Judges: PerCuriam
Filed: Oct. 23, 2013
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 1, 2013* Decided October 23, 2013 Before FRANK H. EASTERBROOK, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 12-2060 Appeal from the United States District PARISH GOLDEN, Court for the Western District of Plaintiff-Appellant, Wisconsin. v. No. 11-cv-616-bbc MARK S. STUTLEEN, e
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 1, 2013* Decided October 23, 2013 Before FRANK H. EASTERBROOK, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 12-2060 Appeal from the United States District PARISH GOLDEN, Court for the Western District of Plaintiff-Appellant, Wisconsin. v. No. 11-cv-616-bbc MARK S. STUTLEEN, et..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 1, 2013*
Decided October 23, 2013
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐2060
Appeal from the United States District
PARISH GOLDEN, Court for the Western District of
Plaintiff‐Appellant, Wisconsin.
v. No. 11‐cv‐616‐bbc
MARK S. STUTLEEN, et al., Barbara B. Crabb,
Defendants‐Appellees. Judge.
ORDER
Parish Golden, an inmate at the Wisconsin Department of Corrections, filed suit
under 42 U.S.C. § 1983, alleging that prison officials violated the First and Eighth
Amendments when they used excessive force and interfered with his mail. The district
court dismissed the claims against several defendants because of insufficient allegations
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2)(C).
No. 12‐2060 Page 2
or lack of service. It also granted summary judgment for the remaining four defendants
on the ground that Golden had failed to exhaust his administrative remedies. Because
Golden has not exhausted administrative remedies against these four defendants and
his allegations against the others were legally inadequate, we affirm.
Golden asserts that four prison guards unjustifiably beat him outside of his
prison cell. One guard shocked Golden with a taser, which caused him extreme pain
and scarred his back. Then, all four guards slammed him into the ground, injuring his
knees and arm. Prison officials later confined him to segregation for nearly a month.
Golden swears that between February 23 (when he was released from segregation) and
August 29, he tried 26 times to file written grievances or letters with prison grievance
officials to protest the beating, and he attaches copies of these documents to his
complaint. Golden insists that prison officials refused to accept the grievances.
Eventually, on August 30, Golden successfully filed two grievances, one about the
excessive‐force incident and another charging that prison officials interfered with his
mail. The same day, Golden also mailed the complaint for this suit, raising the same
claims. A few weeks later, a grievance officer denied the excessive‐force grievance as
untimely and the mail‐interference grievance on the merits. An administrative appeal of
those grievances was still pending at the prison while this case was in the district court.
In his complaint, Golden charges four defendants, Officers DeBroux, Biermet,
Frisch, and Rausch with the beating, and a fifth defendant, Officer Stutleen, with failing
to intervene and stop the assault. He further alleges that Frisch and Rausch interfered
with his mail in retaliation for other litigation. Finally, he also sues “Doe” defendants,
alleging that others may have blocked his mail, and supervisors, against whom he seeks
to impose liability for the conduct of the five officers involved in the beating.
The defendants moved to dismiss some claims without prejudice and others with
prejudice. They successfully moved to dismiss Rausch for lack of service (a disposition
that Golden does not contest), and citing lack of exhaustion they sought summary
judgment without prejudice for the four other officers named in the beating or mail
obstruction. They asserted that Golden fabricated his 26 attempted grievances, and in
any case, the two grievances he filed at the end of August rendered this suit premature.
The district court ruled that a hearing under Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.
2008), was unnecessary to resolve the dispute over the 26 grievances because even if
prison officials refused them, Golden sued before he completed the administrative
process for the two grievances that the prison accepted. Finally, the defendants moved
to dismiss the supervisory defendants for failure to state a claim, arguing that § 1983
No. 12‐2060 Page 3
does not impose vicarious liability. They also moved to dismiss the “Doe” defendants
because the allegations against them were too indefinite. The district court granted
those motions.
On appeal Golden principally argues that the district court should not have
granted summary judgment to the four officers that he accused of beating him or
interfering with his mail. He maintains that his ability to exhaust 26 grievances remains
disputed. When exhaustion is in genuine dispute, district courts must conduct an
evidentiary hearing to resolve the dispute. Pavey, 544 F.3d at 742. But no hearing was
needed here because the dispute is immaterial. Even if the district court found the facts
to be as Golden contends—that he was unable to file 26 grievances—Golden
successfully filed two grievances covering the subject of the earlier attempts. He was
required to wait until the entire grievance process, including appeals of the decisions on
those grievances, concluded before bringing a lawsuit. Jones v. Block, 549 U.S. 199, 204
(2007); Turley v. Rednour, —F.3d—, 2013 WL 3336713, at *2 (7th Cir. 2013); Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). A claim filed before the full
administrative process is finished must be dismissed without prejudice, when as in this
case the prison chooses to raise exhaustion as a defense. See Maddox v. Love, 655 F.3d
709, 716 (7th Cir. 2011); Larkin v. Galloway, 266 F.3d 718, 720 (7th Cir. 2001).
Golden replies that because prison officials obstructed his earlier grievances, he
need not wait for a final decision on the two successfully filed grievances before filing
suit. It is true that for as long as prison officials blocked his grievances, he had no
available remedies to exhaust. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006);
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). But that does not mean he need
never exhaust his claims. “[W]hen the failure to exhaust was innocent (as where the
prison officials prevent a prisoner from exhausting his remedies) . . . he must be given
another chance to exhaust . . . .” Pavey, 544 F.3d at 742. Golden is receiving that chance
because the prison is considering the two grievances that Golden filed at the end of
August. He can sue only after the entire process is finished, see Woodford v. Ngo, 548 U.S.
81, 85 (2006); Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), at which time he
can litigate those decisions. See Hurst v. Hanke, 634 F.3d 409, 412 (7th Cir. 2011).
Finally, Golden contests the decision to dismiss with prejudice the supervisory
and “Doe” defendants, but those decisions were correct. Supervisors may not be
vicariously liable for the conduct of their subordinates. See Vance v. Rumsfeld, 701 F.3d
193, 203 (7th Cir. 2012) (en banc). A supervisor may be liable under § 1983 for failing to
stop others from committing unconstitutional acts, but only if that officer had a
No. 12‐2060 Page 4
reasonable opportunity to prevent the misconduct. George v. Smith, 507 F.3d 605, 609–10
(7th Cir. 2007); Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005); Fillmore v. Page, 358
F.3d 496, 505–06 (7th Cir. 2004). Here, Golden does not allege that the supervisory
officers personally caused, participated in, or had a reasonable chance to stop the
beating. George, 507 F.3d at 609. In suing his “Doe” defendants, Golden merely
speculates that other officers might have interfered with his mail. But to survive
dismissal a plaintiff “must plead some facts that suggest a right to relief that is beyond
the speculative level.” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (internal
quotation marks omitted). Golden has not done so here.
We have considered Golden’s remaining arguments, but they do not warrant
further discussion.
Accordingly, we AFFIRM the judgment of the district court.