Darreyll Thomas v. Michael Reese

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3406
DARREYLL T. THOMAS,
Plaintiff-Appellant,
v.
MICHAEL REESE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 13-cv-597-wmc—William M. Conley, Chief Judge.
____________________
SUBMITTED APRIL 7, 2015 ∗ — DECIDED JUNE 1, 2015
____________________
Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit
Judges.
∗ 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).
2 No. 14-3406
HAMILTON, Circuit Judge. Darreyll Thomas, a Wisconsin
prisoner, alleges in this lawsuit under 42 U.S.C. § 1983 that
when he was in the Dane County Jail, several county correc-
tional officers unlawfully used excessive force in the course
of handcuffing him after he disobeyed an order. The district
court granted summary judgment for the defendants on the
ground that Thomas had not exhausted his available admin-
istrative remedies as required by the Prison Litigation Re-
form Act. See 42 U.S.C. § 1997e(a). We conclude that admin-
istrative remedies were not actually available to Thomas, so
we reverse and remand for proceedings on the merits. Our
reasoning requires us to consider the relationship between
the Dane County Jail’s disciplinary procedures and its griev-
ance procedures for complaints by prisoners.
At the time of the incident in 2012, Thomas alleges, he
had a severe neck and back injury that, according to prison
medical staff, required that he not sleep on a top bunk bed
and that he be handcuffed only in front of his body. The day
after Thomas was transferred to a jail in Dane County in July
2012, deputy sheriff Michael Reese assigned him to a top
bunk. Believing that Reese knew about but ignored his bot-
tom-bunk restriction, Thomas refused the bunk assignment.
He then asked to be moved to the segregation unit, which he
knew did not have bunk beds. Reese replied by ordering
Thomas to place his hands behind his back to be handcuffed.
Thomas protested this order, too, thinking that Reese was
also ignoring his front-only cuffing restriction.
The conflict then escalated as two other deputy sheriffs,
Robin Hampton and Rob Van Norman, came over to assist
Reese. Eventually, Thomas alleges, Hampton slammed his
face into a wall, and then all three officers shoved him onto
No. 14-3406 3
the floor. Thomas alleges that Reese kneed him in the head
twice while Hampton and Van Norman forced his hands to-
gether behind his back. Reese then kneed Thomas in the
head two or three more times and repeatedly punched him
in the face, Thomas alleges. Bleeding profusely, Thomas was
taken by ambulance to an emergency room to treat his inju-
ries.
Disciplinary proceedings against Thomas followed.
Pending his hearing, Thomas was placed in punitive segre-
gation at the jail, where, he alleges, he did not have access to
the 50-page inmate handbook he had received just the day
before when he was transferred to the jail. The jail charged
Thomas with violating several major rules, including those
prohibiting physically contacting staff, acting in a disorderly
manner, and expelling bodily fluids at another person.
Thomas waived a disciplinary hearing and received ten days
of segregation as punishment, although he was transferred
back to state custody four days after the incident.
About a year later, Thomas sued the officers involved in
the incident. Upon screening under 28 U.S.C. § 1915A, the
district court dismissed some claims (a ruling that Thomas
does not challenge on appeal) and allowed his excessive-
force claim and his related claims for failure to intervene, re-
taliation, and battery to proceed.
The defendants moved to dismiss for failure to exhaust
administrative remedies. The district court treated the mo-
tion as one for summary judgment and then granted it. The
defendants cited a portion of the inmate handbook that pro-
vides: “Grievances may not be filed for issues involving ma-
jor discipline (i.e., disciplinary hearings) because a separate
appeal process is available.” Because Thomas had waived
4 No. 14-3406
his presence at the disciplinary hearing, the defendants ar-
gued, he did not exhaust. Thomas responded that no admin-
istrative remedies had been available to him. He explained,
and the defendants do not dispute, that although he had re-
ceived the handbook when he arrived at the jail, he did not
have it the next day when he was put in segregation and
therefore could not consult it. While in segregation, Thomas
continued, he had asked three officers to explain the jail’s
procedure so he could grieve about “how staff beat my ass
just because I asked for a bottom bunk.” Two gave him no
information. The third—whose statement the defendants do
not dispute—told Thomas: “You can’t file a grievance on
that. That’s what you’re in seg [segregation] for.” The district
court ruled that Thomas had failed to exhaust.
Under the PLRA, Thomas had to exhaust all available
administrative remedies before suing in federal court. See 42
U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006).
States may specify the precise administrative remedies that
their inmates must exhaust, see King v. McCarty, 781 F.3d
889, 894 (7th Cir. 2015), and Wisconsin allows county facili-
ties to define the grievance procedures for their jails, Wis.
Admin. Code DOC § 350.26. But the PLRA “requires exhaus-
tion only of remedies that are ‘available.’ Prison authorities
cannot immunize themselves from suit by establishing pro-
cedures that in practice are not available because they are
impossible to comply with or simply do not exist.” King, 781
F.3d at 893. Because exhaustion is an affirmative defense, the
defendants must establish that an administrative remedy
was available and that Thomas failed to pursue it. See Jones
v. Bock, 549 U.S. 199, 216 (2007); Pavey v. Conley, 663 F.3d 899,
903 (7th Cir. 2011).
No. 14-3406 5
We conclude for two independent reasons that Thomas
did not have an available administrative remedy. First, we
must assume that after Thomas was confined to segregation,
he did not have access to the handbook, which according to
the defendants sets forth the proper grievance procedure.
The parties agree that he had the 50-page handbook before
the incident for less than one day, but the Prison Litigation
Reform Act imposed no duty on Thomas to memorize it dur-
ing that time. Then when Thomas, lacking the handbook,
asked three officers how he could file a grievance, only one
answered. He told Thomas that he could not file a grievance.
“[W]hen prison officials prevent inmates from using the ad-
ministrative process … the process that exists on paper be-
comes unavailable in reality.” Kaba v. Stepp, 458 F.3d 678, 684
(7th Cir. 2006); see also Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006) (remedy is unavailable when prison employees
“use affirmative misconduct to prevent a prisoner from ex-
hausting”); Dale v. Lippin, 376 F.3d 652, 656 (7th Cir. 2004)
(remedy is unavailable when officials refuse to give prisoner
the form required to file grievance).
Second, the handbook itself shows that Thomas did not
have an administrative remedy available. Thomas was
charged with “major” rule violations. The handbook in-
structs: “Grievances may not be filed for issues involving
major discipline (i.e., disciplinary hearings) because a sepa-
rate appeal process is available” (Emphasis added.) Presum-
ably this rule allows (and requires) Thomas to grieve at his
disciplinary hearing any dispute about the charges or the
proposed discipline. But Thomas is not contesting his disci-
pline or the conduct that generated the charges. Rather, he is
challenging the officers’ conduct that occurred after his of-
fenses.
6 No. 14-3406
The defendants essentially want to revise the handbook
to add a “compulsory counterclaim” rule comparable to
Federal Rule of Civil Procedure 13(a). Defendants argue that
when the jail considers disciplining an inmate for miscon-
duct, the inmate not only can but must raise against jail
guards any grievances about their reaction to the miscon-
duct. But neither the handbook nor Thomas’s signed waiver
of his hearing says this. The defendants “cannot defeat the
suit by retroactively amending” the handbook. King, 781
F.3d at 896. Prison officials may not “change their grievance
rules once litigation beg[ins] or simply keep prisoners in the
dark about the real rules.” Id. Likewise, Thomas did not
need to exhaust remedies he had not been told about, nor
did he need to divine the availability of other procedures.
Id. 1
The nature of the jail’s disciplinary process reinforces our
view that Thomas could not raise his grievance about the jail
guards at his disciplinary hearing. The handbook says: “The
purpose of inmate discipline is to correct inappropriate be-
havior and to aid inmates in their attempt to comply with
jail rules and regulations.” At the hearing, the handbook
cautions, inmates may only “dispute the alleged violations.”
Restricting inmates to disputing only the “alleged viola-
tions” implements Wisconsin’s rule that inmates may pre-
1 Defendants have not argued that the issues Thomas raises were so
distinct from the disciplinary proceeding that he should have raised
them in a separate grievance. Such an argument would be inconsistent
with their actual argument that Thomas should have raised them in the
disciplinary proceeding. If jail or prison authorities intend to allow for
such grievances of distinct issues, we would expect that option to be
spelled out in the relevant information given to inmates.
No. 14-3406 7
sent only “relevant evidence” at disciplinary hearings.
See Wis. Admin. Code DOC §§ 303.87(2)(a), 350.24(3)(d)(2).
Wisconsin defines that term as “evidence [that] makes it ap-
pear more likely or less likely that the inmate committed the
offense of which the inmate is accused.” Id. § 303.87(1).
But Thomas’s evidence for his claim that the officers used
excessive force after he broke prison rules would not make
his denial that he broke those rules appear more likely true
or not. Cf. Gilbert v. Cook, 512 F.3d 899, 901–02 (7th Cir. 2008)
(disciplinary finding that inmate violated prison rule is not
inconsistent with inmate’s claim that guards used excessive
force in responding to the violation). We therefore conclude
that administrative remedies were not actually available to
Thomas. See Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011);
Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). The case
should proceed to the merits to determine if his allegations
are true.
We end with one final point. Thomas protests the district
judge’s denial of his motion for recusal, but we reject this
challenge. Thomas asserts without any support that the
judge had “personal knowledge of disputed evidentiary
facts.” 28 U.S.C. § 455(b)(1). When a judge decides a contest-
ed issue, whether correctly or not, at least one side will be
disappointed. Adverse rulings do not constitute evidence of
judicial bias. See Liteky v. United States, 510 U.S. 540, 555
(1994); Williams v. Illinois, 737 F.3d 473, 476 (7th Cir. 2013).
We REVERSE the district court’s judgment and
REMAND the case for further proceedings.