NONPRECEDENTIAL DISPOSITION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 August 17, 2011*
Decided August 18, 2011
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1188
JUSTIN MICHAEL TRUCKEY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 10‐cv‐414‐bbc
JANEL NICKEL, et al., Barbara B. Crabb,
Defendants‐Appellees. Judge.
O R D E R
Justin Truckey filed suit under 42 U.S.C. § 1983, claiming, as relevant here, that two
prison guards allowed another inmate to enter his cell and rape him six times. The district
court concluded that Truckey had failed to exhaust his administrative remedies before filing
suit, and thus granted the defendants’ motion for summary judgment. Truckey appeals, and
we affirm that ruling.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(c).
No. 11‐1188 Page 2
Truckey is incarcerated at the Columbia Correctional Institution in Wisconsin. In his
complaint he alleges that, on six occasions between October 2009 and January 2010, guards
Thomas Timm and Cherie Berrett allowed another inmate into his cell. At the time, says
Truckey, his cell was labeled as “red tag” or “do not double” to indicate that no other
inmate was to be allowed access. The guards knew about this restriction, he adds, but
nonetheless permitted the alleged assailant to enter. As a result, Truckey continues, he was
sexually assaulted multiple times.
Although the last of the alleged attacks occurred in “early January 2010,” Truckey
did not report any of them until March 10 when he gave a handwritten note to an
unidentified staff member. The next day Truckey also reported the assaults orally to a
prison sergeant. Prison administrators promptly dispatched two investigators, who
interviewed Truckey and his alleged assailant, as well as another alleged victim and several
potential witnesses named by Truckey. The investigators concluded, however, that Truckey
had falsely stated that his sexual encounters with the other inmate had been coerced. They
issued a conduct report accusing him of lying, engaging in sexual conduct, and
participating in the unauthorized transfer of property. According to the report, Truckey had
confessed that the sexual activity was consensual, even though initially he didn’t view the
other inmate as “a desirable sexual partner.” Truckey had also admitted receiving canteen
items from the other inmate in exchange for sex, and had told the investigators that he was
justified in calling their consensual encounters rapes because he did not feel that the other
inmate had satisfied his sexual needs. A hearing officer found Truckey guilty of all three
charges and gave him 180 days of disciplinary segregation. After Truckey’s administrative
appeal was denied, he asked the warden to reconsider the disciplinary decision. On June 7,
2010, the warden denied Truckey’s request.
Four days later, on June 11, Truckey submitted his first grievance against Timm and
Berrett through the Inmate Complaint Review System (“ICRS”). That grievance ignores the
findings of the investigators and the hearing officer and accuses the two guards of allowing
the other inmate unsupervised access to Truckey’s cell. The complaint examiner rejected
this grievance as untimely, reasoning that it was submitted more than 14 days after “the
occurrence giving rise to the complaint” and that Truckey had not asserted that he had good
cause for the delay. Truckey’s administrative appeal was denied.
Truckey then sued Timm and Berrett (he also named as defendants four other prison
employees but has abandoned his claims against them). In his complaint, which asserts an
Eighth Amendment claim for failing to protect him from the other inmate, Truckey says that
he waited until March 2010 to report the incidents—two months after the last of the
six—because that is when he felt a renewed “fear [of] further injurious violations of his
No. 11‐1188 Page 3
body” (though he doesn’t say what prompted this fear). Timm and Berrett moved for
summary judgment, arguing that Truckey had not exhausted his administrative remedies
because he didn’t submit the grievance about their alleged conduct until June 11, 2010, five
months after the last alleged rape and well after the prison’s 14‐day filing deadline.
In response Truckey insisted that he couldn’t use the formal grievance procedures
until after reporting the sexual assaults informally through the “chain of command.” Thus,
according to Truckey, the 14‐day period did not start running until June 7 when the warden
denied his request for reconsideration of the disciplinary sanction. It was only then, Truckey
reasoned, that his allegations had been passed up the “chain of command” informally. This
informal‐reporting requirement, Truckey said, is found in § DOC 310.09(4) of the Wisconsin
Administrative Code, which sets out the rules for submitting grievances. That
administrative provision includes language stating that a complaint examiner, before
accepting a grievance, “may direct the inmate to attempt to resolve the issue.” Truckey
reads this provision to require an attempt at informal resolution before submitting a
grievance, even though, read literally, the provision simply gives the complaint examiner
discretion to respond to a timely grievance by delaying consideration until after an informal
workout has been attempted. The provision makes no reference, moreover, to a “chain of
command,” nor does any other evidence that was submitted at summary judgment. The
district court was not persuaded by Truckey’s contention and granted the guards’ motion
for summary judgment. The court noted that, although a delay in reporting a sexual assault
might conceivably be explained by “psychological trauma” or a “reasonable fear about the
repercussions,” Truckey had not identified any such reason for his untimely grievance or
addressed the issue of “good cause.”
On appeal Truckey renews his contention that his grievance about Timm and Berrett
was timely if the purported requirement for informal resolution through the “chain of
command” is taken into account. But this purported requirement, he now says, is found not
in § DOC 310.09(4) but in a prison policy, and as evidence he appends to his brief in this
court an unauthenticated document from the prison titled “Chain of Command,” which was
not submitted at summary judgment. And though Truckey concedes that the defendants
“technically” are correct that the last sexual encounter in January 2010 started the 14‐day
period for submitting a grievance, he now argues for the first time that he had good cause
for waiting to act. The other inmate, he says, managed to silence him with threats until
March 2010 when his fear of renewed attacks finally gave him the courage to speak up.
Truckey’s new evidence of the purported prison policy and his factual contention regarding
good cause, however, were not presented at summary judgment, and so we need not say
more about them. See Best v. City of Portland, 554 F.3d 698, 702 (7th Cir. 2009); Cardoso v.
Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005); Republic Tobacco Co. v. N. Atl. Trading
Co., Inc., 381 F.3d 717, 728 (7th Cir. 2004).
No. 11‐1188 Page 4
We review the district court’s grant of summary judgment de novo, drawing all
reasonable inferences in favor of Truckey. See Crews v. City of Mt. Vernon, 567 F.3d 860, 864
(7th Cir. 2009). Before filing suit in federal court, Truckey was required to exhaust his
administrative remedies. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006). To
meet this exhaustion requirement, Truckey needed to follow the prison’s established
grievance procedures. Jones v. Bock, 549 U.S. 199, 218 (2007); Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006). That includes meeting grievance deadlines. Woodford, 548 U.S. at 90‐91;
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Wisconsin’s ICRS procedure requires
that a grievance be submitted “within 14 calendar days after the occurrence giving rise to
the complaint,” though late grievances may be accepted upon a showing of good cause. See
Wis. Admin. Code § DOC 310.09(6).
In order to determine whether Truckey’s grievance was timely, we must identify the
“occurrence” underlying that June 11 submission. The grievance alleges that six times
between October 2009 and January 2010 guards Timm and Berrett allowed Truckey’s
assailant to enter his cell in violation of prison policy and without his consent. Truckey’s
grievance (and his lawsuit) concern the defendants’ accountability for the six lapses in
security, all of which occurred two to five months before Truckey first reported the attacks
to a prison official in March, and five to seven months before he submitted his inmate
grievance in June. Because his grievance was tendered well beyond the 14‐day deadline,
Truckey failed to exhaust his available administrative remedies.
As for Truckey’s arguments that he was required to first informally report the
assaults through the chain of command and that the investigation of his allegations of
sexual assault somehow tolled the grievance deadline, neither is persuasive. First, at
summary judgment Truckey failed to present evidence of an informal‐reporting
requirement. The only authority he cited in support of his position, § DOC 310.09(4), would
not have been triggered until after Truckey submitted his grievance in June, and even then
the provision leaves it up to the complaint examiner’s discretion whether to require an
attempt at informal resolution. Thus, a finder of fact could not conclude from this record
that Truckey was excused from meeting the 14‐day deadline because he was diligently
complying with a mandatory, informal‐reporting requirement. Second, and more
importantly, even if Truckey had been told in March 2010 to attempt an informal resolution
of his grievance with these defendants, that would not change the fact that the 14‐day
period had started in January and already ended long before Truckey first reported the
alleged attacks in March. An untimely, informal report to a prison official cannot extend or
resurrect a grievance deadline that has already expired.
Accordingly, we AFFIRM the district court’s judgment.
