Madyun, Shaheed v. Lemon, Officer , 204 F. App'x 547 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2006*
Decided July 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
No. 06-1310
Appeal from the United States District
SHAHEED TAALIB’DIN MADYUN, Court for the Eastern District of
Plaintiff-Appellant, Wisconsin
v. No. 04-C-343
CAROL COOK, et al., William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
Wisconsin inmate Shadeed Taalib’din Madyun has filed a number of civil-
rights suits in the courts of this circuit. E.g., Madyun v. Litscher, No. 02-C-0043-C
(W.D. Wis. Mar. 8, 2002); Madyun v. McCaughtry, No. 93-C-0060-C (W.D. Wis. June
15, 1995); Madyun v. Thome, No. 2:91-cv-01320-TTE (E.D. Wis. Apr. 9, 1992). In
2002 he incurred two strikes under 28 U.S.C. § 1915(g) for filing a frivolous
complaint and an equally frivolous appeal from its dismissal. See Madyun v.
Litscher, No. 02-1788 (7th Cir. Dec. 30, 2002). His present appeal is likewise
frivolous, and so Madyun has now struck out.
*
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).
No. 06-1310 Page 2
In the suit under 42 U.S.C. § 1983 which precipitated this appeal, Madyun
complained of a “mass conspiracy by all levels of” the Wisconsin Department of
Corrections to “put an end to [his] jailhouse lawyer[ing].” Madyun alleged a range
of conduct over six years by a host of prison officials from the trivial—a denial of the
use of a convenient bathroom—to the serious—a beating in his cell by masked
guards. Without reaching the merits of these claims, the district court granted
summary judgment for the defendants because it concluded that Madyun had not
exhausted his administrative remedies with respect to any of them. See 42 U.S.C.
§ 1997e(a). The district judge based that ruling on the affidavits of prison officials
familiar with the prison’s record of Madyun’s complaints under the Inmate
Complaint Review System. Madyun asserted that proof of exhaustion could be
found in his 200-page response to the defendants’ motion for summary judgment,
which contains six years of offender complaints, administrative appeals, and
correspondence between Madyun and prison officials. Many of the documents
plainly have no relevance to the claims in Madyun’s lawsuit, and the district court
told him that his failure to identify the exhibits purportedly establishing exhaustion
as to the claims in his complaint would alone support granting summary judgment
for the defendants. See E.D. Wis L.R. 56.2(b)(1), (d). The court nonetheless
examined the documents and explained how nothing Madyun submitted showed
that he exhausted any of his claims.
Madyun devotes much space in his opening and reply briefs to arguing the
merits of his claims, but gives scant attention to the court’s ruling that he failed to
exhaust them. He repeatedly asserts, as he did in the district court, that proof of
exhaustion can be found among the many exhibits to his summary judgment
response, but he refuses to engage the district court’s detailed explanation of how
the submission came up short. As Madyun is well aware—because the district
judge told him—he bears the burden of explaining which documents show
exhaustion and as to which claims; we will not scour the record to locate evidence
for him. See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir. 2003);
Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002).
Madyun’s unsupported contention that he exhausted his administrative remedies is
frivolous.
Madyun also asserts that he was afraid to file the materials necessary to
exhaust his claims because the guards who beat him threatened him with further
violence if he continued to litigate. Under such circumstances, he contends, he
should not have been required to exhaust. We do not doubt the correctness of
Madyun’s suggestion that threats by prison officials could in principle render an
administrative remedy unavailable. See Brengettcy v. Horton, 423 F.3d 674, 682
(7th Cir. 2005) (holding that conduct of prison officials can render administrative
remedy not “available” under § 1997e(a)); Abney v. McGinnis, 380 F.3d 663, 667 (2d
Cir. 2004) (holding that defendants are “estopped from raising non-exhaustion as an
No. 06-1310 Page 3
affirmative defense when prison officials inhibit an inmate’s ability to utilize
grievance procedures”). But Madyun did not raise that argument in the district
court and has therefore waived it. King v. Ill. State Bd. of Elections, 410 F.3d 404,
424 (7th Cir.2005). Moreover, the contention is factually frivolous. As Madyun’s
own filings show, he was not too afraid to file dozens of inmate complaints, one of
them reciting the very facts of the alleged beating where he said his attackers
warned him to stop litigating. The reason the district court found Madyun failed to
exhaust that claim was that he had no evidence that he administratively appealed
the complaint examiner’s decision to reject it. See Woodford v. Ngo, No. 05-416,
2006 WL 1698937 (June 22, 2006); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th
Cir. 2002). But since Madyun was not too afraid to file the complaint after the
guards threatened him, it is impossible to credit his contention that fear inspired by
the same threats was behind his failure to appeal the complaint’s rejection.
Madyun’s argument had no hope of prevailing, and so this appeal is frivolous. See
Mars Steel Corp. v. Cont’l Bank N.A., 880 F.2d 928, 938 (7th Cir. 1989) (en banc).
AFFIRMED.