Brim, Fradario et al v. Stevens et al

Filing 73

ORDER granting in part and denying in part defendants' 26 motion for partial summary judgment on exhaustion grounds. Signed by District Judge James D. Peterson on 3/1/2019. (jef),(ps)

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

FRADARIO BRIM,
Plaintiff,
v.
OPINION and ORDER
CHRISTOPHER STEVENS, JAY VAN LANEN,
WILLIAM SWIEKATOWSKI, JOHN KIND,
SCOTT ECKSTEIN, CATHY FRANCOIS, and
AMY ZIRBEL,

18-cv-24-jdp

Defendants.
Pro se plaintiff Fradario Brim brings claims under the First, Eighth, and Fourteenth
Amendments based on allegations of retaliation by prison officials. Defendants have filed a
motion for partial summary judgment, contending that Brim did not exhaust his administrative
remedies on some of his claims. Dkt. 26. In a previous order, Dkt. 49, I granted defendants’
motion in part. I also scheduled a hearing, under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008),
to resolve factual disputes and legal issues pertaining to the exhaustion of Brim’s First and
Fourteenth Amendment claims.
I held the hearing on February 27, 2019. For the reasons explained below, I will deny
defendants’ motion as to Brim’s First Amendment retaliation claim against Kind, because I
conclude that Brim’s successful efforts to get relief through informal channels exhausts this
claim. But I will grant defendants’ motion as to Brim’s claims against Stevens and Van Lanen.
Based on the hearing evidence, I find as a matter of fact that Brim did not raise these claims
during the hearing on his conduct report or on appeal, and I conclude that his October 2017
inmate complaint did not exhaust the claims.

A. Exhaustion of the First Amendment claim against Kind
Defendants contend that Brim did not exhaust his administrative remedies concerning
his claim that Kind put Brim in the treatment center’s receiving unit for retaliatory reasons.
Brim did not file an offender complaint, but Brim says he exhausted this claim by resolving it
through informal channels. Specifically, Brim says that he began complaining to various
officials soon after his placement in the treatment center in an effort to comply with the
institution’s instruction that inmates “attempt to resolve the issue” “[p]rior to filing a formal
complaint.” Dkt. 34-1. Eventually, Brim complained to the deputy warden, and Brim was
returned to general population the next day. A prisoner is “not required to file additional
complaints or appeal favorable decisions” when he “has won all of the relief that is available . .
. . When there is no possibility of any further relief, the prisoner’s duty to exhaust available
remedies is complete.” Thornton v. Snyder, 428 F.3d 690, 696–97 (7th Cir. 2005) (quoting Ross
v. Cty. of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004)).
At the Pavey hearing, defendants argued that Brim’s informal resolution of the
retaliatory transfer should not be considered adequate exhaustion because of timeliness issues.
They say that Brim was aware of Kind’s allegedly retaliatory motivation for the transfer shortly
after Brim arrived in the treatment center in October of 2016. See Dkt. 35, ¶ 3. Brim spent
several weeks in the receiving unit before complaining to the deputy warden on December 1
and successfully resolving the issue. Were Brim to have filed a formal grievance about Kind’s
conduct at that point, it would have been untimely. Defendants argue that, by the same logic,
Brim’s informal resolution should also be considered untimely for exhaustion purposes.
I’m not sure that inmate complaint deadlines would apply to exhaustion achieved
through informal dispute resolution. But I need not resolve that question, because I find that

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Brim’s efforts were not untimely. At the hearing, Brim testified that he began complaining
about retaliation and lobbying prison officials to transfer him back to general population
shortly after arriving on the receiving unit. I have no reason to doubt Brim’s testimony on this
point. That his efforts were not initially successful does not mean that they were untimely. I
conclude that Brim exhausted this claim. I will deny defendants’ motion for summary judgment
on Brim’s First Amendment retaliation claim against Kind.
B. First and Fourteenth Amendment claims against Stevens and Van Lanen
Defendants also contend that Brim failed to exhaust the administrative remedies
available for his First Amendment and Fourteenth Amendment claims against Stevens and Van
Lanen, which are predicated on Brim’s allegation that they retaliated against him by bribing
inmates for false testimony about him and fabricating a conduct report in an effort to land him
in disciplinary segregation. To exhaust allegations that relate to a conduct report, inmates must
raise them as defenses at the disciplinary hearing and on appeal to the warden. See Wis. Admin
Code. § DOC 303.82(1) (2017).
Defendants’ motion on this claim turns on a factual dispute. Brim says that he raised
Stevens and Van Lanen’s retaliation both at his hearing on June 12, 2017, and on appeal to
the warden. Defendants dispute this.
I begin with the hearing. Brim says that during the hearing on the conduct report, he
objected that the conduct report was fabricated and retaliatory. Brim says that the hearing
officer, Captain James Elsinger, failed to note those objections on the disciplinary hearing form
(known as a DOC-84).
Elsinger testified that his succinct description of Brim’s statement on the DOC-84 form,
see Dkt. 28-2, at 8, was an accurate reflection of the main points of Brim’s statements at the

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hearing. Elsinger’s testimony on direct and cross was equivocal about whether he actually
remembered the hearing or whether he was relying entirely on the written document. In
response to my questions, he said that he remembered the hearing. But he could provide no
detail about the hearing besides reiterating the information on the DOC-84 form. In response
to questions from counsel, he phrased his responses in terms of what he “would” have done. I
find that Elsinger’s testimony that he accurately captured the main points of the hearing was
not credible.
Brim called two inmates, Christopher Goodvine and Antonio Smith, to impeach
Elsinger. Goodvine and Smith testified that they overheard Elsinger admit to Brim that he had
deliberately failed to document Brim’s objections on the DOC-84 form. The testimony from
Goodvine and Elsinger about what Elsinger said is hearsay, which I could admit for
impeachment purposes but not as affirmative evidence. But because I find Elsinger’s testimony
incredible even without impeachment by these two witnesses, I need not consider the
testimony of Goodvine or Smith at all.
Defendants also called James Gordon, Brim’s staff advocate at the disciplinary hearing.
Gordon provided a more credible account of the hearing than did Elsinger. Gordon testified
that Brim had requested to call as witnesses the confidential informants whose testimony
furnished the basis for the conduct report. This request is not reflected on the DOC-84 form,
which indicates that Elsinger did not document all of Brim’s statements at the hearing. But
Gordon also testified that Brim never raised objections that the conduct report was retaliatory,
either during the hearing or beforehand. I found Gordon’s testimony to be credible.

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Brim himself, of course, testified that he raised the retaliation issue during the hearing.
I do not find this testimony to be credible, primarily because Brim’s credibility on this point is
undermined by the written record of his appeal, to which I now turn.
With their summary judgment filing, defendants provided a complete copy of the DOC
record of Brim’s appeal file. According to DOC records, Brim’s appeal had three pages: an
appeal form (the DOC-91) and a two-page attachment explaining Brim’s argument that the
hearing evidence was insufficient to substantiate the charge in the conduct report. Dkt. 28-2,
at 10–12. But the attachment says nothing about retaliation. In his opposition to defendants’
motion, Brim provided a second attachment that he contends he included along with the other
three pages. The second attachment complained about Elsinger’s failure to document Brim’s
objections and stressed Brim’s claims of fabrication and retaliation. See Dkt. 31-1, at 12–13.
Defendants contend that Brim didn’t actually submit this second attachment. They
offered testimony from Jodene Perttu and Ellen Ray, the institution complaint examiners at
GBCI and Wisconsin Secure Program Facility (WSPF), respectively. Perttu testified that
original copies of an inmate’s conduct report, disciplinary hearing record, and appeal paperwork
are stored in the inmate’s social services file in the institution’s records office. She testified that
Brim’s second statement was not included among his appeal paperwork, which suggested to
her that Brim never actually submitted it. Because an inmate’s social services file follows the
inmate, Ray testified as to the contents of Brim’s social services file at it is maintained at WSPF
(now that Brim has been transferred there). She said that the relevant appeal paperwork in the
file comprised three pages: the DOC-91 form, and a hand-written original of the first two-page
attachment. Brim’s second attachment is not in the file. Ray also testified that, in her years of
experience with the DOC, papers have sometimes been missing from inmate files.

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I find that Brim did not submit the second attachment with his appeal. On his DOC91 form, Brim listed three errors that he believed had been committed in his disciplinary
hearing. The errors were only succinctly identified, and in four places on the DOC-91, Brim
said “Please see attachment.” Dkt. 28-2, at 10. The attachment addresses the errors identified
on the DOC-91. Neither the DOC-91 nor the attachment makes any reference to Brim’s
allegation that the conduct report was motivated by retaliation. I find it implausible that Brim’s
appeal form would not identify the retaliation issue, if indeed Brim had included that second
attachment with his appeal. Brim testified that he conceived of the retaliation arguments as
separate from the procedural errors on the DOC-91, and that his filing strategy made sense to
him at the time. I do not find this explanation convincing.
I do not doubt that Brim was raising such allegations through other channels around
this same time. See Dkt. 28-3, at 8 (June 5, 2017 ICRS complaint about fabrication of
retaliatory conduct report); Dkt. 31-1, at 23–24 (June 19, 2017 letter to warden alleging same).
But proper exhaustion requires “utilizing the procedures and rules of the state’s prison
grievance process.” Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011). Brim was required to
raise any issues related to the fabricated conduct report at the disciplinary hearing and on
appeal to the warden. I find that he did not do so. Brim failed to exhaust his First Amendment
retaliation and Fourteenth Amendment substantive due process claims against Stevens and
Van Lanen based on their alleged fabrication of the conduct report in June 2017.
C. Exhaustion though the October 2017 ICRS complaint
In his sur-reply to defendants’ summary judgment motion, Brim argued that, even
assuming he failed to raise his retaliation claims through the disciplinary hearing process, he
nonetheless exhausted them through a subsequent ICRS complaint submitted on October 10,

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2017. This complaint primarily concerned an interaction that Brim had with Stevens on
October 3, but it also made passing reference to Stevens’s fabrication of the conduct report in
June 2017. See Dkt. 33-1, at 11. That complaint was dismissed per Department of Adult
Institutions policy 310.00.01, which requires that complaints about staff misconduct be
investigated and decided through a confidential DOC personnel procedure without further
participation of the inmate. Brim said that this constituted a dismissal “on the merits,” which
can exhaust an inmate’s claim even if that claim is otherwise procedurally deficient. See, e.g.,
Conyers v. Abitz, 416 F.3d 580, 584–85 (7th Cir. 2005); Ford v. Johnson, 362 F.3d 395, 398 (7th
Cir. 2004). Because Brim raised the argument for the first time in his sur-reply, at the Pavey
hearing I heard argument on the question whether the October 2017 ICRS complaint was
dismissed on the merits.
With the benefit of that argument, I am persuaded that the dismissal of Brim’s October
2017 ICRS complaint was not “on the merits” and thus did not constitute proper exhaustion.
The primary allegation at issue in Brim’s ICRS complaint was that Stevens had made
inappropriate comments to Brim on October 3. Although Brim’s complaint mentioned the June
2017 conduct report fabrication, its chief focus was this separate, more recent allegation. A
reasonable reader of the complaint would not construe it as an attempt to challenge the June
2017 conduct report, and indeed, the responses of the reviewing GBCI officials show that they
did not interpret it that way. I will not treat such a compound complaint as sufficient to exhaust
an obviously untimely grievance. Doing so would open the door to an easy end run around the
normal requirements attached to administrative remedies. I conclude that the October 2017
ICRS complaint was not a decision on the merits of a complaint about the June 2017 conduct
report, and that it did not exhaust the administrative remedies available to Brim.

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ORDER
IT IS ORDERED that defendants’ motion for partial summary judgment on exhaustion
grounds, Dkt. 26, is GRANTED in part and DENIED in part, consistent with the analysis
above.
Entered March 1, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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