David P. Foley v. Scott Paul

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2022*
Decided January 5, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1458
DAVID P. FOLEY,
Plaintiff-Appellant,
v.
SCOTT PAUL, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 21-CV-280
William E. Duffin,
Magistrate Judge.
O R D E R
David Foley, then incarcerated at a Wisconsin prison, sued officials at his
prison—alleging that they retaliated against him for filing grievances and a lawsuit and
then failed to protect him from a sexual assault. The district court entered summary
judgment for the defendants, concluding that Foley had failed to exhaust his
* We have agreed to decide the 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NONPRECEDENTIAL DISPOSITION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 F ED. R. APP . P. 32.1

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administrative remedies. Because Foley had administrative remedies available and did
not comply with their procedural requirements, we affirm.
We construe the facts in the light most favorable to Foley, the nonmoving party.
Williams v. Ortiz, 937 F.3d 936, 941 (7th Cir. 2019). While Foley was incarcerated at Fox
Lake Correctional Institute, he filed grievances against two prison guards and then a
lawsuit against them. The guards allegedly retaliated against him by spreading rumors
about his sexual orientation, confiscating his property, tampering with his food, and
transferring him to a cell with a known violent prisoner. After the transfer, Foley
warned other prison staff that the cellmate might attack him. He was right: he was
physically and sexually assaulted by that cellmate in 2020.
Foley filed two administrative grievances. In the first, he complained that the
cellmate stole his property after the assault. The prison dismissed the complaint. Just
under a month later, Foley appealed to the Secretary of the Wisconsin Department of
Corrections. The Secretary dismissed the appeal as untimely because Foley had filed it
outside the 14-day window to appeal. See WIS. A DMIN . C ODE DOC § 310.12(1). In his
second grievance, Foley complained that one of the guards did not allow him to eat his
food while it was hot. The prison also dismissed that grievance, and Foley’s appeal to
the Secretary was dismissed because the filing exceeded the page and word limit.
See id. § 310.09(2)(e).
Foley sued the prison guards and staff for retaliation under the First Amendment
and deliberate indifference (toward his risk of being sexually assaulted) under the
Eighth Amendment. See 42 U.S.C. § 1983. The defendants in turn moved for summary
judgment on the grounds that Foley had not exhausted his administrative remedies.
See id. § 1997e(a). The district court granted the motion, agreeing with the defendants
that Foley did not comply with the prison’s appeal requirements to exhaust his
administrative remedies for his First and Eighth Amendment claims.
On appeal, Foley argues that he needed to exhaust only available administrative
remedies and that remedies were unavailable for two reasons. First, he states that
because he is suing the prison guards for retaliation, the district court should have
made the “logical inference” that those guards must have prevented him from accessing
the grievance process. But to survive summary judgment Foley needed evidence that
would allow a jury to find that the defendants “thwart[ed]” his attempts to use his
administrative remedies. Ross v. Blake, 578 U.S. 632, 644 (2016); see Gooch v. Young,
24 F.4th 624, 627 (7th Cir. 2022). He does not identify any evidence of such interference
and instead relies only on an inferential leap that (alleged) retaliation also affected his

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No. 22-1458 Page 3
attempts to exhaust—an insufficient inference. See Weaver v. Champion Petfoods USA Inc.,
3 F.4th 927, 934 (7th Cir. 2021).
Foley’s second reason why remedies were unavailable relates to the warden’s
decision during the early stages of the COVID-19 pandemic to suspend all of the
prison’s administrative rules—including, according to Foley, the grievance procedure.
But Foley waived this argument by raising it for the first time on appeal. Cooper v.
Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 675, 688 (7th Cir. 2022); Homoky v. Ogden,
816 F.3d 448, 455 (7th Cir. 2016). Regardless, Foley does not develop any argument,
see Greenbank v. Great Am. Assurance Co., 47 F.4th 618, 629 (7th Cir. 2022); see also F ED. R.
A PP . P. 28(a)(8), because he omits details about the duration and timing of the
suspension and whether it overlapped with his window to file grievances about the
events pertinent to this lawsuit.
Foley argues in the alternative that even if administrative remedies were
available, the district court ignored two facts when concluding he failed to exhaust.
First, Foley states the court ignored the fact that there was no further step in the
grievance process after the Secretary rejected his two appeals because “[t]he secretary’s
decision is final.” WIS . A DMIN . C ODE DOC § 310.13(3). But his failure to comply with
either his prison’s deadline, see id. § 310.12(1), or its word and page limits,
see id. § 310.09(2)(e), means that he did not properly exhaust. Williams, 937 F.3d at 941
(citing Woodford v. Ngo, 548 U.S. 81, 93 (2006)); Pozo v. McCaughtry, 286 F.3d 1022
(7th Cir. 2002).
Second, Foley contends the district court also overlooked one of his grievances
that concerned sexual assault—a grievance that, he says, triggered more lenient
exhaustion rules. He cites a regulation under the Prison Rape Elimination Act, 34 U.S.C.
§§ 30301–09, that says prisons “shall not impose a time limit on when an inmate may
submit a grievance regarding an allegation of sexual abuse.” 28 C.F.R. § 115.52(b)(1).
Wisconsin has implemented this regulation in its grievance procedures. See WIS . A DMIN .
C ODE DOC § 310.08(1). (We do not comment on Foley’s contention that PREA mandates
states to follow the federal regulations.)
But, as the district court correctly concluded, the record lacked evidence that
Foley ever filed a grievance about the 2020 sexual assault. Foley points to one exhibit he
submitted with his summary judgment materials—a “PREA Investigation Disposition”
dated April 2016—but that report predates by four years the assault that prison staff
allegedly ignored. Indeed, the 2016 investigation identifies a suspect different from the

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one Foley accuses of assaulting him in 2020, and Foley does not explain these
discrepancies.
We have considered Foley’s other arguments, but none has merit.
AFFIRMED

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