Evans, LaDell v. Gallinger, C.O. II, 3:18-cv-00194

Background

Plaintiffs LaDell Evans and Brandon Harrison, pro se inmates, sued under 42 U.S.C. § 1983 alleging Eighth Amendment exposure to sewer-gas fumes in their shared cell on December 11, 2017.
The court previously screened the Eighth Amendment failure-to-act claims to proceed against Correctional Officer Gallinger and a John Doe.
Plaintiffs filed inmate complaints on January 3 and January 8, 2018 (after the DOC 14-day deadline), stating they had attempted informal resolution (written to health services, security director, unit manager, warden; and spoken with CO Gallinger) but received no responses.
The Institution Complaint Examiner (ICE) rejected both grievances as untimely and found no good-cause showing; the Reviewing Authority (Warden Boughton) upheld the rejections.
Defendant Gallinger moved for summary judgment arguing plaintiffs failed to exhaust administrative remedies; plaintiffs respond that CO McDaniels told them to follow the chain of command and wait 14 working days before filing, which caused the delay.
The court dismissed John Doe for failure to identify him by the October 4, 2019 deadline, and denied Gallinger’s exhaustion-based summary judgment motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs exhausted administrative remedies before suing	Evans/Harrison say they tried informal resolution and were told by CO McDaniels to wait and follow chain of command, causing delay	Gallinger says grievances were untimely (filed after DOC 14-day window) and thus not exhausted	Denied summary judgment — defendant failed to show lack of exhaustion because prison staff’s directions created confusion that may have made remedies unavailable
Whether ICE’s denial for lack of good cause was proper	Plaintiffs assert CO direction and attempts to resolve informally justify tolling/late filing	Defendant does not meaningfully contest McDaniels’ influence or show a factual dispute	Court finds ICE’s conclusion disputed by plaintiffs’ evidence and declines to resolve credibility at summary judgment
Whether prison staff misinformation can render grievance process unavailable	Plaintiffs rely on principle that officials’ misinformation can make process unavailable	Defendant asserts rules required 14-day filing regardless	Court applies precedent that officials’ conduct preventing use of process defeats exhaustion defense
Whether the sewer-gas incident was ongoing (affecting timeliness analysis)	Plaintiffs referenced “ongoing” on grievance form but did not develop argument here	Defendant emphasizes incident date to calculate deadline	Court notes plaintiffs did not clearly show ongoing problem but relies mainly on staff-induced confusion to reject exhaustion defense

Key Cases Cited

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002) (prisoner must properly follow each step of administrative process to exhaust)
Cannon v. Washington, 418 F.3d 714 (7th Cir. 2005) (must follow grievance filing instructions)
Burrell v. Powers, 431 F.3d 282 (7th Cir. 2005) (exhaustion requires filing necessary appeals)
Woodford v. Ngo, 548 U.S. 81 (2006) (exhaustion gives administrators chance to resolve issues)
Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013) (notice to prison that allows correction can satisfy exhaustion’s purpose)
Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir. 1999) (failure to exhaust requires dismissal)
Jones v. Bock, 549 U.S. 199 (2007) (exhaustion is an affirmative defense; defendant bears burden)
Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006) (officials’ interference can render grievance process unavailable)
Dale v. Lappin, 376 F.3d 652 (7th Cir. 2004) (misinformation by prison officials can excuse failure to complete grievance process)