Antonio L. Almodovar v. Lisa Avila

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 26, 2024*
Decided February 27, 2024
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 23-1573
ANTONIO L. ALMODOVAR,
Plaintiff-Appellant,
v.
LISA AVILA, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 21-CV-1455
Stephen C. Dries,
Magistrate Judge.
O R D E R
Antonio Almodovar, formerly a prisoner in Wisconsin, sued guards, a doctor,
and the prison’s superintendent (in her individual capacity) under 42 U.S.C. § 1983,
alleging that they violated his constitutional rights by using excessive force, ignoring his
need for medical treatment, and retaliating against him for submitting grievances. The
* 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NONPRECEDENTIAL DISPOSITION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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magistrate judge, presiding with the parties’ consent under 28 U.S.C. § 636(c), granted
the defendants’ motion for summary judgment based on failure to exhaust
administrative remedies. We affirm.
Almodovar’s complaint recounts conditions at the Sturtevant Transitional
Facility, a unit of Racine Correctional Institution, from which he has since been released.
He alleged that, after he broke a tooth on December 19, 2019, his mouth became infected
because his requests for medical treatment were ignored, including by the
superintendent. And according to Almodovar, one guard, Warren Herwig, responded
to Almodovar’s requests for treatment by smacking him. After Almodovar filed a
grievance about this, he alleges, Herwig retaliated against him by filing a false conduct
report.
The defendants moved for summary judgment on the ground that Almodovar
failed to exhaust his administrative remedies. They supplied evidence from the
grievance tracking system of the Department of Corrections showing that Almodovar
had submitted only one grievance while at Sturtevant. Specifically, on May 19, 2021,
Almodovar complained about Herwig singling him out for discipline when he gathered
with others to receive toilet paper instead of waiting for its distribution to their cells.
The grievance made no mention of the tooth injury or a need for medical treatment, nor
did it mention that Herwig, or anyone, had struck him or retaliated against him. The
grievance was dismissed and returned to Almodovar with instructions that he could
appeal the decision within 14 days, but he did not file an administrative appeal.
Almodovar did not respond to the motion for summary judgment and later
reported that he never received notice of it because he had been arrested and was in jail.
Indeed, one week after the defendants’ filing (and two weeks after the arrest),
Almodovar sent a letter notifying the court of his new address at the Milwaukee
County Jail. The magistrate judge later warned Almodovar of the consequences of not
responding to the motion, but that order was returned as undeliverable.
Three months later, the magistrate judge granted the motion for summary
judgment. First, the judge explained that because Almodovar had not filed a response,
the judge would construe the motion for summary judgment “as unopposed.” But the
judge, properly, did not grant the motion for that reason alone. See Marcure v. Lynn,
992 F.3d 625, 631 (7th Cir. 2021) (explaining that burden remains on movant despite lack
of response). The judge adopted the defendants’ proposed findings of fact and
concluded that the supporting evidence established that Almodovar had failed to

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No. 23-1573 Page 3
exhaust his administrative remedies. This decision reached Almodovar, who timely
filed a notice of appeal. We review the summary-judgment decision de novo.
See Schillinger v. Kiley, 954 F.3d 990, 995 (7th Cir. 2020).
Based on the evidence in the record, summary judgment for the defendants was
appropriate. The Prison Litigation Reform Act provides that “[n]o action shall be
brought with respect to prison conditions … until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). This provision requires “proper”
exhaustion, Woodford v. Ngo, 548 U.S. 81, 93 (2006), the boundaries of which are defined
by state law. Jones v. Bock, 549 U.S. 199, 218 (2007). Therefore, a state inmate must file
timely complaints and appeals in accordance with the state’s administrative rules about
prisoner grievances. See Schillinger, 954 F.3d at 995.
Almodovar did not do so. Under Wisconsin regulations, inmate complaints must
contain “one clearly identified issue” and “sufficient information” to permit an
investigation and decision. WIS . A DMIN . C ODE DOC § 310.07(5)–(6). This requires a
grievance to give notice to the prison of “the nature of the wrong for which redress is
sought.” Schillinger, 954 F.3d at 995 (interpreting similarly worded previous version of
code). Further, for proper exhaustion, Wisconsin law requires a prisoner to complete all
stages of review, which includes an intermediate appeal and then an appeal to the
Secretary of the Department of Corrections. See id. §§ 310.5, 310.12, 310.13. Here, the
defendants submitted evidence that Almodovar’s only grievance did not mention the
issues in his federal complaint and therefore did not provide notice of his current
claims. And even if the grievance could encompass the events in the complaint,
Almodovar did not submit an administrative appeal after the initial reviewing
authority dismissed the grievance. He did not properly exhaust, and so judgment for
the defendants was proper.
Almodovar protests that he never received notice of the defendants’ motion for
summary judgment and therefore was unable to oppose it. Even if this is true, however,
he does not suggest on appeal that he could have submitted any evidence to refute the
defendants’ documentation or even warrant a Pavey hearing. See Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008). And given the Department’s authenticated records, we
cannot hypothesize any such evidence. A remand to allow him to respond would
therefore be futile. See Outlaw v. Newkirk, 259 F.3d 833, 841–42 (7th Cir. 2001) (affirming

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summary judgment where plaintiff failed to identify how he could have overcome
motion with notice).
AFFIRMED

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