Sanders, Christopher v. Lundmark

Filing 49

ORDER staying a decision on defendant's 31 Motion for Summary Judgment For Failure to Exhaust Administrative Remedies until October 19, 2011 to allow plaintiff to supplement the record if he chooses. Signed by Magistrate Judge Stephen L. Crocker on 10/5/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTOPHER M. SANDERS,
Plaintiff,

OPINION AND ORDER

v.
11-cv-206-slc
MS. LUNDMARK,
Defendant.

This is a civil action for monetary relief brought under 42 U.S.C. § 1983. Plaintiff
Christopher M. Sanders was granted leave to proceed on his claim that defendant Sharalee
Lundmark, an Institution Complaint Examiner at the Chippewa Valley Correctional Treatment
Facility, retaliated against him for his grievances complaining about the inmate complaint system
and Lundmark’s treatment of him by threatening to file a conduct report against him and then
by filing two false conduct violations against him. Defendant Lundmark now moves for
summary judgment, dkt. 31, on the ground that Sanders did not appeal the disciplinary decision
on his conduct violations and as a result, failed to properly exhaust the administrative remedies
that were available to him.
As explained below, I am staying a decision on the motion because a potential factual
dispute exists concerning whether Sanders was deprived of a meaningful opportunity to pursue
his administrative remedies by Captain Alan Chada, whom Sanders accuses of lying to him about
the right to appeal the disciplinary decision. Sanders will be given the opportunity to support
his accusation with a sworn affidavit, which he has not yet done.
From the evidentiary materials submitted by the parties, I find the following facts for the
purposes of this motion:

FACTS
Plaintiff Christopher Sanders was, at all times relevant to this lawsuit, an inmate at the
Chippewa Valley Correctional Treatment Facility (“CVCTF”) in Chippewa Falls, Wisconsin.
Defendant Sharalee Lundmark is an Institution Complaint Examiner at the facility.
On December 11, 2010, Sanders sent an Information Request form to the Institution
Complaint Examiner’s (ICE) office, asking that certain inmate complaint forms be supplied to
the floors. Sanders wrote on the form that “All 3 inmate floors are empty, as of today.” On
December 13, 2010, Lundmark responded that forms were available at the officers’s station.
Lundmark also wrote: “You should not be on other floors taking inventory. This could result
in a Conduct Report.”
On December 14, 2010, Sanders responded to Lundmark by submitting another
information request to the ICE. Sanders admitted having looked for forms on a different floor,
but said he had been directed to do so by a “higher ranking officer.” Sanders said he didn’t
appreciate Lundmark’s assumption that he was on other floors “taking inventory,” a fact which
he denied. Sanders went on: “I realize you are trying to scare me, or intimidate me, while I am
seeking help. Please stop hindering me from seeking help against abusive staff.”
The next day, Lundmark issued Sanders a Conduct Report charging him with two minor
offenses: 1) disrespect; and 2) lying to staff. On December 23, 2010, a disciplinary hearing on
the conduct report was held pursuant to Wis. Admin. Code § 303.75, at which Sanders had an
opportunity to testify. The hearing officer, Captain Alan Chada, found Sanders guilty of both
disrespect and lying to staff. Chada entered a disposition of “reprimand only” and gave a copy

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of the decision to Sanders. Near the top of the decision form appears a section titled “TYPE OF
HEARING,” in which a box next to “MINOR (303.75)” was checked.
The number 303.75 corresponds to the section of the administrative code governing
hearings and appeals of minor conduct violations. Section DOC 303.75(6) specifies that “[a]n
inmate may appeal the disposition of a minor hearing within 10 days to the warden.” Sanders
could have reviewed that administrative code section on line (through LexisNexis) at CVCTF’s
library.
Sanders did not appeal the disciplinary decision to the warden. Instead, on January 14,
2011, he filed Offender Complaint CVTF-2011-1215, asserting that he had been deprived of
equal protection and due process “while struggling with a retaliation from Ms. Lundmark of the
I.C.E.” Sanders also stated that he had not been “afforded an opportunity to appeal” Captain
Chada’s disciplinary decision. The ICE, through Lundmark, rejected Sanders’ complaint on
January 18, 2011, on the ground that Wis. Admin. Code § DOC 310.08(2)(a) prohibits
complaints on conduct reports that have not been resolved through the disciplinary process in
accordance with the Wis. Admin. Code § DOC 303.
On January 20, 2011, Sanders submitted a request for review of the rejected complaint.
Among other things, Sanders stated that he was not complaining about a conduct report but
rather about the absence of equal protection and due process by the institution. Sanders also
stated that he was “not given a fair hearing and not afforded an appeal.” On January 25, 2011,
the reviewing authority decided that the ICE had appropriately rejected the complaint in
accordance with § DOC 310.11(5).

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On February 3, 2011, Sanders appealed the reviewing authority’s rejection of his
complaint to the Corrections Complaint Examiner. In his complaint, Sanders asserted that
Captain Chada “didn’t afford me an appeal.” The next day, the CCE returned Sanders’s
complaint forms to him and advised him that under Wis. Admin. Code § DOC 310.13(3), the
CCE was prohibited from reviewing a rejected complaint.

OPINION
I. Exhaustion under the PLRA
The 1996 Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that "[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." The Court of Appeals for the Seventh
Circuit has taken a strict approach to exhaustion, holding that district courts lack discretion to
decide claims on the merits unless the exhaustion requirement has been satisfied. Dixon v. Page,
291 F.3d 485, 488 (7th Cir. 2002); see also Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532,
535 (7th Cir. 1999). Further, “[s]ection 1997e(a) requires ‘proper exhaustion’; that is, the
inmate must file a timely grievance utilizing the procedures and rules of the state’s prison
grievance process.” Maddox v. Love, --F.3d--, 2011 WL 3690049, *9 (7th Cir. Aug. 24, 2011).
See also Woodford v. Ngo, 548 U.S. 81, 93 (2006); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th
Cir. 2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the place, and
at the time, the prison's administrative rules require.”). If the prison’s administrative authority
rejects a complaint because the prisoner failed to use the prison grievance system properly, the

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prisoner runs the risk that his claim will be unexhausted indefinitely. Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006).
In general, a prison official’s application of a grievance procedure is unreviewable so long
as the prisoner had “a meaningful opportunity” to present his grievance. Simpson v. Greenwood,
2007 WL 5445538, *4 (W.D. Wis. 2007) (quoting Ngo, 548 U.S. at 103). When such an
opportunity is lacking, administrative remedies are said to be “unavailable” and exhaustion is
not required. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Thus, exhaustion has not been
required where prison employees do not respond to a properly filed grievance or otherwise use
affirmative misconduct to prevent a prisoner from exhausting, Pozo, 286 F.3d at 1024, such as
by dismissing a properly-filed grievance because of a requirement on which “the administrative
rulebook is silent.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).
Exhaustion is an affirmative defense that defendants have the burden of pleading and
proving.

Dole, 438 F.3d at 809.

Factual issues regarding the defense of exhaustion of

administrative remedies under the PLRA are questions for the court, not the jury, to decide.
Pavey v. Conley, 544 F.3d 739, 741-742 (7th Cir. 2008).

II. Wisconsin’s Prison Grievance System
Wisconsin inmates have access to an administrative grievance system governed by the
procedures set out in Wis. Admin. Code §§ DOC 310.01-310.18. Under these provisions,
known as the Inmate Complaint Review System (ICRS), prisoners start the complaint process
by filing an inmate complaint with the institution complaint examiner. An institution complaint
examiner may investigate inmate complaints, reject them for failure to meet filing requirements

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or recommend to the appropriate reviewing authority that they be granted or dismissed. Wis.
Admin. Code § DOC 310.07(2). If a complaint is rejected, the inmate may appeal the rejection
to the appropriate reviewing authority, who can review only the reason for the rejection but not
the merits of the complaint. Wis. Admin. Code § DOC 310.11(6). However, if the institution
complaint examiner makes a recommendation that the complaint be granted or dismissed on its
merits, the appropriate reviewing authority has the authority to dismiss, affirm or return the
complaint for further investigation. Wis. Admin. Code § DOC 310.12. If an inmate disagrees
with the decision of the reviewing authority, he may appeal to a corrections complaint examiner,
who is required to conduct additional investigation where appropriate and make a
recommendation to the secretary of the Wisconsin Department of Corrections. Wis. Admin.
Code § DOC 310.13. Within ten working days following receipt of the corrections complaint
examiner's recommendation, the secretary must accept the recommendation in whole or with
modifications, reject it and make a new decision or return it for further investigation. Wis.
Admin. Code § DOC 310.14.
A different exhaustion process exists for issues that fall outside the scope of the ICRS.
Wis. Admin. Code § DOC 310.08(2)(a) states that the inmate complaint review system may not
be used to address “any issue related to a conduct report, unless the inmate has exhausted the
disciplinary process in accordance with ch. DOC 303.”

Wis. Admin. Code § DOC

310.08(2)(a).1 Under this disciplinary process, the inmate is given a hearing at which he may
make statements on his own behalf. Wis. Admin. Code §§ DOC 303.75(4), 303.76(1)(e)1. If
he disagrees with the outcome of the hearing, he must appeal the disciplinary officer's decision

1

The phrase “any issue related to a conduct report” is not further defined in the regulations.

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to the warden within the allotted time period.
303.76(7).

Wis. Admin. Code §§ DOC 303.75(6),

Section DOC 303.75(6), which relates to the hearing procedure for minor

violations, specifies that “[a]n inmate may appeal the disposition of a minor hearing within 10
days to the warden.” (A similar appeal process exists for major violations.) After exhausting this
appeal process, an inmate may use the ICRS to challenge procedural issues only. Wis. Admin.
Code § DOC 310.08(3).

III. Did Sanders Exhaust?
The state contends that Sanders’s complaint must be dismissed for lack of exhaustion
because Sanders did not follow the proper procedure for raising his complaints about
Lundmark’s alleged retaliation. Because Sanders’s complaint that Lundmark issued the conduct
report in retaliation against him “related to a conduct report,” argues the state, Sanders could
not utilize the ICRS until he first exhausted the disciplinary process, which he failed to do.
§ DOC 310.08(2)(a).
As an initial matter, I note that I understand the state’s argument in this regard to be
focused on Sanders’s claim that Lundmark retaliated against him by filing a conduct report, as
opposed to his claim that she retaliated against him by threatening to file a conduct report.
Although the state’s position with respect to the threat claim is not entirely clear, it appears to
be contending that Sanders did not pursue any (as opposed to the wrong) administrative remedy
with respect to that claim. See Br. in Supp. of Mot. for Summ. Judg., dkt. 32, at 9 (noting that
Sanders “did not file any other complaints relating to any of the issues on which he was granted
leave to proceed in this suit.”). In support, the state has submitted a complete copy of Sanders’s

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Inmate Complaint History Report, which shows that Sanders did not file a grievance
complaining of any other alleged retaliatory acts by Lundmark. Sanders has not presented any
contrary evidence or argument. Accordingly, I find that he did not exhaust his administrative
remedies with respect to his claim that Lundmark threatened him after he complained about the
shortage of complaint forms.

The discussion that follows applies only to his claim that

Lundmark retaliated against him by issuing a conduct report against him.
Sanders admits that he did not appeal the disciplinary officer’s decision on his conduct
report to the warden within 10 days of the decision. He argues, however, that prison officials
were incorrect when they concluded that his prison complaint related to a conduct report. This
argument does not make much sense in light of his own description of his grievance:
[The state] says “clearly Sanders is talking about a conduct report”
when I submitted my I.C.I. against Lundmark. I say that it is clear
to a blind man that I am talking about being retaliated against
(with a conduct report) and not being able to appeal the conduct report.
Br. in Opp., dkt. 40, at 6 (emphasis added).
Perhaps Sanders means to argue that he was not challenging the substance of the conduct
report but rather Lundmark’s motive for issuing it, but this argument does not help him. The
rule under § DOC 310.08(2)(a) is that any complaint that is “related to” a conduct report must
go through the disciplinary appeal process under § DOC 303 before the inmate can use the
ICRS. Under even a narrow understanding of the term “related to,” it is plain from Sanders’s
own description that his retaliation complaint against Lundmark was related to the conduct
report. Indeed, if Sanders proved his case, he would likely have a complete defense to the minor
conduct violation.

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Sanders asserts that the reason he did not appeal the disciplinary decision and used the
ICRS instead was because Captain Chada told him that he had no right to appeal a “reprimand
only” disposition of a minor violation. Br. in Opp., dkt. 40, at 4. In reply, the state has
submitted an affidavit from Captain Chada in which he denies telling Sanders he could not
appeal the disciplinary determination.
It is unclear from the state’s reply whether it agrees that, if made, Captain Chada’s
statement would be enough to show that Sanders was denied a meaningful opportunity to avail
himself of the disciplinary appeal process. Compare Reply Brief, dkt. 46, at 2 (arguing that it was
plaintiff’s responsibility to review administrative code and follow proper procedures), with id.,
at 3 (indicating that if court accepts plaintiff’s allegation, then evidentiary hearing is necessary
to resolve issue of fact as to whether Chada misled plaintiff as to availability of appeal process).
I am satisfied, however, that if Captain Chada told Sanders he could not appeal the decision,
then filing a disciplinary appeal was not a remedy “available” to Sanders. See, e.g. Nunez v.
Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (exhaustion excused when prisoner was
mistakenly told that he needed to read a Program Statement to pursue his grievance but the
Program Statement cited was unavailable to him); Brown v. Croak, 312 F.3d 109, 113 (3d Cir.
2002) (formal grievance procedure not available where prison officials told prisoner to wait for
termination of investigation before filing formal grievance and then never informed prisoner of
termination of investigation).
I am not persuaded by the state’s suggestion that any misadvice by Chada was irrelevant
because Sanders could have discovered his right to appeal by reading the disciplinary disposition
form. The form did not advise Sanders that he could appeal the decision or even refer to the

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right of appeal, but merely cited the administrative code section number in minuscule text next
to the word “minor.” It is not obvious that the number is even a citation to the administrative
code, much less that one could discover his appellate rights by reviewing that section of the code.
Nonetheless, Sanders’s allegation about what Chada told him is not properly supported
by admissible evidence. Although Sanders submitted an affidavit in response to the motion to
dismiss, nowhere in that affidavit does he attest to Chada’s alleged statement. He refers to
Chada’s alleged statement in his description of certain documents attached to his affidavit, see
Aff. of Christopher Sanders, dkt. 41, at 1 (noting that he wrote to Deputy Warden after Chada
told him he could not appeal), but he does not swear under oath that Chada told him he could
not appeal. He mentions the alleged statement in his brief, but statements in a brief are not
evidence and cannot be given any weight. See, e.g., Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.
2003); In the Matter of Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985).
Because Sanders is proceeding pro se and has expressed some confusion about how to
submit evidence in opposition to the summary judgment motion, I will not dismiss his case at
this point. Instead, I will allow him the opportunity to submit admissible evidence in support of
his allegation about what Captain Chada said about his right to appeal the disciplinary decision.
If Sanders meets his burden with a sworn statement, then the court will hold an evidentiary
hearing to decide whose version of events is more credible, Sanders’s or Captain Chada’s.
As is this court’s practice in these situations, I remind the parties of the consequences of
making false statements in affidavits. Perjury is defined as giving "'false testimony [,while under
oath,] concerning a material matter with the willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory.'" United States v. Bermea- Boone, 563 F.3d

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621, 627 (7th Cir. 2009) (quoting United States v. Hickok, 77 F.3d 992, 1007 (7th Cir. 1996)
(citation omitted)).

Committing perjury in an affidavit exposes the affiant to sanctions,

including dismissal of a plaintiff's claims. E.g., Ridge Chrysler Jeep, LLC v. DaimlerChrysler Financial
Services Americas LLC, 516 F.3d 623, 626-27 (7th Cir. 2008) (plaintiff's claims dismissed as
sanction for perjury and other litigation misconduct). If Sanders repeats his accusation about
Captain Chada in a sworn affidavit, then he should also explain why he did not mention this fact
at any time during the ICRS complaint process or in his § 1983 complaint. Sanders also should
clarify whether he did not appeal the disciplinary decision because Captain Chada told him he
could not, or because he could not find a procedural manual that explained how to do so, as he
asserts in his submissions.

ORDER
IT IS ORDERED that defendant’s motion for summary judgment, dkt. 31, is STAYED
until October 19, 2011, in order to allow plaintiff to supplement the record if he chooses.

Entered this 5th day of October, 2011.
BY THE COURT:
/s/
STEPHEN CROCKER
Magistrate Judge

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