Foley v. Paul
| Decision Date | 05 January 2023 |
| Docket Number | 22-1458 |
| Parties | DAVID P. FOLEY, Plaintiff-Appellant, v. SCOTT PAUL, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
NONPRECEDENTIAL DISPOSITION
Submitted December 21, 2022 [*]
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 21-CV-280 William E. Duffin Magistrate Judge.
Before ILANA DIAMOND ROVNER, Circuit Judge MICHAEL Y. SCUDDER Circuit Judge AMY J. ST. EVE, Circuit Judge
David Foley, then incarcerated at a Wisconsin prison, sued officials at his prison-alleging that they retaliated against him for filing grievances and a lawsuit and then failed to protect him from a sexual assault. The district court entered summary judgment for the defendants, concluding that Foley had failed to exhaust his administrative remedies. Because Foley had administrative remedies available and did not comply with their procedural requirements, we affirm.
We construe the facts in the light most favorable to Foley, the nonmoving party. Williams v. Ortiz, 937 F.3d 936, 941 (7th Cir. 2019). While Foley was incarcerated at Fox Lake Correctional Institute, he filed grievances against two prison guards and then a lawsuit against them. The guards allegedly retaliated against him by spreading rumors about his sexual orientation, confiscating his property, tampering with his food, and transferring him to a cell with a known violent prisoner. After the transfer, Foley warned other prison staff that the cellmate might attack him. He was right: he was physically and sexually assaulted by that cellmate in 2020.
Foley filed two administrative grievances. In the first, he complained that the cellmate stole his property after the assault. The prison dismissed the complaint. Just under a month later, Foley appealed to the Secretary of the Wisconsin Department of Corrections. The Secretary dismissed the appeal as untimely because Foley had filed it outside the 14-day window to appeal. See WIS. ADMIN. CODE DOC § 310.12(1). In his second grievance, Foley complained that one of the guards did not allow him to eat his food while it was hot. The prison also dismissed that grievance, and Foley's appeal to the Secretary was dismissed because the filing exceeded the page and word limit. See id. § 310.09(2)(e).
Foley sued the prison guards and staff for retaliation under the First Amendment and deliberate indifference (toward his risk of being sexually assaulted) under the Eighth Amendment. See 42 U.S.C. § 1983. The defendants in turn moved for summary judgment on the grounds that Foley had not exhausted his administrative remedies. See id. § 1997e(a). The district court granted the motion, agreeing with the defendants that Foley did not comply with the prison's appeal requirements to exhaust his administrative remedies for his First and Eighth Amendment claims.
On appeal, Foley argues that he needed to exhaust only available administrative remedies and that remedies were unavailable for two reasons. First, he states that because he is suing the prison guards for retaliation, the district court should have made the "logical inference" that those guards must have prevented him from accessing the grievance process. But to survive summary judgment Foley needed evidence that would allow a jury to find that the defendants "thwart[ed]" his attempts to use his administrative remedies. Ross v. Blake, 578 U.S. 632, 644 (2016); see Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022). He does not identify any evidence of such interference and instead relies only on an inferential leap that (alleged) retaliation also affected his attempts to exhaust-an insufficient inference. See Weaver v. Champion Petfoods USA Inc., 3 F.4th 927, 934 (7th Cir. 2021).
Foley's second reason why remedies were unavailable relates to the warden's decision during the early stages of the COVID-19 pandemic to suspend all of the prison's administrative rules-including, according to Foley, the grievance procedure. But Foley waived this argument by raising it for the first time on appeal. Cooper v. Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 675, 688 (7th Cir. 2022); Homoky v. Ogden, 816 F.3d 448, 455 (7th Cir. 2016). Regardless, Foley does not develop any argument, see Greenbank v. Great Am. Assurance Co., 47 F.4th 618, 629 (7th Cir. 2022); see also FED. R. APP. P. 28(a)(8), because he omits details about the duration and timing of the suspension and whether it overlapped with his window to file grievances about the events pertinent to this lawsuit.
Foley argues in the alternative that even if administrative remedies were available, the district court ignored two facts when concluding he failed to exhaust. First, Foley states the court ignored the fact that there was no further step in the grievance process after the Secretary rejected his two appeals because "[t]he secretary's decision...
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