Dye, John L. v. Kingston, Phil , 130 F. App'x 52 ( 2005 )

UNPUBLISHED ORDER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, 2005*
Decided April 27, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4066
JOHN L. DYE, JR., Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern
District of Wisconsin
v.
No. 03-C-0226
PHILLIP A. KINGSTON, et al.,
Defendants-Appellees. Rudolph T. Randa,
Chief Judge.
ORDER
Wisconsin prisoner John L. Dye, Jr., brought suit under 42 U.S.C. § 1983alleging as relevant here that prison officials withheld his religious and legal
materials in violation of the First Amendment. The district court ultimately
dismissed these claims for failure to exhaust administrative remedies. We affirm.
Dye’s claims stem from the failure of prison officials to return personal
property after he was transferred to Columbia Correctional Institution in November
2002. Before moving to CCI, Dye packed his possessions in a box. Several days
later, after staff at CCI inventoried Dye’s incoming property to ensure compliance
*
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. 04-4066 Page 2
with prison regulations, Dye received his box. When unpacking, Dye realized that
several items were missing, including Bibles and legal materials. The legal
materials included compilations of various statutes and rules, which appear to be
available in the prison library, in addition to a Defensive and Arrest Tactics
Training (DATT) Manual that Dye obtained through discovery in a pending civil
case.
Dye contacted Warden Phillip Kingston, Security Director Tim Douma,
Mail/Property Supervisor Jim Spangberg, and Mail/Property Sergeant Mawby (all
defendants in this action) and submitted informal Interview/Information Requests
asking that his missing property be returned. In later correspondence with
Kingston, Dye said he needed the legal materials for use in unspecified pending
cases. Later, in the course of threatening litigation to win return of his “‘allowable’
property,” Dye also made mention in one letter of a several-month series that the
withholding of his Bibles bordered “close” to a violation of his First Amendment
right to free exercise of religion. Kingston responded by telling Dye to proceed
through the “chain of command.” Douma also wrote Dye explaining that the DATT
manual was withheld because it posed “security issues.” But if Dye verified that he
had court approval to review the manual for pending litigation, added Douma, he
would be allowed to “access the material in the interview room of his housing unit.”
In addition to his informal requests, in December 2002, Dye filed a timely
grievance, identified as Complaint No. CCI 2002-42191, demanding the return of
the same items identified in his informal requests, including deodorant, hair nets,
shower caps, pens, tobacco, lotion, tennis shoes, and a television cable as well as
“legal materials” and “two large print Bibles.” Dye said little about his present
need for the legal materials and nothing about the missing Bibles hindering his
religious observance. Officer William Noland (also a defendant) denied his
grievance stating first that Dye was “fully aware of where his property” was
because he “sent out” his property “on a visit.” In addition, Noland noted that the
prison confiscated Dye’s publications because he had 59 more than the 25-
publication limit allowed at CCI. In his grievance Dye did not name any prison
staff responsible for withholding the property, but in his administrative appeal he
identified Kingston, Duoma, Mawbey, and Spangberg as officials who refused “to
respond” to his requests for return of legal materials “which pertain to presently
pending court matters.” That appeal was denied.
Dye then attached the resolution of Complaint No. 42191 in a second
grievance, Complaint No. CCI-2003-3391. Though Dye repeated his general
assertions about wanting the return of his “property/legal materials,” he made no
specific mention of the withheld Bibles. This grievance and Dye’s related appeals
were denied, but in January 2003, Correctional Officer Ditter (a sixth defendant)
did return some of Dye’s legal materials. And Ditter informed Dye that he could
No. 04-4066 Page 3
pay $100 to have the remaining property that was being withheld for violating the
mandated limits sent out of the prison or else it would be destroyed.
Dye then brought this civil rights action complaining that the defendants
were violating his First Amendment rights by withholding his legal and religious
materials. (Dye also claimed the defendants were hindering his access to the courts
by giving him lined paper instead of his preferred typing paper, and by refusing to
authorize further loans under Wis. Admin. DOC § 309.51 so that he could pursue
his legal matters; these claims are patently frivolous, and the district court correctly
dismissed them on the merits. See Lindell v. McCallum, 352 F.3d 1107, 1111 (7th
Cir. 2003) (no subsidized right to access to the courts); Johnson v. Daley, 339 F.3d
582, 585 (7th Cir. 2003) (same).) At first the district court denied the defendants’
motion seeking summary judgment for failure to exhaust administrative remedies,
see 42 U.S.C. § 1997e(a), explaining that the defendants had offered too little
information to establish conclusively that Dye had not exhausted his First
Amendment claims. The court also denied Dye’s own request for summary
judgment on his First Amendment claims, reasoning that Dye lacked evidence that
the missing legal materials had caused “actual injury” to his litigation efforts, or
that his “exercise of religion was unduly burdened by the defendants in the absence
of a reasonably related legitimate penological interest.”
The defendants later renewed their motion for summary judgment, again
arguing that Dye had failed to exhaust his First Amendment claims through the
administrative process. This time granting the motion, the district court concluded
that Dye’s grievances about his missing property made “no specific allegations
against the defendants”; rather, the court noted, Grievance No. 49121 simply
presented a “laundry list” of missing items. Reasoning that Dye had not suggested
“that it was prison policy to deny inmates religious and legal materials,” and that
his grievances included too little information “to link any of the defendants to his
missing property,” the court held that Dye had not given “notice” of his contentions,
and thus failed to exhaust his administrative remedies.
On appeal Dye disputes the district court’s determination that prison officials
were not given sufficient notice of his First Amendment claims. Dye argues that his
grievances were “not lacking such information that the administrative system
requires,” and that he gave the prison the necessary opportunity to respond to his
complaint about the withheld property. And, in answer to the defendants’
argument that he could not have exhausted without specifically naming them in his
grievances, Dye argues that it was enough that he identified them in his
administrative appeal of Complaint No. 42191.
A purpose of the exhaustion requirement is to allow prison officials time and
opportunity to respond to complaints internally before an inmate initiates
No. 04-4066 Page 4
litigation. Porter v. Nussle, 534 U.S. 516, 524-25 (2002); see Smith v. Zachary, 255
F.3d 446, 450-51 (7th Cir. 2001). To provide officials with sufficient notice, inmates
must file grievances at the place and time and with the information required by the
prison’s administrative rules. Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002).
Where the rules are silent, “a grievance suffices if it alerts the prison to the nature
of the wrong for which redress is sought.” Id. at 650; see Riccardo v. Rausch, 375
F.3d 521, 524 (7th Cir. 2004). Thus, drawing on principles of notice pleading, we
have held that absent more stringent administrative requirements an inmate need
not state “facts, legal theories, or demand relief,” so long as the grievance objects
“intelligibly to some asserted shortcoming.” Strong, 297 F.3d at 250; see Riccardo,
375 F.3d at 524. We and the majority of the circuits have never endorsed, though,
the defendants’ invitation to engraft onto § 1997e(a) a requirement that defendants
to a civil suit be first named in an inmate’s prison grievance. See Strong, 297 F.3d
at 649 (noting that Sixth Circuit requires inmate to name defendant in grievance
but opting for notice pleading where prison rules are silent); Johnson v. Johnson,
385 F.3d 503, 522 (5th Cir. 2004) (no need to identify involved official if notice from
grievance was sufficient); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)
(remanding for determination whether failure to name defendant until disciplinary
appeal sufficed for notice of grievance against official); Brown v. Sikes, 212 F.3d
1205, 1207-08 (11th Cir. 2000) (not requiring inmates to name defendant in
grievance if information not available); but see Curry v. Scott, 249 F.3d 493, 505
(6th Cir. 2001) (requiring that defendants be named in grievance for exhaustion).
We start with the free-exercise claim. Although we reject the defendants’
premise that Dye failed to exhaust his administrative remedies solely because he
did not identify the responsible officials by name in his first grievance (he did name
them in the administrative appeal from the denial of this grievance), we
nonetheless agree with the district court that Dye’s mere listing of missing items in
his grievance did not give sufficient notice to prison officials that he was contending
that not having access to the missing Bibles was impeding his free exercise of his
religion. Dye’s grievance needed to alert prison officials to the “nature of the
wrong,” Strong, 297 F.3d at 650, but a “laundry list” of missing property that lumps
deodorant and tennis shoes with the two Bibles does nothing to inform the recipient
that the Bibles carried greater significance or were sought for reasons different
than the other missing items. As such, the grievance plainly alerted the defendants
that Dye demanded the return of a broad class of personal property, but not that
the lack of access to some of the items was impeding his ability to practice his
religion. In this regard, Dye’s single mention that prison officials were “bordering”
on a free-exercise violation in one letter out of a several-month correspondence with
Warden Kingston further convinces us that Dye failed to give notice of his religion
claim. If Dye’s point was that not having his Bibles was infringing on his religious
practice, we would expect him to say so specifically and with greater frequency;
No. 04-4066 Page 5
instead, Dye tacked on the reference to the First Amendment within the context of
threatening litigation for the return of all of his “‘allowable’ property.”
That leaves only the legal materials, and although we believe it a closer
question, we need not resolve the question because the claim goes nowhere on the
merits. Unlike with his free-exercise claim, Dye in his grievances and
correspondence delineates his legal materials from the rest of his property and
mentions, albeit in vague terms, that withholding the materials was impacting
pending litigation. But regardless of notice, at this late point in the
litigation—following Dye’s own failed motion for summary judgment—the record is
empty of any evidence of actual harm to his pending or potential litigation as a
result of his inability to access the missing materials. See Lewis v. Casey, 518 U.S.
343, 351-52 (1996) (holding that inmate must demonstrate “actual injury,” i.e., that
his efforts to pursue nonfrivolous legal claim were or are hindered); Tarpley v. Allen
County, 312 F.3d 895, 899 (7th Cir. 2002). Despite the obvious need to provide the
district court with all of his evidence of impacted litigation when he moved for
summary judgment, the closest Dye comes to even asserting actual harm is his
belated allegation in his appellate brief that he was unable to respond to discovery
in one case. Yet, Dye fails to identify what consequences, if any, befell him as a
result of not having the legal material; he makes no mention of a court sanction for
the delay, let alone any action that resulted “in actual substantial prejudice to
specific litigation.” See Johnson v. Barczak, 338 F.3d 771, 773 (7th Cir. 2003)
(internal quotations and citations omitted). Because Dye cannot satisfy the
elements of an access-to-the-courts claim, we conclude that there is no need to
remand this case for further proceedings.
Accordingly, we AFFIRM the judgment of the district court.