Doss v. Tomczak et al

Filing 54

DECISION AND ORDER signed by Judge Pamela Pepper on 10/7/2015 DISMISSING Case Based on the Plaintiff's Failure to Exhaust Available Administrative Remedies. (cc: all counsel; by US Mail to Plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TIMOTHY S. DOSS,
Plaintiff,
v.

Case No. 14-cv-1100-pp

CLINT PEACHY, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DISMISSING CASE BASED ON
THE PLAINTIFF’S FAILURE TO EXHAUST
AVAILABLE ADMINISTRATIVE REMEDIES
______________________________________________________________________________
I.

PROCEDURAL BACKGROUND
On September 10, 2014, Timothy Doss, a pro se plaintiff currently

incarcerated at Green Bay Correctional Institution (GBCI), filed a complaint
under 42 U.S.C. §1983, alleging his civil rights had been violated. Dkt. No. 1.
Judge Stadtmueller, the original judge assigned to the case, issued an order
allowing the plaintiff to proceed on his Eighth and Fourteenth Amendment
claims against the defendants. Dkt. No. 8 at 4.
On May 26, 2015, the defendants filed a motion requesting an
evidentiary hearing on their assertion that the plaintiff had not exhausted his
administrative remedies, as required by Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008). On June 29, 2015, the court granted the defendants’ motion for a
hearing, because the Prisoner Litigation Reform Act (PLRA) requires a prisoner
to exhaust available administrative remedies before challenging the conditions

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of his confinement in a federal court. See Waggoner v. Lemon, 778 F.3d 586,
588 (7th Cir. 2015) (citing 42 U.S.C. §1997e(a)). The court held a hearing on
August 4, 2015, with both the plaintiff and counsel for the defendants
present.1 Dkt. No. 51. For the reasons explained in this decision, the court will
grant the defendants’ oral request (made at the end of the evidentiary hearing)
to dismiss the case based on the plaintiff’s failure to exhaust his administrative
remedies.
II.

FACTUAL BACKGROUND
In his complaint, the plaintiff alleged that he had an episode of sickle cell

crisis on February 24, 2011, which resulted in tremendous pain. He alleged
that staff at Dodge Correctional Institution (Dodge) both were deliberately
indifferent to his serious medical need, and that they forcibly used a catheter
without his consent to obtain a urine sample. Dkt. No.1. The complaint stated,
I, Timothy Doss, filed a complaint at Dodge Correctional
Institution on 2-24-11 & never got acknowledged. On or
around 5-15-14 I got a copy of my ICRS and saw my
complaint was never received. So I filed a complaint on 515-14. On 5-20-14 it was rejected.
Id. at 7. The plaintiff further stated, “I do have a carbon copy of my original
complaint I filed initially it was never acknowledged.” Id.
In their motion for an evidentiary hearing, the defendants stated,
“According to plaintiff Timothy Doss’s inmate complaint history report, the only
offender complaint filed by Doss at Dodge in the year 2011 was on February
23, 2011, the day before the incident giving rise to this lawsuit.” Dkt. No. 43 at

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 The plaintiff appeared by video conference from GBCI.  

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4. The defendants alleged that that complaint, though unrelated to the incident
that occurred on February 24, 2011, was processed according to DOC
procedure. Id. at 5. The defendants asserted that the record did not show
another complaint from the plaintiff until March 11, 2011—and that complaint
wasn’t related to the February 24, 2011 incident. Id.
III.

APPLICABLE LAW
According to the PLRA, “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).
Various important policy goals give rise to the rule requiring administrative
exhaustion, including restricting frivolous claims, giving prison officials the
opportunity to address situations internally, giving the parties the opportunity
to develop the factual record, and reducing the scope of litigation. Smith v.
Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001).
Wisconsin Administrative Code chapter DOC §310 requires an inmate to
initiate the exhaustion process by filing an offender complaint with the
institution’s complaint examiner. DOC §§310.07, 310.09. Absent a showing of
good cause for delay, an inmate must file an offender complaint within fourteen
calendar days of the event giving rise to the offender complaint. DOC
§310.09(6). If a court determines that an inmate failed to complete any step in
the exhaustion process prior to filing a lawsuit, the court must dismiss the
plaintiff’s complaint. Perez v. Wis. Dept. of Corrs., 182 F.3d 532, 535 (7th Cir.
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1999) (“[A] suit filed by a prisoner before administrative remedies have been
exhausted must be dismissed; the district court lacks discretion to resolve the
claim on the merits.”). Thus, an inmate’s failure to timely file an offender
complaint will be fatal to his federal lawsuit.
II.

THE PLAINTIFF’S ARGUMENT
The plaintiff testified at the evidentiary hearing that on February 25,

2011, while at Dodge, he wrote an inmate complaint about events that
occurred the day before. He stated that he borrowed a piece of carbon paper
from another inmate so that he could keep a copy of the inmate complaint.
Because he was not free to leave his cell in Unit 9 (he was on lock-down at
night), the plaintiff placed the complaint in his cell door for an officer to pick
up, rather than placing the complaint in the metal lockboxes designated for
inmate complaints. He stated that he kept a copy, and put the other copy in
the door for the third shift to pick up. The plaintiff told the court that he did
not know what happened to his complaint after he placed it in his cell door. He
also stated that he did not know the name of the inmate from whom he
borrowed the carbon paper. The plaintiff told the court that, although he tried,
he was unable to locate his prior cell mate, whom he believes would have
corroborated his statements that he wrote an inmate complaint that day and
placed it in his cell door.
The plaintiff testified that he received no acknowledgment from the
institution that his complaint had been received. He told the court that a few
months after putting the complaint in the door, he was misinformed by another
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inmate that it was too late to pursue his inmate complaint, so the plaintiff let
the matter drop.
On March 8, 2011, the plaintiff was transferred to Oshkosh Correctional
Institution, and then to GBCI. Once he got to GBCI, he spoke to other inmates
who were more knowledgeable about the law. They informed the plaintiff that
he still could pursue a federal lawsuit because the institution had failed to
acknowledge his original complaint. In other words, GBCI inmates instructed
the plaintiff that he could proceed with his claim in federal court because the
failure to exhaust his original complaint was not his fault—it was the fault of
the institution for failing to process his inmate complaint.
On May 14, 2015, after receiving this advice, the plaintiff filed an inmate
complaint, more than three years after the events had occurred. The plaintiff
followed all of the steps in the grievance procedure as set forth in the
Wisconsin Administrative Code chapter DOC §310.
The plaintiff produced four exhibits at the hearing. Exhibit A was a
document entitled, “Offender Complaint.” It was a handwritten complaint, and
in the “date of incident” box was written “2/24/11.” The plaintiff’s signature
appeared at the bottom, and in the “date signed” box was written “2-25-11.”
The handwritten content of the complaint described the incident on February
24, 2011, the staff’s reaction to his pain, and how certain members of the
Dodge staff took a urine sample from him over his objection. There is, at the
top, right-hand corner of the complaint, a box titled, “To be filled in by ICE
only.” The box contains three fields—one for the “DOC complaint file number,”
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one for the “date complaint received,” and one for “code number.” All of these
fields are blank on Exhibit A. The plaintiff filed Exhibit A on July 23, 2015, in
preparation of the hearing.
The plaintiff also presented Exhibit B, a July 29, 2014 letter from DOC
complaint examiner Welcome Rose to the plaintiff. Examiner Rose
acknowledged that she received a July 8, 2014 letter from the plaintiff, in
which he described the February 24, 2011 incident. Examiner Rose then
stated, “I have searched the Inmate Complaint Review System and I note your
concerns had been raised in an inmate complaint earlier this year (Complaint
Number GBCI-2014-9575). The complaint had been found to be late and
rejected for that reason.”
The plaintiff presented Exhibit C, an April 15, 2015 letter from him to
Dodge Institution Complaint Examiner Joanne Bovee, in which he asked for
copies of any and all offender complaints he’d filed while at Dodge and the
resulting decisions. He also presented Exhibit D, a May 8, 2015 Record
Request Response from record custodian Karen Parenteau, in which she
indicated in response to the plaintiff’s April 15, 2015 request, “GBCI will be
providing you with these copies directly.”
At the end of the hearing, the plaintiff acknowledged that he had no
evidence to support his claim that he first filed an inmate complaint the day
after the February 24, 2011 incident, but he pointed out that the defendants
had no direct evidence that he did not timely file a grievance. The plaintiff
testified that he was telling the truth and that, while he did not present the
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copy of the inmate complaint until after he filed his lawsuit, he had had the
inmate complaint among his papers all along. He indicated that the reason he
never had produced the carbon copy to which he made reference in his
complaint was because he had been in segregation at GBCI, with no access to
his papers. He stated that he believed that as long as he had the original
complaint somewhere in his papers, he knew he could demonstrate that he’d
exhausted his remedies. He stated that he didn’t mention having the carbon
copy until he actually obtained possession of his papers, and told the court
that he hadn’t wanted anything to happen to the complaint.
III.

THE DEFENDANTS’ ARGUMENT
The defendants stated in their motion for a hearing that on May 15,

2014, a complaint examiner at Dodge acknowledged receipt of offender
complaint #GBCI-2014-9575, dated May 14, 2014. Dkt. No. 43 at ¶23. In that
complaint, the plaintiff had alleged that a sample had been taken from him
without his consent. Id. at ¶22. The defendants indicated that “Doss’s Inmate
History Report does not show any complaints regarding the February 24, 2011
incident until 2014.” Id. at ¶21. They explained that, because that complaint
was filed more than three years after the events, the institution followed DOC
policy by rejecting the complaint as untimely. Id. at ¶23.
At the hearing, complaint examiner Joanne Bovee testified. She
explained that an inmate files a complaint by either giving it to an officer or
putting it in one of the lockboxes on the various units. She explained that in
February 2011, the plaintiff was in Unit 9, and that there was a locked box on
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that unit. She testified that even locked-down inmates had access to the box
when going to and from meals, recreation and religious services. She testified
that the third-shift officer on Unit 9 would have collected any complaints that
were filed, taken them to the mail room, and put them in the complaint
examiner’s mail box (the “ICE” box, for Institute Complaint Examiner). Once an
examiner receives a complaint from the mail box, he or she begins an
investigation. The complaint is entered into the inmate tracking system, and
the inmate gets a receipt. The ICE has five days to send the inmate the receipt.
Examiner Bovee testified that all complaints are scanned into the system, and
maintained for eleven years.
Examiner Bovee also testified that sometimes examiners will send
complaints back to inmates—because they are filed on the wrong form, or they
are unsigned, or they are inflammatory, or they contain more than one issue.
Sometimes they are sent back if they don’t comply with some other provision of
the DOC code. For those complaints that aren’t sent back, the examiner types
up a recommendation, which is then referred to the Health Services Unit
director for review. The examiner’s recommendation may be affirmed,
dismissed, rejected, or affirmed with modifications.
The defendants produced several documents in support of the following
arguments:


The plaintiff’s offender complaint history was extensive. It dated back
to 2003, indicating that the plaintiff was well acquainted with the
exhaustion procedure. Dkt. No. 44-1; Ex. 1007.

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

The plaintiff had filed several complaints after February 25, 2011
which were unrelated to the events in this lawsuit. In one such
complaint, in November 2013, the plaintiff stated that he had written
“numerous” complaints and “never” had one come up missing. Ex.
1013 (emphasis in exhibit).



In the May 14, 2014 complaint filed at GBCI regarding the February
2011 incident, the plaintiff stated, “Due to hospitalization & lost files
this complaint was delayed.” Dkt. No 44-3; Ex. 1009 at 7. The plaintiff
did not mention that he had previously attempted to timely file an
inmate complaint, nor did he mention that he had a copy of the
previously filed inmate complaint.



On May 28, 2014, the plaintiff appealed the rejected May 14, 2014
inmate complaint. In the appeal, the plaintiff stated, “Due to my
paperwork getting lost and hospitalization, I didn’t file my complaint
until later. . . . The Department shouldn’t exclude handicap or
impaired inmate of filing a late complaint.” Dkt. No. 44-4; Ex. 1010 at
1. Again, the plaintiff did not mention that he had previously
attempted to timely file an inmate complaint, nor did he mention that
he had a copy of the previously filed inmate complaint.



The plaintiff did not mention that he had a copy of an
unacknowledged, timely filed complaint until after he filed his federal
lawsuit.

The defendants argued at the hearing that all of these facts
demonstrated that the plaintiff’s claim that he tried to file a complaint on
February 25, 2011 by putting it in the door to his cell was not credible. They
argued that the DOC had no record of the complaint, that the plaintiff would
have had the opportunity to put the complaint in a lockbox even while on
lockdown status, that examiner Bovee would have been the one to process it
and she did not, that the plaintiff didn’t mention the alleged existence of a
February 25, 2011 complaint until 2014, that the plaintiff provided no property
records to show that he’d not had access to his papers, and that he did not
mention a carbon copy until he filed the federal lawsuit. Finally, the defendants
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argued that if the court were to allow the plaintiff to continue with this suit, it
would effectively gut the requirements of the PLRA—such a decision would
mean that all an inmate would have to do to sidestep the exhaustion
requirement is fill out a complaint form, backdate it and claim that it had been
lost or misplaced by the institution.
IV.

ANALYSIS
Based on the testimony and evidence presented at the August 4, 2015

hearing, the court finds that the plaintiff’s assertion that he filed a complaint
on February 25, 2011 is not supported by the evidence.
First, the evidence supports the defendants’ position that the plaintiff,
whose complaint history extends back to 2003, was well acquainted with the
inmate complaint procedure. In 2013, within two weeks of filing an inmate
complaint that went unacknowledged by the institution, the plaintiff challenged
the institution’s silence by stating that he had written “numerous” complaints
and “never” had one come up missing. The plaintiff’s actions in that situation,
and the frequency with which he has filed inmate complaints over the years,
demonstrate that the plaintiff knew that the institution was required to
acknowledge inmate complaints within a reasonable timeframe. It is difficult for
the court to believe that in a circumstance in which the plaintiff believed that
the defendants removed bodily fluids against his will, the plaintiff would not
have reacted almost immediately when he failed to receive confirmation that
he’d filed his complaint.

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Second, the court finds it hard to believe that a plaintiff as experienced
as this one would file an inmate complaint three years after the incident and
neglect to emphasize that he had attempted to timely file an inmate complaint,
and that he had a copy of the complaint to prove it. The plaintiff stated that he
referenced “lost records” in his 2014 inmate complaint and appeal, and argued
that by that he was referring to the misplaced offender complaint. This
argument strains belief; the plaintiff knows how to say, “I have a copy of my
complaint—it’s in my things and I don’t have them right now.” He did not say
that. The plaintiff’s filings in this matter have been extensive; he is articulate,
detailed, and organized. He has laid out his arguments in a manner that is
easy to understand, and he has supported his position with facts and case law.
The plaintiff is very good at advocating for himself, and the court does not
believe that he would have overlooked such an important detail when filing his
inmate complaint and the subsequent appeal.
Third, the first time the plaintiff made reference to the carbon copy of the
February 25, 2011 inmate complaint was when he filed his federal lawsuit in
September 2014. Until July 23, 2015—a little over a week before the
evidentiary hearing on exhaustion—the plaintiff never had produced the carbon
copy of the complaint. Despite the plaintiff’s vivid description of a dramatic and
intrusive event, and despite his knowledge that he needed a copy of his inmate
complaint in order to proceed in his federal case, he did not produce Exhibit A
until four and a half years after the incident, and until ten months after he
filed his complaint. The document he did produce is pristine—the handwriting
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is clear, dark and precise; there are no smudges; there are no wrinkle marks or
tears. If, in fact, the plaintiff had this document for four and a half years, and it
traveled to two different federal facilities, it stands to reason that the document
would show some signs of age, wear and tear. Exhibit A does not.
The court does not believe that Exhibit A is a carbon copy created four
and a half years ago. The court believes it more likely that the plaintiff realized,
after he filed his lawsuit, that he had no proof that he’d timely filed a
complaint, and so he created Exhibit A after the fact.
Other than the plaintiff’s unsupported testimony—which the court does
not find credible—there is no evidence to indicate that the plaintiff filed an
inmate complaint on February 25, 2011, or any time prior to March 2014. The
evidence rather indicates that the plaintiff may have created an inmate
complaint after he filed this lawsuit, and backdated it, in an attempt to
circumvent the exhaustion requirement. As the defendants argue, if this or any
other court allowed a lawsuit to proceed under these circumstances, any
inmate could get around the exhaustion requirement by backdating a
complaint and claiming that it got lost somewhere between his cell and the
complaint examiner’s desk. The court will not encourage such an option for
inmates.
The evidence demonstrates that the plaintiff filed his first and only
inmate complaint about the events alleged in this lawsuit more than three
years after the events occurred. The plaintiff did not timely file his inmate
complaint, and he has failed to exhaust the available administrative remedies.
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The plaintiff’s failure to exhaust before filing his lawsuit in federal court is fatal
to his claims, and the court must dismiss the plaintiff’s complaint.
V.

CONCLUSION
For the reasons discussed above, the court DISMISSES this case. The

clerk will enter judgment accordingly.
This order, and the judgment which will follow, are final. A dissatisfied
party may appeal this court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this court a notice of appeal within 30 days of the entry of
judgment. See Federal Rule of Appellate Procedure 3, 4. The court may extend
this deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask the court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e), or ask for
relief from judgment under Federal Rule of Civil Procedure 60(b). Any motion
under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. The court cannot extend this deadline. See Federal Rule of
Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b)
must be filed within a reasonable time, generally no more than one year after
the entry of the judgment. The court cannot extend this deadline. See Federal
Rule of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
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Dated at Milwaukee this 7th day of October, 2015.

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