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Boyd v. Heil

United States District Court, W.D. Wisconsin

January 13, 2020

VINCENT E. BOYD, Plaintiff,



         Pro se plaintiff Vincent E. Boyd has been allowed to proceed in this lawsuit against several Green Bay Correctional Institution (“GBCI”) employees on First Amendment claims that they refused to send his mail on multiple occasions and issued him several conduct reports and disciplined him in retaliation for attempting to send the mail. Now before the court is defendants' motion for partial summary judgment as to three of Boyd's retaliation claims based on his claimed failure to exhaust his administrative remedies (dkt. #27), as well as Boyd's request that the court serve his mother with discovery requests (dkt. #26). For the reasons that follow, the court will grant defendants' motion and will undertake to act as intermediary in Boyd's discovery request.


         On October 15, 2012, defendant Chris Heil, a social worker at GBCI, issued an order restricting Boyd's ability to send mail and communicate with certain individuals. In the order, Heil reported that a search of Boyd's cell recovered multiple photographs of Boyd's three-year-old daughter that Heil deemed provocative and sexually inappropriate. (Ex. 1001 (dkt. #29-1) 13.) Heil noted that he was aware that Boyd's mother, Linda Zdeb, had been taking, printing and mailing the photographs, and there was evidence that Zdeb had been helping Boyd circumvent prison mail and phone call policies. Heil also recounted certain state court findings related to Boyd's interactions with minor children, including that: (1) Boyd had been convicted of First and Second Degree Sexual Assault of a Child, for which he denied responsibility; (2) a state court judge had prohibited Boyd from having contact with minor females or with a victim of his crime of conviction; and (3) a juvenile court had found by clear and convincing evidence that Boyd had sexually abused his three-year-old daughter's half-brothers. Accordingly, Social Worker Heil ordered that Boyd was prohibited from: (1) communicating with Zdeb (except for written communications screened by Boyd's social worker); (2) communicating with any minors, including his victims and his victims' families; and (3) possessing any pictures, photographs, drawings or likenesses of any minors (Id.)

         Boyd subsequently attempted to send multiple pieces of mail to Zdeb. In response, defendants not only refused to send that mail, but issued Boyd conduct reports, charging him with disobeying orders and the unauthorized use of the mail. Boyd's retaliation claims in this lawsuit relate to those conduct reports.


         I. Exhaustion

         The court granted Boyd leave to proceed on two types of First Amendment claims. First, the court allowed Boyd to proceed on claims related to: (a) defendant Heil's order limiting him to written communications with his mother and defendants Heil and fellow social worker Reindl's implementation of that order; (b) defendant Heil's decision prohibiting him from sending a letter to an alleged victim; and (c) defendant Reindl's decision to prohibit him from sending out a written communication that was disparaging of her. Second, the court allowed Boyd to proceed on First Amendment retaliation claims related to five conduct reports and disciplinary actions that defendants Heil, Reindl, Swiekatowski, Van Lanen, Vandewalle, Baenen and Foster issued him for attempting to send mail.

         Defendants seek partial summary judgment on exhaustion grounds. Specifically, they claim that Boyd failed to exhaust his administrative remedies with respect to his retaliation claims arising from three of the conduct reports Boyd received for the mail he tried to send Zdeb: Conduct Reports 1796229, 1796236, and 2360244.

         Under 42 U.S.C. § 1997e(a), “[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 confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Generally, a prisoner also must “properly take each step within the administrative process” to comply with § 1997e(a). Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), and filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), that are “in the place . . . at the time, [as] the [institution's] administrative rules require.” Pozo, 286 F.3d at 1025.

         The purpose of this exhaustion requirement is to give the prison administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006); see Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“once a prison has received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion requirement”). If a prisoner fails to exhaust administrative remedies before filing his lawsuit, then the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, however, defendants bear the burden of establishing that plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         Under the regulations that existed during the relevant time period, to exhaust a claim related to a conduct report, prisoners must first raise it at the disciplinary hearing and again on appeal to the warden. See Wis. Admin. Code § DOC 303.82(1). However, challenges to a conduct report or administrative confinement placement may also be pursued using the Inmate Complaint Review System (“ICRS”), outlined in Wis. Admin. Code Ch. DOC 310. See Wis. Admin. Code §§ DOC 310.05, 310.08(2)(a), (3). Prisoners may also use the ICRS to raise issues regarding rules, living conditions, staff actions affecting institution environment and civil rights. § DOC 310.08(1).

         Prisoners start the complaint process by filing an inmate complaint with the institution complaint examiner within 14 days after the occurrence giving rise to the complaint. Wis. Admin. Code § DOC 310.09(6). The complaint may “[c]ontain only one issue per complaint, and shall clearly identify the issue.” Id. § 310.09(e). If the institution complaint examiner rejects a grievance for procedural reasons without addressing the merits, an inmate may appeal the rejection. Id. § 310.11(6). If the complaint is not rejected, the institution examiner makes a recommendation to the reviewing authority as to how the complaint should be resolved. Id. § 310.11(6). The offender complaint is then decided by the appropriate reviewing authority, whose decision can be appealed by the inmate to a correctional complaint examiner (“corrections examiner”). Id. §§ 310.12, 310.13. The corrections examiner then makes a recommendation to the Secretary of the Department of Corrections, who takes final action. Id. §§ 310.13, 310.14.

         A. Conduct ...

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