Conyers, Blake H. v. Abitz, Tom

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1630

BLAKE CONYERS,

Plaintiff-Appellant,

v.

TOM ABITZ, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01-C-1109—Rudolph T. Randa, Chief Judge.

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SUBMITTED FEBRUARY 15, 2005*—DECIDED JULY 25, 2005

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Before POSNER, COFFEY, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Blake Conyers, an Illinois prisoner,

filed suit under 42 U.S.C. § 1983 against Wisconsin prison

officials for actions taken while he was incarcerated in that

state. The district court granted summary judgment to the

defendants, reasoning that Conyers had failed to exhaust

*

After an examination of the briefs and the record, we have con-

cluded that oral argument is unnecessary. The appeal is therefore

submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2).

2 No. 04-1630

his claims. We conclude, however, that Conyers did exhaust

one of his claims and so remand in part for further proceed-

ings.

The incidents giving rise to Conyers’s complaint began in

1995. In May of that year, guards searched Conyers and

confiscated gang-related photographs he had on his person.

Conyers was punished, but his disciplinary conviction later

was expunged after a successful administrative appeal.

Next, in October 1995, guards frisked Conyers as he was

leaving the prison chapel. The search revealed no contra-

band, though Conyers received a disciplinary ticket for be-

having disruptively during the search. Conyers was found

guilty at a disciplinary hearing; this time his appeal of the

conviction was unsuccessful. Then, in December 1995,

guards confiscated more prohibited photographs and other

materials from Conyers’s cell and wrote him a disciplinary

ticket. The ticket was classified as a major offense because

Conyers had previously been convicted of possessing the

same type of contraband, even though that conviction had

been ordered expunged. A few days later Conyers was

sentenced to 90 days in segregation; the prison officials

affirmed his disciplinary conviction on appeal.

On January 20, 1996, while Conyers was serving his

segregation time, he asked to be provided with late bagged

dinners during the Fast of Ramadan but was told that the

deadline to sign up for that service had passed. During

the month-long period of Ramadan, Muslims abstain from

eating between dawn and dusk. Ramadan does not occur

during a specific month or season; its timing is based on the

lunar calendar and the start date moves backwards by

eleven days each year. In 1996 Ramadan began on

January 22. Although the sign-up deadline, January 16,

had been posted in the prison’s daily bulletin, Conyers did

not have access to that bulletin while in segregation. On

February 12, 1996, he was released from segregation. On

July 22, 1996, Conyers filed a prison grievance, complaining

No. 04-1630 3

that because he did not have access to the daily bulletin in

segregation and thus was unaware of the sign-up deadline,

he had been denied the ability to participate in the Fast of

Ramadan.

The prison’s grievance examiner recommended that

the warden dismiss Conyers’s grievance, reasoning that

Department of Corrections procedures do not mandate

providing bulletins to inmates in segregation at Conyers’s

prison, and that he should have contacted the prison

chaplain immediately upon placement in segregation to

ensure his meal accommodation. The examiner also “re-

minded” Conyers that grievances should be submitted

within 14 calendar days after the occurrence giving rise to

the complaint. The warden, after receiving the examiner’s

report, dismissed Conyers’s grievance without further ex-

planation. Conyers appealed the dismissal to the Secretary

of the Department of Corrections, and a different examiner

recommended dismissal based on the original examiner’s re-

port “and also considering the untimeliness of the original

complaint.” The Secretary, the final reviewing authority,

“accepted” that recommendation.

In October 2001, Conyers filed this action claiming con-

stitutional and state-law violations. At the initial screening,

see 28 U.S.C. § 1915A, the district court concluded that any

claims arising out of the May 1995 search were barred by

the applicable six-year statute of limitations for § 1983

claims arising in Wisconsin, see Wudtke v. Davel, 128 F.3d

1057, 1061 (7th Cir. 1997). Later, in response to a motion

from the defendants, the court also dismissed Conyers’s

claim that the discipline imposed after the December 1995

search of his cell violated his right to due process, reasoning

that Conyers may have had a protected liberty interest

affected by the discipline, but, because the officers’ conduct

was random and unauthorized and the post-deprivation

procedures available under Wisconsin law were adequate,

there was no due process violation. The court declined to

4 No. 04-1630

dismiss Conyers’s Fourth Amendment claim concerning the

October 1995 search or his claim that the defendants

violated his right to religious exercise by hindering his

observance of the Fast of Ramadan.

In June 2003, after the district court’s ruling, Conyers

moved to amend his complaint, ostensibly to add additional

state-law claims. Primarily, though, his motion argued that

the court should have inferred a claim for retaliation from

his original complaint and that the court overlooked other

federal and supplemental state-law claims implicit in his

original complaint. The district court denied leave to

amend, reasoning that Conyers had no excuse for waiting

20 months to file his motion, and that allowing the amend-

ment would unduly delay the action and prejudice the

defendants. The court did not respond to Conyers’s conten-

tion that some of his claims had not been addressed.

The defendants ultimately moved for summary judgment

on the frisk and religious-exercise claims that survived

screening and their motion to dismiss. They argued that

Conyers had failed to exhaust his administrative remedies

with respect to these claims because he filed no grievance

concerning the frisk and his grievance about the Fast of

Ramadan was deemed untimely. The district court agreed

with this position and dismissed the suit in its entirety. On

appeal, Conyers challenges the district court’s conclusion

that he failed to exhaust his administrative remedies for

the October 1995 search and the Fast of Ramadan in 1996.

Conyers also argues that the court did not analyze all of the

claims in his original complaint.

An inmate complaining about prison conditions must ex-

haust administrative remedies before filing suit. 42 U.S.C.

§ 1997e(a); see Porter v. Nussle, 534 U.S. 516, 524 (2002).

Exhaustion requires complying with the rules applicable to

the grievance process at the inmate’s institution, Pozo v.

McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Under

No. 04-1630 5

Wis. Admin. Code § 310.09(6), a grievance must be filed

“within 14 calendar days after the occurrence giving rise

to the complaint” unless accepted late “for good cause.”

Failure to comply with administrative deadlines dooms the

claim except where the institution treats the filing as timely

and resolves it on the merits. Riccardo v. Rausch, 375 F.3d

521, 524 (7th Cir. 2004). In that instance the grievance has

served its function of inviting prison administrators to take

corrective action, and thus the administrative exhaustion

requirement has been satisfied. Id.; Pozo, 286 F.3d at 1025.

Failure to exhaust administrative remedies is an affirma-

tive defense that must be established by the defendants,

Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). We

review de novo the question whether the prisoner has met

the exhaustion requirement. McCoy v. Gilbert, 270 F.3d

503, 508 (7th Cir. 2004).

We have no difficulty upholding the dismissal of Conyers’s

claim about the October 1995 frisk that occurred outside the

prison chapel. Conyers concedes that he did not even try to

file a grievance concerning that search. He argues instead

that his administrative appeals from the resulting disciplin-

ary conviction should be deemed an adequate substitute.

Even if disciplinary administrative appeals can satisfy the

exhaustion rule of § 1997e(a), see Giano v. Goord, 380 F.3d

670, 679 (2d Cir. 2004) (disciplinary appeal may be suffi-

cient to exhaust in certain circumstances), there would be no

point in allowing the Fourth Amendment claim to proceed

because it is frivolous. The defendants produced evidence

that they have a legitimate security interest in frisking

inmates as they leave the prison chapel because the chapel

is a hotbed of contraband exchange. We generally defer to

the judgment of prison officials when they are evaluating

what is necessary to preserve institutional order and

discipline, and it is unreasonable to suggest that Conyers

retains a privacy interest in not being frisked that could

suffice to overcome that deference. See Bell v. Wolfish, 441

U.S. 520, 547-48 (1979).

6 No. 04-1630

The Fast of Ramadan claim is significantly different. The

district court, at the defendants’ urging, concluded that

prison administrators dismissed Conyers’s grievance as

untimely, but the record does not support that conclusion.

At the initial stage of review, the warden offered no expla-

nation for dismissing the grievance, and so we must assume

that the warden acted on the basis of the initial examiner’s

recommendation. That examiner’s report included a “re-

minder” to Conyers to follow the timing rules but otherwise

rejected the grievance on the merits. Likewise, at the

second and final level of review, the Secretary of the

Department of Corrections accepted the recommendation of

a different reviewer to dismiss on the basis of the first

examiner’s report “and also considering the untimeliness of

the original complaint.”

We have held that a prison grievance rejected solely on

the basis of untimeliness will not fulfill the exhaustion re-

quirement. Pozo, 286 F.3d at 1025. We have also explained,

however, that if prison administrators choose to consider

the merits of an untimely grievance, then the claim has

been exhausted. Riccardo, 375 F.3d at 524. Conyers asserts

at one point that his grievance was decided on “dual”

grounds; elsewhere he argues that he substantially com-

plied with the exhaustion requirement for a variety of

reasons. Although the defendants argued in district court

that the grievance was dismissed as untimely, they now

adopt the view that it was dismissed for both untimeliness

and lack of merit. In such a case, they urge, the grievance

was not properly filed. That may be true if the record makes

it clear that there were two independent grounds for the

decision, but a procedural shortcoming like failing to follow

the prison’s time deadlines amounts to a failure to exhaust

only if prison administrators explicitly relied on that

shortcoming. See Ford v. Johnson, 362 F.3d 395, 397-98

(7th Cir. 2004). This record reveals that the grievance was

principally rejected on the merits with an ambiguous

No. 04-1630 7

secondary observation that it was untimely. We conclude

that Conyers has exhausted his administrative remedies as

to his Fast of Ramadan claim.

The defendants argue in the alternative that the dismis-

sal is sustainable on other grounds. Primarily, they contend

that they had a sufficient reason to ignore Conyers’s request

to participate in the fast, but their summary judgment

evidence is too poorly developed to support a decision in

their favor. Under the First Amendment, prisoners retain

a right to free exercise of religion, although that right is

subject to legitimate penological demands of the state.

Tarpley v. Allen County, Ind., 312 F.3d 895, 898 (7th Cir.

2002). Compare Cutter v. Wilkinson, 125 S. Ct. 2113 (2005)

(upholding Religious Land Use and Institutionalized

Persons Act of 2000, 42 U.S.C. § 2000cc-1(a)(1)-(2), which

requires prison officials to accommodate inmate religious

practices absent compelling interest otherwise). The

defendants offered the general explanation that they

imposed the sign-up deadline to give the prison’s food-ser-

vice and segregation unit time to prepare and coordinate

meal accommodation.

The defendants also claim that they cannot be blamed for

Conyers’s failure to anticipate Ramadan in time to contact

the chaplain on his own before the deadline. But they

offered no evidence to explain the additional effort that

would have been required to include Conyers in the fast.

They rest instead on the rigid and unsupported assumption

that a sign-up deadline like the one imposed is a reasonable

administrative requirement under any circumstances. See

Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1998)

(requiring sign-in sheets for participation in religious activ-

ities was not a substantial burden on free exercise). Nothing

in this record indicates that convenience and notice to

prison staff justified the rejection of Conyers’s request to

participate in the fast, especially since he missed the

notification deadline by just four days and in fact alerted

8 No. 04-1630

the defendants that he desired to participate in the Fast of

Ramadan two days before it began. It is notable in this

connection that the prison was willing to accommodate

Muslims transferred from other institutions after the noti-

fication deadline. See Makin v. Colo. Dep’t of Corr., 183 F.3d

1205, 1213-14 (10th Cir. 1999) (holding that staff availabil-

ity and proper allocation of resources were not sufficient

reasons for refusing to permit Muslim inmates confined in

segregation to participate in Fast of Ramadan); Love v.

Reed, 216 F.3d 682, 690-91 (8th Cir. 2000) (sanitary

concerns and potential inmate discontent over providing

another inmate with food to prepare and consume on the

Sabbath were not sufficient penological interests); compare

Williams v. Morton, 343 F.3d 212, 220-21 (3d Cir. 2003)

(simplified food service, security, and budgetary concerns

are legitimate penological interests justifying substitution

of vegetarian meals for Halal meals with meat).

The defendants also urge us to affirm on the basis of qua-

lified immunity; in their view, they “could not have been

expected to know that not providing [Conyers] with advance

written notice of the sign-up deadline would violate his

freedom of religion.” But this formulation misapprehends

the nature of Conyers’s free-exercise claim. The defendants

argue only that Conyers was responsible for contacting the

prison chaplain, but they present no evidence that Conyers

knew that there was a sign-up deadline. They have tried all

along to fault him for not realizing on his own that

Ramadan was approaching. But, of course, he did realize

that Ramadan was about to start, and he asked to partici-

pate in the fast before it commenced. The relevant inquiry

is whether, at the time the defendants refused Conyers’s

request, the law was clearly established that prison officials

must have a legitimate penological interest before imposing

a substantial burden on the free exercise of an inmate’s

religion, even when that inmate is in disciplinary segre-

gation. We have held, in the specific context of Muslim

No. 04-1630 9

inmates who were denied pork-free meals while confined in

disciplinary segregation, that prison officials must dem-

onstrate a legitimate penological objective for decisions that

impede religious exercise. Hunfa v. Murphy, 907 F.2d 46, 47

(7th Cir. 1990); see also McEachin v. McGuinnis, 357 F.3d

197, 204 (2d Cir. 2003) (free exercise is violated when

generally applicable prison policies fail to accommodate

segregated inmate’s religious dietary requirements). So that

brings us back to the defendants’ asserted interest and the

insubstantial evidence they offered to support it.

Conyers next argues that the district court erred in deny-

ing him leave to amend; we review for an abuse of discretion.

Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th

Cir. 2004). Conyers filed his original complaint in October

2001 and his motion to amend nearly two years later. Given

this delay and the fact that Conyers sought to amend in

large part only to alert the district court that it had “mistak-

enly or inadvertently” failed to address everything in his

original complaint, we see no abuse of discretion in the

district court’s conclusion that allowing amendment would

unduly delay the litigation and prejudice the defendants.

Nor do we agree with Conyers that the district court

failed to address other claims in his complaint. Conyers

says that the complaint includes other “Equal Protection

and Eighth Amendment claims” related to his Fast of

Ramadan claim, but the free-exercise claim arises under the

First Amendment and gains nothing by attracting additional

constitutional labels. See Graham v. O’Connor, 490 U.S.

386, 395 (1989) (constitutional claims must be addressed

under the most applicable provision). Conyers also seems to

interpret his complaint to include a claim that prison

officials conspired to deny him access to administrative

review of his grievances by dismissing them. If that is what

he means, his argument is frivolous. Conyers had access to

the grievance procedure; he simply did not obtain the

outcome he desired. Finally, Conyers contends that the

10 No. 04-1630

district court never addressed his state-law claims. Presum-

ably, the district court declined to exercise its supplemental

jurisdiction after dismissing Conyers’s federal claims, and

although we have difficulty discerning the exact nature of

those state-law claims, we leave it to the district court to

address them on remand.

Accordingly, the judgment of the district court is

AFFIRMED in part, VACATED and REMANDED in part.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-25-05