Carter, Tommie v. Hooper, Patrick et al
Filing
60
ORDER Setting Hearing on 43 MOTION FOR SUMMARY JUDGMENT for Failure to Exhaust Administrative Remedies. Evidentiary Hearing set for 9/28/2016 at 09:30 AM. Signed by District Judge Barbara B. Crabb on 8/16/2016. (elc),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TOMMIE L. CARTER,
OPINION and ORDER
Plaintiff,
16-cv-54-bbc
v.
PATRICK C. HOOPER and BRENT H. EXNER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Tommie Carter is a prisoner in the custody of the Wisconsin
Department of Corrections. He is proceeding on a claim that defendants Patrick Hooper
and Brent Exner used excessive force against him on February 28, 2013, while removing his
restraints. Now before the court is defendants’ motion for summary judgment grounded on
plaintiff’s failure to exhaust his administrative remedies, as required by 42 U.S.C. §
1997e(a). Dkt. #43.
In their motion, defendants acknowledge that plaintiff filed a grievance related to the
February 28, 2013 incident. However, that grievance was rejected because it was filed in
September 2013, several months beyond the 14-day deadline. Wis. Admin. Code § DOC
310.11(5)(d). In response, plaintiff alleges that he tried on multiple occasions to submit
a timely grievance after the February 28, 2013 use of force, but prison officials either refused
to help him submit the grievance or, when he was able to submit the grievance, returned it
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to him unopened. In their reply brief, defendants do not deny that, if plaintiff’s allegations
are true, I could not dismiss this case for plaintiff’s failure to exhaust his administrative
remedies. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (“Prison officials may not
take unfair advantage of the exhaustion requirement, however, and a remedy becomes
‘unavailable’ if prison employees do not respond to a properly filed grievance or otherwise
use affirmative misconduct to prevent a prisoner from exhausting.”).
Although defendants point to various reasons why they believe that plaintiff’s
allegations are not credible, I cannot resolve that issue on a motion for summary judgment.
Rather, under Pavey v. Conley, 528 F.3d 494, 496-98 (7th Cir. 2008), I must hold a hearing
to resolve these disputes.
Plaintiff is put on notice that, if defendants prove that he fabricated his allegations
about prison officials interfering with his exhaustion efforts, he may be subject to sanctions
beyond simply dismissal of this case. Because I have sanctioned plaintiff for fabricating
allegations in two previous cases, Carter v. Waterman, No. 13-cv-742-bbc (W.D. Wis. Feb.
2, 2016); Carter v. Ashton, No. 14-cv-399-bbc (W.D. Wis. Feb. 2, 2016), I will consider
whether it is appropriate to impose a more serious sanction, including a filing bar on new
lawsuits. Carr v. Tillery, 591 F.3d 909, 920-21 (7th Cir. 2010); Alexander v. United States,
121 F.3d 312 (7th Cir. 1997); Support Systems International Inc. v. Mack, 45 F.3d 185
(7th Cir. 1995). Both parties should be prepared to discuss this issue at the hearing.
For the sake of completeness, I address plaintiff’s alternative argument, which is that
he exhausted his administrative remedies by completing the grievance process in September
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2013. This argument is a nonstarter because it is well established that a prisoner must
“properly take each step within the administrative process, in the place, and at the time, the
prison's administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002) (emphasis added). See also Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper
exhaustion demands compliance with an agency's deadlines”). In other words, a prisoner
cannot satisfy the requirements of § 1997e(a) by filing an untimely grievance. Thus, if
defendants can show that prison officials did not interfere with plaintiff’s ability to file a
timely grievance, the September 2013 grievance cannot save this case.
Plaintiff attaches a letter dated June 24, 2016 in which he asks grievance examiner
“Ms. Perttu” whether a rejected complaint that is reviewed by the warden is “completely
exhausted under the Prison Litigation Reform Act.” In response, Perttu wrote, “there are
no further appeal options once the warden makes his decision.” Dkt. #57-1. Perttu did not
say that plaintiff had complied with § 1997e(a); rather, she observed only that he had no
more available administrative appeals.
Even if Perttu had given a legal opinion that plaintiff’s rejected grievance is sufficient
under § 1997e(a), that opinion would have no bearing on this case. Although prison officials
can waive the issue of untimeliness by considering a grievance on the merits, Riccardo v.
Rausch, 375 F.3d 521, 524 (7th Cir. 2004), that is not what happened in this case. When
plaintiff filed his September 2013 grievance, the examiner rejected it as untimely; the warden
affirmed that decision in accordance with Wis. Admin. Code § DOC 310.11(6). Under
Pozo and Woodford, that is the end of the matter. An examiner’s advisory opinion after the
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fact would have no legal effect.
ORDER
IT IS ORDERED that
1. An evidentiary hearing will be held on Wednesday, September 28, 2016, at 9:30
a.m., to determine whether plaintiff Tommie Carter exhausted his available administrative
remedies as required by 42 U.S.C. § 1997e(a).
2. 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 courthouse at least thirty
minutes before the hearing is scheduled to begin.
Entered this 16th day of August, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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