Bailey, Jacob v. Wienandt, John et al
Filing
58
ORDER denying defendants Mary JoChizek, Natasha Corneleus, Karri Gorton, James Johnson, Greg Pehlke and John Wienandt's 33 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 10/30/2018. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - JACOB BAILEY,
OPINION AND ORDER
Plaintiff,
17-cv-943-bbc
v.
JOHN WIENANDT, JAMES JOHNSON,
NATASHA CORNELEUS, GREG PEHLKE,
MARY JO CHIZEK and KARRI GORTON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Plaintiff Jacob Bailey is proceeding in this case on claims that staff at the Lincoln Hills
School for Boys in Irma, Wisconsin, violated his constitutional rights by using excessive
force against him, subjecting him to an unnecessary strip search and failing to provide him
adequate medical treatment after breaking his arm. He is represented by counsel. Now
before the court is defendants’ motion for summary judgment on the grounds that plaintiff
failed to exhaust his administrative remedies before filing suit. Dkt. #33. For the reasons
set out below, I am denying the motion.
OPINION
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect
to prison conditions . . . until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The purpose of the exhaustion requirement is to give the prison
administrators a fair opportunity to resolve the grievance without litigation. Woodford v.
1
Ngo, 548 U.S. 81, 88–89 (2006). To satisfy § 1997e(a), a prisoner must complete each step
in 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). If a prisoner fails to
exhaust his administrative remedies before filing his lawsuit, the court must dismiss the case,
Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 535 (7th Cir. 1999), but the
defendants have the burden to prove that the prisoner did not exhaust his administrative
remedies. Jones v. Bock, 549 U.S. 199 (2007).
The Prison Litigation Reform Act’s exhaustion requirements apply to all “prisoner[s]
confined in any jail, prison, or other correctional facility.” 42 U.S.C. 1997e(a). Under the
Act, “prisoner” is defined as “any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal
law or the terms and conditions of parole, probation, pretrial release, or diversionary
program.”
42 U.S.C. § 1997e(h).
Defendants contend that the Act’s exhaustion
requirements applied to plaintiff during the time he was incarcerated at Lincoln Hills
because he qualified as a “prisoner” under the terms of the Act. Plaintiff has not argued that
he was exempt from the exhaustion requirements, so I will assume that he was a “prisoner”
subject to the requirements of § 1997e(a).
Plaintiff’s claims arise out of an incident that occurred in March 2014 while he was
incarcerated at Lincoln Hills. He alleges that defendant Cornelius ordered defendants
Johnson, Wiendandt and others to enter plaintiff’s cell to perform a search. After Johnson
and Wienandt entered the cell, they allegedly forced plaintiff onto his hands and knees, told
2
him they were going to knock out his teeth and ordered him to apologize for covering his cell
camera with toilet paper. Plaintiff alleges that Johnson and Wienandt then climbed on top
of plaintiff and twisted both of his arms behind his back, breaking his left wrist and arm.
Plaintiff was then stripped and left in his cell for several hours with no belongings, bedding
or clothes. More than a week later, on March 21, 2014, plaintiff was taken to the hospital
for treatment of his wrist and arm fractures.
Plaintiff received a conduct report after the incident. Dkt. #49-3. On March 17,
2014, plaintiff complained to his youth counselor about the incident. The youth counselor
reported the incident to Lincoln Hills’ security director, who agreed to perform an
institutional investigation. The youth counselor later reported the incident to Lincoln
County Social Services as a case of possible child abuse. On March 18, 2014, plaintiff
completed a “disciplinary investigation statement” form detailing the incident, as part of the
investigation into his conduct report. Dkt. #49-4. Plaintiff was ultimately found guilty of
several rule violations. Dkt. #55-3.
Defendants argue that plaintiff failed to exhaust his administrative remedies because
he failed to use Lincoln Hills’ grievance procedure or otherwise formally grieve any of the
incidents that are the subject of this action. Wisconsin has codified procedures for youth
inmate complaints in Wisconsin Administrative Code ch. 380. Additionally, defendants
state that Lincoln Hills has adopted an inmate complaint policy to implement the provisions
of ch. 380. Defendants submitted a declaration from Matthew Bores, who worked as the
institution complaint examiner and litigation coordinator at Lincoln Hills from April 2016
3
to July 2018, which is after the time period in which plaintiff was incarcerated there.
Attached to Bores’ declaration is the Lincoln Hills Policy 7.02, “Youth Complaint and
Appeal Process,” which Bores states was in effect during plaintiff’s incarceration at Lincoln
Hills. Dkt. #35, ¶ 4.
Under Policy 7.02, youth inmates begin the grievance process by discussing their
complaint with a social worker or youth counselor. Dkt. #35-1. If the issue is not resolved,
the youth may file a youth complaint form with either a complaint mediator and supervising
youth counselor or the superintendent, depending on the subject of the complaint. Id. The
superintendent then issues a written decision on the complaint, which the youth may appeal.
Id.
In his declaration, Bores states that he searched plaintiff’s incarceration file, the
Department of Corrections’ inmate complaint spreadsheets and annual reports, but did not
find any youth complaint filed by plaintiff related to the incidents at issue in this lawsuit.
Dkt. #35, ¶¶ 15-16.
Defendants argue that because plaintiff failed to follow the grievance policy set forth
in Policy 7.02, he failed to exhaust his administrative remedies. Plaintiff counters with
arguments regarding whether Bores’ declaration is sufficient to establish that Policy 7.02 was
in effect in March 2014 or that plaintiff failed to comply with it. However, Bores’ position
as the inmate complaint examiner and litigation coordinator qualifies him to certify that the
records he submitted are accurate, and plaintiff has pointed to no evidence to undermine his
sworn testimony. Plaintiff also argues that Policy 7.02 was optional, rather than mandatory,
but that argument is not persuasive either. State law determines the administrative remedies
4
that a state prisoner must exhaust for purposes of the Prison Litigation Reform Act, Pyles
v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016), and “the Supreme Court has rejected any
suggestion that prisoners are permitted to pick and choose how to present their concerns to
prison officials.” Pavey v. Conley, 663 F.3d 899, 905–06 (7th Cir. 2011).
That being said, defendants’ arguments about exhaustion fail for other reasons.
Prisoners are required to exhaust only those grievance procedures that are “available” to
them. King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015).
“When administrative
procedures are clearly laid out . . . an inmate must comply with them in order to exhaust his
remedies.” Pavey, 663 F.3d at 905. However, “[p]risoners are required to exhaust grievance
procedures they have been told about, but not procedures they have not been told about.”
King, 781 F.3d at 896; White v. Bukowski, 800 F.3d 392, 397 (7th Cir. 2015) (same). See
also Ramirez v. Young, –F.3d–, 2018 WL 4870025, at *3 (7th Cir. Oct. 9, 2018)
(“[R]emedies are available only if a prisoner has been notified of their existence.”). Although
defendants have submitted evidence showing that an inmate complaint process was in place
during the time plaintiff was incarcerated at Lincoln Hills, they have failed to submit any
evidence establishing that plaintiff was even aware of Policy 7.02 or Wisconsin
Administrative Code ch. 380 in March 2014. Defendants suggest in their briefs that
plaintiff knew about the policy, dkt. #53 at 3, but they cite no actual evidence establishing
that he was told about the grievance policy when he entered Lincoln Hills, that he was
provided an inmate handbook that described the grievance procedures or that he had access
to youth complaint forms in March 2014.
5
Additionally, “existing remedial processes are available only if communicated in a way
reasonably likely to be understood.”
Ramirez, –F.3d–, 2018 WL 4870025, at *3
(administrative remedies not available where they were described to prisoner by prison
officials only in language he could not understand).
“Before dismissing a prisoner’s
complaint for failure to exhaust, the district court should be able to point to evidence that
the relevant administrative procedures were explained ‘in terms intelligible to lay persons.’”
Id. (citation omitted). “That analysis must also account for individual capabilities.” Id.
(citing Weiss v. Barribeau, 853 F.3d 873, 875 (7th Cir. 2017) (excusing failure to exhaust
where defendants failed to show that existing procedures could be used by prisoner suffering
from mental illness)).
In this instance, defendants have cited no evidence establishing that “the relevant
administrative procedures were explained ‘in terms intelligible to lay persons,’” particularly
taking into consideration plaintiff’s age (14 years old) and circumstances after the incidents
in question. According to plaintiff, he believed he had complied with any grievance policy
by complaining to his youth counselor, submitting a disciplinary investigation statement and
meeting with the Lincoln County Department of Social Services after the incident. Plt.’s
Aff., dkt. #47, ¶¶ 2, 5. He states that after meeting with social services, he was told the
police would be notified and he was not “asked or director to fill out additional forms
regarding the incident.” Id. ¶ 6. Plaintiff’s belief that his communications were sufficient
to satisfy any grievance requirements appear reasonable under the circumstances.
Defendants argue that plaintiff’s subjective but false belief that his actions were
6
sufficient to satisfy Lincoln Hills’ grievance procedures should not excuse his failure to
comply. However, this is true only to a point. A prisoner’s subjective ignorance about
grievance procedures does not excuse a prisoner’s failure to exhaust “so long as the prison
has taken reasonable steps to inform the inmates about the required procedures.” Ramirez,
–F.3d–, 2018 WL 4870025, at *6. In this case, however, defendants have cited no evidence
showing that they took any reasonable steps to inform plaintiff of the grievance procedures.
Further, defendants provide little explanation as to why plaintiff was asked to
complete the disciplinary investigation form, beyond stating that it was part of the
investigation into the conduct report issued against him. However, if plaintiff was asked to
describe what happened to him as part of the disciplinary process, plaintiff could have
reasonably believed that any complaints he had would be addressed through the disciplinary
process. Wis. Admin. Code DOC § 380.02(1)(a) (“[A] youth may not use the complaint
procedure for complaints about . . . [f]actual disputes or decisions in the disciplinary process.
. . except that the complaint procedure may be used to challenge procedural errors. . . .”).
In sum, “it is not plaintiff’s burden to establish that the grievance process was
unavailable. . . It is defendants’ burden to show that plaintiff did not exhaust available
remedies.” Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018). Because defendants have
failed to show that any administrative remedies were available to plaintiff, their motion for
summary judgment will be denied.
7
ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Mary Jo
Chizek, Natasha Corneleus, Karri Gorton, James Johnson, Greg Pehlke and John Wienandt, dkt.
#33, is DENIED.
Entered this 30th day of October, 2018.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge
8
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?