Billy Cannon v. Brandon Drost

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2024*
Decided April 5, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-3095
BILLY CANNON,
Plaintiff-Appellant,
v.
BRANDON DROST, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 21-cv-636-jdp
James D. Peterson,
Chief Judge.
O R D E R
Billy Cannon, a Wisconsin prisoner, appeals a summary judgment order against
him based on his failure to exhaust administrative remedies in connection with his
claim of retaliation under the First Amendment. See 42 U.S.C. § 1983. Because 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NONPRECEDENTIAL DISPOSITION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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No. 23-3095 Page 2
undisputed facts show that Cannon did not comply with the prison’s grievance process
in the time and manner required, we affirm.
We recount the following facts in favor of Cannon, the nonmoving party.
See Williams v. Rajoli, 44 F.4th 1041, 1045 (7th Cir. 2022). In September 2021, Cannon,
then incarcerated at Stanley Correctional Institution, filed a complaint with the
Department of Corrections about a compromised member of the prison staff who was
allegedly bringing contraband into the facility. When interviewed about the allegations,
Cannon admitted that he and his cellmate had sought to have the staff member bring in
contraband for them. Cannon then stated that he had set up a “sting” operation to trap
the staff member and make sure the contraband didn’t enter the prison.
Cannon was placed into temporary lock-up and later issued a conduct report for
soliciting and lying about an employee. A due process hearing1 was held, and Cannon
was found guilty of the soliciting charge but not guilty of the lying charge. He received
90 days in disciplinary segregation. Records from Cannon’s hearing show that he
challenged “the validity of the conduct report and the veracity of its content” and
additionally argued that the prison could not prove its case without the testimony of the
staff member, who had since left his position with the Department.
Cannon filed, in successive fashion, three appeals with supporting
documentation. According to a letter he received from the deputy warden, prison
policy permitted only one appeal per conduct report; additional materials would not be
returned to the inmate. Weeks later, the warden affirmed the disposition and sentence.
Cannon received back only one of his submitted appeal forms—a form that raised
arguments concerning the witnesses who could testify at the hearing.
According to an authenticated copy of Cannon’s inmate-complaint history, he
then filed two grievances through the Department’s inmate-complaint system. Both
grievances expressed Cannon’s wish to receive the missing appeal documents for
“future litigation.” Nothing in the record shows that the grievances mentioned
retaliation. Cannon’s first complaint was dismissed because, as the warden explained,
Cannon had been provided with the appeal decision in accordance with prison policy.
Cannon’s second complaint was rejected as untimely because it was filed 28 days after
he received the appeal decision—well beyond the Department’s 14-day limit, see WIS .
A DMIN . C ODE DOC § 310.07(2)—and Cannon neither argued nor showed that he had
1 Wisconsin uses the phrase “due process hearing” to describe this type of
preliminary disciplinary proceeding. WIS . A DMIN . C ODE DOC § 303.80.

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No. 23-3095 Page 3
good cause for filing late. Cannon was notified of his right to appeal the denial of both
grievances but took no steps to do so.
Cannon filed this § 1983 suit against the correctional officers who interviewed
him, the warden, and other prison employees. He alleged that the defendants violated
his First Amendment rights by placing him in temporary lock-up and issuing him a
conduct report in retaliation for filing the complaint against the staff member.
The defendants moved for summary judgment on the ground that Cannon failed
to exhaust his administrative remedies. The defendants argued that the available
records from Cannon’s due process hearing and administrative appeal showed that he
failed to raise his retaliation claim as a defense at either step, as required by prison
rules. See WIS . A DMIN . C ODE DOC §§ 303.80, 303.82(1). They additionally argued that
Cannon’s inmate-complaint history showed that he had not, as also required, properly
appealed the warden’s decision through the inmate-complaint system, see id.
§§ 303.82(4), 310.06(2)(b), which itself included multiple stages of review, see id.
§§ 310.10(10), 310.12(1), 310.13.
The district court granted the defendants’ motion. The court explained that the
defendants had offered evidence showing that Cannon did not raise the retaliation
defense at his due process hearing and appeal. And though Cannon argued that he had
done so, the court continued, he had not attested to that fact, so no reasonable juror
could agree with him. Moreover, Cannon’s authenticated inmate-complaint history
showed that he had not filed a complaint alleging retaliation, and to the extent he had
attempted to complain of retaliation elsewhere, those attempts “failed to exhaust
Cannon’s retaliation claim because they were not a part of the DOC’s established
procedures for lodging complaints related to conduct reports.”
Cannon filed a motion to reconsider explaining that he had, in fact, provided a
sworn declaration in his summary judgment materials rebutting the defendants’
evidence. (It is unclear why the declaration did not make it into the record with
Cannon’s brief opposing summary judgment, but he offered evidence verifying that he
had submitted it.) In the declaration, Cannon attested that he had told the official
transcribing his due process hearing “that the conduct report and this process was an
act of retaliation,” but “she refuse[d] to type the retaliation claim into my statement
because she had control of the computer and said that it was not relevant to the conduct
report.” Cannon also attested that he had raised his retaliation defense in the missing
appeal documents and other channels, including the prison’s grievance system.

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No. 23-3095 Page 4
The district court accepted the declaration as evidence but nevertheless denied
Cannon’s motion. Regarding the transcription at the due process hearing, the court
concluded that Cannon’s statement was “insufficient to exhaust administrative
remedies because it did not identify the protected conduct that allegedly caused prison
officials to issue the conduct report and start disciplinary proceedings.” In the court’s
view, no reasonable juror could conclude that Cannon’s “unexplained allegation of
retaliation” during the due process hearing gave the prison notice of the protected
activity undergirding his retaliation claim.
On appeal, Cannon argues that prison rules did not require him, as the district
court ruled, to state his retaliation claim with factual particularity. But even if we
assume that he adequately raised his claim at his due process hearing, he did not follow
the required grievance procedures to appeal the warden’s decision. The Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought
with respect to prison conditions … by a prisoner … until such administrative remedies
as are available are exhausted.” The statute requires prisoners to pursue complaints
through “all levels of the relevant administrative-review system,” Chambers v. Sood,
956 F.3d 979, 981 (7th Cir. 2020), and “in the place, and at the time” required by the
prison’s rules, Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Because Cannon
is a Wisconsin prisoner, we apply Wisconsin’s administrative rules, see Schillinger v.
Kiley, 954 F.3d 990, 995 (7th Cir. 2020), which required Cannon to timely appeal the
warden’s decision through all levels of the prison’s complaint system, see WIS . A DMIN .
C ODE DOC §§ 303.82(4), 310.05, 310.06(2). The defendants have provided an
authenticated copy of Cannon’s complaint history establishing that he did not do so.
Cannon insists otherwise, pointing to the two grievances he filed after receiving
the warden’s decision and the documents he apparently provided to the defendants
through other channels. But these grievances did not “clearly identif[y]” his retaliation
claim as the one issue of concern, as the regulations required. Id. § 310.07(5). Further, he
offers nothing to show that he sufficiently exhausted his options for appealing those
grievances. See id. §§ 310.09(1), 310.10(10), 310.12(1). And the documents he provided
through other channels were outside the required procedures. See Pozo, 286 F.3d at 1025.
AFFIRMED

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