United States District Court, W.D. Wisconsin
BRETT LIEBERMAN, individually and on behalf of all others similarly situated, Plaintiff,
PORTAGE COUNTY, MIKE LUKAS, CORY NELSON, DALE BOETTCHER, JOHN DOE PORTAGE COUNTY SHERIFF'S OFFICE PERSONNEL, and JOHN DOE PORTAGE COUNTY DISTRICT ATTORNEY'S OFFICE PERSONNEL, Defendants, and WISCONSIN COUNTY MUTUAL INSURANCE CORPORATION, Intervenor-Defendant.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Brett Lieberman was detained at the Portage County jail from
August 2014 to January 2016. He is proceeding on claims that
defendants violated his rights under the Fourth Amendment,
the Sixth Amendment, the Fourteenth Amendment as well as the
Wisconsin Constitution and the Wisconsin Electronic
Surveillance Act by recording privileged communication he had
with his lawyer and then sharing those recordings with
prosecutors, who used the recordings in court proceedings
against him. Two motions are now before the court: (1)
defendants' motion for summary judgment on the ground
that Lieberman failed to exhaust his administrative remedies,
Dkt. 54, and (2) Lieberman's motion for class
certification under Federal Rule of Civil Procedure 23(b)(2)
and 23(b)(3), Dkt. 59.
court will grant defendants' summary judgment motion in
part and deny it in part. The court concludes that the
jail's own rules did not require Lieberman to grieve his
claim that defendants recorded his privileged calls. But
defendants have shown that Lieberman did not exhaust his
administrative remedies as to his claim that defendants
shared the recordings for use in court proceedings.
court will deny Lieberman's motion to certify a class
under Rule 23(b)(2) because Lieberman isn't an adequate
representative for such a class. As for the Rule 23(b)(3)
class, Lieberman has satisfied most of the relevant
requirements. But the court will stay a decision on whether
to certify the class to allow Lieberman to submit
supplemental materials showing that his counsel meet the
requirements under Rule 23(g)(1).
FOR SUMMARY JUDGMENT
summary judgment motion is directed at Lieberman rather than
the class generally and neither side asks the court to decide
the motion for class certification first, so the court will
begin with the motion for summary judgment. See Costello v.
BeavEx, Inc., 810 F.3d 1045, 1058 n.7 (7th Cir. 2016) (Rule
23 doesn't require court to consider certification before
the merits). Under 42 U.S.C. § 1997e(a), “[n]o
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.” Generally, to comply
with' 1997e(a), a prisoner must “properly take each
step within the administrative process, ” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
includes following instructions for filing the initial
grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir.
2005), as well as filing all necessary appeals, Burrell v.
Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the
place, and at the time, the prison's administrative rules
require.” Pozo, 286 F.3d at 1025. The purpose of these
requirements is to give the prison administrators a fair
opportunity to resolve the grievance without litigation.
Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). A failure to
exhaust administrative remedies under § 1997e(a) is an
affirmative defense that must be proven by the defendants.
Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018).
case, the parties discuss the following issues in their
(1) whether Lieberman's claims fall outside the
jail's grievance procedure because they are challenges to
rules or policies;
(2) whether Lieberman was excused from filing a grievance
because jail officials stopped recording his attorney phone
calls in November 2015;
(3) whether communications between Lieberman's counsel
and jail staff satisfied the jail's rule that
“Inmates must first attempt to solve all grievances on
an informal basis with the Staff or Corporal, ” Dkt.
58-2 and 58-3;
(4) whether Lieberman complied with the jail's rule to
submit a written grievance;
(5) if Lieberman did submit a written grievance, whether that
grievance encompasses all of his claims in this case.
reasons discussed below, the court concludes that Lieberman
wasn't required under § 1997e(a) to file a grievance
on his claim that defendants were recording his attorney
phone calls, but that defendants have met their burden to
show that Lieberman failed to exhaust his administrative
remedies as to his claim that defendants turned the
recordings over to the district attorney's office for use
against Lieberman in court proceedings.
Lieberman's claim that defendants monitored and recorded
his attorney calls, it is undisputed that the jail's
custody manual in effect at the relevant time states the
following: “Grievances will not be accepted if they are
challenging the rules and policies themselves, state or local
laws, court decisions and probation/parole actions.”
Dkt. 60-7. Lieberman says that this provision applies in this
case because the jail had a policy of recording attorney
phone calls with inmates. Defendants do not deny that they
had such a policy. In fact, in their opening summary judgment
brief, they emphasize that the inmate handbook stated in bold
language that “All telephone calls are recorded and
monitored.” Dkt. 56, at 1 (citing Dkt. 58-2). An inmate
is not required to grieve an issue that the facility's
own rules say is outside the scope of the grievance
procedure. Thomas v. Reese, 787 F.3d 845, 848 (7th Cir.
2015). See also Jones v. Bock, 549 U.S. 199, 218 (2007)
(“[T]o properly exhaust administrative remedies
prisoners must complete the administrative review process in
accordance with the applicable procedural rules-rules that
are defined not by the PLRA, but by the prison grievance
process itself.” (internal citations and quotation
didn't address the statement from the custody manual in
their opening brief. But in their reply brief they contend
that the statement should not apply for four reasons: (1) the
grievance Lieberman says he filed didn't invoke a
particular rule or policy; (2) Lieberman never saw the
custody manual, so he couldn't have relied on it; (3) the
inmate handbook expressly allowed inmates to file grievances
about jail policies; and (4) defendants would have accepted a
grievance challenging the recording policy.
first argument is puzzling because it relates to a disputed
grievance that defendants deny Lieberman ever
filed. But even if the court assumes that
Lieberman did file the grievance, it wouldn't be relevant
to this argument. The question is whether Lieberman's
claim falls within the scope of the jail's grievance
system. It simply doesn't matter what words Lieberman may
have used in a grievance. Because Lieberman's claim is a
challenge to the jail's policy, it could not be grieved
under the plain language of the custody manual.
the second argument, defendants cite no authority for the
view that defendants are not required to follow their own
rules on what qualifies as a grievable issue unless an inmate
relies on that rule in deciding not to file a grievance.
Although the court of appeals has held that officials cannot
require an inmate to follow grievance procedures that
aren't published, e.g., King v. McCarty, 781 F.3d 889,
896 (7th Cir. 2015), the court has not held that jail
officials can use § 1997e(a) to require prisoners to
grieve claims that the jail's own policies say should not
be grieved. In the absence of such authority, this court
declines to adopt defendants' proposed rule.
last two arguments are related to the same question, which is
whether the policy shouldn't apply because jail officials
would have accepted a grievance that Lieberman filed about
the recording policy, if he had filed such a grievance. They
contend that Lieberman's grievance would have been
allowed under the inmate handbook, which says that a
“grievance must involve a rule, procedure, or complaint
of oppression or misconduct by an employee in the
administration of such rules.” Dkt. 58-2. They also
cite testimony of defendant Dale Boettcher (the jail
sergeant) that Boettcher “would have had a
conversation” with Lieberman if Lieberman had filed a
grievance about the recording policy. Dkt. 62 (Boettcher Dep.
of these arguments show that the jail would have accepted a
grievance challenging the recording policy. The court need
not decide whether the inmate handbook could override the
jail's custody manual because there is no conflict
between the two documents. Lieberman's claim in this case
doesn't simply “involve” a rule, which would
be permitted by the handbook; the claim is a challenge to the
policy itself, which is prohibited by the manual.
testimony is not sufficient to support a contrary conclusion.
Boettcher was equivocal, initially stating that he would have
rejected the grievance, and then stating that he would have
spoken to Lieberman about the grievance. Dkt. 62 (Boettcher
Dep. 161:1-164:2). He never testified that a grievance
challenging the recording policy was permitted under the
jail's rule. More important, after-the-fact testimony
about whether a facility would have accepted a grievance
can't trump the plain language of the policy itself.
See King, 781 F.3d at 896 (rejecting testimony that
officials would have accepted a grievance despite a contrary
policy because “the defendants cannot defeat the suit
by retroactively amending the policy with a new rule or
do not cite any evidence that they have ever accepted
grievances about policies in the past, either the recording
policy or any other. In the absence of such evidence, the
language of the custody manual is controlling. Id.
(“[N]othing in the jail's stated policy shows
beyond reasonable dispute, that the jail would have or could
have . . . otherwise relaxed its stated rules.”). So
the court will deny defendants' motion for summary
judgment on Lieberman's claim that defendants violated
his state and federal rights by recording his attorney phone
Transmitting and using the recording
alleges that defendants not only monitored and recorded his
attorney phone calls but also shared the recordings with the
district attorney's office, which then used the
information to increase the amount of his bail. Although
Lieberman alleges that defendants were disclosing information
to non-jail staff for use outside the jail, Lieberman
doesn't deny that this claim relates to “prison
conditions” and falls within the scope of §
1997e(a), so the court doesn't consider that issue.
See Morgan v. Messenger, No. CIV. 02-319-M, 2003 WL
22023108, at *2 (D.N.H. Aug. 27, 2003) (claim that prison
officials shared prisoner's private information with
parole board and county attorney was about “prison
conditions” within meaning of § 1997e(a)).
Lieberman also doesn't contend in his brief that
defendants had a policy of sharing recording of attorney
phone calls, so his argument under the custody manual
doesn't apply. By failing to make an argument, Lieberman
has forfeited the point.
other arguments fail as well. First, Lieberman says that he
was excused from filing a grievance because jail officials
stopped recording his attorney phone calls in November 2015,
which would have mooted any grievance that he filed. He
relies on Thornton v. Snyder, 428 F.3d 690, 697 (7th
Cir. 2005), in which the court held that § 1997e(a)
didn't require a prisoner to file an administrative
appeal “after receiving the relief he requested in his
grievances.” But Thorton doesn't apply
here because this claim isn't about recording
Thorton, an inmate must still exhaust if
“some remedy is available to the inmate
through the administrative process, even if not necessarily
the relief desired.” Id. at 695 (emphasis
added). In this case, the alleged change in policy would have
granted Lieberman some relief because defendants couldn't
transmit or use what they didn't record. But a decision
to stop recording phone calls going forward wouldn't stop
officials from transmitting or using calls that had already
been recorded. Lieberman doesn't allege that jail
officials ever promised not to transmit or use existing
recordings. Because part of Lieberman's claim is that
defendants stored the recordings, see Dkt. 14, at 4,
there was “still the possibility of some relief that
[jail] officials could have offered” Lieberman on this
claim, Thornton, 428 F.3d at 696, and he was not
excused from exhausting.
Lieberman says that he exhausted this claim by filing a
grievance in which he wrote, “Do not record my attorney
phone calls.” Dkt. 65 (Lieberman Dep. 79:1-3).
Defendants deny that they ever received that grievance, but
the court will assume for the purpose of this motion that
Lieberman filed it. This assumption does not help Lieberman
because the grievance said nothing about sharing or using a
recording. “[A] grievance suffices if it alerts
the prison to the nature of the wrong for which redress is
sought.” Strong v. David, 297 F.3d 646 (7th
Cir. 2002). Recording a telephone call within the jail is a
different “wrong” than sharing a recording with a
third party outside the jail and then using the recording in
a court proceeding. Jail officials reviewing the grievance
that Lieberman says he filed would not have had notice that
he was complaining about disclosure of confidential
information to the district attorney's office.
court concludes that Lieberman failed to exhaust his
administrative remedies as to his claims that defendants
transmitted and used recordings of his attorney phone calls.
Defendants are entitled to summary judgment on that claim and
the court will dismiss the claim without prejudice. Ford
v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)
(“[A]ll dismissals under § 1997e(a) should be
FOR CLASS CERTIFICATION
requirements for class certification under Rule 23 are well
established: (1) the scope of the class as to both its
members and the asserted claims must be “defined
clearly” using “objective criteria, ”
Mullins v. Direct Digital, LLC, 795 F.3d 654, 657
(7th Cir. 2015); (2) the class must be sufficiently numerous,
include common questions of law or fact, and be adequately
represented by plaintiffs (and counsel) who have claims
typical of the class, ...