Kelly, Andre v. Peterson, A. et al
Filing
55
ORDER denying 44 Motion for Partial Summary Judgment. In accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), an evidentiary will be held on August 21, 2014 at 9:00 to determine whether plaintiff Andre Kelly exhausted his available adm inistrative remedies as required by 42 U.S.C. § 1997e(a). The clerk of court is directed to issue a writ of habeas corpus ad testificandum for plaintiff to appear at the hearing. Plaintiff should arrive at the hearing at least thirty minutes before the hearing is scheduled to begin. Signed by District Judge Barbara B. Crabb on 7/11/2014. (nln),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANDRE M. KELLY,
OPINION and ORDER
Plaintiff,
13-cv-651-bbc
v.
C/O A. PETERSON, C/O KE CASPERES
and C/O COFFEE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANDRE M. KELLY,
OPINION and ORDER
Plaintiff,
13-cv-677-bbc
v.
S. VAN VORST and
NURSES ON 9-11-13, 3 TO 11 STAFF,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In these two cases, pro se prisoner Andre M. Kelly is proceeding on claims that
officials at the Dane County jail violated his constitutional rights by failing to provide
appropriate medical care for his seizures. In both cases, defendants have filed motions for
summary judgment on the ground that he failed to exhaust his available administrative
remedies, as required by 42 U.S.C. § 1997e(a). Having reviewed the parties’ submissions,
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I conclude that I cannot grant defendants’ motions because there are genuinely disputed
facts on the question whether plaintiff had available administrative remedies. In accordance
with Pavey v. Conley, 528 F.3d 494, 496-98 (7th Cir. 2008), I must hold a hearing to
resolve these disputes.
OPINION
Under 42 U.S.C. § 1997e(a), “[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 exhaustion requirement is mandatory, Woodford v. Ngo, 548
U.S. 81, 85 (2006), and “applies to all inmate suits,” Porter v. Nussle, 534 U.S. 516, 524
(2002).
Generally, to comply with § 1997e(a), a prisoner must “properly take each step within
the administrative process,” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002),
which includes following instructions for filing the initial grievance, Cannon v. Washington,
418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers,
431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's
administrative rules require.” Pozo, 286 F.3d at 1025. See also Woodford, 548 U.S. at 90
(“proper exhaustion demands compliance with an agency's deadlines”). A failure to follow
these rules may require dismissal of the prisoner’s case.
Perez v. Wisconsin Dept. of
Corrections, 182 F.3d 532, 535 (7th Cir. 1999). However, “[i]f administrative remedies
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are not ‘available’ to an inmate, then the inmate cannot be required to exhaust.” Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006). “In determining whether a particular remedy was
‘available’ to a prisoner who failed to exhaust, the Court of Appeals for the Seventh Circuit
has held that the key question is whether the prisoner or an official was at fault for the
failure to complete the grievance process properly.” Shaw v. Jahnke, 607 F. Supp. 2d 1005,
1010 (W.D. Wis. 2009) (internal quotations omitted).
In these cases, defendants do not deny that plaintiff filed grievances related to all of
the claims he is asserting. Rather, defendants’ only argument in both cases is that plaintiff
failed to file an administrative appeal after his grievance was denied, as required by the
inmate handbook at the Dane County jail. In response, plaintiff raises two arguments: (1)
he never received a decision on his grievances, so he could not have filed a timely appeal of
the grievance; and (2) even if he had received decisions, he never received an inmate
handbook, so he would not have known that he needed to file an appeal.
Plaintiff’s allegations raise genuine issues of material fact on the question whether
plaintiff had an available remedy. With respect to plaintiff’s first argument, the general rule
is that, “if [a prisoner] did submit a grievance but received no ruling, he was not required to
file an appeal.” Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008). See also Roberts
v. Neal, 745 F.3d 232, 236 (7th Cir. 2014) (“[A]ssuming [a grievance] was filed, [the
prisoner] never received a response from the warden, and so didn't have to do anything
further to keep his grievance alive.”). An exception to the rule might apply if the jail had a
rule that a prisoner should file an appeal if he does not receive a ruling after a particular
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amount of time. E.g., 28 C.F.R. § 542.18 (“If the inmate does not receive a response within
the time allotted for reply, including extension, the inmate may consider the absence of a
response to be a denial at that level.”). However, defendants do not argue that the Dane
County jail has such a rule.
Defendants point to their own evidence showing that jail officials did respond to
plaintiff’s grievances, but this shows only that the issue is disputed and cannot be resolved
on a motion for summary judgment. Although plaintiff relies solely on his own say-so as
evidence that he never received a response, that is sufficient to create a genuine issue of
material fact. Roberts, 745 F.3d at 234 (“[The prisoner] provided no documentation to back
up his claim [that he filed a grievance], such as a copy of the grievance. But that was not an
adequate basis for a grant of summary judgment.”).
The same conclusion is required with respect to the second issue, whether plaintiff
was aware that he was supposed to file an appeal. “[P]risoners must be informed of the
grievance procedure at the admitting facility,” Roberts, 745 F.3d at 235 (internal quotations
omitted), so if plaintiff was not informed that he was required to file an appeal, his failure
to file one cannot be a ground for dismissing his claims.
Defendants say that the
instructions for filing an appeal were in the inmate handbook, but plaintiff says that he never
received a handbook, so this is another disputed issue. Further, defendants cite no evidence
that plaintiff was aware of the appeal procedure through other means, so I cannot assume
that he was. Roberts, 745 F.3d at 235 (“It can't be assumed without some evidence that a
prisoner is aware of [the grievance procedures.”]).
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When there are genuine factual disputes regarding exhaustion under § 1997e(a), the
district court must hold an evidentiary hearing to resolve the disputes. Pavey, 544 F.3d at
741–42. Accordingly, I am denying defendants’ motion and scheduling a hearing. At the
hearing, the parties will have an opportunity to present testimony and documentary evidence
to support their positions on the general question whether plaintiff exhausted his available
administrative remedies and the more specific questions whether plaintiff received a decision
on his grievances related to this case and whether he was aware that he was supposed to file
an appeal. After the hearing, I will decide whether defendants have met their burden to
prove that plaintiff failed to comply with § 1997e(a).
ORDER
IT IS ORDERED that
1. The motions for summary judgment filed by defendants Peterson, Casperes and
Coffee in case no. 13-cv-651-bbc, dkt. #44, and by defendant Van Vorst in case no. 13-cv677-bbc, dkt. #43, are DENIED.
2. In accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), an evidentiary
will be held on August 21, 2014 at 9:00 to determine whether plaintiff Andre Kelly
exhausted his available administrative remedies as required by 42 U.S.C. § 1997e(a).
3. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for
plaintiff to appear at the hearing. Plaintiff should arrive at the hearing at least thirty
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minutes before the hearing is scheduled to begin.
Entered this 11th day of July, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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