Dequarius D. Fitzpatrick v. Colin Fruehbrodt & Jacob Heffernan

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2021*
Decided April 13, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-2920
DEQUARIUS D. FITZPATRICK,
Plaintiff-Appellant,
v.
COLIN FRUEHBRODT & JACOB
HEFFERNAN,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-C-1177
William C. Griesbach,
Judge.
O R D E R
Dequarius Fitzpatrick, a Wisconsin inmate, contends that two correctional
officers used excessive force against him in violation of his Eighth Amendment rights.
The district court entered summary judgment for the officers because Fitzpatrick filed
an untimely grievance with the prison and thus did not exhaust his administrative
remedies, as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a).
* We have 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2920 Page 2
Because the undisputed evidence shows that Fitzpatrick filed his grievance too late to
exhaust, we affirm.
Fitzpatrick’s allegations concern an episode at his prison on July 9, 2018, while he
was on constant observation after he cut his arm. He was being monitored by
correctional officer Jacob Heffernan, who periodically was visited by another officer,
Colin Fruehbrodt. Fruehbrodt taunted Fitzpatrick, at one point yelling at him to stop
harming himself. Fitzpatrick protested that he was not doing anything, but Heffernan
sprayed him anyway with an “incapacitating agent.” The spray impaired Fitzpatrick’s
breathing and caused him to experience a “burning sensation” that lasted several days.
Fitzpatrick filed a grievance about the incident 23 days later, on August 16,
though the prison did not receive the grievance until August 21. Because state law
required that an inmate file a grievance within 14 days of an incident, the prison’s
complaint examiner rejected Fitzpatrick’s grievance as untimely. Fitzpatrick filed an
internal appeal, admitting that his grievance was late but contending that “the issue at
hand is serious and should be addressed.” The prison’s reviewing authority rejected the
appeal, agreeing with the examiner’s conclusion that Fitzpatrick had submitted his
grievance too late and had not provided “good cause” for the delay.
Fitzpatrick then filed this suit in district court under 42 U.S.C. § 1983. Heffernan
and Fruehbrodt moved for summary judgment, arguing that Fitzpatrick failed to
exhaust his administrative remedies. See § 1997e(a). Fitzpatrick argued that his
tardiness should be excused for good cause—that he was unable to file a timely
grievance because he was in segregation and thus restricted from having sharp objects
(like pens and pencils).
The district court entered summary judgment for defendants, pointing out that
Fitzpatrick had not provided good cause for his tardiness in the administrative
proceedings. Because Fitzpatrick had failed to assert good cause to the prison’s
complaint examiner, the court concluded, he waived that argument.
On appeal, Fitzpatrick continues to press his good-cause argument. He maintains
that his extended, post-incident confinement in segregation would have been apparent
to the complaint examiner, if only the examiner had taken “the time to investigate.”
The district court rightly found that Fitzpatrick did not follow Wisconsin’s
grievance procedures, as required to exhaust his administrative remedies.
See § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006); Schillinger v. Kiley, 954 F.3d

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No. 20-2920 Page 3
990, 995 (7th Cir. 2020). To exhaust administrative remedies, an inmate “must follow the
rules governing filing and prosecution of a claim.” Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002). Wisconsin law requires an inmate to file a grievance within 14 days
of an alleged incident or “explicitly provide the reason for the late filing.” WIS . A DMIN .
C ODE DOC §§ 310.07(2), 310.10(6)(e). Fitzpatrick filed his grievance 23 days after the
incident, and he gave no reason for his untimeliness. Although he blames the prison’s
complaint examiner for not ascertaining his circumstances, Wisconsin’s regulations
required Fitzpatrick to “explicitly” justify his untimeliness. Id. § 310.07(2).
AFFIRMED

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