Apkarian, Quentin v. Lincoln Hills School

Filing 60

ORDER directing the clerk of court to set a hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), to resolve the factual dispute over plaintiff Quentin Apkarian's exhaustion of his administrative remedies. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for plaintiff's appearance at that hearing. The parties may have until January 4, 2019, to inform the court about the identities of any proposed witnesses they intend to call. Signed by District Judge James D. Peterson on 12/12/2018. (jef),(ps)

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

QUENTIN APKARIAN,
Plaintiff,
v.
OFFICER MCALLISTER, ED WALL, MS. KRUEGER,
DOUG CURTIS, JAMES SCHMIDT,
DUSTIN MEUNIER, JOHN OURADA,
BRUCE SUNDE, PAUL WESTERHAUS,
JOHN DOE OFFICERS #3 and #5,
and JEFF JAEGER,

ORDER
17-cv-309-jdp

Defendants.
Plaintiff Quentin Apkarian, appearing pro se, is a prisoner at Green Bay Correctional
Institution. He alleges that while he was housed at Lincoln Hills School, state officials violated
his constitutional rights by physically and sexually abusing him and failing to provide him with
medical care, and that that state and county officials failed to take action to stop the pattern
of abuse at the facility.
The state defendants have filed a motion for summary judgment on the ground that
Apkarian did not exhaust his administrative remedies at the Lincoln Hills School regarding his
claims. Dkt. 54. See 42 U.S.C. § 1997e(a) (“No 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.”).1 The administrative exhaustion requirement is mandatory, Woodford v. Ngo,

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The Prison Litigation Reform Act defines “prisoner” as including persons adjudicated
delinquent, so the exhaustion requirement applies to Apkarian. See, e.g., Upthegrove v.
Westerhouse, No. 08-CV-552-SLC, 2009 WL 961132 (W.D. Wis. Apr. 8, 2009) (applying

548 U.S. 81, 85 (2006), and “applies to all inmate suits,” Porter v. Nussle, 534 U.S. 516, 524
(2002). Its purpose is not to protect defendants but to give prison officials an opportunity to
resolve complaints without judicial intervention. Perez v. Wis. Dep’t of Corr., 182 F.3d 532,
537–38 (7th Cir. 1999) (exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing]
the need for litigation”).
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. However, “[i]f administrative remedies 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).
Defendants have provided a declaration from the facility superintendent stating that
Apkarian never filed an internal grievance about the September 2014 incident supporting
Apkarian’s claims. Dkt. 56. Apkarian provides his own declaration stating that, “[a]fter the
incident [he] reached out to staff and wrote multiple complaints regarding the assaults,” and
that he contacted defendants Ourada and Westerhaus to report the abuse after he “heard no
responses from the complaints.” Dkt. 58, at 1. This suggests that the full grievance process was
unavailable to him. Defendants contend that this declaration is insufficient to raise a genuine
issue of material fact over whether Apkarian filed grievances, because he does not attach those

exhaustion requirement to claims occurring while an inmate was housed at Lincoln Hills).

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grievances and he does not explain when or how he submitted them.2 They cite Vance v. Peters,
97 F.3d 987, 994 (7th Cir. 1996), a case in which the Court of Appeals for the Seventh Circuit
granted summary judgment to certain defendants on the substance of Eighth Amendment
claims because the only evidence the plaintiff provided at summary judgment to show that
defendants were aware of her need for medical treatment was her statement that she had sent
them letters. The court concluded that the plaintiff’s statements lacked detail and that there
was no “corroborative evidence with respect to the letters that [the plaintiff] says that she sent
to the defendant officials.” Id.
But this argument runs squarely into other Seventh Circuit case law making clear that
a prisoner’s declaration that he filed a grievance is enough to force a factfinding hearing under
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). See e.g., Winston v. Clarke, No. 17-3009, 2018
WL 3954235, at *3 (7th Cir. Aug. 17, 2018) (“Perhaps greater detail was needed before the
court would credit [the prisoner’s] account, but Pavey instructs that the solution is further
record development—not summary judgment.”). Declarations, even somewhat vague and selfserving ones, are evidence, so Apkarian has done enough to convince me that the court needs
to hold a Pavey hearing to resolve the factual dispute. Cf. Hill v. Tangherlini, 724 F.3d 965, 967
n.1 (7th Cir. 2013) (court of appeals has “repeatedly emphasized over the past decade [that]
the term ‘self-serving’ must not be used to denigrate perfectly admissible evidence through
which a party tries to present its side of the story at summary judgment”).

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Defendants argue further that Apkarian can only speculate what happened to his grievances,
and that his statements that investigators told him that the grievance were probably shredded
are hearsay. Investigators’ statements to Apkarian are likely hearsay, but Apkarian does not
have to prove what happened to his grievances. The question is whether he filed them in the
first place.

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I will direct the clerk of court to set a Pavey hearing before me and to issue a writ of
habeas corpus ad testificandum for Apkarian’s appearance. Apkarian should bring any evidence
he has that supports his version of events. He should also consider whether there are any
witnesses who can corroborate his version of events. He should refer to the court’s preliminary
pretrial conference order, Dkt. 38, for guidance on how to call witnesses to appear at the
hearing.

ORDER
IT IS ORDERED that:
1. The clerk of court is directed to set a hearing under Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008), to resolve the factual dispute over plaintiff Quentin Apkarian’s
exhaustion of his administrative remedies.
2. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for
plaintiff’s appearance at that hearing.
3. The parties may have until January 4, 2019, to inform the court about the identities
of any proposed witnesses they intend to call.
Entered December 12, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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