Walter J.d. Moffett v. Michael A. Dittman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 1, 2024 *
Decided July 1, 2024
Before
DIANE S. SYKES, Chief Judge
THOMAS L. KIRSCH II, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1023
WALTER J.D. MOFFETT,
Plaintiff-Appellant,
v.
MICHAEL A. DITTMAN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 20-cv-21-wmc
William M. Conley,
Judge.
O R D E R
Walter Moffett, a Wisconsin prisoner, appeals the summary judgment against
him based on his failure to exhaust administrative remedies before bringing
excessive-force and failure-to-intervene claims under the Eighth Amendment. See 42
* 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-1023 Page 2
U.S.C. § 1983. Because the undisputed facts show that a grievance process was available
to Moffett, but he did not exhaust his remedies with respect to these claims, we affirm.
We construe the facts and draw all reasonable inferences in favor of Moffett, the
nonmoving party. Williams v. Ortiz, 937 F.3d 936, 941 (7th Cir. 2019). In January 2016,
Moffett, who is confined to a wheelchair, was housed in the unit for disabled and
mentally ill prisoners at Columbia Correctional Institution. On January 21, Moffett was
summoned to the dayroom for a visit with Dr. Maria Gambaro to discuss personal
problems. According to Moffett, correctional officer Billie Pesjkar interrupted the
conversation and ordered Moffett to go back into his cell. Frustrated by his slow
movement, Pesjkar pushed Moffett into a nearby wheelchair lift. At this point, Moffett
tried to grab the railings of the wheelchair lift to keep himself upright, but Pesjkar
grabbed his arms and pressed the emergency alert button, causing other officers to
arrive. The officers forced Moffett to the ground and, in the process, caused injuries to
his head, shoulders, back, arms, and fingers.
Moffett filed this suit under 42 U.S.C. § 1983, alleging that some officers used
excessive force while others failed to intervene, in violation of his rights under the
Eighth Amendment. The defendants moved for summary judgment on the basis that
Moffett failed to exhaust administrative remedies as required by the Prison Litigation
Reform Act. The district judge agreed with the defendants, rejecting Moffett’s argument
that complaint forms were not available to him after the January 2016 incident. Moffett
appeals, and we review the ruling on exhaustion de novo. Williams, 937 F.3d at 941.
Moffett argues that the judge erred by not excusing his failure to file a grievance
about the use of force on January 21, 2016, because administrative remedies were not
available. 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), which means that prisoners must follow the
procedures that state law requires, Jones v. Bock, 549 U.S. 199, 218 (2007). Exhaustion is
not required, though, if a grievance process is not “available.” Gooch v. Young, 24 F.4th
624, 627 (7th Cir. 2022). This includes situations where “prison officials responsible for
providing grievance forms refuse to give a prisoner the forms necessary to file an
administrative grievance.” Id. (citation omitted). Because failure to exhaust is an
affirmative defense, the defendants must show that administrative remedies were
available to Moffett. Id.

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No. 24-1023 Page 3
We agree with the district judge that the defendants met their burden. It is
undisputed that Moffett did not file a grievance about excessive force or failure to
intervene following the incident on January 21, 2016. And the defendants submitted
evidence that Moffett managed to file a grievance in February 2016 about a different
incident. Moffett responds that he could access only one complaint form, which he used
to address other issues. But the record belies his contention: According to a declaration
supplied by the defendants, complaint forms were available in Moffett’s housing unit
and, in fact, a total of 17 complaints were submitted by inmates in his unit in January
and February 2016. Moffett denies this but offers nothing more. Simply put, unsworn
statements in his brief—which the record does not support—are insufficient to avoid
summary judgment. See Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018).
AFFIRMED

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