Titus Henderson v. Jim Schwochert

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2022*
Decided June 27, 2022
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-1009
TITUS HENDERSON,
Plaintiff-Appellant,
v.
JIM SCHWOCHERT, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 19-CV-749
William E. Duffin,
Magistrate Judge.
O R D E R
Titus Henderson, a Wisconsin inmate, appeals the summary judgment entered
against him in this suit under the Eighth Amendment asserting that prison guards
* 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NONPRECEDENTIAL DISPOSITION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. 21-1009 Page 2
assaulted him and then placed him in a cold and unsanitary cell. The district court
determined that Henderson’s claims were either untimely or unexhausted. We affirm.
We present the facts in the light most favorable to Henderson, the non-moving
party. Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 241 (7th Cir. 2018). In 2013, an
altercation broke out while Henderson was being escorted by guards from the prison
library. After a disciplinary hearing, Henderson was found guilty of battery and placed
in segregation for just under a year.
In response, Henderson filed two grievances. In the first, he complained that
prison staff (who are not parties to this litigation) denied him mental healthcare and
placed him in—among other inhumane conditions—an unsanitary and freezing cell
without toilet paper or clothing. The complaint was dismissed for lack of evidence, and
Henderson’s appeal of that decision was affirmed. In the second grievance, Henderson
alleged that the prison guards instigated the altercation by attacking him with excessive
force and that prison officials violated procedural rules during his subsequent
disciplinary hearing; he also repeated his allegations that prison officials subjected him
to inhumane conditions of confinement. A prison administrator focused only on the
accusations of procedural violations, found none, and dismissed the grievance.
Henderson later swore (in a declaration attached to his summary-judgment response)
that he filed an internal appeal of that dismissal but received no acknowledgement.
Prison records, however, do not reflect that he filed an internal appeal.
Six years later, Henderson sued prison guards and administrators under
42 U.S.C. § 1983 for a host of constitutional violations. The magistrate judge, proceeding
with the parties’ consent, screened Henderson’s complaint, see 28 U.S.C. § 1915A(a), and
allowed Henderson to proceed on four claims: (1) an Eighth Amendment excessive-
force claim against the guards who allegedly attacked him, (2) an Eighth Amendment
conditions-of-confinement claim against those guards for allegedly placing him in the
freezing and unsanitary cell, (3) a procedural due process claim against the officers who
conducted his disciplinary hearing, and (4) an equal protection claim alleging that the
rules used to discipline him were discriminatory.
Discovery ensued. Henderson asked the defendants to produce documents
concerning the altercation and the prison’s use-of-force policies, as well as any audio
recordings of the incident. Counsel for the defendants informed Henderson that the
request was untimely and that they would not comply with it. Henderson never filed a
motion to compel.

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No. 21-1009 Page 3
The defendants moved for summary judgment on grounds that Henderson,
among other things, either failed to file his case within the applicable statute of
limitations or to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a).
Henderson responded, and a month later he moved under Rule 56(d) of the Federal
Rules of Civil Procedure to defer ruling on the summary-judgment motion because he
needed more time to conduct discovery related to the merits of his complaint.
The judge granted the defendants’ summary-judgment motion. With regard to
Henderson’s conditions-of-confinement claim, the judge determined that the claim was
barred by the six-year statute of limitations, then applicable to his claims. (A § 1983
claim has a statute of limitations based on the personal-injury law of the state where the
injury occurred, Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860 F.3d 489, 493 (7th Cir.
2017), and in 2013, Wisconsin had a six-year statute of limitations, see WIS . S TAT. § 893.53
(2013). Wisconsin has since amended the statute of limitations to three years. See WIS .
S TAT. § 893.53 (eff. April 5, 2018).) Regarding Henderson’s remaining claims (excessive
force, due process, and equal protection), the judge concluded that Henderson failed to
exhaust his administrative remedies. Henderson urged that he filed internal appeals
that went unaddressed by the prison, but the judge found no evidence that he did
anything when he received no response. The judge explained that Wisconsin’s
grievance process requires inmates who have not received acknowledgement of an
appeal request to inquire why they have not received this important document. As for
Henderson’s Rule 56(d) motion, the judge denied it, explaining that Henderson needed
to respond to the defendants’ discovery objection by filing a motion to compel.
On appeal, Henderson principally argues that the judge’s exhaustion analysis
overlooked his sworn declaration in which he asserted that he filed an internal appeal
that went unaddressed by the prison. But Henderson misreads the judge’s explanation.
The judge explicitly acknowledged Henderson’s contention that he appealed the
dismissal of his grievances. The judge proceeded to explain, rightly so, that Wisconsin’s
grievance system required him to inquire into any situation when a receipt has not been
generated after the filing of an internal appeal. Lockett v. Bonson, 937 F.3d 1016, 1026–28
(7th Cir. 2019) (citing W IS . A DMIN . C ODE DOC § 310.06). His “bald assertion of a timely
filing” is insufficient to generate a triable issue for exhaustion purposes. Id. at 1027.
(Although Wisconsin’s grievance procedures have since changed, Schneider v.
Kostolihryz, No. 19-CV-756-JDP, 2020 WL 5204061, at *3 (W.D. Wis. Sept. 1, 2020),
Henderson’s claims—arising out of events in 2013—are subject to the same rules that
applied in Lockett. See W IS . A DMIN . C ODE DOC § 310.13 (2013).)

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No. 21-1009 Page 4
Henderson also challenges the denial of his Rule 56(d) motion. He argues that
the defendants’ refusal to provide his requested documents left him unable to contest
their summary-judgment motion. But the judge appropriately exercised his discretion
to deny Henderson’s motion. Rather than responding promptly to the defendants’
inaction by filing a motion to compel, Henderson waited until the close of summary-
judgment briefing to object. And summary judgment “is not the time to complain about
what transpired during discovery.” MAO-MSO Recovery II, LLC v. State Farm Mut. Auto.
Ins. Co., 994 F.3d 869, 877–78 (7th Cir. 2021).
Finally, Henderson asserts that the magistrate judge could not enter a final
judgment in this case without sending a report and recommendation to a district judge
for approval. But this argument misapprehends the procedures set forth in the Federal
Magistrates Act: “Upon the consent of the parties, a full-time United States magistrate
judge … may conduct any or all proceedings in a jury or nonjury civil matter and order
entry of judgment in the case … .” 28 U.S.C. § 636(c)(1). Unlike nonconsensual referrals
of pretrial, case-dispositive matters under § 636(b)(1)—which allow district judges to do
as they wish with magistrate judges’ recommendations—a § 636(c)(1) referral gives
magistrate judges full authority over dispositive motions without district judges’
review. Roell v. Withrow, 538 U.S. 580, 585 (2003). Here, the record shows that both
parties signed the consent form allowing the magistrate judge to preside over the case.
We have considered Henderson’s other arguments, but none has merit.
AFFIRMED

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