Travis Dickerson v. Allison Gersy ( 2020 )

NONPRECEDENTIAL DISPOSITION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, 2020*
Decided September 2, 2020
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20‐1256
TRAVIS DICKERSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 19‐CV‐177
ALLISON GERSY and Nancy Joseph,
DILLION BEVERLY, Magistrate Judge.
Defendants‐Appellees.
ORDER
Without first pursuing an administrative remedy, Travis Dickerson, a Wisconsin
inmate, sued Allison Gersy and Dillion Beverly, two corrections officers, after they
refused to add his friend to the prison’s list of his permitted visitors. The district court
dismissed his suit for failure to exhaust his administrative remedies. Because Dickerson
had an available administrative remedy that he did not use, we affirm.
Dickerson, an inmate at the Milwaukee Secure Detention Facility in Wisconsin,
alleges that after he asked Gersy, an officer with the Division of Community
* We agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20‐1256 Page 2
Corrections, to add his friend Hattie Smith to the prison’s list of his permitted visitors,
she refused. When Smith contacted Gersy and her supervisor, Dillion Beverly, to
inquire about the procedure to get on the visitor’s list, Smith was instructed to come to
the office to sign a statement affirming that she was not afraid of Dickerson. She never
did so. Gersy then sent Dickerson a copy of his current list of permitted visitors. It
stated that his friend Smith was omitted because of “victimization.” See WIS. ADMIN.
CODE DOC § 309.08(4)(g).
Dickerson responded by suing the officers under 42 U.S.C. § 1983. He viewed the
denial of his request as unjustified retaliation for an earlier‐filed civil‐rights suit against
Gersy and a violation of his right to freedom of association. The defendants moved for
summary judgment, arguing that Dickerson had not filed a grievance through
Wisconsin’s Inmate Complaint Review System, so he failed to exhaust his available
administrative remedies before suing. Presiding by consent of the parties, 28 U.S.C.
§ 636(c), the magistrate judge initially denied the motion. According to the judge, the
record did not establish that Dickerson needed to file a grievance because, among other
things, the defendants may not have worked at the prison and their actions may not
have affected his conditions of confinement. The defendants then successfully moved
for reconsideration, pointing out that the warden “would have determined” who was
permitted on Dickerson’s visiting list. Dickerson could have appealed the decision
administratively but did not. See WIS. ADMIN. CODE DOC § 309.08(6); see also id.
§ 309.08(4) (“The warden shall determine whether a person may be approved for
visiting … .”). Accepting that this argument established a lack of exhaustion, the judge
wrote her “reasons” for “dismiss[ing] this case without prejudice for failure to exhaust
administrative remedies.” The judgment, which the court then entered on a document
separate from those reasons, states that the case is “dismissed with prejudice.”
Before we reach the merits, we first assure that we have jurisdiction over the
appeal. Generally, a dismissal without prejudice is not a final decision and therefore
cannot be appealed under 28 U.S.C. § 1291. See, e.g., Alejo v. Heller, 328 F.3d 930, 935 (7th
Cir. 2003). But for two reasons the decision here is final. First, a nominally
nonprejudicial dismissal may be “functionally final” if an expired statute of limitations
would block a refiled case. Doctor’s Assocs., Inc. v. Duree, 375 F.3d 618, 622 (7th Cir.
2004). Wisconsin requires an inmate to file a complaint within the prison system within
14 days of the offending act unless good cause justifies more time. WIS. ADMIN. CODE
DOC § 310.07(2). Nothing in the record suggests that Dickerson needed more than
14 days after he learned of the adverse decisions to file an internal complaint. So if this
dismissal was “without prejudice,” it would be “functionally final.” But the judgment,
No. 20‐1256 Page 3
reflected in the separate document that the judge entered, see FED. R. CIV. P. 58, is not
without prejudice. This document says that the judgment is “with prejudice.” For
purposes of appellate jurisdiction, this separate document is the “source of legal
obligations,” not the preceding opinion that “explains the reasons for entering [the]
judgment.” Horn v. Transcon Lines, Inc., 898 F.2d 589, 591 (7th Cir. 1990). Thus our
jurisdiction is secure.
On the merits the record establishes beyond dispute that Dickerson did not
administratively exhaust. Prisoners may not sue about “prison conditions … until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also
Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). Dickerson does not deny that the
absence of his friend from his list of approved visitors affects his experience in prison,
so this suit is about “prison conditions.” The defendants maintain that because the
warden “would have determined” who was on his visiting list, WIS. ADMIN. CODE DOC
§ 309.08(4), Dickerson needed to appeal the warden’s decision within the prison system,
id. § 309.08(6). He did not do so. Dickerson replies that the two officers he sued, not the
warden, denied his request, so section 309.08(6) does not apply. Even if he is right that
these officers denied his request and that section 309.08(6) does not apply, Dickerson
still loses on exhaustion grounds. He alleges that these officers work for Wisconsin’s
Division of Community Corrections. And the Inmate Complaint Review System
permits inmates to “raise issues regarding policies, rules, living conditions, or employee
actions that personally affect the inmate or institution environment.” Id. § 310.06(1)
(emphasis added). By denying Dickerson’s request to expand his list of permitted
visitors, these two persons “personally affect[ed]” him, so this provision gave him an
internal remedy. And because he did not pursue it, he failed to exhaust.
Dickerson offers two responses, neither persuasive, for why this remedy was
nonetheless unavailable to him. First, he argues that the defendants who processed his
request are employees only of the Division of Community Corrections, not his prison.
But nothing about section 310.06(1) suggests that “employee” is limited to only
employees of the facility in which the inmate is held. Rather, it covers any “employee”
of Wisconsin’s Department of Corrections. See id. § 309.01 (“This chapter applies to the
department of corrections, and to all inmates in the legal custody of the
department … .”). And Dickerson does not dispute (nor could he) that the employees of
the Division, which is part of Wisconsin’s Department of Corrections, are employees of
the Department. See Division of Community Corrections, STATE OF WISCONSIN,
DEPARTMENT OF CORRECTIONS, https://doc.wi.gov/Pages/AboutDOC/Community
Corrections/Default.aspx (last visited August 28, 2020).
No. 20‐1256 Page 4
Second, Dickerson argues that the officers’ denial of his request was an
unreviewable “parole commission” decision. See WIS. ADMIN. CODE DOC § 310.06(3)(b)
(exempting such decisions from the grievance‐review process). But he offers nothing to
support his argument beyond the presence of the word “parole” in the job titles that he
attributes to the defendants. The commission generally considers whether to grant
parole to qualified inmates, not whether to allow visitors at prisons, so the defendants’
action was not a “parole commission” decision. See WIS. STAT. § 304.01(2).
AFFIRMED