Austin, David v. G4S Secure Solutions USA et al

Filing 48

ORDER denying defendants' 36 , 39 Motions for Summary Judgment on exhaustion of administrative remedies. Signed by District Judge James D. Peterson on 5/15/2017. (jef),(ps)

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

DAVID D. AUSTIN, II,
Plaintiff,
v.
G4S SECURE SOLUTIONS USA,
SHANE L. PETERSON, SHANTEL L. BELOT,
JOHN DOES, JANE DOES, MILWAUKEE
COUNTY, DAVID A. CLARKE, JR., GARY
HAMBLIN,
JEFFREY PUGH, M. SAMBORSKI, and
JON LITSCHER,

OPINION & ORDER
15-cv-259-jdp

Defendants.
Plaintiff David D. Austin, II, a former prisoner in the custody of the Wisconsin
Department of Corrections (DOC), is proceeding on Eighth Amendment and negligence claims
against defendants concerning a motor vehicle accident that occurred while Austin was being
transported to the Milwaukee County Jail.
The two sets of defendants in this case (DOC officials and private entities that contract
with the state to provide transportation services) have filed motions for summary judgment
based on Austin’s failure to exhaust his administrative remedies. Dkt. 36 and Dkt. 39. Because
defendants have not established that administrative remedies were available to Austin, I will
deny their motions.

UNDISPUTED FACTS
I draw the following facts from defendants’ submissions in support of their motions and
the court’s June 1, 2016 screening order, Dkt. 13.

Defendant G4S Secure Solutions USA contracts with defendant Milwaukee County to
transport inmates. Austin alleges that on May 10, 2012, defendants Shane L. Peterson and
Shantel L. Belot, two G4S employees, picked Austin up from the Stanley Correctional
Institution (SCI) to transport him and five other inmates to the Milwaukee County Jail. Austin
and the other inmates sat, handcuffed and shackled, on metal benches in a metal cage in the
back of a cargo van. Another car rear-ended the transport van on the highway, and Austin was
knocked unconscious. Defendant State Highway Patrol Trooper M. Samborski responded to
the scene. Peterson, Belot, and Samborski assessed the accident, called their supervisors
(defendants John and Jane Does), and then continued to drive to the Milwaukee County Jail,
despite some of the inmates’ requests to go to a hospital. Austin’s injuries were exacerbated
from jostling around in the damaged van. It was not until almost five hours after the accident
occurred that Austin received any medical attention.
Defendants Milwaukee County Sheriff David A. Clarke, Jr., former DOC Secretary
Gary Hamblin, and SCI Warden Jeffrey Pugh were not personally involved in the May 10
accident. But Austin alleges that they knew that the vans used to transport inmates were unsafe
and turned a blind eye to the risk that the vans presented.
Austin was transported back to SCI on May 22, 2012. He did not file a grievance with
the DOC concerning the May 10 accident.
I granted Austin leave to proceed on Eighth Amendment deliberate indifference claims
against defendants G4S, Peterson, Belot, Clarke, Hamblin, Pugh, and John and Jane Does in
their individual capacities. I also allowed Austin to proceed against defendants Pugh, Clarke,
Milwaukee County, and current DOC Secretary Jon Litscher in their official capacities for
purposes of his injunctive relief claim. And I allowed Austin to proceed on state law negligence

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claims against defendants G4S, Peterson, Belot, Samborski, Clarke, Hamblin, Pugh, Milwaukee
County, and John and Jane Does.

ANALYSIS
To succeed on a motion for summary judgment, defendants, as the moving parties, must
show that there is no genuine dispute of material fact and that they are entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A
genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party
exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc.,
414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary
judgment record must be drawn in Austin’s favor, as the nonmoving party. Baron v. City of
Highland Park, 195 F.3d 333, 338 (7th Cir. 1999).
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, 532 (2002). Generally,
to comply with § 1997e(a), a prisoner must “properly take each step within the administrative
process,” which includes filing grievances and appeals “in the place, and at the time, the prison’s
administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1024, 1025 (7th Cir. 2002).
The grievance itself need not provide “a detailed factual narrative, articulate legal theories, or
demand particular relief to exhaust [the prisoner’s] administrative remedies, [but] must merely
‘object intelligibly to some asserted shortcoming.’” Stewart v. Cox, No. 14-cv-665, 2015 WL

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9296457, at *3 (W.D. Wis. Dec. 18, 2015) (quoting Strong v. David, 297 F.3d 646, 650 (7th
Cir. 2002)).
In Wisconsin, the administrative code sets out the process for a prisoner to file a
grievance and appeal an adverse decision. Wis. Admin. Code §§ DOC 310.07 and 310.09.
Section 310.09(6) requires inmate to file grievances “within 14 calendar days after the
occurrence giving rise to the complaint, except that the institution complaint examiner may
accept a late complaint for good cause.” Failure to follow these rules may require dismissal of
the prisoner’s claims. Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because
exhaustion is an affirmative defense, defendants bear the burden of establishing that a plaintiff
failed to exhaust his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Defendants contend that because Austin did not file any grievance concerning the May
10 accident, his federal claims must be dismissed for failure to exhaust administrative remedies
as required by § 1997e(a). Austin argues that his failure to file a grievance should be excused
because no administrative remedies were available to him, citing White v. Bukowski, 800 F.3d
392 (7th Cir. 2015). In White, the plaintiff alleged that jail officials were deliberately
indifferent to her need for prenatal care and prompt transport to a hospital to deliver her baby,
who was born with serious birth defects due to lack of oxygen. The jail’s grievance procedure
did not establish a deadline for filing a grievance, but the plaintiff was transferred without
warning to another jail four days after she returned from the hospital, and it was impossible
for her to file a grievance after the transfer. The Seventh Circuit held that the four-day deadline
to file a grievance was “unreasonably short for a woman who had just given birth to a severely
impaired child,” so “no administrative remedies were available to” the plaintiff, and her case
could not be dismissed for failure to exhaust. Id. at 397.

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In this case, under § 310.09(6), Austin had until May 24 to file his grievance. But he
was at the Milwaukee County Jail, where the DOC’s grievance system was unavailable to him,
until May 22. Thus, although § 310.09(6) ostensibly gives prisoners 14 days to file grievances,
Austin only had two days to do so—half the amount of time that the Seventh Circuit identified
as unreasonable in White. So it appears that administrative remedies were not truly available
to Austin.
Defendants argue that Austin “submits no evidence to indicate that it would have been
impossible for him to file a complaint upon his return to [SCI],” Dkt. 45, at 3, but a showing
of impossibility is not required by White. And the burden is on defendants, not Austin, to
submit evidence sufficient to establish the affirmative defense of failure to exhaust.
Defendants also point to evidence that Austin “had previously filed complaints with the
inmate complaint review system.” Id. But the plaintiff’s knowledge, or lack of knowledge,
concerning the grievance process was not a factor in the White analysis. Nor was it a factor in
King v. McCarty, in which the Seventh Circuit held that administrative remedies were not
available to an inmate when a jail’s grievance system included a five-day deadline to obtain,
complete, and submit a grievance form. 781 F.3d 889, 895 (7th Cir. 2015). The fact that
Austin was able to file grievances within the standard 14-day window does not establish that
he reasonably could have done so under a mere two-day deadline.
In light of Seventh Circuit precedent, a two-day deadline to file a grievance is
unreasonable. Defendants have offered no evidence establishing that administrative remedies
were available to Austin despite the two-day deadline. So I will deny defendants’ motions for
summary judgment on their affirmative defense of failure to exhaust.

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ORDER
IT IS ORDERED that defendants’ motions for summary judgment on exhaustion of
administrative remedies, Dkt. 36 and Dkt. 39, are DENIED.
Entered May 15, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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