Thomas, Darreyll v. Reese, Michael et al

Filing 47

ORDER granting defendants' 34 Motion to Dismiss. The complaint is DISMISSED without prejudice for plaintiff Darreyll T. Thomas's failure to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a). The clerk 9;s office is directed to close this case and to terminate all pending motions. Plaintiff may move to reopen this case within thirty days of the date of this order if he presents evidence showing that he exhausted administrative remedies at the Dane County Jail. If plaintiff fails to so move, the clerk's office is directed to enter judgment dismissing this case. Signed by District Judge William M. Conley on 8/6/2014. (jef),(ps)

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

DARREYLL T. THOMAS,
OPINION AND ORDER
Plaintiff,
v.

13-cv-597-wrnc
MICHAEL REESE, et al.,
Defendants.
State inmate Darreyll T. Thomas filed this civil action pursuant to 42 U.S.C.
§ 1983, challenging the conditions of his confinement at the Dane County Jail.

Defendants have filed a motion, arguing that the complaint must be dismissed because
Thomas failed to exhaust available administrative remedies with respect to his claims.
(Dkt. # 34). Thomas has since responded. (Dkt. # 40). For reasons set forth below, the
court will grant defendants' motion and dismiss the complaint without prejudice.

FACTS
While the relevant events all took place at the Dane County Jail, plaintiff Darreyll
Thomas is currently incarcerated by the Wisconsin Department of Corrections at the
Columbia Correctional Institution in Portage.
County Sheriff Deputies:
Christopher Larsh.

The named defendants are all Dane

Michael Reese, Robin Hampton, Robert Van Norman and

In addition, the complaint names as defendants five other "John

Doe" staff members assigned to the Dane County Jail.
The claims in this case stem from an incident that occurred at the Dane County
Jail in July 2012, where Thomas was in custody pending criminal proceedings in Dane

County Case No. l 1CF1044. In that case, Thomas was facing charges of second-degree
sexual assault with use of force, strangulation and suffocation, substantial battery with
intent to cause bodily harm, victim intimidation accompanied by property damage,
disorderly conduct and theft.
On July 28, 2012, Thomas claims that Deputy Reese improperly assigned him to a
top bunk in violation of his medical restriction to a lower bunk. When Thomas refused
to accept a top-bunk assignment, Deputies Reese, Hampton and Van Norman allegedly
slammed Thomas into a wall and then to the floor. Thomas alleges further that Deputy
Larsh and five John Doe staff members were standing by and failed to intervene in this
excessive use of force.
As a result of this altercation, Thomas was charged with assault by a prisoner,

resisting or obstructing an officer, and disorderly conduct in Dane County Case No.
l 2CF 1488. In addition, Thomas was charged with a major violation of jail disciplinary
rules for his role in the July 28, 2012 altercation with Deputies Reese, Hampton and Van
Norman. Thomas claims that these charges were lodged against him by Deputy Reese
after Thomas threatened to sue him for the use of force.
Shortly after the July 28th incident, Thomas was provided with a document
labeled "Notice of Disciplinary Hearing & Rights." (Dkt. # 36, Exh. C) That notice
informed Thomas of the rules he was alleged to have violated. (Id.) Thomas was also
advised that a formal disciplinary hearing would be held on August 1, 2012. (Id.)
On July 31, 2012, Thomas waived his right to a formal hearing on the disciplinary
charges, which alleged a major violation of jail rules. (Id.) Following an informal hearing,
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Thomas was found guilty as charged of violating jail disciplinary rules.

(Id.)

As

punishment, Thomas was placed in disciplinary segregation for ten days.
On September IO, 2012, Thomas pied guilty to several of the original charges
against him in Case No. 11CF1044 (strangulation and suffocation, substantial battery
and victim intimidation) and received an 8-year prison sentence. The charges against
Thomas in Case No. 12CFI488 were dismissed that same day.
In this case arising out of the altercation in Dane County Jail, the court granted
Thomas leave to proceed with claims against Reese, Hampton, Van Norman and five
John Doe staff members for excessive force and/or failure to intervene. The court also
granted Thomas leave to proceed with a retaliation claim and a state-law battery claim
against Reese.
OPINION
Defendants move to dismiss on the grounds that Thomas did not comply with the
exhaustion requirement found in the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.
§ l 997a(e), before filing suit in this court. Because Thomas did not file a grievance or

pursue other available administrative remedies concerning the same issues at the Dane
County Jail, the court agrees.

The PLRA prohibits any civil action by a prisoner in

federal court under 42 U.S.C. § 1983 concerning "prison conditions" until "such
administrative remedies as are available are exhausted." 42 U.S.C. § l 997e(a).

The

exhaustion requirement found in § l 997e(a) applies to all inmate suits about prison life,
"whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The Supreme Court has repeatedly emphasized that § l 997e(a) mandates exhaustion of
all administrative procedures before an inmate can file any suit challenging prison
conditions. See Booth v. Churner, 532 U.S. 731, 739 (2001); Woodford v. Ngo, 548 U.S.
81, 85 (2006); see also Jones v. Bock, 549 U.S. 199, 212 (2007) (confirming that "[t]here is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court").
The Dane County Jail maintains a formal grievance procedure that is described in
the Inmate Handbook, a copy of which was given to Thomas when he was booked into
that jail. (Dkt. # 36, Exhs. A & Bat 28.) According to the handbook, inmates at the jail
must make every effort to resolve a complaint informally with the housing unit deputy
before being issued a grievance form. (Id.) The Security Services secretary must receive
an inmate's formal grievance form within five working days from the date the incident
occurred. (Id.) A late grievance may be accepted on a case-by-case basis. (Id.) Within
ten business days following the receipt of the formal grievance, the inmate will receive a
letter of acknowledgement or decision from a Sergeant or their designee. (Id. at 29.) If
the inmate is not satisfied with the decision made on his grievance, he may submit an
appeal to the Jail Captain within five business days of receiving the decision made on his
grievance. (Id.) The Jail Captain is the final level of appeal. (Id.)
Additional procedures are available for incidents involving a major disciplinary
rules violation. (Id. at 27.) According to the Inmate Handbook, grievances associated
with issues involving major discipline must also be raised during an appeal from the
disciplinary proceeding. (Id. at 28.)
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I

Not only did Thomas choose not to dispute the major disciplinary action against
him, Thomas also did not file his own grievance regarding his bunk assignment, the use
of force or the disciplinary charges. In addition, to the extent that these issues pertained
to the major rules violation that he was found guilty of committing, Thomas could have
requested a formal hearing followed by an appeal from his disciplinary conviction, but he
also took neither of these steps. Thomas offers no explanation for his failure to pursue
any of these available administrative remedies.
In support of his contention that the exhaustion requirement is satisfied, Thomas
does submit a "jail log" entry from the Dane County Sheriffs Office. (Dkt. # 40, Exh.
I). According to this exhibit, Thomas requested a grievance form "because he feels he is
not being allowed to get information from records because he has to write records and
send the request via mail and he has no [envelopes] to send the request by mail." (Id.)
Assuming that this submission qualifies as an informal grievance, Thomas made no
mention of any dispute about his bunk assignment, the ensuing use of force or the
alleged retaliation by Deputy Reese. This alone was, therefore, insufficient to alert jail
officials of a problem or give them a fair opportunity to address his complaints. Thus, a
single request for a form does not serve to exhaust remedies required by the PLRA, 42
U.S.C. § l 997e(a). See Porter, 534 U.S. at 525 (purpose of exhaustion requirement is to
give officials "time and opportunity to address complaints internally before allowing the
initiation of a federal case"); see also Johnson v. Johnson, 385 F.3d 503, 518 (5th Cir. 2004)
(concluding that a grievance which failed to mention the problem was insufficient to
exhaust administrative remedies).
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The Supreme Court has emphasized that the requirement found in the PLRA, 42
U.S.C. § l 997e(a), mandates "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93
(2006). This includes compliance with prison procedural rules. Id. As the Supreme
Court has recognized, "Congress enacted § l 997e(a) to reduce the quantity and improve
the quality of prisoner suits; to this purpose, Congress afforded corrections officials time
and opportunity to address complaints internally before allowing the initiation of a
federal case."

Porter, 534 U.S. at 524.

By requiring exhaustion of administrative

remedies, Congress hoped that "corrective action taken in response to an inmate's
grievance might improve prison administration and satisfy the inmate, thereby obviating
the need for litigation." Id. (citing Booth, 532 U.S. at 737). In addition to filtering out
potentially frivolous claims, Congress also believed that internal review would facilitate
adjudication of cases ultimately brought to court by giving prison officials an opportunity
to develop an administrative record that clarifies the contours of the controversy. Id.
(citations omitted).
Although Thomas had ample time and opportunity to file a grievance concerning
the conditions of his confinement while at the jail, he deliberately bypassed the
administrative review process available at the Dane County Jail. "[A] prisoner who does
not properly take each step within the administrative process has failed to exhaust state
remedies, and thus is foreclosed by§ I 997e(a) from litigating." Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002). In that respect, the Supreme Court has made clear
that prisoners may not deliberately bypass the administrative process by flouting an
institution's procedural rules.

See Woodford, 548 U.S. at 96-98. Plaintiff's failure to
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complete the grievance process violates the PLRA's exhaustion requirement found in
§ l 997e(a), which mandates exhaustion before filing suit. Because plaintiff failed to

exhaust available administrative remedies before filing suit in federal court, his complaint
must be dismissed without prejudice.
Accordingly, the court will grant defendants' motion and dismiss the complaint for
plaintiff's failure to comply with § l 997e(a).

Because both parties refer to

documentation of the grievance procedures in place at the Dane County Jail and what
effort, if any, Thomas made to exhaust available remedies, the court has effectively
treated the motion to dismiss as a motion for summary judgment pursuant to Fed. R.
Civ. P. 12(d). Therefore, final judgment will be withheld for thirty days. If Thomas has
any additional evidence showing that he did, in fact, exhaust administrative remedies
with respect to his claims in compliance with the procedures outlined above, he may
submit that evidence along with a motion to reopen this case within thirty days of the
date of this order.

ORDER
IT IS ORDERED that:
1) Defendants' motion to dismiss (dkt. # 34) is GRANTED.
2) The complaint is DISMISSED without prejudice for plaintiff Darreyll T.
Thomas's failure to exhaust available administrative remedies as required
by 42 U.S.C. § l 997e(a). The clerk's office is directed to close this case
and to terminate all pending motions.
3) Plaintiff may move to reopen this case within thirty days of the date of this
order if he presents evidence showing that he exhausted administrative
remedies at the Dane County Jail.
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4) If plaintiff fails to so move, the clerk's office is directed to enter judgment
dismissing this case.
Entered this 6th day of August, 2014.
BY THE COURT:

/s/
WILLIAM M. CONLEY
District Judge

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