# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 17, 2020 *

Decided September 2, 2020

Before

DIANE S. SYKES, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 20

‐ 1256

TRAVIS DICKERSON,

Plaintiff

‐ Appellant

,

v

.

ALLISON GERSY and

DILLION BEVERLY,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 19

‐ CV

‐ 177

Nancy Joseph,

M agistrate Judge

.

O R D E R

Without first pursuing an administrative remedy, Travis Dickerson, a Wisconsin

inmate, sued Allison Gersy and Dillion Beverly, two corrections officers, after they

refused to add his friend to the prison’s list of his permitted visitors. The district court

dismissed his suit for failure to exhaust his administrative remedies. Because Dickerson

had an available administrative remedy that he did not use, we affirm.

Dickerson, an inmate at the Milwaukee Secure Detention Facility in Wisconsin,

alleges that after he asked Gersy, an officer with the Division of Community

* We agreed to decide this 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 NONPRECEDENTIAL DISPOSITION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 onl y in accordance with Fed. R. A pp

. P. 32.1No. 20

‐ 1256 Page 2

Corrections, to add his friend Hattie Smith to the prison’s list of his permitted visitors,

she refused. When Smith contacted Gersy and her supervisor, Dillion Beverly, to

inquire about the procedure to get on the visitor’s list, Smith was instructed to come to

the office to sign a statement affirming that she was not afraid of Dickerson. She never

did so. Gersy then sent Dickerson a copy of his current list of permitted visitors. It

stated that his friend Smith was omitted because of “victimization.” See W IS

. A DMIN

.

C ODE DOC § 309.08(4)(g).

Dickerson responded by suing the officers under 42 U.S.C. § 1983. He viewed the

denial of his request as unjustified retaliation for an earlier

‐ filed civil

‐ rights suit against

Gersy and a violation of his right to freedom of association. The defendants moved for

summary judgment, arguing that Dickerson had not filed a grievance through

Wisconsin’s Inmate Complaint Review System, so he failed to exhaust his available

administrative remedies before suing. Presiding by consent of the parties, 28 U.S.C.

§ 636(c), the magistrate judge initially denied the motion. According to the judge, the

record did not establish that Dickerson needed to file a grievance because, among other

things, the defendants may not have worked at the prison and their actions may not

have affected his conditions of confinement. The defendants then successfully moved

for reconsideration, pointing out that the warden “would have determined” who was

permitted on Dickerson’s visiting list. Dickerson could have appealed the decision

administratively but did not. See W IS

. A DMIN

. C ODE DOC § 309.08(6); see also id.

§ 309.08(4) (“The warden shall determine whether a person may be approved for

visiting

... .”). Accepting that this argument established a lack of exhaustion, the judge

wrote her “reasons” for “dismiss[ing] this case without prejudice for failure to exhaust

administrative remedies.” The judgment, which the court then entered on a document

separate from those reasons, states that the case is “dismissed with prejudice.”

Before we reach the merits, we first assure that we have jurisdiction over the

appeal. Generally, a dismissal without prejudice is not a final decision and therefore

cannot be appealed under 28 U.S.C. § 1291. See, e.g.

, Alejo v. Heller

, 328 F.3d 930, 935 (7th

Cir. 2003). But for two reasons the decision here is final. First, a nominally

nonprejudicial dismissal may be “functionally final” if an expired statute of limitations

would block a refiled case. Doctor’s Assocs., Inc. v. Duree

, 375 F.3d 618, 622 (7th Cir.

2004). Wisconsin requires an inmate to file a complaint within the prison system within

14 days of the offending act unless good cause justifies more time. W IS

. A DMIN

. C ODE

DOC § 310.07(2). Nothing in the record suggests that Dickerson needed more than

14 days after he learned of the adverse decisions to file an internal complaint. So if this

dismissal was “without prejudice,” it would be “functionally final.” But the judgment

,No. 20

‐ 1256 Page 3

reflected in the separate document that the judge entered, see F ED

. R. C IV

. P. 58, is not

without prejudice. This document says that the judgment is “with prejudice.” For

purposes of appellate jurisdiction, this separate document is the “source of legal

obligations,” not the preceding opinion that “explains the reasons for entering [the]

judgment.” Horn v. Transcon Lines, Inc.

, 898 F.2d 589, 591 (7th Cir. 1990). Thus our

jurisdiction is secure.

On the merits the record establishes beyond dispute that Dickerson did not

administratively exhaust. Prisoners may not sue about “prison conditions

... until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also

Pozo v. McCaughtry

, 286 F.3d 1022, 1023 (7th Cir. 2002). Dickerson does not deny that the

absence of his friend from his list of approved visitors affects his experience in prison,

so this suit is about “prison conditions.” The defendants maintain that because the

warden “would have determined” who was on his visiting list, W IS

. A DMIN

. C ODE DOC

§ 309.08(4), Dickerson needed to appeal the warden’s decision within the prison system,

id. § 309.08(6). He did not do so. Dickerson replies that the two officers he sued, not the

warden, denied his request, so section 309.08(6) does not apply. Even if he is right that

these officers denied his request and that section 309.08(6) does not apply, Dickerson

still loses on exhaustion grounds. He alleges that these officers work for Wisconsin’s

Division of Community Corrections. And the Inmate Complaint Review System

permits inmates to “raise issues regarding policies, rules, living conditions, or employee

actions that personally affect the inmate or institution environment.” Id. § 310.06(1)

(emphasis added). By denying Dickerson’s request to expand his list of permitted

visitors, these two persons “personally affect[ed]” him, so this provision gave him an

internal remedy. And because he did not pursue it, he failed to exhaust.

Dickerson offers two responses, neither persuasive, for why this remedy was

nonetheless unavailable to him. First, he argues that the defendants who processed his

request are employees only of the Division of Community Corrections, not his prison.

But nothing about section 310.06(1) suggests that “employee” is limited to only

employees of the facility in which the inmate is held. Rather, it covers any “employee”

of Wisconsin’s Department of Corrections. See id. § 309.01 (“This chapter applies to the

department of corrections, and to all inmates in the legal custody of the

department

... .”). And Dickerson does not dispute (nor could he) that the employees of

the Division, which is part of Wisconsin’s Department of Corrections, are employees of

the Department. See Division of Community Corrections

, S TATE OF W ISCONSIN

,

D EPARTMENT OF C ORRECTIONS

, https://doc.wi.gov/Pages/AboutDOC/Community

Corrections/Default.aspx (last visited August 28, 2020).No. 20

‐ 1256 Page 4

Second, Dickerson argues that the officers’ denial of his request was an

unreviewable “parole commission” decision. See W IS

. A DMIN

. C ODE DOC § 310.06(3)(b)

(exempting such decisions from the grievance

‐ review process). But he offers nothing to

support his argument beyond the presence of the word “parole” in the job titles that he

attributes to the defendants. The commission generally considers whether to grant

parole to qualified inmates, not whether to allow visitors at prisons, so the defendants’

action was not a “parole commission” decision. See W IS

. S TAT

. § 304.01(2).

AFFIRMED