Conyers v. Abitz

• Decision Date: 25 July 2005
• Docket Number: No. 04-1630.,04-1630.
• Parties: Blake CONYERS, Plaintiff-Appellant, v. Tom ABITZ, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

416 F.3d 580

Blake CONYERS, Plaintiff-Appellant, v. Tom ABITZ, et al., Defendants-Appellees.

No. 04-1630.

United States Court of Appeals, Seventh Circuit.

Submitted February 15, 2005.^*

Decided July 25, 2005.

COPYRIGHT MATERIAL OMITTED

Blake H. Conyers (submitted), Sumner, IL, Pro Se.

John J. Glinski, Office of the Attorney General, Madison, WI, for Defendants-Appellees.

Before POSNER, COFFEY, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Blake Conyers, an Illinois prisoner, filed suit under 42 U.S.C. § 1983 against Wisconsin prison officials for actions taken while he was incarcerated in that state. The district court granted summary judgment to the defendants, reasoning that Conyers had failed to exhaust his claims. We conclude, however, that Conyers did exhaust one of his claims and so remand in part for further proceedings.

The incidents giving rise to Conyers's complaint began in 1995. In May of that year, guards searched Conyers and confiscated gang-related photographs he had on his person. Conyers was punished, but his disciplinary conviction later was expunged after a successful administrative appeal. Next, in October 1995, guards frisked Conyers as he was leaving the prison chapel. The search revealed no contraband, though Conyers received a disciplinary ticket for behaving disruptively during the search. Conyers was found guilty at a disciplinary hearing; this time his appeal of the conviction was unsuccessful. Then, in December 1995, guards confiscated more prohibited photographs and other materials from Conyers's cell and wrote him a disciplinary ticket. The ticket was classified as a major offense because Conyers had previously been convicted of possessing the same type of contraband, even though that conviction had been ordered expunged. A few days later Conyers was sentenced to 90 days in segregation; the prison officials affirmed his disciplinary conviction on appeal.

On January 20, 1996, while Conyers was serving his segregation time, he asked to be provided with late bagged dinners during the Fast of Ramadan but was told that the deadline to sign up for that service had passed. During the month-long period of Ramadan, Muslims abstain from eating between dawn and dusk. Ramadan does not occur during a specific month or season; its timing is based on the lunar calendar and the start date moves backwards by eleven days each year. In 1996 Ramadan began on January 22. Although the sign-up deadline, January 16, had been posted in the prison's daily bulletin, Conyers did not have access to that bulletin while in segregation. On February 12, 1996, he was released from segregation. On July 22, 1996, Conyers filed a prison grievance, complaining that because he did not have access to the daily bulletin in segregation and thus was unaware of the sign-up deadline, he had been denied the ability to participate in the Fast of Ramadan.

The prison's grievance examiner recommended that the warden dismiss Conyers's grievance, reasoning that Department of Corrections procedures do not mandate providing bulletins to inmates in segregation at Conyers's prison, and that he should have contacted the prison chaplain immediately upon placement in segregation to ensure his meal accommodation. The examiner also "reminded" Conyers that grievances should be submitted within 14 calendar days after the occurrence giving rise to the complaint. The warden, after receiving the examiner's report, dismissed Conyers's grievance without further explanation. Conyers appealed the dismissal to the Secretary of the Department of Corrections, and a different examiner recommended dismissal based on the original examiner's report "and also considering the untimeliness of the original complaint." The Secretary, the final reviewing authority, "accepted" that recommendation.

In October 2001, Conyers filed this action claiming constitutional and state-law violations. At the initial screening, see 28 U.S.C. § 1915A, the district court concluded that any claims arising out of the May 1995 search were barred by the applicable six-year statute of limitations for § 1983 claims arising in Wisconsin, see Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir.1997). Later, in response to a motion from the defendants, the court also dismissed Conyers's claim that the discipline imposed after the December 1995 search of his cell violated his right to due process, reasoning that Conyers may have had a protected liberty interest affected by the discipline, but, because the officers' conduct was random and unauthorized and the post-deprivation procedures available under Wisconsin law were adequate, there was no due process violation. The court declined to dismiss Conyers's Fourth Amendment claim concerning the October 1995 search or his claim that the defendants violated his right to religious exercise by hindering his observance of the Fast of Ramadan.

In June 2003, after the district court's ruling, Conyers moved to amend his complaint, ostensibly to add additional state-law claims. Primarily, though, his motion argued that the court should have inferred a claim for retaliation from his original complaint and that the court overlooked other federal and supplemental state-law claims implicit in his original complaint. The district court denied leave to amend, reasoning that Conyers had no excuse for waiting 20 months to file his motion, and that allowing the amendment would unduly delay the action and prejudice the defendants. The court did not respond to Conyers's contention that some of his claims had not been addressed.

The defendants ultimately moved for summary judgment on the frisk and religious-exercise claims that survived screening and their motion to dismiss. They argued that Conyers had failed to exhaust his administrative remedies with respect to these claims because he filed no grievance concerning the frisk and his grievance about the Fast of Ramadan was deemed untimely. The district court agreed with this position and dismissed the suit in its entirety. On appeal, Conyers challenges the district court's conclusion that he failed to exhaust his administrative remedies for the October 1995 search and the Fast of Ramadan in 1996. Conyers also argues that the court did not analyze all of the claims in his original complaint.

An inmate complaining about prison conditions must exhaust administrative remedies before filing suit. 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Exhaustion requires complying with the rules applicable to the grievance process at the inmate's institution, Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002). Under Wis. Admin. Code § 310.09(6), a grievance must be filed "within 14 calendar days after the occurrence giving rise to the complaint" unless accepted late "for good cause." Failure to comply with administrative deadlines dooms the claim except where the institution treats the filing as timely and resolves it on the merits. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.2004). In that instance the grievance has served its function of inviting prison administrators to take corrective action, and thus the administrative exhaustion requirement has been satisfied. Id.; Pozo, 286 F.3d at 1025. Failure to exhaust administrative remedies is an affirmative defense that must be established by the defendants, Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004). We review de novo the question whether the prisoner has met the exhaustion requirement. McCoy v. Gilbert, 270 F.3d 503, 508 (7th Cir.2001).

We have no difficulty upholding the dismissal of Conyers's claim about the October 1995 frisk that occurred outside the prison chapel. Conyers concedes that he did not even try to file a grievance concerning that search. He argues instead that his administrative appeals from the resulting disciplinary conviction should be deemed an adequate substitute. Even if disciplinary administrative appeals can satisfy the exhaustion rule of § 1997e(a), see Giano v. Goord, 380 F.3d 670, 679 (2d Cir.2004) (disciplinary appeal may be sufficient to exhaust in certain circumstances), there would be no point in allowing the Fourth Amendment claim to proceed because it is frivolous. The defendants produced evidence that they have a legitimate security interest in frisking inmates as they leave the prison chapel because the chapel is a hotbed of contraband exchange. We generally defer to the judgment of prison officials when they are evaluating what is necessary to preserve institutional order and discipline, and it is unreasonable to suggest that Conyers retains a privacy interest in not being frisked that could suffice to overcome that deference. See Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

The Fast of Ramadan claim is significantly different. The district court, at the defendants' urging, concluded that prison administrators dismissed Conyers's grievance as untimely, but the record does not support that conclusion. At the initial stage of review, the warden offered no explanation for dismissing the grievance, and so we must assume that the warden acted on the basis of the initial examiner's recommendation. That examiner's report included a "reminder" to Conyers to follow the timing rules but otherwise rejected the grievance on the merits. Likewise, at the second and final level of review, the Secretary of the Department of Corrections accepted the recommendation of a different reviewer to dismiss on the basis of the first examiner's report "and also considering the untimeliness of the original complaint."

We have held that a prison grievance rejected...