoner from exhausting through affirmative
misconduct, such as denying a prisoner necessary forms,
destroying a prisoner’s submissions, or requiring steps
not mandated by regulation or rule. See Smith v.
Buss, F. App’x 253, 255 (7th Cir. 2010); Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008);
Kaba, 458 F.3d at 684; Dale v. Lappin, 376
F.3d 739, 742 (7th Cir. 2004); Strong v. David, 297
F.3d 646, 649-50 (7th Cir. 2002).
February 28, 2019, defendant Lori Biagioni moved for summary
judgment on the basis that Daul did not exhaust the available
administrative remedies before he initiated this case.
Biagioni explains that the Department of Corrections has
twice searched its records for any evidence that Daul
submitted an inmate complaint about the issues in this case.
She asserts that there are no documents suggesting an inmate
complaint about the issues in this case was received,
processed, returned or rejected. (ECF Nos. 53 at 4-5; 55 at
disputes that he did not file an inmate complaint about the
issues in this case. He asserts that he “submitted an
inmate complaint against Lori Biagioni between the dates of
8-18-16 and 9-1-16.” (ECF No. 50 at 2.) He explains
that the inmate complaint was returned shortly after he
submitted it without a date stamp or return letter. (ECF No.
50 at 3.) He argues that, under DOC policy, even if he had
already filed the number of inmate complaints allowed during
the relevant time period, his inmate complaint should have
been accepted because the underlying issue was a health and
personal safety issue and therefore not subject to the
two-per-week rule. (ECF No. 49 at 2).
argues that Daul’s “unsupported assertion of
having submitted an inmate complaint is not sufficient to
defeat summary judgment for non-exhaustion where, as here,
the evidence adduced shows no record of any inmate complaint
having been submitted, whether accepted or returned.”
(ECF No. 53 at 5.) That is not the law in this circuit.
See, e.g., Daniels v. Prentice,
741 F. App’x 342, 343-44 (7th Cir. 2018) (affirming
district court’s acknowledgment that “to meet her
evidentiary burden, [the defendant] needed to show more than
the absence of a grievance in prison records”) (citing
Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)
for the proposition that, “The exhaustion requirement
is an affirmative defense, which the defendants bear the
burden of proving.”).
Court of Appeals for the Seventh Circuit has instructed that,
when there are questions of fact regarding whether a
plaintiff exhausted the available administrative remedies, a
district court must conduct an evidentiary hearing to resolve
the issue. See Pavey, 544 F.3d at 742. At the
hearing, the district court “may hear evidence, find
facts, and determine credibility. After finding facts, the
district court may allow the claim to proceed or dismiss it
for failure to exhaust.” Wilborn v. Ealey, 881
F.3d 998, 1004 (7th Cir. 2018) (citations omitted).
light of the conflicting evidence, the court finds that an
evidentiary hearing is necessary. The court will enter a
separate order setting a date and time for the hearing.
IS THEREFORE ORDERED that the court will set, in a
separate order, a date and time for an evidentiary hearing to
determine whether Daul exhausted the available ...