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  • October 17, 2019

    Prisoner Litigation and the Exhaustion of Remedies Requirement

    Whether you are assisting or defending against an inmate’s civil rights claims against corrections staff, know that the case may sink if the inmate has not exhausted administrative remedies. Nelson Phillips discusses the issue and relevant case law.

    Nelson W. Phillips

    Whether assisting an inmate to prosecute his or her civil claim pursuant to 42 U.S.C. section 1983, or defending against civil rights claims levied against corrections staff, it is critical to understand that the inmate’s exhaustion of the administrative remedies related to their claims will either sink or save the lawsuit.

    Generally, we all know that the Prison Litigation Reform Act (PLRA) requires that an inmate exhaust his or her administrative remedies before filing suit regarding – for example – prison conditions.

    Exhaustion of remedies is an affirmative defense to which the burden of proof is on the defense.1 But what does that mean, exactly?

    Title 42 U.S.C. section 1997e(a) mandates that:

    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.2

    The two most recent cases from the Seventh Circuit Court of Appeals related to exhaustion of remedies illustrate that not only must an inmate be prepared to establish that they exhausted their remedies at a correctional facility prior to bringing a claim in federal court, but also that the inmate must follow the rules at his respective facility related to prosecuting their appeal in order to achieve exhaustion.

    Williams v. Ortiz

    The court in Williams v. Ortiz held that Williams, an inmate at the Racine County Jail, failed to exhaust his administrative remedies, related to his 14th Amendment due process claim that certain corrections officers conspired against him to fabricate disciplinary tickets and to deprive him of the facility’s administrative process.3

    Nelson W. Phillips Nelson W. Phillips III, U.W. 1998, is assistant corporation counsel for Milwaukee County, where he practices in litigation.

    The court explained that the Racine County Jail’s administrative grievance and appeal procedure requires that inmates appeal adverse administrative actions pursuant to jail’s handbook.4

    The jail’s two-step appeal procedure must be followed for an inmate’s remedies to be considered final and exhausted. It requires that the inmate execute a second appeal in writing within 24 hours of an adverse finding of the first appeal.5 Only after the jail administrator has made a final decision on the appeal can the suit be filed with the district court.6

    Relevant to Williams is both that he appealed his grievance in an untimely manner, and that he submitted the appeal directly to the jail captain instead of the assistant jail administrator as required by the jail handbook.

    In short, and despite Williams’ argument that that the jail deprived him of the ability to appeal his claim as a result of his placement in segregation, the court granted summary judgment in favor of the defendants. It held that Williams grieved his claims improperly and failed to achieve proper exhaustion.

    Lockett v. Bonson

    In Lockett v. Bonson, the court concluded, too, that the inmate failed to exhaust his administrative remedies with respect to his Eighth Amendment claim that he was forced to wait for medication.7

    However, in Lockett, the issue was whether the inmate, Lockett, failed to file an appeal of his initial grievance at all. Lockett claimed that he did so, but the state correctional facility, the Wisconsin Secure Program Facility (WSPF), had no record of his appeal.

    Wisconsin’s Administrative Code requires the secretary of the Department of Corrections to make a decision regarding an inmate’s grievance appeal within 45 days of receipt of the Corrections Claim Examiner’s (CCE) recommendation regarding the outcome of the appeal.8 If Lockett did not receive a decision from the secretary within 90 days of date of receipt of the appeal in the CCE’s office, he could have considered his or her administrative remedies to have been exhausted.9

    Lockett’s issue was that he had no evidence that his appeal was received by the CCE, and he did not inquire as to whether a receipt had been issued as required under the Code.10 Without evidence of his appeal, the court’s determination the summary judgment was properly granted for failure to exhaust administrative remedies was inevitable.

    Establishing Exhaustion of Claims is Critical

    Exhaustion of claims is a strong defense in civil rights claims brought pursuant to 42 U.S.C. section 1983.

    The take away here is that if you’re assisting an inmate in bringing such claims, or if you’re defending your client against them, you should be clear that exhaustion will be critical to the success of either party.

    Awareness of the rules related to exhaustion of claims at the inmate’s respective correctional facility is also tantamount to an understanding of whether the inmate’s claim can proceed on its merits, or be cut short due to procedural mistakes.


    1 Civil Rights of Institutionalized Persons Act § 7, 42 U.S.C.A. § 1997e(a)

    2 Title 42 U.S.C. § 1997e(a)

    3 Williams v. Ortiz, ___ F.3d___ (2019), 2019 WL 4010697 (2019)

    4 Williams v. Ortiz, 2019 WL 4010697 (7th Cir. 2019)

    5 Id. at *4

    6 Id.

    7 Lockett v. Bonson, ___F.3d ___, 2019 WL 4051867 (2019).

    8 Wis. DOC § 310.13(1)

    9 Wis. DOC § 310.13(4)

    10 Lockett v. Bonson, 2019 WL 4051867 at *8


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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Heather L. Nelson and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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