Hoeft, Richard v. Wisher, Doctor , 181 F. App'x 549 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2006*
Decided May 8, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-3410
RICHARD HOEFT, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin
v.
No. 05-C-333-S
DR. WISHER and DAVID ROCK,
Defendants-Appellees. John C. Shabaz,
Judge.
ORDER
Richard Hoeft, a Wisconsin state prisoner, brought suit under 42 U.S.C.
§ 1983 alleging that prison doctors failed to provide him with adequate medical
treatment in violation of the Eighth Amendment. The district court dismissed the
case without prejudice under 42 U.S.C. § 1997e(a) for failure to exhaust
administrative remedies. We affirm.
*
After an examination of 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).
No. 05-3410 Page 2
We accept as true the facts as Hoeft alleges them in his complaint.
McCormick v. Waukegan Sch. Dist., 374 F.3d 564, 565 (7th Cir. 2004). While
incarcerated at the Stanley Correctional Institution in Wisconsin, Hoeft filed an
administrative complaint alleging that he received inadequate medical care for
passing blood. On February 15, 2005, the complaint was dismissed because there
was no evidence that Hoeft’s medical needs were being neglected or denied. Hoeft
had 10 days to file an appeal, but did not do so. On February 22, 2005, Hoeft was
transferred to Bayfield County Jail where he remained until April 7, 2005, when he
was returned to Stanley. On May 19, 2005, about six weeks after his return to
Stanley, and three months after his complaint was dismissed, Hoeft appealed. The
appeal was dismissed because it was untimely. The Complaint Examiner noted
Hoeft’s transfer, but concluded that the temporary absence did not constitute good
cause to excuse the untimeliness.
Hoeft then commenced this § 1983 suit in federal court alleging inadequate
dental and medical care in violation of the Eighth Amendment. Upon initial
screening under 28 U.S.C. § 1915A, the district court dismissed the dental care
claim for failure to state a claim, but allowed the medical care claim to proceed.
The district court subsequently granted defendants’ motion to dismiss the
remaining claim for failure to exhaust administrative remedies. Hoeft now appeals
the district court’s dismissal of the inadequate medical care claim.
We review de novo the dismissal of a claim for failure to exhaust
administrative remedies. McCormick, 374 F.3d at 565. The Prison Litigation
Reform Act provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 . . . until such administrative remedies as are
available are exhausted.” § 1997e(a). A prisoner has not exhausted his remedies
unless he completes the administrative process by following the rules established by
the state for that purpose. Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir.
2002). The Wisconsin grievance process requires prisoners to file an appeal within
10 days after the date of the decision they seek to appeal, however prison officials
have the authority to accept an untimely appeal upon a showing of good cause. Wis.
Admin. Code § DOC 310.13(1)–(2). A prisoner’s failure to take advantage of a
procedure for reconsidering untimely filings constitutes a failure to exhaust.
Cannon v. Washington, 418 F.3d 714, 718–19 (7th Cir. 2005) (per curiam); McCoy v.
Gilbert, 270 F.3d 503, 510–11 (7th Cir. 2001). Dismissals for failure to exhaust
under § 1997e(a) are without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th
Cir. 2004).
Hoeft first argues that he was prevented from filing his administrative
appeal in a timely manner because he was transferred to another facility during the
10-day filing period. As long as the state’s application of its own procedural rules is
No. 05-3410 Page 3
not arbitrary or capricious, we will not substitute our judgment for the state’s. See
Caldwell v. Miller, 790 F.2d 589, 596–97 (7th Cir. 1986) (holding that prison
officials have broad discretion to adopt prison regulations and policies as long as
they comply with constitutional standards and are reasonably related to achieving
important correctional goals). Here, as the district court noted, the Complaint
Examiner determined that Hoeft’s transfer was not good cause to excuse his
untimeliness because he could have filed prior to his transfer or immediately upon
his return to Stanley. The time for Hoeft to present additional excuses was when
he filed his untimely administrative appeal, not before the district court or this
court, although even now Hoeft offers no explanation as to why he was unable to file
his administrative appeal in the seven days prior to his transfer, during his time at
Bayfield County Jail, or immediately upon his return to Stanley.
Hoeft next argues that he has exhausted all his administrative remedies
because no additional remedies are available to him. The exhaustion doctrine
requires prisoners to present their substantive claims to administrative bodies as
required by state rules. Pozo, 286 F.3d at 1023. Hoeft failed to do so; instead he
violated DOC 310.13(1), which required him to appeal within 10 days of the decision
being appealed. That prison officials may decline further review is irrelevant to
whether Hoeft exhausted his remedies. Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006) (if a prisoner does not properly use the grievance process, prison officials
can refuse to hear the case and the claim can be “indefinitely unexhausted”); Ford,
362 F.3d at 400–01 (“If it is too late to pursue administrative remedies, then
exhaustion will prove impossible and § 1997e(a) will permanently block litigation.”)
Accordingly, the judgment of the district court is AFFIRMED.