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Hunter v. Kast

United States District Court, E.D. Wisconsin

August 21, 2019

LOISON KAST, et al ., Defendants.



         Otis Larue Hunter, Jr., a Wisconsin inmate representing himself, brings this lawsuit under 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights. On April 10, 2019, defendants Loison Kast and Luke Katze moved for summary judgment on the basis that Hunter did not exhaust the available administrative remedies before he initiated this case. The defendants assert that Hunter failed to file an inmate complaint that complied with the DOC's rules, despite being given two opportunities to do so. (ECF No. 17 at 1.)

         Hunter disputes that he did not comply with the inmate complaint examiner's (ICE) orders. He explains that he filed his first inmate complaint on July 18, 2018. (See ECF No. 19-2 at 2; ECF No. 30-1 at ¶ 6.) The ICE returned that complaint the same day and gave him the opportunity to file a second inmate complaint. (ECF No. 19-2 at 1.) Hunter filed his second inmate complaint on July 24, 2018. (ECF No. 19-3 at 2.) The ICE returned Hunter's second inmate complaint two days later and gave him the opportunity to file a third inmate complaint. (ECF No. 19-3 at 1.) The defendants assert that Hunter did not file a third inmate complaint. (ECF No. 19 at ¶ 12.) Hunter states that he did, but he never received a response. (ECF Nos. 24 at 4; 26 at ¶¶ 4-9; 30-1 at ¶ 15.)

         Because there was conflicting evidence about whether Hunter submitted a third inmate complaint, On July 11, 2019, I held an evidentiary hearing to “hear evidence, find facts, and determine credibility.” Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (citations omitted). After duly considering the testimony and evidence presented, for the reasons explained below, I will deny defendants' motion for summary judgment for failure to exhaust.


         At the evidentiary hearing, Hunter and Dodge Correctional Institution inmate complaint examiner Joanne Bovee testified. Hunter testified first in the defendants' case in chief, as an adverse witness. He began by testifying that Bovee rejected the first two inmate complaints he submitted about the incident at issue in this case. (Evid. Hearing Recording at 4:58-5:49.)[1] According to Hunter, in the second rejection letter, Bovee gave him an opportunity to submit a third inmate complaint. (Id. at 5:53-6:13.) Hunter testified that he complied and submitted a third inmate complaint shortly thereafter. (Id. at 6:19-7:40.) When he did not hear anything back from Bovee, he also submitted interview request forms and he filed an inmate complaint appeal. (Id.)

         Hunter testified that he was hoping that the corrections complaint examiner (who review appeals) would follow up with the institution inmate complaint examiners, who would then investigate his inmate complaints. (Id. at 10:23-10:56.) Hunter explained that he reproduced an inmate complaint form and included it with his appeal to give the corrections complaint examiner an idea of what was in his inmate complaints. (Id. at 7:41-8:35.) The reproduced inmate complaint had the same general information as what was in the inmate complaints he submitted at his institution. (Id. at 15:27-17:42.) Hunter clarified, however, that the reproduced inmate complaint was not an exact copy of what he had submitted at his institution. (Id. at 7:41-8:35.)

         Hunter dated the reproduced inmate complaint with the date he signed and sent the appeal, August 14, 2018. (Id. at 17:50-18:31.) He explained that the form asked for the date signed, which is why he dated it August 14; Hunter clarified that August 14 is not the date he submitted his third inmate complaint to Bovee. (Id. at 19:30-20:27.) He submitted his third inmate complaint on approximately July 28, 2018. (Id. at 20:07-37.)

         Bovee was next to testify. She is employed at Dodge, where she has worked as an institution complaint examiner for about twenty-two years. (Id. at 20:23-22:19.) She has worked for the Department of Corrections for a total of thirty-four years. (Id. at 23:27-34.) Bovee testified that, as an inmate complaint examiner, her responsibilities include ensuring that all inmates get a fair and impartial investigation into their allegations, collecting information, interviewing witnesses, and getting documentation. (Id. at 20:35-23:54.)

         Bovee confirmed that she was an inmate complaint examiner at Dodge during the time Hunter submitted his inmate complaints. (Id. at 23:54-24:00.) There was a second inmate complaint examiner at that time; they split their workload based on inmate numbers. (Id. at 24:01-27.) Bovee handled inmate complaints from inmates with odd inmate numbers; the other inmate complaint examiner handled complaints from inmates with even inmate numbers. (Id.) Because Hunter's inmate number is odd, she was the one to handle his complaints. (Id. at 24:27-56.)

         Bovee briefly described the inmate complaint process. (Id. at 25:07-26:25.) She explained that inmates can get an inmate complaint form from the officer on their unit or by writing her and asking for one. (Id.) Once the inmate writes his complaint, the inmate places it in a confidential envelope that is stamped to be opened only by the inmate complaint examiner. (Id.) After the complaint is submitted to Bovee's office, she opens the envelopes, date stamps them, reviews them, and splits them between caseloads. (Id.) For her caseload, she first reviews the complaints to determine whether they comply with the administrative code. (Id.) If a complaint does not, she will draft a return letter instructing the inmate on what to do to properly file his complaint. (Id.) If it is properly filed, she investigates the complaint and drafts a recommendation to the warden. (Id.) The warden makes the final decision. (Id.)

         Bovee testified that copies of inmate complaints, including returned complaints, are scanned and saved in the Inmate Complaint Tracking System (ICTS). (Id. at 26:26-49; 27:45-55.) Bovee could not think of any circumstances under which an inmate's complaint would not be saved in ICTS. (Id. at 26:50-56.) She explained that she will not accept an inmate complaint if it is not properly filed. (Id. at 26:57-27:24.) For example, an inmate may be required to first attempt to informally resolve an issue, may be required to submit a signed form, or may be required to limit his complaint to one issue. (Id.) Bovee testified that she is obligated to give inmates one opportunity to correct a rejected inmate complaint. (Id. at 27:24-48.) She is not obligated to give them more than one opportunity to correct a complaint. (Id.)

         Bovee testified that Hunter submitted an inmate complaint on July 18, 2018, regarding the incident at issue in this case. (Id. at 32:00-20.) Bovee returned the complaint to Hunter and instructed him to first try and informally resolve his complaint. (Id. at 32:21-33:03.) Hunter submitted a second inmate complaint on July 26, 2018. (Id. at 33:09-26.) Bovee returned his second inmate complaint the next day; the most glaring issue was that Hunter had used an outdated form. (Id. at 33:27-34:16.) Even though she was not required to, Bovee gave Hunter a second opportunity to submit a properly filed complaint. (Id. at 39:10-30.) Under DOC rules at that time, inmates had ten days to submit a corrected complaint after being given an opportunity to do so. (Id. at 43:24-44:10.) Bovee testified that she did not receive a third inmate complaint from Hunter. (Id. at 39:31-40:24; 45:30-48.)

         The defendants rested their case, and Hunter testified again, as his only witness. Hunter explained that he received Bovee's second return letter on about July 26, 2018; the main thing that caught his eye was that he had used an outdated form when he submitted his second inmate complaint. (Id. at 1:33:48-1:34:02.) He stated that he did all he was supposed to do to address Bovee's concerns. (Id. at 1:36:45-48.) He first asked a correctional officer for a current complaint form, which he received when the supply cart came around at mealtime. (Id. at 1:34:03-30.) Hunter testified that he completed the form, making sure to address Bovee's reasons for returning his ...

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