Smith, Adrean v. Boughton, Gary et al
ORDER denying plaintiff's 13 Motion for Partial Summary Judgment; granting defendants' 17 Motion for Partial Summary Judgment as to plaintiff's due process claim, which will be dismissed. Signed by District Judge Barbara B. Crabb on 2/8/2018. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ADREAN L. SMITH,
OPINION AND ORDER
GARY BOUGHTON, M. KARTMAN,
CAPT. PRIMMER, LT. LEFFLER,
SGT. BLOYER and SGT. BERGER,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff and prisoner Adrean Smith contends that prison officials at the
Wisconsin Secure Program Facility in Boscobel, Wisconsin, deprived him of a bed and
mattress for 40 days as a disciplinary sanction for allegedly damaging a mattress. Plaintiff
is proceeding on Eighth Amendment and Fourteenth Amendment due process claims. Now
before the court are the parties’ cross motions for partial summary judgment on the due
process claim. Dkt. ##13 and 17. Plaintiff believes that he is entitled to judgment as a
matter of law and that defendants are not entitled to qualified immunity. Defendants say
that plaintiff failed to exhaust his administrative remedies by not raising the due process
issue before he filed suit in this court; alternatively, they contend that plaintiff’s claim fails
as a matter of law and that they are entitled to qualified immunity. For the reasons set out
below, I am granting defendants’ motion for summary judgment and denying plaintiff’s
motion. Although defendants have not met their burden of showing that plaintiff failed to
exhaust his administrative remedies with respect to his due process claim, plaintiff’s claim
fails on the merits and will be dismissed.
From the parties’ proposed findings of fact, I find that the following facts are
undisputed unless otherwise noted.
Plaintiff Adrean Smith has been incarcerated in the Restricted Housing Unit at the
Wisconsin Secure Program Facility in Boscobel, Wisconsin since May 7, 2015. At the time
he entered restrictive status housing, he received a copy of the facility’s “Restricted Housing
Inmate Handbook,” which states that Division of Adult Institutions Policy and Procedure
§ 306.00.34 allows security supervisors to place inmates on restrictions and security
precautions when the inmates are the subject of an incident report or conduct report. The
policy requires the security director to review the restriction or precaution and formally
notify the inmate of the action taken.
On or about March 8, 2016, plaintiff told two unidentified correctional officers that
the cell he had been placed in had a damaged mattress, adding that he did not want to be
charged for something that he did not do. One of the officers stated that “We can’t get to
it right now cause we’re kind of short of staff, but on Monday I’ll make sure we swap your
mat out.” The officer also told plaintiff that he would make a note of the mattress damage.
On March 11, 2016, plaintiff was subjected to a random cell search and the damaged
mattress was discovered. Plaintiff was issued a conduct report for allegedly violating Wis.
Admin. Code § DOC 303.47 for possession of miscellaneous contraband and § DOC 303.38
for damage or alteration of property. Because both offenses constituted minor violations
under the disciplinary code, the conduct report was adjudicated on a paper record without
a hearing. In accordance with Wis. Admin. Code § DOC 303.77, plaintiff completed a
DOC-9B form entitled “Inmate’s Statement for Contested Minors.” Defendant Lieutenant
Leffler, a supervising officer, reviewed the conduct report and plaintiff’s statement and found
plaintiff guilty of the two rule violations. As punishment, he imposed a 14-day room
confinement, a 3-day loss of electronics, restitution in the amount of $125.00 for the
damaged mattress and destruction of the other contraband found in plaintiff’s cell. Although
the form “DOC-91 – Appeal of Adjustment Committee of Hearing Officer’s Decision” is
provided to all inmates entering the restricted housing unit, plaintiff did not complete that
form or appeal this determination.
On March 14, 2016, plaintiff received a “DOC-2297 Offender Restriction/Precaution
Notice,” notifying him that his regular mattress would be replaced with a “high security
mattress” for 10 days because the string at the end of the mattress plaintiff had received had
been removed, revealing the contents. (A “high security mattress” is 3/4-inch thick and
made of heavy-duty rubber; a regular mattress is four inches thick and made of foam inside
a vinyl cover.) Initially, defendant Leffler recommended a 14-day restriction, but defendant
Mark Kartman, the Security Director, reduced the restriction to 10 days.
The security mattress was not taken away at the end of the 10-day restriction period.
Plaintiff was not given a new mattress until he filed an inmate complaint about the mattress
on March 31, 2016. Dkt. #21, exh. 1 at 11. In that complaint, plaintiff did not challenge
his placement on the mattress restriction, but said only that “On 3/21/16 I was suppose[d]
to be removed from mattress-restriction, However I’ve still have not received my regular
mattress.” Id. The complaint was investigated and affirmed, and plaintiff was given a regular
mattress. Plaintiff had the security mattress instead of a standard mattress for a total of 40
days. He avers that the security mattress was hard and filthy and caused him back and side
pain, which prevented him from sleeping.
Plaintiff is proceeding on a claim that he was denied due process because he did not
have notice that he could be disciplined by the loss of his mattress. Dkt. #6 at 5-6. In
particular, plaintiff contends that being deprived of a mattress is not one of the punishments
listed in the prison regulations for the type of misconduct of which he was accused and he
says did not otherwise have advance notice of that penalty. Before discussing the merits of
plaintiff’s claim, I will take up the issue of exhaustion.
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.” As a general rule, compliance with § 1997e(a) requires a prisoner
to “properly take each step within the administrative process.” Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002). This 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. The purpose
of these requirements is to give the prison administrators a fair opportunity to resolve the
grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006).
If a prisoner fails to exhaust administrative remedies available to him before filing his
lawsuit, the court must dismiss the case without prejudice. Fluker v. County of Kankakee,
741 F.3d 787, 791 (7th Cir. 2013) (dismissals for failure to exhaust are always without
prejudice, “even if exhausting administrative remedies will prove to be impossible”); Perez v.
Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999). However, “[a] prison
administrative procedure is unavailable for purposes of the [Prison Litigation Reform Act]’s
exhaustion requirement when prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation.” Ross v.
Blake, 136 S. Ct. 1850, 1860 (2016) (emphasis added) (citing 42 U.S.C. § 1997e(a)).
Because exhaustion is an affirmative defense, defendants bear the burden of establishing that
plaintiff failed to exhaust his remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Defendants contend that plaintiff had two possible opportunities to exhaust his
administrative remedies with respect to the mattress restriction but failed to take advantage
of either one. First, he could have appealed the March 11 disciplinary decision, including any
procedural errors, to the warden under Wis. Admin. Code § DOC 303.82 within 10 days
after receiving a copy of the decision. That argument is not persuasive; by defendants’ own
account, the security restriction was not part of the disciplinary action, Kartman decl., dkt.
#20 at ¶¶ 13-14, and therefore, could not have been the subject of an appeal under § 303.82.
Second, defendants say that plaintiff could have filed an inmate complaint about the
March 14 security restriction under the process set forth in Wisconsin Administrative Code
ch. DOC 310, which requires the filing of a complaint with the institution complaint
examiner within 14 days of the occurrence giving rise to the complaint. Id., § 310.11(5)(d).
Although plaintiff did not file an inmate complaint within 14 days of the imposition of the
security restriction, he did file a complaint on March 31, 2016, after more than 20 days had
passed and the security mattress still had not been removed. That complaint was found to
be valid and his standard mattress was returned. Although defendants point out that plaintiff
did not specifically allege in the March 31 complaint that he failed to receive notice of the
mattress restriction, it is not entirely clear whether that complaint was sufficient to preserve
plaintiff’s due process claim. (Eventually, plaintiff filed two inmate complaints about the
alleged due process violation in February 2017. Those complaints were rejected as untimely
because they were filed more than 14 days after the incident. Dkt. #21, exh. ##2-3.)
This question is further complicated by an affidavit that plaintiff submitted in
response to defendants’ motion for summary judgment. Plaintiff avers that on or after March
14, 2016, he complained to defendant Primmer about the mattress restriction and Primmer
told him that the restriction “was not imposed as a penalty of the conduct report so the issues
surrounding the failure to provide notice was not contestable because the restriction involves
the inherent power of the security office” and “it’s not something that can be complained of
in the complaint review system.” Dkt. #28. Plaintiff avers that he relied on these statements
when he chose not to file an inmate complaint. Although defendants argue that plaintiff’s
allegations about being misled lack evidentiary support and credibility, if Primmer actually
told plaintiff that he could not use the inmate complaint review system to challenge the
disciplinary decision to impose a mattress restriction, the procedures were not “available” to
him, Ross, 136 S. Ct. at 1860, and he did not need to exhaust his administrative remedies.
Anderson v. Butler, 2017 WL 3049574, at *2 (W.D. Wis. July 18, 2017) (finding same).
In sum, it remains uncertain whether plaintiff could have raised the due process issue
in an appeal of the disciplinary decision, whether his March 31, 2016 inmate complaint was
sufficient to raise the due process issue and whether Primmer misled plaintiff about the
availability of the inmate complaint system. Accordingly, I find that defendants have failed
to show plaintiff failed to exhaust his administrative remedies. This issue is not dispositive,
however, because I find that plaintiff’s due process claim must be dismissed on the merits.
B. Merits of Due Process Claim
To prevail on his due process claim, plaintiff must show that (1) defendants deprived
him of a “liberty interest” or “property interest”; and (2) he did not receive all the process he
was due. Abcarian v. McDonald, 617 F.3d 931, 941 (7th Cir. 2010). A prisoner has a liberty
interest in avoiding particular conditions of confinement only if those conditions pose
“atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515
U.S. 472, 483-84 (1995)). In determining whether prison conditions meet this standard,
courts must consider both the length of the deprivation and the severity of the conditions.
Marion v. Columbia Correctional Institution, 559 F.3d 693, 698 (7th Cir. 2009).
In this case, plaintiff was ordered to sleep on what he describes as a thin, hard security
mattress for 10 days. He contends that because the mattress was not replaced by a standard
mattress for 40 days, he was subjected to a significant hardship for at least 30 of those days.
At the screening stage, I found these allegations sufficient to allow plaintiff to proceed on a
due process claim in addition to an Eighth Amendment claim, but a review of the applicable
case law shows that, by itself, using an uncomfortable mat for 40 days does not implicate a
liberty interest. As plaintiff concedes in his reply brief, dkt. #25 at 3, the Court of Appeals
for the Seventh Circuit has held that similar or more significant deprivations for much longer
periods do not amount to a deprivation of a liberty interest. Obriecht v. Raemisch, 565 Fed.
Appx. 535, 539-40 (7th Cir. 2014) (78-day confinement with mattress placed directly on wet
floor not unconstitutional); Hardaway v. Meyerhoff, 734 F.3d 740, 742 (7th Cir. 2013)
(finding no liberty interest where inmate was placed with a confrontational inmate, faced
psychological problems and had only weekly access to the shower and prison yard);
Gruenberg v. Gempeler, 697 F.3d 573, 580 (7th Cir. 2012) (no liberty interest in avoiding
being held in restraints for five days); Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005)
(90-day disciplinary segregation with severe restrictions on exercise, group worship, work, and
educational opportunities not atypical or significant); Thomas v. Ramos, 130 F.3d 754,
760-62 (7th Cir. 1997) (70-day confinement with another inmate in one-man cell for 24
hours a day does not implicate liberty interest). See also Marshall v. Nickel, 2007 WL
5582139, at *9 (W.D. Wis. Jan. 29, 2007) (use of uncomfortable, rubber mat as mattress for
several months is not cruel and unusual punishment or deprivation of liberty interest).
Plaintiff argues that defendants have failed to consider the fact he has been confined
to restricted housing (or segregation) for more than 300 days and that using the security
mattress for 40 days caused him injuries. However, plaintiff’s 2015 placement in restricted
housing is not the subject of this lawsuit and has nothing to do with defendants’ alleged
wrongdoing in issuing him the conduct report or security restriction. Even though plaintiff
was in segregation for a long time, he had the security mattress at issue in this case for only
40 days. Plaintiff’s averments that he suffered pain and a lack of sleep as a result of using the
mattress have more to do with the fact that the initial 10-day security restriction was
extended 30 more days because defendants allegedly failed to return his standard mattress,
even afer he had verbally complained about it. Therefore, plaintiff’s alleged injury does not
fall squarely within the due process claim and is best dealt with in the context of plaintiff’s
Eighth Amendment conditions of confinement claim. Gruenberg, 697 F.3d at 580 (finding
same with respect to claim that prisoner was held in restraints for five days); Townsend v.
Fuchs, 522 F.3d 765, 772 (7th Cir. 2008) (“[I]issue of the cell conditions . . . is best analyzed
as a claim brought under the Eighth Amendment” rather than due process clause.).
Accordingly, I find that defendants are entitled to summary judgment on plaintiff’s due
IT IS ORDERED that
The motion for partial summary judgment filed by defendants, dkt. #17, is
GRANTED as to plaintiff’s due process claim, which will be DISMISSED.
2. Plaintiff Adrean Smith’s motion for partial summary judgment, dkt. #13, is
Entered this 8th day of February, 2018.
BY THE COURT:
BARBARA B. CRABB
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