Brian Maus v. Scott Pagel

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2024*
Decided March 29, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-2855
BRIAN MAUS,
Plaintiff-Appellant,
v.
SCOTT PAGEL,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-CV-135
Nancy Joseph,
Magistrate Judge.
O R D E R
Brian Maus, a Wisconsin prisoner, appeals the summary judgment entered
against him based on his failure to exhaust administrative remedies on his
constitutional claims. See 42 U.S.C. § 1983. Because the undisputed facts show that Maus
* 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NONPRECEDENTIAL DISPOSITION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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did not comply with the prison’s grievance procedures in the time and manner required
of him, see 42 U.S.C. § 1997e(a), we affirm.
Maus alleges that, while incarcerated at Green Bay Correctional Institution, he
was given used socks to wear that lacked elastic and kept falling to his toes. When his
request for new socks was rebuffed by correctional officer Scott Pagel, Maus filed an
inmate complaint over what he regarded as the denial of proper clothing. This
complaint was dismissed, and he did not appeal.
Maus then filed another inmate complaint in response to disciplinary
proceedings that arose out of a conduct report he received from Pagel. Maus had been
found guilty of disrespect and threats after laughing at a televised report about a recent
assault on correctional officers at the prison. In his inmate complaint, Maus alleged that
the hearing officer misrepresented his testimony at the hearing. Maus also characterized
the conduct report as a “retaliation conduct report.” The inmate complaint was rejected
as outside of the scope of the inmate-complaint review system. Maus appealed that
ruling, arguing that Pagel prepared the conduct report out of “pure retaliation.” This
appeal was rejected as untimely.
On the same day he filed the second inmate complaint, Maus filed a third
complaint. In it, he repeated his charge that Pagel retaliated against him by filing the
conduct report, and he added that he had the right “to laugh about your cops getting
stabbed.” This complaint too was rejected, as was Maus’s appeal—again on
untimeliness grounds.
Maus then brought this § 1983 suit against Pagel and various prison officials for
denying him adequate clothing, rejecting his inmate complaints, conspiring against
him, and retaliating against him. Maus reiterated that Pagel wrote him up in the
conduct report in retaliation for filing the prior inmate complaint about the socks.
The district court screened Maus’s complaint, see 28 U.S.C. § 1915A, and allowed
him to proceed on claims that Pagel (1) had subjected him to conditions of confinement
that violated the Eight Amendment by making him—for months—wear socks that
would not stay on his feet; and (2) had issued a conduct report in retaliation for his
filing an inmate complaint over the socks in violation of the First Amendment.
A magistrate judge, presiding with the parties’ consent, see 28 U.S.C. § 636(c),
later granted Pagel’s motion for summary judgment for lack of exhaustion of
administrative remedies. See 42 U.S.C. § 1997e(a). Regarding Maus’s Eighth

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No. 23-2855 Page 3
Amendment claim, the judge found it undisputed that Maus did not appeal his
dismissed inmate complaints. As for Maus’s First Amendment retaliation claim, the
judge determined that Maus’s inmate complaints did not adequately put the prison on
notice that Pagel had retaliated against him for filing the inmate complaint about the
socks. The judge explained that while Maus’s inmate complaints identified the
retaliatory act (the conduct report), they did not sufficiently identify the protected
conduct that provoked the retaliation.
On appeal, Maus challenges the magistrate judge’s exhaustion findings. But the
judge’s analysis here was correct. Under 42 U.S.C. § 1997e(a), no complaint against
prison conditions may proceed unless there is “proper” exhaustion of administrative
remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006), the boundaries of which are defined
by state law. Jones v. Bock, 549 U.S. 199, 218 (2007). To exhaust, a prisoner must follow
the state’s administrative rules about inmate complaints. See Schillinger v. Kiley, 954 F.3d
990, 995 (7th Cir. 2020) (explaining the Wisconsin scheme for exhaustion). As the judge
rightly explained, Maus did not exhaust his conditions-of-confinement claim because he
did not administratively appeal its denial to a review board. See WIS . A DMIN . C ODE DOC
§§ 310.05, 310.13, 310.14 (2002) (amended 2018). The judge also rightly concluded that
Maus did not exhaust his First Amendment retaliation claim because his inmate
complaints failed to “clearly identify the issue.” Id. § 310.09(1). Because Maus failed to
identify the first inmate complaint over the socks as the precipitating event for Pagel’s
alleged retaliation, Maus did not put the prison on notice about what protected conduct
motivated Pagel to retaliate against him. See Bowers v. Dart, 1 F.4th 513, 517–18 (7th Cir.
2021) (no exhaustion where there was discrepancy between inmate’s grievance and
federal complaint over timing when correctional officer failed to protect him).
We have considered Maus’s other arguments, and none has merit.
AFFIRMED

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