Templeton, Todd v. Barrett, Kalvin et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TODD ALLEN TEMPLETON,
Plaintiff, 	OPINION AND ORDER
v.
23-cv-863-wmc
KERRY PORTER, CHRIS MOORE, KELLY SPLINTER,
GARY VANDIVIER, MIKE CONNERS, KYLE MCNALLY,
MARY VOECK, JEREMY WHITE, MIKE ZIESCH,
KARIANNE KUNDERT, DEPUTY SCHENCK, and
SERGEANT SHELLENBERGER,
Defendants.
Plaintiff Todd Allen Templeton, who is representing himself, is proceeding on
conditions-of-confinement 	and 	freedom-of-association 	claims 	against 	several 	sheriff’s
deputies while confined as a pretrial detainee at the Dane County Jail from January 20 to
April 20, 2022. Pending before the court are defendants’ motions for summary judgment
on the grounds that plaintiff failed to exhaust his administrative remedies as required under
the Prison Litigation Reform Act (“PLRA”). 	(Dkt. ##42 and 53.) 	For the reasons set
forth below, the court will grant defendants’ motions and dismiss this case without
prejudice.
BACKGROUND
At all times relevant to the complaint, the Dane County Jail had policies and
procedures in place that governed inmate grievances. Policy 600.08 explains that inmates
must submit grievances electronically using a tablet provided for that purpose within 10
days of the incident or issue giving rise to the grievance. (Dkt. #44-1, at 5.) In addition,
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Policy 607.04 provides a separate hearing and appeals process for issues involving “major
discipline,” including a restriction of privileges for more than 24 hours and placement in
restrictive housing for 24 hours to 10 days. 	(Id. at 6 (“Certain issues are not grievable
because a separate administrative process on that issue exists,” and “[j]ail supervisors have
the authority to reject a grievance for these reasons”); dkt. #44-3, at 1.) For major violation
conduct reports, an inmate may waive a formal disciplinary hearing and instead request an
informal hearing; however, the inmate may not appeal the discipline imposed at an
informal hearing. (Dkt. #44-3, at 2.)
Plaintiff submitted several grievances in 2022 (dkt. #44-2):
• 	On January 25, 2022, he submitted Grievance #160962522, after “being
housed in a cell for more than 24 hrs that is not up to state code, can’t shower
and use personal hygiene supplies as others can in my classification status or
even mail a letter!”
• 	On February 2, 2022, he submitted Grievance #162326032, complaining of
“being held in male segregation unit past my disciplinary lock down date and
time.”
• 	On February 5, 2022, he submitted Grievance #162785852, complaining of
“[n]o access to law library and other tablet resources.”
• 	On March 15, 2022, he submitted Grievance #27660 relating to frostbite in
his feet, wearing shoes or sandals in his cell, and not being allowed law library
access.
• 	On March 18, 2022, he submitted Grievance #169545542, stating that I
“[c]an not contact my lawyer, federal judge, or US Marshalls.”
• 	On March 20, 2022, he submitted Grievance #169798772, complaining
that “[m]entally unstable or under the influence residents are making noise
which makes sleep difficult and residents coming in at all hours.”
• 	On April 8, 2022, he submitted Grievance #172810152, complaining that
“Captain Porter, Tina Diring, Dep. Schenck and who ever ordered Dep.
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Schenck to file a fabricated disciplinary report about the event on 03/08/22
to generate paperwork and find me guilty of damage to property when no
damage occurred, and if it did what was the cost.”
• 	On 	April 	11, 	2022, 	he 	filed 	Grievance 	#27661, 	naming 	several
administrators at the jail and stating that “[m]y grievance was for being
denied basic hygiene, soap, toothbrush, toothpaste, hour out to shower. It
does deal with staff, not policy, and the individuals are the administrators
who place these restrictions on me, since March 10th, 2022. The inmate
handbook states every 2 days a shower, a toothbrush/toothed. The National
Sheriff’s Association says hygiene should never be used as a punishment. I’m
tired of smelling my breath and other body odor and the itching of my
beard.”
Plaintiff did not file any grievances about being denied visits with his family.
During the time period relevant to his claims, plaintiff also received numerous
conduct reports for major violations -- attempting to escape the jail, repeatedly damaging
county property, possessing contraband, failing to obey staff directions, and violating jail
rules -- that resulted in major discipline. 	(See dkt. #44-4.) 	For all but one of these
incidents, plaintiff waived his right to a formal hearing and appeal and received a discipline
determination through an informal hearing. (Id.) With respect to the one major violation
occurring on March 8, 2022, in Case No. 220112655, plaintiff requested a formal hearing
and appealed the resulting discipline of “credit time served.” (Id. at 10-12.)
OPINION
Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought . . . under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
Generally speaking, a prisoner must “properly take each step within the administrative
process” to comply with § 1997e(a). 	Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
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2002). 	This includes following instructions for filing the initial grievance, Cannon v.
Washington, 418 F.3d 714, 718 (7th Cir. 2005), and filing all necessary appeals “in the
place, and at the time, the prison's administrative rules require,” Pozo, 286 F.3d at 1025.
The purpose of this exhaustion requirement is to afford prison administrators a fair
opportunity to resolve a prisoner's grievance without litigation. Woodford v. Ngo, 548 U.S.
81, 88-89 (2006). Thus, a prisoner’s failure to exhaust constitutes an affirmative defense,
which defendants must prove, Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018). 	At
summary judgment, defendants must specifically show that: (1) there is no genuine dispute
of material fact as to plaintiff’s failure to exhaust; and (2) they are entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The court will discuss the parties’ exhaustion arguments with respect to each of his
claims separately.
I. 	Fourteenth Amendment Claims
In support of his conditions-of-confinement claims, plaintiff alleges that: between
January 20 and February 8, 2022 and March 10 and April 20, 2022, he was denied soap,
shampoo, toothbrushes, toothpaste, showers, razors, combs, writing utensils, as well as an
hour out of his cell or personal mail; and he was also denied access to his tablet between
March 10 and April 20, 2022. (Dkt. #13, at 2-3.) Defendants have submitted evidence
that plaintiff filed grievances regarding these conditions and pursued appeals through the
resident grievance system, but they contend that because these conditions were all imposed
as a result of plaintiff’s own major disciplinary actions, his challenges to the resulting
punishment are subject to a separate administrative appeals process. 	Defendants further
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contend that plaintiff failed to exhaust his administrative remedies through that separate
appeals process, having waived his right to formal hearings and appeals by signing a
Disciplinary Hearing Waiver/Determination form for the incidents that resulted in the
major discipline alleged in his amended complaint. See Nigl v. Meisner, 805 F. App’x 431,
433 (7th Cir. 2020) (“[Plaintiff] chose to abandon available administrative remedies as a
result of his decision to admit guilt and waive his rights.”).
While plaintiff requested a formal hearing and followed the formal hearing appeal
process to challenge his major discipline in Case No. 220112655,1 the discipline imposed
in that case was “credit time served,” and did not include the administrative confinement
or loss of privileges he alleges in his amended complaint.2 	(Dkt. #44-4, at 10.) 	Plaintiff
also argues that Nigl does not apply in his case because the sanction listed in his waiver
forms includes only the 10-day lockdown and not the loss of privileges or conditions of his
confinement. 	However, the jail has explicitly defined “major discipline” to include “a
restriction of privileges for more than twenty-four (24) hours, placement in restrictive
housing for more than twenty-four (24) hours, but not more than ten (10) days.” 	(Dkt.
#44-3, at 1.) 	Thus, this definition encompasses the loss of privileges that plaintiff
complains about -- denial of soap, shampoo, toothbrush, toothpaste, showers, razor, comb,
writing utensils, out-of-cell time, personal mail, tablet use, and access to the law library and
1
Plaintiff contends that he also received a formal disciplinary hearing on or around January 27,
2022, but the March 8, 2022 sheriff’s letter he submits does not support this contention (dkt. #49-
2), and the records submitted by defendants show that no formal hearing was held in January 2022.
2 While plaintiff’s periods of lockdown, administrative confinement, and loss of privileges continued
both before and after Case No. 220112655, these conditions also resulted from other incidents of
major discipline.
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federal courts. Indeed, the notices of disciplinary hearing and rights that plaintiff received
and subsequently waived expressly advised plaintiff that “[i]f it is determined that you have
violated jails rules, you may be subjected to” lockdown or segregation for up to 10 days
and loss of privileges, among other punishments. (Dkt. #44-4, at 1, 3, 5, 7, 9, and 13.)
Had plaintiff followed the jail’s policy for appealing major discipline, just like he did
in Case No. 220112655, he would have requested a formal disciplinary hearing and been
afforded the right to be heard, present witnesses and documentary evidence, confront and
cross-examine his accusers, be represented by a staff advocate, and be advised of the
hearing’s disposition and the reasons for it, along with mitigating factors considered when
imposing his discipline. (Dkt. #44-3, at 3-4.) Moreover, once the formal hearing occurred,
plaintiff would have been advised of his right to appeal if found guilty, and the procedure
for doing so, and no discipline would have started while his appeal was pending. (Id.) Had
plaintiff then timely submitted a written request to appeal the disposition of the formal
disciplinary hearing, his discipline would have been reviewed by the jail’s security services
captain, who would have determined whether the evidence relied upon at the formal
disciplinary hearing supported the decision of the hearing board both as to his guilt and
the sanctions imposed. 	(Id.) 	However, despite obviously knowing these appellate rights,
plaintiff chose instead an informal disposition for which there is no appeal. 	Therefore,
plaintiff failed to properly pursue each step in the administrative relief process available to
him – “a process that his voluntarily-signed waiver prematurely ended.” Nigl, 805 F. App’x
at 433.
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While plaintiff responds that jail officials could have rejected his grievances about
the conditions of his confinement on the ground that this was not a grievable issue, he does
not dispute that his grievances about his conditions of confinement were in fact considered
and rejected. 	Regardless, “the Supreme Court has rejected any suggestion that prisoners
are permitted to pick and choose how to present their concerns to prison officials.” Pavey
v. Conley, 663 F.3d 899, 905 (7th Cir. 2011) (“If a prisoner can be required to submit his
grievance in the particular manner and within the precise period of time designated by the
prison’s administrative procedures, then he must also be required to present his grievance
in the proper forum.”).3
Finally, plaintiff argues that he lacked tablet access to respond to his grievances and
grievance appeals after mid-April 2022, and specifically for Grievance #172810152.
However, plaintiff’s lack of access to a tablet does not excuse his earlier decisions to waive
his rights to formal disciplinary hearings and appeals. Moreover, plaintiff concedes in his
brief, and the record reflects, that when he lost tablet privileges, he was informed that staff
would let him know when his grievances were “responded to and the deputies were only
allowed to handwrite his grievances/appeals at that point.” 	(Dkt. #49, at 4; see also dkt.
#44-5, at 9-15 (“Not allowed access to mobile tablet. Deputies will assist resident [in]
filling out paper request slips and grievances.”); dkt. #44-3, at 24-30 (paper grievances
3 To the extent that plaintiff may actually be arguing that the jail’s consideration of his grievances
informally misled him to believe that he had done all that was necessary to exhaust the conditions-
of-confinement claim, that argument only goes so far. 	Plaintiff does not assert that any prison
official said anything at all to him about the grievance process. And again, plaintiff’s compliance
with the formal hearing appeals process in Case No. 220112655 shows that he was aware of how
to appeal a major discipline, but chose not to use this process for any of his other major disciplinary
incidents. Pavey, 663 F.3d at 906 (finding similar).
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submitted by plaintiff in April 2022).) Accordingly, plaintiff’s loss of access to a tablet had
no bearing on his ability to exhaust administrative remedies with respect to his claims in
this case.
II. First Amendment Claim
Plaintiff separately claims that he was denied visitation with his family. 	Despite
filing numerous grievances, however, defendants have submitted evidence that plaintiff
never filed a grievance that referenced his family or visits with them. 	Plaintiff has not
disputed this contention. Therefore, plaintiff has also failed to exhaust his administrative
remedies with respect to this First Amendment claim. See King v. Dart, 63 F.4th 602, 608
(7th Cir. 2023) (to satisfy the exhaustion requirement, the allegations in the prisoner’s
grievance must relate to the claim that the prisoner is pursuing in federal court); Schillinger
v. Kiley, 954 F.3d 990, 996 (7th Cir. 2020) (same).
Because defendants have proven that plaintiff failed to exhaust his claims in this
lawsuit, they must be dismissed without prejudice. See Ford v. Johnson, 362 F.3d 395, 401
(7th Cir. 2004) (“[A]ll dismissals under § 1997e(a) should be without prejudice”). 	This
means plaintiff can technically refile the same claims if he can successfully exhaust them,
but he will likely find it impossible to do so because the relevant events happened too long
ago.
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ORDER
IT IS ORDERED that:
1. 	Defendants’ 	motions 	for 	summary 	judgment 	for 	failure 	to 	exhaust
administrative remedies (dkt. ##42 and 53) are GRANTED.
2. 	This case is DISMISSED without prejudice.
3. 	The clerk of court is directed to enter judgment in defendants’ favor and close
this case.
Entered this 21st day of January, 2026.
BY THE COURT:
/s/
_______________________________
WILLIAM M. CONLEY
District Judge
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