United States District Court, E.D. Wisconsin
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
FOR FAILURE TO EXHAUST
JOSEPH, UNITED STATES MAGISTRATE JUDGE
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
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.)
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.
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.) 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.)
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.)
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.)
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.)
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
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.)
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.
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.)
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