Terrance J. Shaw v. BRIAN CHAPMAN, TONYEKA NOEL, and TODD THILLEMANN

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2023*
Decided January 17, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1134
TERRANCE J. SHAW,
Plaintiff-Appellant,
v.
BRIAN CHAPMAN, TONYEKA NOEL,
and TODD THILLEMANN,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-CV-852-JPS
J.P. Stadtmueller,
Judge.
O R D E R
The Prison Litigation Reform Act requires prisoners to exhaust administrative
remedies before filing suit. 42 U.S.C. § 1997e(a). Terrance Shaw, a former Wisconsin
* We have agreed to decide the case without oral argument because the briefs and
the 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NONPRECEDENTIAL DISPOSITION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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prisoner with disabilities, sued correctional officers alleging that they wrongfully
transferred him to a cell that did not accommodate his disabilities. The defendants
moved for summary judgment, arguing that Shaw had not timely exhausted his claim.
The district judge granted the motion, correctly concluding that Shaw failed to exhaust
administrative remedies within the time limit prescribed by Wisconsin Department of
Corrections rules. We thus affirm.
Shaw was formerly incarcerated at the Racine Correctional Institution in
Wisconsin. He is confined to a wheelchair, is incontinent, and has been diagnosed with
other medical ailments. Because of his disabilities, Shaw was housed in a cell that
accommodated his wheelchair and had a toilet.
This case arises from an incident on November 7, 2018, when, according to
Shaw’s complaint, prison staff transferred him to a cell that did not accommodate his
disabilities. About a week before the incident, Corrections Officer Tonyeka Noel told
Shaw that he was moving too slowly as he entered his cell and locked him in the cell for
several hours. Shaw complained about Noel, and prison administrators found that she
had acted inappropriately. Shaw asserts that on November 7 Noel and other corrections
officers ordered him to move to a unit that did not have in-cell toilets and could not
accommodate his wheelchair. Shaw protested, but the officers threatened him with
segregation if he did not comply. Shaw alleges that he suffered a panic attack before
complying with the order. Staff at the other unit determined that the cell could not meet
Shaw’s medical needs, and Shaw was returned to his initial unit that same day.
According to Shaw, Brian Chapman, Noel’s supervisor, told Shaw that Noel had
transferred him because of Shaw’s complaint about the lock-in a week earlier.
Shaw complained about the transfer order. Within a day, he wrote an unsigned
letter about it to the prison’s complaint examiner and sought psychiatric help, but he
did not use the form required for inmate complaints or assert that the transfer was
retaliatory. He later formally complained about the transfer using a proper inmate
complaint form. The form bears the date “December 16,” which is more than 35 days
after the November 7 transfer. In this complaint Shaw asserted that the transfer was
retaliatory. He also attached a related letter about the transfer, which was dated
November 22 and addressed to Chapman. An inmate complaint examiner rejected
Shaw’s December 16 complaint as untimely because he did not submit it within 14 days
of the November 7 incident, as required by prison regulations, and because Shaw did
not supply “good cause” for his late filing. WIS . A DMIN . C ODE DOC § 310.07(2). Shaw’s
administrative appeal was rejected.

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No. 22-1134 Page 3
Shaw responded with this suit under 42 U.S.C. § 1983 alleging that the one-day
transfer violated several constitutional rights; Title II of the Americans with Disabilities
Act, 42 U.S.C. § 12132; and other laws. The judge dismissed all claims as legally
insufficient except for Shaw’s First Amendment claim that the defendants had
transferred him to the other cell to retaliate for his complaint about the lock-in from a
week earlier.
The defendants moved for summary judgment on the First Amendment
retaliation claim. They argued that Shaw did not exhaust his administrative remedies
because his December 16 complaint about the November 7 transfer was untimely. Shaw
replied with two contentions. First, he maintained that he mistyped “December” on his
complaint and that it should have read “November 16,” thus placing it within 14 days
of the November 7 incident. His second argument was that the defendants intimidated
him into filing late.
The judge rejected Shaw’s assertion that the correct date of his filing was
November 16 for two reasons. One, the prison sends confirmation of receipt of inmate
complaints within ten days, so if Shaw had filed the complaint on November 16, he
would have received a confirmation within ten days (or if he did not, he would have
been expected to inquire about the status of his complaint). But Shaw presented no
evidence that he had received a confirmation or had inquired about his complaint; the
defendants, on the other hand, presented evidence that the complaint was filed on
December 16 and the prison sent a confirmation shortly thereafter. Two, Shaw attached
to his complaint a November 22 letter to Chapman regarding the transfer, which
undercut his claim that he had actually submitted the complaint on November 16.
Finally, the judge explained that Shaw’s November 7 letter to the complaint
examiner did not satisfy the exhaustion requirement because it did not conform to
Department of Corrections rules about the form of inmate complaints. See WIS . A DMIN .
C ODE DOC § 310.07(3)(a). The judge accordingly entered judgment for the defendants.
(He did not discuss Shaw’s alternative argument about intimidation.)
Under the Prison Litigation Reform Act, prisoners cannot file suit under § 1983
with respect to prison conditions “until such administrative remedies as are available
are exhausted.” § 1997e(a). On appeal Shaw does not reprise his argument that he
misdated his inmate complaint as “December 16.” Instead, he argues that
administrative remedies were not available because, as he argued in the alternative in
the district court, the defendants intimidated him into delaying filing his complaint
until December. We will assume that such intimidation could be “good cause” for a late

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filing. See DOC § 310.07(2). But to overcome summary judgment, Shaw had to present
evidence supporting his contention. See Hurst v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011).
He did not. In the district court, Shaw attested that he was distressed after the incident,
but he never attested that he filed his complaint late because the defendants had
intimidated him. Moreover, even when a prisoner asserts that he feared reprisal from
an officer, he is not excused from exhausting where “the grievance procedure provided
him a clear route around” that officer. Ebmeyer v. Brock, 11 F.4th 537, 543 (7th Cir. 2021).
Shaw’s complaint went to an examiner who was not involved in the transfer incident.
Shaw also argues that his unsigned letter to the complaint examiner immediately
after the transfer satisfied the exhaustion requirement. It did not. To properly exhaust
administrative remedies, prisoners must comply with the prison’s prescribed
requirements for inmate complaints “so that the agency addresses the issues on the
merits.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002)). The Department of Corrections requires that prisoners
submit administrative complaints on the “complaint form provided by the
department,” state their grievances concisely in fewer than 500 words, and sign the
complaint. DOC § 310.07(3). Shaw’s letter did not use the required form, he exceeded
500 words yet never stated his present contention that the transfer was retaliatory, and
he did not sign it. Shaw therefore did not exhaust his administrative remedies.
Finally, Shaw argues that his claim under the ADA should survive because it
does not require exhaustion of remedies. The judge dismissed Shaw’s ADA claim for
failure to state a claim, and Shaw does not explain why that decision was incorrect. This
omission constitutes a waiver. United States v. Tjader, 927 F.3d 483, 484 (7th Cir. 2019).
AFFIRMED

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