Nasseff v. Lisowy et al

Filing 45

ORDER: (1) Defendant's motion for summary judgment [Docket No. 23 ] is GRANTED; (2) Plaintiff's motion for summary judgment [Docket No. 20 ] is DENIED; (3) Plaintiff's motion for waiver of exhaustion requirement [Docket No. 44 ] is DENIED; (4) The Report and Recommendation [Docket No. 36 ] is ADOPTED; (5) This action is DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies under the Prison Litigation Reform Act of 1995.(Written Opinion) Signed by Judge Joan N. Ericksen on July 28, 2015. (CBC) cc: Plaintiff. Modified on 7/28/2015 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anthony Nasseff, Jr.,
Plaintiff,
v.

Civil No. 14-cv-4704 (JNE/BRT)
ORDER

Sgt. Glenn Lisowy,
Defendant.
Plaintiff Anthony Nasseff, Jr., an inmate in the custody of the Minnesota Department of
Corrections (DOC), sued Defendant Glenn Lisowy, a DOC officer, for excessive use of force
during a November 30, 2012 incident. Both parties moved for summary judgment. The
Magistrate Judge issued a Report and Recommendation, which recommends granting Lisowy’s
motion, denying Nasseff’s motion, and dismissing Nasseff’s action because he failed to exhaust
his remedies. Nasseff objects to the Report and Recommendation. The Court has conducted a de
novo review of the record. See D. Minn. LR 72.2(b). Based on that review, it adopts the Report
and Recommendation.
It is undisputed that Nasseff failed to follow the DOC grievance procedures. In his
objection, Nasseff argues that he could not have grieved his claim because “no offender in the
DOC can file a grievance regarding anything discipline derives from.” Nasseff is correct that
DOC’s grievance policy does not apply to discipline, which has a separate appeals process.
However, according to DOC policy, the appeals process for discipline applies where an offender
is charged with violating facility regulations and is subject to a penalty, such as segregation or
loss of privileges. The disciplinary proceedings are not used to adjudicate an inmate’s claim that

an officer employed excessive force. Such allegations are covered by the grievance procedures,
which Nasseff did not follow.
On July 23, 2015, after his time to object to the Report and Recommendation had passed,
Nasseff filed a one-page motion requesting a waiver of the exhaustion requirement. He states
that his mental condition made him unable to file a timely grievance. The record does contain
evidence that Nasseff suffers from a number of conditions, such as posttraumatic stress disorder,
borderline personality disorder, and antisocial personality disorder. However, nothing in the
record explains how these conditions prevented Nasseff from filing a grievance through the DOC
procedures before he decided to file this lawsuit in federal court.
Nasseff also argues he was told his allegations of excessive force could not be grieved.
As evidence, he has submitted correspondence with DOC officials. Under the relevant DOC
policy, an inmate has 45 days from the date of an incident to initiate a formal grievance. Even if
the correspondence submitted by Nasseff could conceivably be construed as conveying to
Nasseff that he could not grieve his excessive force claim, each correspondence is dated at least
five months after the incident, at which point Nasseff could not in fact grieve his excessive force
claim because his 45-day deadline had passed.
Defendant has submitted evidence showing that Nasseff’s claims were governed by the
DOC grievance policy, that Nasseff did not grieve his claims under that policy before filing this
action, and that Nasseff’s deadline to file a grievance has long passed. Nasseff has not rebutted
this evidence or sufficiently explained his inability to comply with the grievance procedures.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
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1. Defendant’s motion for summary judgment [Docket No. 23] is GRANTED;
2. Plaintiff’s motion for summary judgment [Docket No. 20] is DENIED;
3. Plaintiff’s motion for waiver of exhaustion requirement [Docket No. 44] is DENIED;
4. The Report and Recommendation [Docket No. 36] is ADOPTED;
5. This action is DISMISSED WITH PREJUDICE for failure to exhaust administrative
remedies under the Prison Litigation Reform Act of 1995.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 28, 2015
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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