United States District Court, W.D. Wisconsin
VINCENT E. BOYD, Plaintiff,
CHRIS HEIL, TANIA REINDL, BRIAN FOSTER, MICHAEL BAENEN, LT. SWIEKATOWSKI, LT. VAN LANEN, LT. VANDEWALLE, and WARDEN ECKSTEIN, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
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.
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
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
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.
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.
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.
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).
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. §
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.