United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
se plaintiffs LaDell Evans' and Brandon
Harrison's Eighth Amendment claims against defendants,
Correctional Officers Gallinger and John Doe #1, have been
previously screened to go forward in this lawsuit pursuant to
42 U.S.C. § 1983, based on defendants' alleged
failure to act on plaintiffs' reports on December 11,
2017, that they could not breathe in their shared cell due to
sewer gas fumes. There are two pending issues that require
the court's attention. First, plaintiffs' deadline to
identify the Doe defendant was October 4, 2019. (See
8/12/19 Order (dkt. #35) 5.) Neither plaintiff has filed a
proposed amended complaint that identifies Doe, nor has
either sought an extension of the October 4 deadline.
Accordingly, the court will dismiss John Doe #1 from this
lawsuit. Second, defendant Gallinger has filed a motion for
summary judgment against both plaintiffs based on their
claimed failure to exhaust administrative remedies. For the
following reasons, the court will deny the motion.
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,
defendant bears the burden of establishing that
plaintiff failed to exhaust. Jones v. Bock, 549 U.S.
199, 216 (2007).
Wisconsin, prisoners may also use the Inmate Complaint Review
System (“ICRS”) to raise issues regarding rules,
living conditions, staff actions affecting institution
environment and civil rights. Wis. Adm. Code § 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. Id. § DOC 310.09(6). The inmate
complaint examiner may accepted a late complaint upon a
showing of good cause. Id. DOC 310.07. 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.
submit undisputed evidence of the inmate complaints Evans and
Harrison submitted related to the December 11, 2017,
incident. On January 3, 2018, Evans filed WSPF-2018-281, and
on January 8, 2018, Harrison filed WSPF-2018-643. Both
complaints allege that they were subjected to toxic fumes
that were filtered into their cell through an air vent and
the shower drain. (Ex. 1002 (dkt. #38-3) 7-8; Ex. 1003 (dkt.
#38-4) 7-8.) Of relevance, both plaintiffs represented that
they had attempted to resolve the issue informally before
filing the complaint, but neither received a response to
their inquiries. Specifically, Evens wrote that he wrote to
the health services unit four times, the security director
two times, the unit manager two times, and the warden one
time, but received no response (Ex. 1002 (dkt. #38-3) 7); and
Harrison represented that he attempted to resolve the issue
by talking to CO Gallinger and by writing to the security
director, but the security director did not respond (Ex. 1003
(dkt. #38-4) 7).
Complaint Examiner (“ICE”) Ellen Ray reviewed
both inmate complaints, and Ray rejected both complaints for
being filed more than 14 days after the date of the
occurrence giving rise to the complaint, and because neither
Evans nor Harrison showed good cause to extend the 14-day
deadline to file an inmate complaint. (Ex. 1002 (dkt. #38-3)
2; Ex. 1003 (dkt. #38-4) 2.) While both plaintiffs appealed
the rejection, arguing that they were each trying to resolve
the issue informally and were waiting for a response before
filing their complaints, the Reviewing Authority, Warden
Boughton, agreed with Ray's recommendation to reject the
complaints. Evans received his copy of Warden Boughton's
decision on January 11, 2018, and Harrison received his copy
on January 24, 2018.
argues that Evans and Harrison failed to exhaust their
administrative remedies because the inmate complaints were
properly rejected as untimely. Specifically, he argues that
since the incident related to the sewer gas occurred on
December 11, 2017, their deadline to file an inmate complaint
was December 25, 2017, making their respective filing of
inmate complaints until January 3 and 8, 2018, untimely.
However, defendant does not elaborate on why ICE Ray's
conclusion that neither plaintiff made a showing of good
cause was proper.
a problem, since plaintiffs point out in their complaints
that they had been communicating with various prison
officials in an effort to resolve their issues informally,
and Evans now represents that they were doing so at the
direction a correctional officer. More specifically, plaintiff
Evans avers that they intended to file timely inmate
complaints about the incident from December 11, 2017, but
Correctional Officer McDaniels directed both of them to wait
14 working days before filing an inmate complaint,
so that plaintiffs could “follow the established chain
of command” by writing to “[t]he Unit Manager,
Security Directed, and then also the Warden, ” as well
as giving them “an appropriate amount of time to
respond” before filing an inmate complaint. (Evans
Decl. (dkt. #39).) Plaintiffs' position is that this
directive caused their delay, pointing out that if they
refused to follow McDaniels' directive, they would be
subject to discipline. Defendant Gallinger has not responded
to this argument, nor has he suggested that there is a
genuine factual dispute related to McDaniels' directions
the DOC's 14-day deadline to file an inmate complaint may
have been clear, CO McDaniels' undisputed statements to
both plaintiffs about following the “chain of
command” and waiting 14 days to file the inmate
complaint, muddied the waters. In particular, when a
prisoner's failure to exhaust properly his administrative
remedies is attributable to prison staff's conduct, the
court will not dismiss a claim for failure to exhaust,
especially when only a matter of a few weeks difference is at
stake. See Kaba v. Stepp, 458 F.3d 678, 684 (7th
Cir. 2006) (“[W]hen prison officials prevent inmates
from using the administrative process . . . the process that
exists on paper becomes unavailable in reality.”);
Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004)
(dismissal inappropriate when prisoner failed to complete
grievance process due to prison officials'
misinformation). Indeed, in similar circumstances, this court
has concluded that an inmate complaint submitted after the
14-day deadline did not amount to a failure to exhaust
because prison officials caused confusion about what the
prisoner must do before filing a complaint. See Hudson v.
Radtke, No. 08-cv-458-BBC, 2009 WL 1597259, at *4 (W.D.
Wis. June 5, 2009) (grievance found to be timely, in part,
because warden told inmate he had to resolve grievance
through “the chain of command” before filing an
defendant has not carried his burden of proving that
plaintiffs failed to exhaust their administrative remedies
with respect to their claims in this lawsuit, the court will
deny his motion.