Byrd, Lewis v. Vernon County
ORDER granting defendants' 28 Motion for Summary Judgment. for failure to exhaust administrative remedies. The clerk of court is directed to enter judgment in defendants' favor and close this case. Signed by District Judge James D. Peterson on 12/1/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LEWIS EDWARD BYRD III,
VERNON COUNTY and MORGAN NESS,
OPINION & ORDER
Pro se plaintiff Lewis Edward Byrd III is proceeding on constitutional claims against
defendants Vernon County and Morgan Ness, an employee of the Vernon County Sheriff’s
Office, concerning the denial of telephone access to a lawyer and interference with legal mail
that occurred during Byrd’s incarceration at the Vernon County Jail. Defendants move for
summary judgment based on Byrd’s failure to exhaust his administrative remedies. Dkt. 28.
Because Byrd failed to appeal the denial of his grievances, I will grant defendants’ motion and
dismiss the case.
I draw the following facts from defendants’ submissions in support of their motion and
the court’s April 17 and May 25 screening orders, Dkt. 6 and Dkt. 8.
In late 2016, Byrd was arrested and incarcerated at the Vernon County Jail. Notification
of the jail’s procedure for filing grievances and appeals was posted in each cell block at the jail,
1. An inmate wishing to submit a grievance may do so in writing
to the jail sergeant. The grievance must be submitted within 2
days of the event being grieved. Seal the letter in an
unstamped envelope and ask the duty jailer to forward it. If
the event being grieved involves the jail sergeant, then the
initial grievance will go to the jail administrator.
2. The jail sergeant will review the grievance and will reply in
writing to the inmate with his findings.
3. If the inmate is not satisfied with the jail sergeant’s findings,
the inmate may then, in writing, appeal the finding to the jail
administrator. If after receiving the jail administrator’s
findings, the inmate may follow the same procedure and file
an appeal with the chief deputy. If after receiving the findings
of the chief deputy, the inmate may file an appeal with the
sheriff. All appeals must be submitted within 1 day of
receiving the written response from the jail sergeant, jail
administrator or chief deputy.
Dkt. 30-2, at 2.
Byrd alleges that while incarcerated, he asked to call his lawyer several times, but his
requests were denied because of jail policy. Byrd filed a grievance about this in February 2017.
Dkt. 30-5, at 2. Sergeant Michael Davig responded to the grievance by calling Byrd’s lawyer
on Byrd’s behalf without Byrd’s knowledge or consent. The same day, Byrd filed a grievance
about Davig’s call. Dkt. 30-6, at 2. Captain Charles Jacobson denied the grievance. Defendant
Morgan Ness, the legal secretary for the Vernon County Sheriff’s Office, then opened mail
from Byrd’s lawyer to Byrd outside Byrd’s presence. Byrd alleges that she did so in retaliation
for Byrd’s grievance. Byrd filed a grievance about this, asking to talk to Jacobson’s supervisor.
Dkt. 30-7, at 2. Davig responded that Ness opened the mail “by mistake.” Id. at 3.
I granted Byrd leave to proceed on a Sixth Amendment denial of telephone access claim
against Vernon County. I also allowed Byrd to proceed on a First Amendment retaliation claim
and a claim concerning interference with legal mail against Ness.
To succeed on a motion for summary judgment, defendants, as the moving party, 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 Byrd’s favor, as the nonmoving party. Baron v. City of
Highland Park, 195 F.3d 333, 338 (7th Cir. 1999). Because exhaustion is an affirmative defense,
defendants bear the burden of establishing that Byrd failed to exhaust his available remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007).
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
9296457, at *3 (W.D. Wis. Dec. 18, 2015) (quoting Strong v. David, 297 F.3d 646, 650 (7th
The Vernon County Sheriff Department’s Jail Policy and Procedures set out the process
for an inmate to file a grievance and appeal an adverse decision. Dkt. 30-1. Policy 108.07
requires inmates to submit grievances to the jail sergeant within two days after the occurrence
giving rise to the grievance. As the notice posted in each cell block indicates, if inmates are
dissatisfied with the jail sergeant’s disposition, “jail staff will advise the inmate that they may
write a letter of appeal to a higher authority, that being the jail administrator.” Id. at 3. If
inmates are dissatisfied with the jail administrator’s disposition, they “may appeal the grievance
to the chief deputy,” and then to the sheriff. Id. Each appeal must be submitted within one day
of receiving a response.
Defendants acknowledge that Byrd filed timely grievances concerning the events at
issue in this lawsuit. But they contend that because Byrd did not appeal the denial of any of
his grievances, his claims must be dismissed for failure to exhaust administrative remedies as
required by § 1997e(a).
Byrd offers several counter arguments. He complains that the grievance policy was
updated in January 2017. It’s not clear what the policy was before then, but it simply doesn’t
matter. Byrd submitted his first grievance in February 2017, after the policy was updated, so
that’s the policy that applies to his claims. Byrd also argues that the copy of the grievance
policy posted in the cell blocks adduced by defendants is not “genuine” because “Section X” is
written at the top, implying that there are other sections of the policy. Dkt. 32, at 2. Byrd
doesn’t genuinely dispute that the grievance policy was posted in the cell blocks; whether other
policies were also posted is irrelevant.
He next argues that the jail’s policy does not require appeals, but merely allows them.
That’s true—the jail’s grievance procedure, like most grievances procedures, does not mandate
that inmates appeal every grievance response. But because the jail’s policy allowed for appeal,
appeal was an available administrative remedy. And § 1997e(a) requires Byrd to have used
each available administrative remedy before filing suit. Byrd did not do so.
Byrd also points to his grievance concerning the opening of his legal mail, in which he
wrote, “I want to talk to whoever is the captain’s supervisor. I have issues not only this one to
discuss with them.” Dkt. 30-7, at 2. He argues that he was not allowed to appeal because he
was not allowed to speak to Jacobson’s supervisor. If I thought that jail officials barred Byrd
from submitting an appeal, I would deny a motion for summary judgment based on exhaustion.
But Byrd didn’t attempt to appeal. Asking to speak to a supervisor about undefined “issues” is
not an appeal, nor does it notify jail officials of an intent to appeal. Jail officials did not bar
Byrd from submitting an appeal.
Finally, Byrd argues that he “was in fear of continuous retaliation” for submitting
grievances. Dkt. 32, at 3. But the record indicates that Byrd submitted at least seven more
grievances in the month following the one concerning his legal mail, including at least one more
about calling his lawyer, so he was able to use the grievance process after the alleged retaliation.
No reasonable juror could find that Byrd was barred, either through jail officials’ actions or
through his own fear of retaliation, from appealing the denials of his grievances.1
Although Byrd does not mention this, I note that the jail’s deadlines for filing and appealing
grievances are exceedingly strict: two days to file a grievance and only one to appeal it. The
Seventh Circuit has indicated that a four-day window for filing a grievance is so short that it
makes the administrative remedy unavailable, at least when the jail’s grievance procedure does
not establish a deadline for filing a grievance and the inmate in unexpectedly transferred to
another jail four days after returning from the hospital. White v. Bukowski, 800 F.3d 392 (7th
Cir. 2015). But in this case, there’s no indication that the deadlines barred Byrd from
Because Byrd failed to complete the administrative grievance process, I will grant
defendants’ motion for summary judgment on exhaustion grounds.
IT IS ORDERED that:
1. Defendants Vernon County and Morgan Ness’s motion for summary judgment
for failure to exhaust administrative remedies, Dkt. 28, is GRANTED.
2. The clerk of court is directed to enter judgment in defendants’ favor and close
Entered December 1, 2017.
BY THE COURT:
JAMES D. PETERSON
appealing: he never tried to appeal, and he now argues that he didn’t know he needed to appeal,
not that the short deadlines kept him from doing so.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?