Andre V. Powell v. Charles Bowen

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 11, 2023*
Decided July 20, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-2460
ANDRE V. POWELL,
Plaintiff-Appellant,
v.
CHARLES BOWEN, et al.
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:20-cv-698
Jon E. DeGuilio,
Judge.
O R D E R
Andre Powell, a former Indiana prisoner, sued prison officials under 42 U.S.C.
§ 1983 for allegedly mishandling his grievances and retaliating against him for filing
them. The district judge dismissed most defendants at screening and entered summary
* We have agreed to decide the case without oral argument because the briefs and
the 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NONPRECEDENTIAL DISPOSITION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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judgment for the rest after determining that Powell had not exhausted the available
administrative remedies. Powell challenges both decisions, and we affirm.
We accept the facts alleged in Powell’s complaint as true with respect to the
dismissed claims, see Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020), and for the
claims that reached summary judgment, we present the facts in the light most favorable
to Powell and draw reasonable inferences in his favor, see Douglas v. Reeves, 964 F.3d
643, 645 (7th Cir. 2020). In August 2018, Powell, then a parolee, was participating in a
work-release program at the South Bend Community Re-Entry Center. He was
reassigned to a job he had previously held at the Indiana Department of Natural
Resources (DNR). He found the job objectionable, though he does not explain why.
Powell interpreted the reassignment as an act of retaliation for grievances he had filed.
The effects of the reassignment were compounded, he alleges, because he was not
informed of the reassignment and therefore missed work. A caseworker issued a
conduct report based on his absence—a move Powell interpreted as further retaliation.
That September, Powell submitted one grievance about his job assignment and
another about his conduct report; he believed both acts to be part of a retaliatory “set
up” by Cristina Stobaugh, an administrator at the facility, and Charles Bowen, the
warden. Four days after he submitted the grievances (which were ultimately denied),
Powell was transferred to the more restrictive Westville Correctional Facility pending
the outcome of a hearing on the conduct report for missing his DNR job. After
disciplinary proceedings, Powell lost 90 days of earned credit time. (He challenged this
in a petition under 28 U.S.C. § 2254, but that case was mooted when he was released
from custody. See Powell v. Indiana Parole Bd., No. 21-2167, 2022 WL 2208878, at *1
(7th Cir. June 21, 2022).) Powell also says that, during the transfer, Bowen and Stobaugh
ordered a correctional officer to confiscate authorized commissary items from him.
Powell submitted one last grievance in October, alleging that the facility transfer
was retaliation for the September grievances. Stobaugh, who reviewed the October
grievance, determined that it concerned a “Classification or Disciplinary Hearing Issue”
and therefore fell outside the scope of the grievance process. Powell did not
administratively appeal this decision.
In August 2020, Powell—who was by then detained in the Elkhart County Jail for
reasons he does not explain—sued multiple defendants from the re-entry center under
42 U.S.C. § 1983. He alleged that Bowen and Stobaugh retaliated against him for
exercising his rights under the First Amendment when they changed his work

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No. 22-2460 Page 3
assignment, transferred him to Westville, and ordered the confiscation of his property
to punish him for filing grievances. He also asserted that the officer who took his
property violated his due-process rights under the Fourteenth Amendment, as did
other officials, including Stobaugh, by failing to act on or improperly rejecting his
grievances.
The district judge dismissed the bulk of the complaint at screening under 28
U.S.C. § 1915A. The judge explained that the claim about the retaliatory job
reassignment failed because Powell did not allege anything about the job to suggest that
the move was so punitive as to deter an inmate of ordinary firmness from filing
grievances. See FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 586 (7th Cir. 2021). The judge
next dismissed Powell’s claim about an improper conduct report because the
disciplinary violation that resulted in his loss of good time had not been overturned. See
Edwards v. Balisok, 520 U.S. 641, 643 (1997) (citing Heck v. Humphrey, 512 U.S. 477, 487
(1994)). As to Powell’s claim that Stobaugh had mischaracterized the subject of his
October grievance, the judge concluded that her alleged failure to remedy Powell’s
grievance was not a constitutional violation. See Est. of Miller by Chassie v. Marberry, 847
F.3d 425, 428 (7th Cir. 2017). Finally, Powell did not state a retaliation claim against the
officer who took his commissary items because Powell did not allege that the officer
knew of, and was therefore motivated by, any grievance. Nor did he have a viable due-
process claim because the Indiana Tort Claims Act provides an adequate post-
deprivation remedy for property loss caused by the random and unauthorized acts of a
state employee.
The judge then allowed Powell to proceed on his claims that Stobaugh and
Bowen retaliated against him by transferring him to Westville and directing the officer
to take his property. But the defendants moved for summary judgment on the ground
that Powell had failed to exhaust his administrative remedies, as required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), because the grievances he filed did not
address the prison transfer. Powell contended that he had exhausted available remedies
and that further remedies were effectively unavailable because the grievance process
was “obsolete” and the officials did not handle his grievances in good faith. He also
argued that the notice of a tort claim he had submitted to the Indiana Department of
Correction addressed the confiscation of his property and therefore satisfied his
exhaustion obligations for that claim. Finally, Powell argued that, because he was no
longer in the custody of the Department, he was not subject to its grievance process.

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The judge entered summary judgment for the defendants. He determined that no
grievance addressed either Powell’s transfer to Westville or the taking of his property,
and a tort claim was not a substitute for the grievance process. Further, Powell’s belief
that the grievance process was futile and the fact that he was no longer incarcerated
where the events at issue took place did not excuse him from exhausting. Powell
appeals, and we review de novo both the screening order and the summary judgment
for the defendants. Schillinger, 954 F.3d at 994–95.
We review de novo both the dismissals at screening, Schillinger, 954 F.3d at 994,
and the summary judgment decision, Douglas, 964 at 645. On appeal, Powell first
contends that the district judge improperly dismissed the claim that his work
reassignment was retaliatory because the timing supports an inference of retaliation.
But even if Powell adequately alleged a retaliatory motive, he also had to allege facts
suggesting that he experienced an action adverse enough to deter a reasonable person’s
expressive conduct. Douglas, 964 F.3d at 646. Because Powell’s complaint contains no
details about the DNR job, he provided no basis for inferring that it imposed a
substantial hardship. Id. at 646–47.
Likewise, Powell did not state a claim against the corrections officer who
confiscated his commissary items. Indiana’s Tort Claims Act provides an adequate
remedy for prisoners deprived of property by the random and unauthorized acts of
state employees. See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (citing Hudson
v. Palmer, 468 U.S. 517, 533 (1984)). Powell contends that, because he does not expect to
obtain relief in state court, the remedy is inadequate. But his right is to adequate
process—not to a specific outcome—and state law provides it.
Powell also challenges the dismissal of his claim against Stobaugh for
misinterpreting the content of the October grievance about the facility transfer. He
contends that he stated a due-process claim because an official cannot, under
Department policy, address a grievance that mentions her. But prison regulations about
processing grievances do not create interests protected by the Due Process Clause, so
violating them does not in itself give rise to constitutional liability. See Owens v. Hinsley,
635 F.3d 950, 953 (7th Cir. 2011). (True, prisoners have a due-process right to an
impartial decision-maker in disciplinary proceedings, Wolff v. McDonnell, 418 U.S. 539,
570–71 (1974), but Powell’s claim is about the administrative grievance process.)
Further, prison officials cannot incur constitutional liability solely from their review of
prisoner grievances. George v. Smith, 507 F.3d 605, 609–10 (7th Cir. 2007). Therefore,
Powell did not state a due-process claim.

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Powell next argues that his claims that prison officials “set him up” to miss his
DNR job—which resulted in a disciplinary violation and the loss of earned credit time—
are not barred under Heck v. Humphrey, 512 U.S. 477, 487 (1994) (unless a criminal
conviction has been overturned, suits under section 1983 that necessarily imply the
invalidity of a criminal conviction are precluded); Edwards, 520 U.S. at 643 (applying
Heck rule to prison disciplinary proceedings). He contends that his discharge from
parole earlier than he expected, despite his loss of good-time credit , was implicitly a
favorable termination of the violation. But release from custody in the ordinary course
of serving a sentence is not a “favorable termination,” so the Heck bar remains. See
Savory v. Cannon, 947 F.3d 409, 431 (7th Cir. 2020) (en banc).
Powell also maintains that he administratively exhausted his retaliation claims
against Stobaugh and Bowen because his October grievance mentioned the facility
transfer. A state’s prison grievance process provides the substance of what “proper”
exhaustion under the PLRA entails. Jones v. Bock, 549 U.S. 199, 218 (2007). As the district
judge noted, we require strict compliance with the exhaustion requirement, and so a
prisoner must take each step prescribed by the state’s regulations. Williams v. Rajoli, 44
F.4th 1041, 1045 (7th Cir. 2022). Here, Powell does not dispute that he never appealed
the rejection of his October grievance for impermissibly raising an issue of classification
or discipline. An appeal is a required step in the Department’s process. See Offender
Grievance Process, Ind. Dep't of Corr. Pol’y & Admin. Procedures No. 00-02-301, § XII
(eff. Oct. 1, 2017). Indeed, the grievance records provided by the defendants show that
Powell is well aware of this; he has formally appealed denied grievances at least 11
times. Powell believes that further action on this grievance would have been futile, but
that does not excuse him from compliance. See Williams, 44 F.4th at 1045.
Finally, Powell contends that because he has since left the state prison system, he
is no longer subject to the exhaustion requirement. We have recognized that leaving a
facility can make remedies unavailable if as a result a prisoner is unable to comply with
grievance procedures. See King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015), overruled on
other grounds by Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc). But Powell argues
that he should not have been required to exhaust, not that he was unable to. He was: all
of Powell’s claims arose while he was in IDOC custody, and the defendants showed
that the grievance process was available to him during that time. Further, he does not
dispute the district judge’s finding that, as a detainee or inmate in the Elkhart County
Jail, Powell is still a “prisoner” for the purpose of the PLRA. See 42 U.S.C. § 1997e(a), (h).
Therefore, he was required to exhaust administrative remedies.
AFFIRMED

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