Butala v. Gerlicher et al

Filing 26

ORDER - Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: The motion of defendants Cari Gerlicher, Michael Smith, Joe Durocher, and Barbara Stoltz for summary judgment 11 is GRANTED. Counts 1 and 2 of plaintiffs' complaint 2 are DISMISSED WITHOUT PREJUDICE as to those defendants. (Written Opinion). Signed by Judge Patrick J. Schiltz on 01/22/14. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
LUCAS BUTALA,

Case No. 13-CV-0633 (PJS/TNL)
Plaintiff,

v.

ORDER

CARI GERLICHER, Office of Special
Investigations Director, sued in her individual
capacity only; MICHAEL SMITH, Office of
Special Investigations Unit Deputy Director,
sued in his individual capacity only; JOE
DUROCHER, Case Manager, sued in his
individual capacity only; BARBARA
STOLTZ, sued in her individual capacity
only; JANE DOE, Correctional Sergeant,
sued in her individual capacity only; JOHN
DOE, Prison Official, sued in his individual
capacity only; JANE DOE, Prison Official,
sued in her individual capacity only,
Defendants.
Terrence P. Duggins, DUGGINS LAW FIRM, LLC, for plaintiff.
Jacob D. Campion, MINNESOTA ATTORNEY GENERAL’S OFFICE, for
defendants Cari Gerlicher, Michael Smith, Joe Durocher, and Barbara Stoltz.
In this lawsuit, plaintiff Lucas Butala (a prisoner) brings various federal and state claims
against various prison officials. The named defendants have moved for summary judgment on
Butala’s federal claims on the ground that Butala failed to exhaust administrative remedies. The
named defendants also argue that, in the event that their motion is granted and the federal claims
are dismissed, the Court should decline to exercise supplemental jurisdiction over Butala’s statelaw claims.
For the reasons stated below, the Court grants the motion and dismisses Butala’s federal
claims against the named defendants for failure to exhaust administrative remedies. But because

Butala must be given an opportunity to identify the unnamed defendants, the Court cannot yet
dismiss this entire action. Thus, for the time being, the Court will retain jurisdiction over
Butala’s state-law claims — although, as discussed below, the Court will not exercise
supplemental jurisdiction over those claims if the unnamed defendants are also granted summary
judgment on the federal claims.
I. BACKGROUND
A. Butala’s Transfer and the Assaults
As alleged in Butala’s complaint (and supplemented by the record), the events that gave
rise to this lawsuit are as follows:
Butala was incarcerated by the Minnesota Department of Corrections (“DOC”) in 2000
after he was convicted of killing two men by dousing them with gasoline and setting them on
fire. In March 2008, Butala was transferred from MCF-Rush City1 to MCF-Oak Park Heights
(“MCF-OPH”). Butala alleges that prison officials transferred him despite knowing that Butala
would be in danger from prison gangs at MCF-OPH and despite knowing that Butala’s “custody
credit points” did not warrant his incarceration at a maximum-security facility such as MCFOPH.
While at MCF-OPH, Butala was assaulted twice: once in December 2008 and once in
January 2009.2 After the first assault, Butala was placed in segregation. Butala notified
defendants Joe Durocher and Barbara Stoltz that he would be in danger if he was placed back

1

“MCF” stands for “Minnesota Correctional Facility.”

2

Butala’s complaint alleges that he was assaulted on December 17; the record indicates
that the assault actually took place on December 10. See Butala Aff. ¶ 9; Plf.’s Ex. 11.
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into the general population. Durocher and Stoltz, in turn, demanded that Butala provide the
names of the inmates who had threatened him. Butala explained that two prison gangs had
issued a “green light” on him (i.e., had directed gang members to attack him), which meant that
he was in danger from every member of both gangs. Because Butala would not provide specific
names, he was released back into the general population, where he was again assaulted on
January 15, 2009. Butala suffered serious injuries from the second assault. Ultimately, in 2010,
Butala was transferred to a prison in Wisconsin, where he remains incarcerated.
On the basis of these events, Butala asserts three substantive claims — two federal and
one state:3 (1) defendants transferred him to MCF-OPH even though he did not meet the
custody-credit guidelines for incarceration at that facility, in violation of the Fifth, Eighth, and
Fourteenth Amendments;4 (2) defendants knowingly failed to protect him from being assaulted at
MCF-OPH, in violation of the Eighth and Fourteenth Amendments; and (3) defendants
negligently failed to protect him from foreseeable harm and negligently placed him at MCF-OPH
even though he did not meet the custody-credit guidelines for incarceration in that facility.

3

Butala’s complaint contains four numbered claims. The first three substantially overlap
and the fourth is for punitive damages, which is not a separate cause of action. The Court
discusses Butala’s federal claim relating to the assaults separately from his federal claim relating
to the transfer. Butala’s argument that these claims are intertwined for exhaustion purposes is
discussed below.
4

Curiously, Butala cites the Due Process Clause of the Fifth Amendment as “made
applicable to the states by the Fourteenth Amendment,” rather than simply citing the Fourteenth
Amendment.
-3-

B. The DOC’s Grievance Procedure
Under the DOC’s grievance procedure, a prisoner must first attempt to informally resolve
his grievance by submitting a “kite,” which is a printed form that prisoners use to communicate
with staff. Ebeling Aff. Ex. 1 at 1. If the prisoner is dissatisfied with the response to his kite, he
may initiate the formal grievance procedure by completing an “Offender Grievance form” and
submitting the form to the facility grievance coordinator. Id. at 2. If the prisoner’s grievance is
procedurally defective in some way, the coordinator returns it to the prisoner and explains the
nature of the problem. Id.; see Plf.’s Ex. 6. If the grievance is not returned, the coordinator logs
it into a database and notifies the prisoner of the date that his grievance was logged. Ebeling Aff.
Ex. 1 at 2.
On the Offender Grievance form, the prisoner must identify a single complaint and the
relief he seeks. Id. The prisoner must also attach all kites showing his attempts to informally
resolve his complaint. Id. Grievances are decided by the warden or his designee; the prisoner is
entitled to written notice of the decision within 20 working days (or 40 working days if the
prisoner receives notice of an extension). Id. If no written notice is given within the required
time, the grievance is deemed dismissed. Id. at 3.
To appeal an adverse decision, the prisoner must submit an appeal form to the centraloffice grievance-appeal coordinator (“appeal coordinator”). Id. at 3. Appeals must be submitted
within 15 working days of the date that the warden or his designee signed the response to the
grievance. Id. As with the initial grievance, the appeal will be returned to the prisoner if it is
procedurally defective in some way. Id. Appeals are ordinarily decided by the commissioner’s
assistant or deputy. Id. at 4. If the prisoner does not receive a decision on his appeal within
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20 working days (or 40 working days if he is notified of an extension), the prisoner may report
the matter to the commissioner for a resolution. Id. After the appeal is resolved, there are no
further appeals. Id.
There is an alternative procedure for prisoners who fear that they would be endangered if
their grievance became known to staff at their place of incarceration. Such prisoners may bypass
the facility grievance coordinator and instead submit their formal grievance directly to the appeal
coordinator. Id. at 3. Under these circumstances, there is no second level of appeal; the appeal
coordinator makes the one and only decision on the grievance. Id. at 3.
C. Butala’s Written Complaints and Use of the Grievance Procedure
On March 9, 2008, after Butala learned that he would be transferred to MCF-OPH, he
sent a letter to the “Internal Affairs Central Office” and submitted kites to a staff member and to
the warden. Plf.’s Exs. 3-5. These documents are somewhat difficult to follow, but they seem to
protest that Butala was being (wrongly) accused of ordering an assault on another inmate, and
they seem to argue that this accusation was made as part of a campaign to retaliate against Butala
because he had engaged in a romantic relationship with a member of the prison staff. The letter
and the kite to the warden explicitly sought to stop the pending transfer; the kite to the staff
member did not expressly mention the pending transfer, but the staff member apparently
understood it to concern that issue, as he responded that “my previous response still appl[ie]s you
will be transferred to another facility soon . . . .” Plf.’s Ex. 4.5 The kites did not mention any
threats or fear of violence at MCF-OPH, but the letter to internal affairs stated that “I have a lot

5

The “previous response” apparently concerned a March 4, 2008 kite from Butala, which
defendants, but not Butala, submitted to the Court. See Ebeling Aff. Ex. 2 at 10.
-5-

of time to do and I don’t want it to be where I will have to fear for my well-being.” Plf.’s Ex. 3.
Neither the kites nor the letter said a word about Butala’s custody points.
On the same day or shortly thereafter, Butala submitted a formal grievance directly to the
appeal coordinator, protesting the alleged retaliation against him and asking that the pending
transfer be delayed while his claims could be investigated.6 Plf.’s Ex. 6. Butala also complained
about being sent to MCF-OPH because his life would be in “serious danger” from his rivals. Id.
Butala’s formal grievance, like his informal kites and letter, did not say a word about Butala’s
custody points.
On March 26, the DOC notified Butala that it had logged his grievance, which it labeled
#3527. Plf.’s Ex. 7. On April 1, Butala wrote a letter in response to this notification, again
objecting to his transfer for various reasons and for the first time mentioning that his 22 custody
points are “a step away from Medium custody.” Plf.’s Ex. 8. Butala requested that he be
returned to MCF-Rush City. Id.
On April 2, the DOC notified Butala by letter that his grievance had been dismissed; the
record establishes that this decision was reached and signed on March 31, the day before Butala
wrote his April 1 letter. Ebeling Aff. Ex. 2 at 5-7; Plf.’s Exs. 6, 9; see also Butala Aff. ¶ 7. On
April 4, the DOC responded to Butala’s April 1 letter and made clear that the DOC deemed the
letter to be an improper attempt to appeal the March 31 decision. (Recall that when a prisoner
bypasses the facility grievance coordinator and instead submits his formal grievance directly to

6

The grievance was logged on March 26, but the text of the grievance indicates that it was
written on March 9.
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the appeal coordinator — as Butala did — the decision of the appeal coordinator is final and
cannot be appealed. Ebeling Aff. Ex. 1 at 3.) Specifically, the DOC said the following:
Your offender grievance #3527 has been investigated. All
decisions made on grievances processed by central office will be
final. There will be no second level of appeal.
Please refer to the Department of Corrections Policy 303.100 for
the proper grievance procedure.
Plf.’s Ex. 10. Butala was transferred to MCF-OPH and, as far as the record reflects, had no
further written communications with prison officials about his transfer over the next eight
months.
On December 10, 2008, Butala was assaulted at MCF-OPH and, as a result, was placed in
segregation. Butala Aff. ¶ 9; Plf.’s Ex. 11. The record indicates that Butala sent a letter dated
December 18, 2008 to the Office of Special Investigations. Plf.’s Ex. 12. Butala’s December 18
letter is not in the record, but the director of that office (defendant Cari Gerlicher) responded by
letter dated January 6, 2009. Id. Gerlicher’s response stated: “I received your letter dated
December 18, 2008, and again my position on your literature request has not and will not change.
This matter is closed.” Id. Gerlicher went on to address phone calls that she had received from
Butala’s mother, apparently about concerns for Butala’s safety. Id. The letter also stated: “You
were not moved to MCF-OPH from MCF-RC because of a relationship with a staff and you were
never told that by Special Investigator Mark Uner or anyone else from OSI.” Id.
On January 15, 2009, Butala was again assaulted and suffered serious injuries to his face
and throat. Butala Aff. ¶ 17;7 Plf.’s Ex. 14. A little over a month later, on February 24, Butala

7

Butala’s affidavit, which is partially illegible, contains two paragraphs numbered “17.”
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submitted a kite to the Office of Special Investigations asking that he be told the reason for his
transfer to MCF-OPH. Plf.’s Ex. 15. As Butala put it, “I have asked this before, and want to see
if the answer is still the same because I have conflicting stories being told to me.” Id. The
response stated that Butala was transferred because he was ordering assaults on other inmates and
not because of his relationship with a staff member. Id.
Two days later, on February 26, Butala submitted another kite demanding proof that he
had ordered assaults on other inmates. Plf.’s Ex. 16. The response stated:
The commissioner of corrections can place any offender in any
facility within the D.O.C. We have several offenders who are
level 4 housed at MCF-OPH. It appears your issue is with MCFRC. I encourage you to contact them with any further questions
regarding your transfer. I am not going to argue with you about
this matter and I will not provide you with documents.
Id.
Butala then wrote a letter to the warden at MCF-Rush City, again demanding to be told
the reason for his transfer and to be supplied with evidence proving that the reason was true.
Plf.’s Ex. 17. In his letter, Butala noted that before the transfer, he had written a kite to the
warden’s office asking why he was being transferred in light of the fact that he had done nothing
to warrant the transfer. Id. Butala then went on to say: “Not only that, but I only had 19 points
which is one point over medium custody status.” Id. (It is unclear why Butala claimed to have
only 19 custody points in this letter when his April 1, 2008 letter said that he had 22 custody
points.) The corrections program director at MCF-Rush City responded by stating that
“[t]ransfers between facilities occur to ensure safe, secure and appropriate housing for offenders”

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and that “[a]ssignment to a particular custody level does not grant an offender the right to be
assigned to or remain at a particular facility.” Plf.’s Ex. 18.
Butala sent three more letters about his transfer to the MCF-Rush City warden. Although
only one of these letters is in the record, it is apparent that they all demanded to know why Butala
had been transferred. See Plf.’s Exs. 19, 20 (responses from warden to letters from Butala dated
April 1 and April 13, 2009); Plf.’s Ex. 21 (April 22, 2009 letter from Butala demanding
information about his transfer and threatening to sue if he does not receive it). The warden
responded to the first two of these three letters, reiterating that placement decisions are made for
a variety of administrative reasons. Plf.’s Exs. 19, 20. In her final response, the warden stated
that “[w]e have . . . responded to numerous kites and a grievance on this topic” and that “[t]his
matter is closed.” Plf.’s Ex. 20. Butala’s final letter, to which he received no response, insisted
that the matter was not closed: “[Y]ou will not just tell me that this matter is closed. It is not
closed until you give me the information that I’m asking for.” Plf.’s Ex. 21.
Clearly, then, the focus of the correspondence that Butala sent in early 2009 was learning
the reason for his March 2008 transfer to MCF-OPH. Butala apparently perceived the transfer to
be some sort of punishment for suspected misconduct, and he demanded that prison officials
identify the misconduct and the evidence that they relied on in concluding that he had committed
the misconduct. At no time did Butala request any compensation or other remedy for the two
assaults, as he does in this lawsuit. Only once did Butala even mention his custody points, which
is a major focus of this lawsuit. And all of Butala’s correspondence was informal; he never
submitted a formal grievance and, obviously, did not appeal any denial of a formal grievance.

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II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute over a fact is “material” only if its resolution might affect the outcome of the
suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
B. Exhaustion
Under the Prison Litigation Reform Act of 1995 (“PLRA”), a prisoner may not bring a
federal claim challenging prison conditions unless he has first exhausted the prison’s
administrative remedies:
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). If a prisoner fails to exhaust a claim, that claim must be dismissed without
prejudice. Davis v. Harmon, 389 Fed. Appx. 587, 587-88 (8th Cir. 2010) (per curiam). Even if
the relief that the prisoner seeks — such as money damages — is not available through the
administrative process, the prisoner must exhaust his administrative remedies so long as the
process “could provide some sort of relief on the complaint stated . . . .” Booth v. Churner, 532
U.S. 731, 734 (2001).

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To exhaust a claim, a prisoner must follow the procedures required by the prison’s
grievance procedure. Woodford v. Ngo, 548 U.S. 81, 93 (2006). Determining whether a prisoner
has exhausted a claim, therefore, entails determining whether he fully complied with his prison’s
grievance procedure. Jones v. Bock, 549 U.S. 199, 218 (2007) (“The level of detail necessary in
a grievance to comply with the grievance procedures will vary from system to system and claim
to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion.”).
1. Transfer
Butala alleges that defendants violated various of his constitutional rights by transferring
him to a maximum-security facility even though he did not meet the custody-credit guidelines for
incarceration at such a facility. Defendants move for summary judgment on this claim on the
grounds that Butala failed to exhaust his administrative remedies.
There is no question that Butala grieved his transfer to MCF-OPH. Butala first submitted
a letter and two kites to prison officials and then, when they would not agree to stop the transfer,
Butala filed a formal grievance directly with the central-office grievance-appeal coordinator. On
that basis, Butala contends that he has exhausted his claim that he should not have been
transferred to MCF-OPH because his custody-credit level did not warrant incarceration in a
maximum-security facility.
The problem with Butala’s analysis, though, is that it ignores the reasons that he gave for
filing a grievance about the transfer. The purpose of the PLRA’s exhaustion requirement is to
“allow[] a prison to address complaints about the program it administers before being subjected
to suit . . . .” Jones, 549 U.S. at 219. A prison cannot “address complaints” about its actions
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unless the inmate identifies the action and the nature of his complaint about the action. If a
prisoner complains of being served pork, and then sues prison officials because his reading
materials were restricted, he has obviously not exhausted his administrative remedies, because he
has not given prison officials an opportunity to address his objections to the restrictions on his
reading materials. Similarly, if a prisoner complains of being served pork because fatty foods
worsen his coronary artery disease, and then sues prison officials because eating pork violates his
religious beliefs, he has not exhausted his administrative remedies. His grievance gave prison
officials the opportunity to address his complaint about the impact of eating pork on his health,
but it gave them no clue that he was claiming a First Amendment right not to be served pork and
thus no opportunity to address that complaint.
This is not a question of specificity. When a prisoner objects that x action of prison
officials is unlawful for y reason — and the “prison’s grievance procedures are silent or
incomplete as to factual specificity” — then “‘a grievance suffices if it alerts the prison to the
nature of the wrong for which redress is sought.’” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th
Cir. 2009) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Here, though, the
problem is not that Butala objected that his transfer was unlawful for y reason, but was not very
specific in describing y. Here, the problem is that Butala quite specifically objected that his
transfer was unlawful for y reason, but now seeks to sue defendants on the ground that his
transfer was unlawful for z reason — a reason that Butala never grieved, and thus never gave
defendants an opportunity to address.
Butala claimed in his grievance that the transfer was in retaliation for his engaging in a
romantic relationship with a staff member, and Butala claimed that, if he were transferred, his
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life would be in danger. If Butala were bringing such claims in this action, they would
unquestionably be exhausted. But Butala is not bringing such claims in this action — or, if he is,
those claims are clearly not cognizable.
First, Butala did not allege in his complaint that his transfer was unlawful because it was
in retaliation for his engaging in a romantic relationship with a staff member — most likely
because it is hard to imagine how it could be illegal for a prison to transfer a prisoner in
“retaliation” for such a romantic relationship.
Second, even if Butala’s complaint could be construed to allege that defendants are liable
merely for putting him at risk by transferring him to MCF-OPH, Butala cannot obtain any relief
on that claim. Butala is no longer incarcerated at MCF-OPH and, consequently, he cannot seek
an injunction requiring defendants to transfer him to a safer prison. Moreover, Butala cannot
recover damages merely for being put at risk of an assault — as contrasted with recovering
damages for being assaulted.8 Cf. C.L.C. v. Minneapolis Pub. Schs., No. 06-1161, 2007 WL
1812899, at *8 (D. Minn. June 21, 2007) (“C.L.C. cites no authority for the proposition that a
student is deprived of a constitutional right when a school district takes action that puts her at
risk of being sexually assaulted, when she is not, in fact, sexually assaulted or harmed in any
other way, and when she is not even aware of the risk.”).
Butala’s only cognizable claim relating to the transfer, then, is that it was unlawful to
transfer him to MCF-OPH because he had only 22 (or 19) custody-credit points. Butala’s

8

Butala is, in fact, seeking to recover damages for the injuries that he suffered as a result
of being assaulted. But, as discussed below, although Butala grieved his transfer to MCF-OPH
on the ground that it would put him at risk of being assaulted, he failed to grieve the assaults
themselves, as he was required to do under the PLRA.
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problem is that he never properly grieved this issue. Neither Butala’s pre-grievance kites nor his
formal grievance said a word about his custody-credit points, and thus neither gave prison
officials an opportunity to address Butala’s complaint.
Butala’s grievance was decided and signed on March 31, 2008, and he was notified of the
decision by letter dated April 2, 2008. Plf.’s Exs. 6, 9. On April 1, 2008 — after the grievance
had been decided and the file closed, but before Butala received formal notice of the decision —
Butala submitted a letter in which he raised a number of complaints, including, for the first time,
a complaint about his custody-credit points. Plf.’s Ex. 8. The appeal coordinator rejected this
letter as an improper attempt to challenge the March 31 denial of his grievance, and referred him
to DOC policy for proper grievance procedure. Plf.’s Ex. 10. Thus, the only document that
raised the issue of custody-credit points and that was submitted in connection with a formal
grievance was submitted after that grievance had been decided and was rejected as procedurally
improper. Although nothing prevented Butala from initiating a new grievance regarding his
custody-credit points, Butala did not do so.
As described above, in early 2009 — almost a year after Butala grieved his transfer to
MCF-OPH — Butala engaged in heated correspondence with prison officials, in which he
demanded that they tell him their real reason for transferring him a year earlier. In one of those
letters — a February 2009 letter to the warden at MCF-Rush — Butala mentioned the custodycredit issue. Plf.’s Ex. 17. (Butala may have mentioned the issue in other informal letters and
kites submitted during the same time period; the record is incomplete.) But none of these
materials even purports to be a formal grievance. Butala’s letters were not submitted on the
proper form nor sent to the correct prison official. Moreover, in these letters Butala did not
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demand that he be transferred back to MCF-Rush City, but instead demanded that he be told the
real reason for his transfer to MCF-OPH and given documentation supporting that reason.
The Court therefore concludes that Butala has not exhausted the custody-credit issue.
Although Butala exhausted claims that the transfer was retaliatory and would put him in danger
(neither of which, for reasons explained above, are at issue in this lawsuit), that is not sufficient
to exhaust the claim regarding custody-credit points. The claims are clearly distinct: By raising
the issue of his custody-credit points, Butala is claiming the absolute right not to be incarcerated
at any maximum-security facility under any circumstances — regardless of whether he was
assigned to such a facility as an initial matter or transferred to such a facility from another prison.
By contrast, by claiming that the transfer was retaliatory and would put him in danger, Butala
was claiming that, under the particular circumstances, the particular transfer was unlawful.
Butala’s grievance therefore failed to serve the purpose of “allowing a prison to address
complaints about the program it administers before being subjected to suit . . . .” Jones, 549 U.S.
at 219.
A comparison with Riccardo v. Rausch, 375 F.3d 521 (7th Cir. 2004) is instructive. In
Riccardo, a prisoner who was assaulted by another inmate filed a grievance whose main
objective was to have his attacker prosecuted. Id. at 524. The prisoner also stated, however, that
the prison administration “don’t do there [sic] job” and that such assaults should “never happen
again.” Id. Because the prisoner’s statement was ambiguous — it could be read either as a
complaint that the prison failed to adequately punish the attacker or as a complaint that the prison
did not do enough to prevent the assault — the Seventh Circuit held that the grievance was
sufficient to exhaust a claim that prison officials were deliberately indifferent in failing to
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prevent the assault. Id. As the Seventh Circuit said, however, “it is hard to imagine much less
that a prisoner could do and still alert the prison . . . .” Id.
With respect to the custody-credit issue, Butala did not even do as much as the prisoner in
Riccardo. Nothing in Butala’s grievance could have alerted prison officials that Butala was
contending that, even if the transfer was not retaliatory and even if he was kept safe at MCFOPH, Butala nevertheless had an independent right not to be imprisoned in any maximumsecurity facility because of his custody-credit points. Cf. Olivares v. United States, 447 Fed.
Appx. 347, 351-52 (3d Cir. 2011) (per curiam) (prisoner’s claim for failure to provide knee brace
was not exhausted by grievance concerning surgery and medical transfer). The Court therefore
dismisses Butala’s federal-law claims regarding his transfer for failure to exhaust.
2. Assault
Butala also claims that he is entitled to compensation for the injuries that he suffered
when he was assaulted in January 2009 at MCF-OPH; specifically, Butala alleges that defendants
must pay damages because they violated the Eighth and Fourteenth Amendments by knowingly
failing to protect him from that assault.9 But Butala never submitted any grievance with respect
to this assault; his only formal grievance was about his transfer and was submitted in
March 2008, which was ten months before the assault took place. It is therefore hard to
understand how Butala could be considered to have exhausted his remedies with respect to the

9

Butala makes this claim in Count 1 of his complaint. It is possible to read Count 1 as
raising a claim as to both the December 2008 assault and the January 2009 assault. In moving
for summary judgment, however, defendants interpreted Butala as raising only a claim with
respect to the January 2009 assault (which required Butala to be hospitalized), and Butala did not
disagree. In any event, there is no evidence that Butala filed a grievance with respect to either
assault.
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assault. Cf. Leach v. Moore, 240 Fed. Appx. 732, 733 (8th Cir. 2007) (per curiam) (“We also
find that the district court properly dismissed the claim against Dr. DeCastro, because Leach did
not contest defendants’ assertion that the exhausted grievance in the record preceded the
treatment from Dr. De Castro underlying the instant complaint.”).
Butala nevertheless contends that his claims regarding the assault should be considered
exhausted because the assault was related to his earlier grievance about the transfer. It is true that
Butala’s earlier grievance complained that Butala would be in danger if he were transferred to
MCF-OPH. But Butala’s March 2008 grievance sought protection from a risk; it asked prison
officials to stop a transfer. Butala’s grievance did not seek compensation, treatment, or any other
form of redress for injuries that had been suffered in a January 2009 assault. Because Butala
never filed a grievance with respect to the assault, the DOC had no opportunity to offer redress
for the harm caused by the assault through the established grievance process.
Moreover, in arguing that defendants were deliberately indifferent to the risk of the
January 2009 assault, Butala relies on a number of facts and circumstances that did not arise until
long after his March 2008 grievance was resolved. For example, Butala alleges that, in
December 2008, he notified defendants that there was a “green light” on him; that defendants
wrongly refused to help him because he could not provide specific names; that defendants
wrongly placed him back in the general population on the same cell block as his earlier assailant
despite knowing of the “green light”; and that the prison guard on duty at the time of his assault
wrongly did nothing to prevent it. Butala’s failure to grieve the assault means that the DOC
never had an opportunity to address any of these issues.

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This is not to say that Butala was required to detail all of these circumstances in a
grievance. It is simply to point out that neither the harm about which Butala is suing nor the
alleged proximate causes of that harm were even in existence when Butala filed his grievance in
March 2008. Cf. Leach, 240 Fed. Appx. at 733 (affirming dismissal for failure to exhaust
because “the failures attributed to Dr. De Castro related to different time periods, to care received
at a different prison, and to different wrongs”). The Court therefore concludes that Butala’s
federal claim relating to the assaults must be dismissed for failure to exhaust.
3. Excusing Exhaustion
Butala argues that any failure to properly grieve his claims should be excused because
prison officials prevented him from using the grievance procedure. Because § 1997e(a) requires
prisoners to exhaust “available” administrative remedies, a prisoner may be excused from
exhausting administrative remedies if prison officials render those remedies “unavailable.” So,
for example, exhaustion may be excused when prison officials fail to respond to the prisoner’s
request for grievance forms, see Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); when
officials ignore the prisoner’s attempts to grieve, Nixon v. Sanders, 243 Fed. Appx. 197, 199 (8th
Cir. 2007) (per curiam); or when officials use threats to prevent the prisoner from grieving,
Ponder v. Wackenhut Correctional Corp., 23 Fed. Appx. 631, 631-32 (8th Cir. 2002) (per
curiam).
It is important to emphasize that the question under § 1997e(a) is not whether a prisoner
perceived administrative remedies as being unavailable, but whether administrative remedies
were in fact unavailable. “[Section] 1997e(a) does not permit the court to consider an inmate’s
merely subjective beliefs, logical or otherwise, in determining whether administrative procedures
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are ‘available.’” Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002) (en banc). So, for
example, it is not enough that officials told the prisoner that all grievances would be handled
informally, see Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005); or that officials ignored the
prisoner’s request for information about the grievance process, Hahn v. Armstrong, 407 Fed.
Appx. 77, 79 (8th Cir. 2011) (per curiam). Instead, there must be evidence that an official
“thwarted an attempt to initiate the procedures or . . . made it impossible for [the prisoner] to file
grievances.” Gibson, 431 F.3d at 341; see also Washington v. Uner, 273 Fed. Appx. 575, 577
(8th Cir. 2008) (per curiam) (“while it is undisputed that an OSI investigator warned Washington
not to reveal his involvement with OSI, we cannot say that this warning thwarted Washington’s
right to utilize the grievance procedure”).
There is no evidence in the record that any prison official thwarted any attempt by Butala
to file a grievance. At best, the evidence shows that, in response to Butala’s many informal
letters and kites, officials told him that he had already grieved certain issues relating to his
transfer and that his grievance of his transfer was “closed.” See, e.g., Plf.’s Ex. 20. As an initial
matter, the record belies any claim that this assertion led Butala to sleep on his rights; to the
contrary, Butala vigorously insisted that the matter was not closed and would not be closed until
he was told the true reason for his transfer (which, incidentally, is not the relief that he is seeking
in this lawsuit). But in any event, these circumstances are similar to those in Gibson, in which
prisoners were told by both prison and medical personnel “that they should voice all complaints
regarding medical care informally to medical personnel.” Gibson, 431 F.3d at 341. The Eighth
Circuit nevertheless held that, because the prisoners were not actually prevented from following
the formal grievance procedure, the prisoners’ failure to exhaust that procedure was not excused.
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Id. Here, just as in Gibson, there is no evidence that Butala was prevented from using the
grievance procedure by any prison official. His failure to do so with respect to his custody-credit
and assault claims therefore requires dismissal of those claims.
Finally, Butala argues that there are “special circumstances” justifying his failure to
grieve, citing Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). In Hemphill, the Second
Circuit held that a prisoner’s reliance on a reasonable interpretation of an unclear grievance
procedure may justify the prisoner’s failure to follow the rules “to the letter . . . .” Id. at 690.
Leaving aside the fact that the Eighth Circuit does not appear to have adopted any such rule,
Butala does not cite any ambiguous language in the DOC’s written grievance policy or contend
that he reasonably, but mistakenly, misinterpreted the policy. Butala’s subjective belief that he
had properly exhausted his claims does not excuse his failure to exhaust. Lyon, 305 F.3d at 809.
C. Unnamed Defendants
Butala brings claims not only against the named defendants who have moved for
summary judgment, but also against two unnamed defendants: (1) a correctional sergeant
referred to as “Jane Doe” and (2) a prison official referred to as “John or Jane Doe.”10 Compl.
¶¶ 16-17. Because failure to exhaust administrative remedies is an affirmative defense, see
Jones, 549 U.S. at 216, the Court cannot at this time dismiss the federal claims against the
unnamed defendants on that basis. The unnamed defendants do not appear to have been served
or to have entered an appearance, and thus they obviously have not raised the affirmative defense

10

The docket lists three unnamed defendants because it treats “John or Jane Doe” as two
different people. The complaint makes it apparent, however, that the unnamed prison official is a
single person. See Compl. ¶¶ 17, 21(d).
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of failure to exhaust. See Leach, 240 Fed. Appx. at 733 (district court erred in dismissing claims
for failure to exhaust against subset of defendants who did not seek dismissal on that ground).
In their motion for summary judgment, the named defendants suggest that the claims
against the unnamed prison official should be dismissed because they are conclusory and because
they are too vague to permit the official to be identified. ECF No. 13 at 9 n.2. Butala did not
respond to this argument; instead, he contended that the claims against the unnamed correctional
sergeant should not be dismissed. ECF No. 21 at 7 n.2. The allegations against the unnamed
correctional sergeant are specific enough to permit her to be identified through discovery. The
Court therefore must give Butala an opportunity to do so. See Munz v. Parr, 758 F.2d 1254,
1257 (8th Cir. 1985).
The allegations against the unnamed prison official are less specific, but it is reasonably
clear that Butala means to sue the prison official who made the decision to transfer him to MCFOPH. That official’s identity should be reasonably ascertainable, and Butala must therefore also
be given an opportunity to identify him or her. As for defendants’ contention that Butala’s
claims against that official are conclusory, the Court disagrees: Butala alleges (and the
documents submitted in connection with the current motion demonstrate) that he notified the
DOC that he feared for his safety if he were transferred to MCF-OPH, and the record reflects the
involvement of various prison officials in responding to his grievance and other complaints about
the transfer. Butala thus has a plausible claim that the prison official responsible for his transfer
was aware that Butala would be in danger at MCF-OPH. See Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007) (to state a claim, complaint must contain enough facts to be plausible).

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If Butala wishes to pursue this action against the unnamed defendants, he must find out
who they are, file and serve an amended complaint that identifies them by name, and file proof of
service of the summons and amended complaint on them. This is likely to be a largely fruitless
exercise, however. If the unnamed defendants move for summary judgment on the basis of
Butala’s failure to exhaust administrative remedies, the Court will almost certainly grant that
motion, unless Butala introduces evidence of exhaustion that is not currently before the Court.
And, once the Court has dismissed all of Butala’s federal claims, it will decline to exercise
supplemental jurisdiction over his remaining state-law claim. See 28 U.S.C. § 1367(c)(3);
Barstad v. Murray Cnty., 420 F.3d 880, 888 (8th Cir. 2005) (in the usual case in which the
district court has dismissed all claims over which it had original jurisdiction before trial, the
balance of factors relevant to the exercise of supplemental jurisdiction weigh in favor of
declining to exercise jurisdiction over remaining state-law claims).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

The motion of defendants Cari Gerlicher, Michael Smith, Joe Durocher, and
Barbara Stoltz for summary judgment [ECF No. 11] is GRANTED.

2.

Counts 1 and 2 of plaintiffs’ complaint [ECF No. 2] are DISMISSED WITHOUT
PREJUDICE as to those defendants.

Dated: January 22, 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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