United States District Court, E.D. Wisconsin
JOSEPH, UNITED STATES MAGISTRATE JUDGE
Prison Litigation Reform Act (PLRA) applies to this case
because plaintiff Ernesto Rivera 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).
April 12, 2019, defendant Dr. William Kelley moved for
summary judgment on the basis that Rivera did not exhaust the
available administrative remedies before he initiated this
case. Dr. Kelley asserts that Rivera failed to timely file an
inmate complaint that complied with the DOC's rules. (ECF
No. 12 at 5.) He asserts that the incident at issue occurred
on June 27, 2018; however, Rivera did not file his inmate
complaint until twenty days later on July 17, 2018.
disputes Dr. Kelley's characterization. He explains that
he submitted his first inmate complaint on July 2, 2018, five
days after the incident at issue. (ECF No. 17-1 at 1.) On
July 10, 2018, the inmate complaint examiner sent Rivera two
letters explaining that she would not accept his submission.
(Id. at 5-6.) One of the letters told Rivera to
first contact the health services unit manager in an attempt
to informally resolve the issue. The other letter explained
to Rivera that he had submitted his inmate complaint on an
outdated form; the correct form was enclosed with the letter.
same day, Rivera submitted an interview request form to the
health services unit manager in an attempt to informally
resolve his issue. (ECF No. 17-1 at 8-9.) Rivera received a
response on July 16, 2018. (Id. at 9.) The next day,
on July 17, 2018, Rivera submitted a second inmate complaint
on the correct form. (Id. at 11.) The inmate
complaint examiner rejected Rivera's second inmate
complaint on July 23, 2018, because Rivera submitted it more
than fourteen days after the occurrence giving rise to the
complaint. (Id. at 16.)
Admin. Code § DOC 310.10 outlines the procedures by
which inmate complaint examiners review and process inmate
complaints. Wis. Admin. Code § DOC 310.10(5) allows an
inmate complaint examiner to return an inmate complaint to an
inmate if the inmate fails to satisfy certain requirements,
including failing to attempt to informally resolve the issue
before filing his complaint or failing to use the correct
complaint form. See Wis. Admin. Code § DOC
310.10(5); 310.07(1); 310.07(3)(a). If a complaint examiner
returns an inmate complaint for one of those reasons, the
inmate “shall be given one opportunity to correct and
resubmit [the] returned complaint.” Wis. Admin. Code
§ DOC 310.10(5). Inmates are allowed ten days to submit
a corrected inmate complaint. Id.
inmate complaint examiner returned Rivera's first inmate
complaint on July 10, 2018. (ECF No. 17-1 at 5-6.) Seven days
later, on July 17, 2018, Rivera submitted his second inmate
complaint. (Id. at 11.) Rivera's second inmate
complaint corrected the problems the inmate complaint
examiner identified in her two return letters. Because Rivera
filed his second inmate complaint within ten days of
receiving the inmate complaint examiner's return letters,
there was no basis for her to reject Rivera's second
inmate complaint as untimely. See Wis. Admin. Code
§ DOC 310.10(5). “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 . . . .” Kaba, 458
F.3d at 684 (citations and internal quotations omitted).
the court finds that the administrative remedies were
unavailable to Rivera and will deny the defendant's
motion for summary judgment on exhaustion grounds.
IS THEREFORE ORDERED that the defendant's motion
for summary ...