Judges: Per Curiam
Filed: Feb. 11, 2019
Latest Update: Mar. 03, 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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 February 11, 2019* Decided February 11, 2019 Before WILLIAM J. BAUER, Circuit Judge AMY C. BARRETT, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-2036 LAWRENCE HARRIS, Appeal from the United States District Plaintiff-Appellant, Court for the Western District of Wisconsin. v. No. 16-cv-594-jdp LORIE IVERSON, et al.,
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 February 11, 2019* Decided February 11, 2019 Before WILLIAM J. BAUER, Circuit Judge AMY C. BARRETT, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-2036 LAWRENCE HARRIS, Appeal from the United States District Plaintiff-Appellant, Court for the Western District of Wisconsin. v. No. 16-cv-594-jdp LORIE IVERSON, et al., J..
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NONPRECEDENTIAL DISPOSITION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 February 11, 2019*
Decided February 11, 2019
Before
WILLIAM J. BAUER, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18‐2036
LAWRENCE HARRIS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 16‐cv‐594‐jdp
LORIE IVERSON, et al., James D. Peterson,
Defendants‐Appellees. Chief Judge.
O R D E R
Lawrence Harris, a Wisconsin inmate, sued employees of the Wisconsin
Department of Corrections under 42 U.S.C. § 1983, for violating his First Amendment
rights by retaliating against him after he filed a grievance. The district court granted
summary judgment for the defendants. It correctly reasoned that Harris did not
properly exhaust his charge administratively, so we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐2036 Page 2
At the summary‐judgment phase, we construe the facts in the light most
favorable to the non‐moving party, here Harris. Hernandez v. Dart, 814 F.3d 836, 840
(7th Cir. 2016). Harris worked in the prison’s kitchens until he was fired on April 7,
2016. His discharge led to three internal actions. First, Harris submitted a grievance
asserting that food services wrongly found that his work was “unsatisfactory.” Shortly
after he filed his grievance, Harris says that he spoke with two managers about it. They
told him that because he had filed a grievance about his discharge, they needed to file a
conduct report detailing why he had been discharged.
The second internal action was the conduct report. Filed a few days later, it
stated that Harris was fired for stealing food. At a disciplinary hearing later that month,
hearing officers played a surveillance video that showed Harris taking food. Harris’s
response was that “[t]his conduct report was written out of retaliation,” and he pointed
to his conversation with the two managers. The hearing officer ruled that the managers
had no reason to fabricate the report, found Harris guilty of theft, and sentenced him to
ten days of room confinement. Harris did not appeal this decision.
About two weeks after the unappealed disciplinary decision, the prison resolved
Harris’s grievance contesting his discharge. A complaint examiner recommended that
the grievance be dismissed because food services had fired Harris for stealing. Harris
appealed and argued that the conduct report (alleging theft of food) was false and
issued to retaliate against Harris filing a grievance. A new complaint examiner rejected
Harris’s appeal, reasoning that Harris had not justified overturning the dismissal and
his argument about retaliation was not properly before the appellate examiner because
Harris had not raised it in his initial grievance.
In the third internal action, Harris complained by letter to the warden about his
discharge. He argued that it was unfair, the conduct report false, and the food‐services
unit did not use the proper procedure when it fired him. The warden replied that Harris
should have been paid through the date of the disciplinary hearing, and he adjusted
Harris’s pay accordingly. Harris did not challenge this resolution administratively.
Maintaining that his conduct report was retaliation for his grievance, Harris sued
prison officials for violating the First Amendment. In the defendants’ motion for
summary judgment, they argued that Harris had failed to exhaust his administrative
remedies for his retaliation claim, as required by 42 U.S.C. § 1997e. The district court
observed that in filing his grievance, Harris used Wisconsin’s Inmate Complaint Review
System. See WIS. ADMIN. CODE §§ DOC 310.04, 310.06–310.07, 310.09–310.13. But, the
No. 18‐2036 Page 3
court said, the rules of that process “generally do not allow grievances of conduct‐
report‐related issues,” the challenge that Harris was attempting. Instead, the court
continued, Harris could have used the conduct‐report appeals process to assert
retaliation. Wisconsin inmates may appeal the outcome of a disciplinary hearing within
ten days of receiving a report. WIS. ADMIN. CODE § DOC 303.82. But Harris did not
appeal his adverse ruling, so the court concluded that he did not exhaust.
Harris raises three arguments to contest this exhaustion ruling, but each is
unavailing. We review dismissals for failure to exhaust de novo. Hernandez, 814 F.3d
at 840. “Failure to exhaust is an affirmative defense, and Defendants have the burden of
proof.” Id. (internal quotation marks omitted).
First, Harris argues that the district court erred in accepting the defendants’
argument that he failed to exhaust the conduct‐report process, because they first offered
this argument in their reply brief. But the defendants were responding to Harris’s
opposition brief, where he argued that he could not have used the regular grievance
system to raise his retaliation charge. Defendants may properly respond “in their reply
brief to a theory of the case that [the plaintiff] asserted in response to defendants’
motion for summary judgment.” Hardrick v. City of Bolingbrook, 522 F.3d 758, 763
(7th Cir. 2008). And here the defendants pointed out that, besides the regular grievance
system, the conduct‐report appeals process was also available. Moreover, the court’s
conclusion was “a natural and reasonable response to what [Harris] had argued” in his
memorandum in opposition. Bell v. DaimlerChrysler Corp., 547 F.3d 796, 806 (7th Cir.
2008). And the district court was correct: Wisconsin inmates may appeal the outcome of
a disciplinary hearing, WIS. ADMIN. CODE § DOC 303.82, but Harris did not appeal his
discipline to contend that the conduct report was retaliatory.
Harris’s second argument is that he properly used the regular grievance system
to raise his retaliation claim. To exhaust under that process, an inmate must file a
complaint alleging “one clearly identified issue.” WIS. ADMIN. CODE § DOC 310.07(5).
Harris’s allegation of retaliation appeared only at the appeal stage, id. § 310.09; in his
initial grievance, he complained only that his termination was not warranted because
his work had been satisfactory. “In order to properly exhaust, a prisoner must submit
inmate complaints and appeals ‘in the place, and at the time, the prison’s administrative
rules require.’” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). Not only did Harris fail to assert
retaliation in his grievance contesting the discharge, it would have been impossible for
No. 18‐2036 Page 4
him to do so. According to Harris, when he filed his grievance, the conduct report had
not yet been filed, so he could not have alleged that it was retaliatory.
Next, Harris contends that he exhausted his administrative remedies by writing
to the warden, but this argument fails for two reasons. First, the letter he wrote to the
warden was not one of the methods for exhausting a claim. See WIS. ADMIN. CODE
§ DOC 310. Second, even if it was, Harris’s letter would have needed to “alert the
[warden] to the problem and invite corrective action.” See Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013) (internal quotation marks and alterations omitted). But Harris’s
letter did not mention retaliation. He said only that the discharge was unfair, the
conduct report was falsified, and the food‐services unit did not follow the correct
procedure to fire him. The warden plainly stated in his letter that updating Harris’s pay
through the date of the disciplinary ruling resolved the issue, because he ended his
response by saying “I hope this addresses your concerns.” And besides filing this
lawsuit, Harris never told the warden otherwise.
Finally, Harris contends that the district court unreasonably denied his requests
for counsel. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). But the district
court reasonably denied those requests after finding that Harris had the skills to litigate
the case himself given its level of complexity. See id. at 654–56. Moreover, legal
assistance could not change the historical fact that Harris failed to exhaust
administrative remedies, so recruiting counsel would have been futile.
AFFIRMED