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Lieberman v. Portage County

United States District Court, W.D. Wisconsin

June 27, 2019

BRETT LIEBERMAN, individually and on behalf of all others similarly situated, Plaintiff,



         Plaintiff 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.

         The 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.

         The 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).


         Defendants' 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).

         In this case, the parties discuss the following issues in their briefs:

(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.

         For the 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.

         A. Recording

         As for 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 marks omitted)).

         Defendants 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.

         Defendants' first argument is puzzling because it relates to a disputed grievance that defendants deny Lieberman ever filed.[1] 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.

         As for 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.

         Defendants' 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. 162:19- 163:3).

         Neither 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.

         Boettcher's 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 policy”).

         Defendants 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 calls.

         B. Transmitting and using the recording

         Lieberman 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.[2] By failing to make an argument, Lieberman has forfeited the point.

         Lieberman's 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 Lieberman's calls.

         Under 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.

         Second, 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.[3] “[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.

         The 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 without prejudice.”).


         The 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, ...

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