Brandon L. Porter v. Christopher Hoch

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2026*
Decided August 24, 2026
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 25-3119
BRANDON L. PORTER,
Plaintiff-Appellant,
v.
CHRISTOPHER HOCH,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin
No. 25-CV-52
Lynn Adelman,
Judge.
O R D E R
Brandon Porter, a Wisconsin prisoner, sued Sergeant Chrisopher Hoch and
unnamed officers for using excessive force and failing to intervene in violation of his
rights under the Eighth Amendment. See 42 U.S.C. § 1983. The district court entered
* 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NONPRECEDENTIAL DISPOSITION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

-- 1 of 5 --

No. 25-3119 Page 2
summary judgment for the defendants because Porter failed to exhaust his
administrative remedies, see 42 U.S.C. § 1997e(a), and failed to identify the unnamed
officers by the court’s deadline. We affirm, though we modify the judgment to reflect
that the dismissal against all defendants is without prejudice.
We construe the facts and draw all reasonable inferences in favor of Porter, the
nonmovant. See Balle v. Kennedy, 73 F.4th 545, 553 (7th Cir. 2023). Porter alleges that in
July 2024, Hoch used excessive force when he deployed pepper spray at Porter after
Porter had stopped fighting with another prisoner and surrendered. He also alleged
that other unidentified officers failed to intervene to prevent Hoch from excessively
spraying Porter. Porter says that Hoch then falsified a conduct report that charged him
with aggravated assault and disobeying orders. The prison held a disciplinary hearing
at which Porter called Lieutenant Kelsey Stone as a witness because she reviewed the
video footage of the incident. Stone testified that Hoch did not spray Porter
unnecessarily, but Porter insisted she was lying. Porter was found guilty of the offenses
and was punished with 60 days in disciplinary segregation.
In August 2024, Porter filed two grievances about the incident and disciplinary
hearing. The first complaint alleged that an unknown officer deployed pepper spray
excessively after Porter had stopped fighting with another prisoner and surrendered.
The complaint examiner dismissed the complaint because the video footage and Hoch’s
conduct report showed that he did not use excessive force. Porter timely appealed the
dismissal of his complaint, but his appeal was rejected because it exceeded 500 words.
See WIS . A DMIN . C ODE DOC § 310.09(2)(e). A few weeks later, Porter filed a second
complaint alleging that Hoch falsified the conduct report. The complaint was dismissed
because it sought to challenge the sufficiency of the charges against Porter, which could
not be raised in an institutional complaint. Porter appealed, but his appeal was
dismissed.
Porter sued Hoch, Stone, and the unnamed officers for violating his rights under
the Eighth Amendment. The district court screened his complaint under 28 U.S.C.
§ 1915A(a) and allowed Porter to proceed with a claim against Hoch for using excessive
force and a claim against the unnamed officers for failing to intervene. The district court
told Porter that he must identify the unnamed officers through discovery and later
entered a scheduling order directing Porter to do so by July 28, 2025. The court did not
allow Porter to proceed on a claim against Stone for failing to intervene because Porter
did not allege that Stone was present during the altercation. The court also did not

-- 2 of 5 --

No. 25-3119 Page 3
allow Porter to proceed on a claim against Hoch and Stone for falsifying information in
the conduct report and during the disciplinary hearing.
Porter then served the defendants with discovery seeking to identify the
unnamed officers. But the defendants moved for summary judgment, arguing that
Porter had not exhausted his remedies as to his first complaint because his appeal was
rejected for exceeding 500 words. See W IS . A DMIN . C ODE DOC § 310.09(2)(e). The second
complaint, the defendants argued, concerned only Porter’s claim that Hoch falsified the
conduct report, and because he was not permitted to proceed on that claim, the
complaint was irrelevant to whether Porter exhausted his claims for excessive force and
failure to intervene. The defendants also filed a motion to stay discovery pending the
resolution of their motion for summary judgment. The district court stayed discovery
because the exhaustion defense concerned Hoch and the unnamed officers.
The district court next entered summary judgment for the defendants because
Porter failed to exhaust his administrative remedies. The court focused only on the first
complaint because the second concerned claims that the court dismissed at screening.
The court disagreed with Porter’s argument that the complaint examiner was required
to return, rather than reject, his appeal for failing to comply with DOC § 310.09(2)(e).
Compare W IS . A DMIN CODE DOC § 310.12(4)(e) (appeal shall be returned for failure to
comply with DOC § 310.10), with id. § 310.12(5) (appeal may be rejected for failure to
comply with DOC § 310.09). The court pointed out that under DOC § 310.12(5), a
complaint examiner may recommend rejecting an appeal if it exceeds 500 words, and
the provisions do not require the examiner to give a prisoner an opportunity to correct a
defect in his appeal. The court also determined that DOC § 310.10(5)—which allows a
complaint examiner to return a complaint if it does not comply with DOC § 310.07—
concerns only complaints and that Porter did not explain why this provision should
apply to his appeal. The court then dismissed the unnamed officers with prejudice
because Porter failed to identify them by the deadline set by the court in its scheduling
order. See C IVIL L. R. 41(c) (allowing dismissal with prejudice for failing to prosecute
action diligently).
Porter appeals, arguing that DOC § 310.12(4)(e) required the complaint examiner
to return Porter’s appeal to give him an opportunity to fix a procedural defect. But the
court did not err when it determined that Porter failed to exhaust his administrative
remedies because his appeal was properly rejected based on a procedural defect.
See Woodford v. Ngo, 548 U.S. 81, 90–91, 95 (2006) (prisoner must comply with grievance
system’s critical procedural rules). Porter does not dispute that his appeal failed to

-- 3 of 5 --

No. 25-3119 Page 4
comply with the word limit in DOC § 310.09(2)(e), and the complaint examiner
recommended rejecting it on this basis as permitted by DOC § 310.12(5). Porter’s appeal
was not rejected for failing to comply with DOC § 310.10, so the provision requiring the
complaint examiner to return an appeal, DOC § 310.12(4)(e), does not apply. Further,
Porter does not identify any provision requiring complaint examiners to give prisoners
an opportunity to cure procedural defects in their appeals.
Porter also argues that administrative remedies were unavailable because, after
his appeal was rejected, he asked the Office of the Secretary how to proceed but
received no instructions. Administrative remedies may be unavailable where the
scheme is “so opaque that it becomes, practically speaking, incapable of use.” Ross v.
Blake, 578 U.S. 632, 643–44 (2016). But Porter does not dispute that he understood the
requirement that his appeal not exceed 500 words and that it could be rejected on that
basis. Moreover, the Office of the Secretary responded to his question, explaining that
the decision to reject the appeal was final, and that he could take no further action.
Next, Porter argues that the district court improperly dismissed with prejudice
the unnamed officers, and we agree. The court dismissed the unnamed officers with
prejudice because Porter failed to identify them before the court-imposed deadline. But
the court had stayed that discovery deadline after the defendants moved for summary
judgment on exhaustion grounds. Porter’s discovery request seeking the identities of
the unnamed officers remained pending. Porter diligently sought the identities of the
officers, and he cannot be faulted for failing to comply with a deadline that had been
stayed.
Nevertheless, the unnamed defendants are properly dismissed without prejudice
because Porter failed to exhaust his administrative remedies on his claims against them.
The unnamed officers, like Hoch, moved for summary judgment on exhaustion grounds
and submitted all grievances related to the incident. The only grievance relevant to the
unnamed officers’ alleged failure to intervene is the one that was not properly
exhausted. Because all dismissals under § 1997e(a) should be without prejudice,
see Fluker v. Cnty. of Kankakee, 741 F.3d 787, 791 (7th Cir. 2013), we modify the judgment
to reflect that the unnamed officers are dismissed without prejudice.
We close with two final points. First, in his reply brief, Porter suggests that the
district court erred when it did not allow him to proceed on a claim about the
falsification of the conduct report. But he waived this argument by raising it for the first
time in his reply brief. Minocqua Brewing Co. LLC v. Hess, 160 F.4th 849, 856–57 (7th Cir.

-- 4 of 5 --

No. 25-3119 Page 5
2025). Second, Porter argues that the district court should have reached the merits of his
claims. But the defendants did not move for summary judgment on the merits of
Porter’s claims. Rather, they invoked the protections of 42 U.S.C. § 1997e(a), so the
district court properly did not consider the merits after it concluded Porter failed to
exhaust his administrative remedies. See Perez v. Wis. Dept. of Corr., 182 F.3d 532, 536
(7th Cir. 1999).
AFFIRMED AS MODIFIED

-- 5 of 5 --