United States District Court, E.D. Wisconsin
JOSEPH UNITED STATES MAGISTRATE JUDGE.
Larue Hunter, a Wisconsin inmate representing himself, brings
this lawsuit under 42 U.S.C.§1983 alleging that the
defendants violated his constitutional rights. Defendants
Loison Kast and Luke Katze move for summary judgment on the
basis that Hunter did not exhaust the available
administrative remedies before he initiated this case. (ECF
No. 17) For the reasons that I explain below, I find that an
evidentiary hearing is required to determine this issue.
Prison Litigation Reform Act (PLRA) applies to this case
because Hunter 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).
a prisoner is not required to exhaust the 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, Fed.Appx. 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).
case, the defendants assert that Hunter failed to file an
inmate complaint that complied with the DOC's rules,
despite being given two opportunities to do so. (ECF No. 17
at 1.) They explain that he never provided proof that he had
attempted to informally resolve his issue before he filed his
inmate complaint, and he did not file his second inmate
complaint on an approved form. Hunter disputes that he did
not comply with the inmate complaint examiner's (ICE)
orders. He explains that he filed his first inmate
complaint on July 18, 2018. (See ECF No. 19-2 at 2;
ECF No. 30-1 at ¶ 6.) The ICE returned the inmate
complaint that same day and instructed him to provide proof
that he had tried to informally resolve the issue. (ECF No.
30-1 at ¶ 7.) The letter further stated, “If you
have no proof you have attempted to resolve the issue, you
must contact Cpt A Shultz and Cpt M. Mariani.” (ECF No.
19-2 at 1.)
filed his second inmate complaint on July 24, 2018, and
explained that he had submitted inmate requests to both
Captains Schultz and Mariani and that he had talked to
Captain Schultz about returning his request form. (ECF No.
19-3 at 2.) Hunter stated that he had been waiting for seven
days, but neither of them had responded. (Id.)
returned Hunter's second inmate complaint two days later.
(ECF No. 19-3 at 1.) Once again, the ICE's letter
demanded proof that Hunter had tried to informally resolve
his issue. The letter also stated, “If you have no
proof you have attempted to resolve this issue, you must
contact Administrative Captain M. Mariani and Deputy Warden
Strahota.” (Id.) In addition to the
lack-of-proof issue, the ICE informed Hunter that he had used
the wrong complaint form and that only forms revised as of
April 2018 would be accepted. (Id.) The ICE gave
Hunter another opportunity to file a compliant inmate
states that he complied with the ICE's instructions and
sent a third inmate complaint on the correct form. (ECF Nos.
24 at 4; 26 at ¶¶ 4-9; 30-1 at ¶ 15.) He
states that he did not receive a response to his third inmate
complaint. (ECF No. 26 at ¶ 9.)
August 14, 2018, Hunter filed an inmate complaint appeal with
the Corrections Complaint Examiner (CCE). (ECF No. 26-1 at
5-7.) In his appeal he included a completed inmate complaint.
(Id. at 7.) The inmate complaint is dated August 14,
2018 (the same date as his appeal) and is stamped as being
received by the CCE on August 17, 2018. It is not clear to
the court if Hunter mailed his third inmate complaint only to
the CCE, or if this is merely a copy/reproduction of the
third inmate complaint he sent to the ICE. The CCE returned
Hunter's appeal on the same day it was received because
“the appeal [did] not list the complaint file number .
. . .” (ECF No. 26-1.) In other words, there was no
active inmate complaint to appeal.
defendants argue that Hunter failed to remedy the errors the
ICE identified because he failed to file a third inmate
complaint that provided proof that he had tried to informally
resolve his issue and that was on the correct form. Hunter
argues that he discharged his obligation to informally
resolve his issue. He notes that in the ICE's first
return letter, the ICE said, “If you have no proof you
have attempted to resolve the issue, you must contact Cpt A
Shultz and Cpt M. Mariani.” Hunter says he explained in
his second and third inmate complaints that he contacted
Captains Schultz and Mariani, but they never
responded.” Hunter also asserts that he filed a third
inmate complaint on the correct form.
parties agree that there was nothing improper about the ICE
returning Hunter's first inmate complaint. The
ICE was authorized to ask Hunter to provide evidence that he
had tried to informally resolve his issue before filing the
inmate complaint. See Wis. Admin. Code DOC §
parties disagree, however, that the ICE was correct to return
Hunter's second inmate complaint for failing to
provide proof that he had tried to informally resolve his
issue. The court shares Hunter's view that the ICE was
giving him the runaround. Hunter followed the ICE's
instructions in the first return letter. The ICE stated that,
if Hunter did not have proof that he tried to informally
resolve his issue, he had to contact Captains Schultz and
Mariani. Hunter explained in his second inmate request that
he submitted an interview request form to both of them and
talked to Captain Schultz about the lack of response, but
neither of them responded to him. As Hunter points out, the
ICE did not inform him that he would have provide proof that
he contacted the captains, nor did the ICE tell Hunter that
he had to contact them in writing. Hunter spoke to Captain
Schultz, as was implicitly permitted by the ICE's
instructions; there was no proof Hunter could provide of his
conversation other than his say-so.
that the ICE changing the instructions in the second return
letter to require Hunter to contact Captain Mariani and
Deputy Warden Strahota (instead of Captains Schultz and
Mariani as was originally required) as well as the
requirement that he provide proof that was not previously
required rendered Hunter's administrative remedies
unavailable. See Pavey v. Conley, 544 F.3d at 742
(acknowledging that being given “a runaround” may
make administrative remedies ...