United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
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
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).
February 28, 2019, defendant Lori Biagioni moved for summary
judgment on the basis that Daul did not exhaust the available
administrative remedies before he filed his lawsuit. She
asserts that there are no documents suggesting that an inmate
complaint about the allegations in this case was received.
(ECF Nos. 53 at 4-5; 55 at ¶¶ 11-12.) Daul disputes
that he did not file an inmate complaint. He argues that the
administrative remedies were unavailable because the inmate
complaint he filed was returned to him shortly after he
submitted it without a date stamp or return letter. (ECF No.
50 at 3.) Because there was conflicting evidence about
whether Daul submitted an inmate complaint, the court held an
evidentiary hearing on August 1, 2019, to “hear
evidence, find facts, and determine credibility.”
Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018)
court found Daul to be credible. His testimony was organized
and consistent with his filings in this case, and he
acknowledged when he could not remember particular details.
He testified that, shortly after Biagioni cleaned his teeth
on August 17 or 18, 2016, he prepared an inmate complaint. He
could not remember the exact date, but he was confident that
he filed the inmate complaint within two days of his dental
time, Daul was housed in the restricted housing unit at Green
Bay Correctional Institution (GBCI). As a result, he was
dependent on correctional officers to give him supplies and
deliver his inmate complaints. The officers would provide him
with complaint forms and envelopes. After he completed an
inmate complaint, he would slide the envelope under his cell
door, after which the correctional officers would deliver the
envelope to a locked box for internal mail.
regard to his complaint relating to the teeth cleaning by
Biagioni, Daul explained that he wrote his inmate complaint
and waited for officers to distribute supplies so he could
get an envelope. Daul agreed that defendant's Exhibit 1
(ECF No. 63-1) is an accurate copy of the envelope inmates
are to use to submit inmate complaints. Daul explained that
his cell was near the end of the cell block, so the supply
cart was often depleted by the time officers reached him.
Daul testified that, when he asked for an envelope for his
complaint, he was told there were no envelopes left.
According to Daul, this was not uncommon.
explained that, because there were no inmate envelopes on the
supply cart, he decided to repurpose an envelope he had
received from the inmate complaint examiner. The envelopes
used by the inmate complaint examiners are different from the
envelopes used by the inmates to submit complaints; the
inmate complaint examiner envelopes contain responses to
inmate complaints (such as rejection letters,
recommendations, and returned inmate complaints). Daul
crossed out the old information on the envelope, addressed
the envelope to the inmate complaint examiner, and wrote his
name and other information in the top, left-hand corner. Daul
testified that he then slid the envelope under the cell door
for delivery to the inmate complaint examiner.
to Daul, the next day a correctional officer returned the
envelope to him. He noted that it did not have a
date-received stamp, nor did it appear to have been opened.
He opened the envelope and saw that it contained only his
inmate complaint. There was no correspondence from the inmate
complaint examiner, such as a rejection letter. According to
Daul, because his complaint had been picked up the night
before at 5 p.m., he did not believe that it had been
delivered to the inmate complaint examiner. Instead, he
surmised that it had been “plucked” from the mail
and returned to him undelivered.
frequently submits inmate complaints. But, at that time,
GBCI, where Daul was housed, limited the number of complaints
an inmate can submit each week to two. Inmate complaints
about health and safety issues were excepted from that limit.
Daul testified that he decided not to resubmit the inmate
complaint relating to Biagioni, opting to prioritize other
Perttu, one of the two inmate complaint examiners at GBCI,
testified that, during August and September 2016, she
received twelve inmate complaints from Daul (see
Defendant's Exhibit 3, ECF No. 63-3); none of the
complaints were about the misconduct alleged in this case.
She testified that an inmate complaint about damage to
one's teeth (the misconduct alleged in Daul's amended
complaint) would not have been subject to the
properly exhaust administrative remedies, prisoners must file
their inmate complaints in the manner that the
institution's administrative rules require. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Daul
concedes that he used the wrong envelope to deliver his
inmate complaint to the inmate complaint examiner. It appears
that the person who sorted the mail saw an envelope typically
sent by an inmate complaint examiner to an inmate and had it
delivered to Daul instead of to the inmate complaint
examiner. While Daul's use of the wrong envelope did not
lead to his inmate complaint being rejected, it did cause
some confusion, which Daul took no steps to remedy.
argues that an officer “plucked” the inmate
complaint out of the mail to harass him and prevent him from
filing his inmate complaint. That theory is not plausible. An
officer wanting to interfere with Daul's complaint would
have simply thrown it away or waited until after the
fourteen-day filing period had lapsed before ...