Conyers, Blake H. v. Abitz, Tom ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1630
BLAKE CONYERS,
Plaintiff-Appellant,
v.
TOM ABITZ, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-1109—Rudolph T. Randa, Chief Judge.
____________
SUBMITTED FEBRUARY 15, 2005*—DECIDED JULY 25, 2005
____________
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
*
After an examination of the briefs and the record, we have con-
cluded that oral argument is unnecessary. The appeal is therefore
submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
2 No. 04-1630
his claims. We conclude, however, that Conyers did exhaust
one of his claims and so remand in part for further proceed-
ings.
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 contra-
band, though Conyers received a disciplinary ticket for be-
having 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
No. 04-1630 3
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 “re-
minded” 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 ex-
planation. Conyers appealed the dismissal to the Secretary
of the Department of Corrections, and a different examiner
recommended dismissal based on the original examiner’s re-
port “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 con-
stitutional 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
4 No. 04-1630
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 amend-
ment would unduly delay the action and prejudice the
defendants. The court did not respond to Conyers’s conten-
tion 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 ex-
haust administrative remedies before filing suit. 42 U.S.C.
§ 1997e(a); see Porter v. Nussle, 534 U.S. 516, 524 (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
No. 04-1630 5
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 affirma-
tive 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. 2004).
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 disciplin-
ary 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 suffi-
cient 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 (1979).
6 No. 04-1630
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 expla-
nation 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 “re-
minder” 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 solely on
the basis of untimeliness will not fulfill the exhaustion re-
quirement. Pozo, 286 F.3d at 1025. We have also explained,
however, that if prison administrators choose to consider
the merits of an untimely grievance, then the claim has
been exhausted. Riccardo, 375 F.3d at 524. Conyers asserts
at one point that his grievance was decided on “dual”
grounds; elsewhere he argues that he substantially com-
plied with the exhaustion requirement for a variety of
reasons. Although the defendants argued in district court
that the grievance was dismissed as untimely, they now
adopt the view that it was dismissed for both untimeliness
and lack of merit. In such a case, they urge, the grievance
was not properly filed. That may be true if the record makes
it clear that there were two independent grounds for the
decision, but a procedural shortcoming like failing to follow
the prison’s time deadlines amounts to a failure to exhaust
only if prison administrators explicitly relied on that
shortcoming. See Ford v. Johnson, 362 F.3d 395, 397-98
(7th Cir. 2004). This record reveals that the grievance was
principally rejected on the merits with an ambiguous
No. 04-1630 7
secondary observation that it was untimely. We conclude
that Conyers has exhausted his administrative remedies as
to his Fast of Ramadan claim.
The defendants argue in the alternative that the dismis-
sal is sustainable on other grounds. Primarily, they contend
that they had a sufficient reason to ignore Conyers’s request
to participate in the fast, but their summary judgment
evidence is too poorly developed to support a decision in
their favor. Under the First Amendment, prisoners retain
a right to free exercise of religion, although that right is
subject to legitimate penological demands of the state.
Tarpley v. Allen County, Ind., 312 F.3d 895, 898 (7th Cir.
2002). Compare Cutter v. Wilkinson, 125 S. Ct. 2113 (2005)
(upholding Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. § 2000cc-1(a)(1)-(2), which
requires prison officials to accommodate inmate religious
practices absent compelling interest otherwise). The
defendants offered the general explanation that they
imposed the sign-up deadline to give the prison’s food-ser-
vice and segregation unit time to prepare and coordinate
meal accommodation.
The defendants also claim that they cannot be blamed for
Conyers’s failure to anticipate Ramadan in time to contact
the chaplain on his own before the deadline. But they
offered no evidence to explain the additional effort that
would have been required to include Conyers in the fast.
They rest instead on the rigid and unsupported assumption
that a sign-up deadline like the one imposed is a reasonable
administrative requirement under any circumstances. See
Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1998)
(requiring sign-in sheets for participation in religious activ-
ities was not a substantial burden on free exercise). Nothing
in this record indicates that convenience and notice to
prison staff justified the rejection of Conyers’s request to
participate in the fast, especially since he missed the
notification deadline by just four days and in fact alerted
8 No. 04-1630
the defendants that he desired to participate in the Fast of
Ramadan two days before it began. It is notable in this
connection that the prison was willing to accommodate
Muslims transferred from other institutions after the noti-
fication deadline. See Makin v. Colo. Dep’t of Corr., 183 F.3d
1205, 1213-14 (10th Cir. 1999) (holding that staff availabil-
ity and proper allocation of resources were not sufficient
reasons for refusing to permit Muslim inmates confined in
segregation to participate in Fast of Ramadan); Love v.
Reed, 216 F.3d 682, 690-91 (8th Cir. 2000) (sanitary
concerns and potential inmate discontent over providing
another inmate with food to prepare and consume on the
Sabbath were not sufficient penological interests); compare
Williams v. Morton, 343 F.3d 212, 220-21 (3d Cir. 2003)
(simplified food service, security, and budgetary concerns
are legitimate penological interests justifying substitution
of vegetarian meals for Halal meals with meat).
The defendants also urge us to affirm on the basis of qua-
lified immunity; in their view, they “could not have been
expected to know that not providing [Conyers] with advance
written notice of the sign-up deadline would violate his
freedom of religion.” But this formulation misapprehends
the nature of Conyers’s free-exercise claim. The defendants
argue only that Conyers was responsible for contacting the
prison chaplain, but they present no evidence that Conyers
knew that there was a sign-up deadline. They have tried all
along to fault him for not realizing on his own that
Ramadan was approaching. But, of course, he did realize
that Ramadan was about to start, and he asked to partici-
pate in the fast before it commenced. The relevant inquiry
is whether, at the time the defendants refused Conyers’s
request, the law was clearly established that prison officials
must have a legitimate penological interest before imposing
a substantial burden on the free exercise of an inmate’s
religion, even when that inmate is in disciplinary segre-
gation. We have held, in the specific context of Muslim
No. 04-1630 9
inmates who were denied pork-free meals while confined in
disciplinary segregation, that prison officials must dem-
onstrate a legitimate penological objective for decisions that
impede religious exercise. Hunfa v. Murphy, 907 F.2d 46, 47
(7th Cir. 1990); see also McEachin v. McGuinnis, 357 F.3d
197, 204 (2d Cir. 2003) (free exercise is violated when
generally applicable prison policies fail to accommodate
segregated inmate’s religious dietary requirements). So that
brings us back to the defendants’ asserted interest and the
insubstantial evidence they offered to support it.
Conyers next argues that the district court erred in deny-
ing him leave to amend; we review for an abuse of discretion.
Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th
Cir. 2004). Conyers filed his original complaint in October
2001 and his motion to amend nearly two years later. Given
this delay and the fact that Conyers sought to amend in
large part only to alert the district court that it had “mistak-
enly or inadvertently” failed to address everything in his
original complaint, we see no abuse of discretion in the
district court’s conclusion that allowing amendment would
unduly delay the litigation and prejudice the defendants.
Nor do we agree with Conyers that the district court
failed to address other claims in his complaint. Conyers
says that the complaint includes other “Equal Protection
and Eighth Amendment claims” related to his Fast of
Ramadan claim, but the free-exercise claim arises under the
First Amendment and gains nothing by attracting additional
constitutional labels. See Graham v. O’Connor, 490 U.S.
386, 395 (1989) (constitutional claims must be addressed
under the most applicable provision). Conyers also seems to
interpret his complaint to include a claim that prison
officials conspired to deny him access to administrative
review of his grievances by dismissing them. If that is what
he means, his argument is frivolous. Conyers had access to
the grievance procedure; he simply did not obtain the
outcome he desired. Finally, Conyers contends that the
10 No. 04-1630
district court never addressed his state-law claims. Presum-
ably, the district court declined to exercise its supplemental
jurisdiction after dismissing Conyers’s federal claims, and
although we have difficulty discerning the exact nature of
those state-law claims, we leave it to the district court to
address them on remand.
Accordingly, the judgment of the district court is
AFFIRMED in part, VACATED and REMANDED in part.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-05