United States District Court, W.D. Wisconsin
RICKY N. ALEXANDER, Plaintiff,
LIEUTENANT R. RASMUSSEN and LIEUTENANT D. STRELOW, Defendants.
D. PETERSON District Judge
plaintiff Ricky Alexander, a state prisoner incarcerated at
Wisconsin Secure Program Facility, filed this lawsuit against
officials at his prior prison, Dodge Correctional Institution
(DCI). Dkt. 1. Alexander is African-American, and while at
DCI he got into a fight with a white inmate. Alexander
alleges that although both inmates were at fault, only he was
disciplined. He asserts claims for violation of the Equal
Protection Clause of the Fourteenth Amendment.
previously moved to dismiss the case under Federal Rule of
Civil Procedure 12(b)(6), contending that Alexander failed to
exhaust his claims. Dkt. 16. Because granting the motion
would have required me to consider evidence from outside the
pleadings, I converted the motion to a motion for summary
judgment under Rule 12(d) and gave Alexander the opportunity
to respond. Dkt. 21. Alexander has now submitted a response,
Dkt. 24, as have defendants, Dkt. 25. Because the record
shows that Alexander failed to timely exhaust his claim, I
will grant the motion for summary judgment and dismiss the
the Prison Litigation Reform Act, “[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 . . .
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The exhaustion
requirement is mandatory and applies to all inmate suits.
Woodford v. Ngo, 548 U.S. 81 (2006); Porter v.
Nussle, 534 U.S. 516, 524 (2002).
1997e(a) requires “proper exhaustion, ”
Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
means that the prisoner must follow prison rules when filing
the initial grievance and all necessary appeals, “in
the place, and at the time, the prison's administrative
rules require.” Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005). Under the DOC regulations that
were in place at the time, Alexander was required to file a
grievance within 14 days of the occurrence giving rise to the
grievance. Wis. Admin. Code § DOC 310.09(6) (2002).
previous orders, I noted that Alexander had likely failed to
exhaust his claim because he did not file a grievance until
years after the challenged conduct occurred, and because he
said that his grievance was dismissed as untimely. Dkt. 8 and
Dkt. 21, at 4. But I did not grant defendants' motion to
dismiss because it was possible, based on the pleadings, that
a complaint examiner had addressed the merits of his
grievance on appeal. See Maddox v. Love, 655 F.3d
709, 722 (7th Cir. 2011) (“Where prison officials
address an inmate's grievance on the merits without
rejecting it on procedural grounds, the grievance has served
its function of alerting the state and inviting corrective
action, and defendants cannot rely on the failure to exhaust
defense.”). I gave Alexander a chance to respond to my
order and show whether this was the case.
with the entire record before the court, it's clear that
complaint examiners at every level of review denied
Alexander's grievance as untimely. Dkt. 26-2. Alexander
nonetheless contends that his grievances were timely because
they complained of an ongoing violation. See e.g., Wilder
v. Sutton, 310 Fed.Appx. 10, 15 (7th Cir. 2009)
(prisoner exhausted his claim when prison rejected as
untimely his complaint of ongoing First Amendment and RLUIPA
violations). Alexander says that when he was disciplined for
fighting, he was ordered to pay restitution to the other
inmate. He argues that because he is still required to make
restitution payments, he continues to suffer an ongoing
denial of his right to equal protection under the Fourteenth
Amendment. But the constitutional violation, if any, occurred
when defendants charged Alexander with misconduct and
disciplined him for fighting. The restitution payments are
merely a consequence of the alleged constitutional violation,
not a continuation of the violation. Cf. Savory v.
Lyons, 469 F.3d 667, 672-73 (7th Cir. 2006) (for claims
barred by statute of limitations, continuing violation
doctrine does not apply to a “discrete act” that
has “lingering consequences”). Because the
alleged conduct occurred years before Alexander filed his
grievance, he failed to timely exhaust his claim. So I will
grant summary judgment for Alexander's failure to
properly exhaust administrative remedies and dismiss without
prejudice. See Ford v. Johnson, 362 F.3d 395, 401
(7th Cir. 2004) (“[A]ll dismissals under §
1997e(a) should be without prejudice.”).
I am dismissing the claim without prejudice, it is unlikely
that Alexander will be able to exhaust his claim in the
future. Merely filing additional grievances will not be
sufficient to exhaust his claim. If Alexander attempts to
bring this suit again, he will need to show that prison
officials did not reject his grievance as untimely.
say that Alexander's claim was doomed from the start, and
they ask me to declare that Alexander's case was
frivolous. Essentially, defendants are asking me to assess a
“strike” against Alexander under 28 U.S.C. §
1915(g) for failure to exhaust his claims. Alexander's
case was flawed from the start, but there is no affirmative
evidence that Alexander's actions were malicious.
Ultimately, his claims fail because he did not timely exhaust
them, but the dismissal of an action for failure to exhaust
does not result in a strike. Turley v. Gaetz, 625
F.3d 1005, 1013 (7th Cir. 2010).
IT IS ORDERED that:
1. Defendants' motion for summary judgment, Dkt. 16, is
GRANTED, and the case is DISMISSED without prejudice for
plaintiff Ricky Alexander's failure to exhaust his