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Gant v. Cushing

United States District Court, E.D. Wisconsin

September 19, 2019

JARROD GANT, Plaintiff,
v.
DANIEL CUSHING, et al., Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Jarrod Gant, a Wisconsin inmate representing himself, brings this lawsuit under 42 U.S.C. § 1983. Gant alleges an Eighth Amendment excessive force claim against the defendants. Before me is the defendants' motion for summary judgment. They argue that Gant did not exhaust the available administrative remedies before initiating this lawsuit. For the reasons explained below, I will grant defendants' motion for summary judgment.

         RELEVANT FACTS

         On April 4, 2019, the institution complaint examiner's office received Gant's inmate complaint related to the claim at issue in this case. (ECF No. 31 at ¶¶ 3-4.) The inmate complaint examiner recommended dismissal of the complaint on the basis that a security supervisor had already reviewed video of the incident and found staff's actions to be reasonable and necessary. (Id. at ¶ 5.) The next day, on April 5, 2019, the reviewing authority agreed with the inmate complaint examiner's recommendation and dismissed the inmate complaint. (Id. at ¶ 6.) In dismissing the complaint, the examiner wrote, “Noting this has already been reviewed by a Security Supervisor there is no need for a parallel investigation through the ICRS.” (ECF No. 37-1.) Gant did not appeal the dismissal to the corrections complaint examiner's office.

         ANALYSIS

         1. Applicable Law

         Because Gant was incarcerated when he filed his complaint, the Prisoner Litigation Reform Act (PLRA) applies to this case. 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). According 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). Wis. Admin. Code § DOC 310.10 outlines the procedures by which inmate complaint examiners review and process inmate complaints. Wis. Admin. Code § DOC 310.12(1) states that, “An inmate may appeal the reviewing authority decision within 14 days after the date of the decision . . . .”

         A prisoner is not required to exhaust the 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 do not respond to a properly filed inmate complaint or when they 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).

         The U.S. Supreme Court has recently confirmed that the language in § 1997e(a) requiring prisoners to exhaust the available administrative remedies is mandatory. Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). There is only one qualifier: the remedies must be available. Id. “But aside from that exception, the PLRA's text suggests no limits on an inmate's obligation to exhaust-irrespective of any ‘special circumstances.” Id. Accordingly, because the requirement to exhaust is a statutory requirement, there is no judicial discretion to excuse an inmate's failure to exhaust when the administrative remedies were available to him. Id. at 1857.

         2. Application to this Case

         In this case, Gant concedes that he did not appeal the dismissal. (ECF No. 36 at 3.) However, he explains that, in recommending dismissal of his inmate complaint, the inmate complaint examiner stated, “Noting this has already been reviewed by a Security Supervisor there is no need for a parallel investigation through the ICRS.” (ECF No. 37-1.) Gant asserts that he understood this statement to mean that appealing the dismissal was unnecessary and that doing so would waste the time and resources of the corrections complaint examiner's office. (ECF No. 36 at 3.)

         The defendants counter that this is not what the inmate complaint examiner meant; the inmate complaint examiner meant only that no further investigation of the inmate complaint was necessary to support the recommendation to dismiss. (ECF No. 38.)

         As explained by the Supreme Court, a “reasonable misunderstanding or disagreement” will not excuse an inmate's failure to exhaust the available administrative remedies. Ross, 136 S.Ct. at 1858. Failure to exhaust will be excused only if the statement “thwart[ed] [Gant] from taking advantage of a grievance ...


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