67 F.4th 866
7th Cir.2023Background
- Plaintiff Leroy Ingram, incarcerated at USP Terre Haute, alleges he was beaten by guards and then denied necessary medical care; he sued under Bivens against the warden and staff.
- Ingram filed three substantive administrative grievances related to the incidents. Two grievances were not pursued through the full Bureau of Prisons (BOP) appeals process.
- One grievance (failure to protect) was rejected for lacking required attachments; Ingram did not resubmit or appeal.
- A second grievance (retaliation/withheld medical care) was rejected for failure to attempt informal resolution; Ingram filed suit before receiving a rejection appeal decision and did not complete the administrative hierarchy.
- The first/substantive grievance (the assault) was appealed to the Regional Director; Ingram alleges Officer Gore told him the Regional Director had issued a decision but refused to give him the document. Ingram filed suit; three days later he received the Regional Director’s response, too late to appeal to the General Counsel.
- The district court granted summary judgment for defendants for failure to exhaust; the Seventh Circuit affirmed in part but remanded the assault-grievance exhaustion question for a Pavey hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ingram exhausted remedies for the grievance rejected for missing attachments (failure-to-protect) | Ingram did not receive a decision and thus could not appeal further | He failed to resubmit or appeal as required by BOP regs | Not exhausted; summary judgment for defendants affirmed |
| Whether Ingram exhausted remedies for grievance rejected for lack of informal resolution (retaliation/medical care) | Filing suit before receiving a response absolved him from further appeals | He failed to complete the informal and appeals steps; suit cannot short-circuit exhaustion | Not exhausted; summary judgment for defendants affirmed |
| Whether Ingram exhausted remedies for the assault grievance when he alleges the Regional Director’s written decision existed but was withheld by staff | BOP’s withholding made an appeal to the General Counsel unavailable, excusing exhaustion | He should have treated the situation as a non-response and appealed under the non-response rule | Genuine dispute; exhaustion may have been unavailable because BOP withheld the Regional decision; remand for a Pavey hearing to resolve facts and availability |
| Whether summary judgment was appropriate overall | Ingram argued exhaustion was excused for the assault grievance | Defendants argued exhaustion failed for all grievances | Affirmed in part (two grievances) and reversed/remanded for further proceedings limited to the assault-grievance exhaustion issue |
Key Cases Cited
- Bivens v. Six Unknown Named Federal Agents, 403 U.S. 388 (1971) (recognized implied damages action against federal officers)
- Ross v. Blake, 578 U.S. 632 (2016) (exhaustion requires use of available administrative remedies before suit)
- DeBrew v. Atwood, 792 F.3d 118 (D.C. Cir. 2015) (appeal to Central Office unavailable when prisoner cannot obtain Regional response)
- Risher v. Lappin, 639 F.3d 236 (6th Cir. 2011) (prisoner exhausted when he did not receive Regional response and Central appeal was rejected for lack of that response)
- Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (procedure for district courts to resolve factual disputes about exhaustion)
- Gooch v. Young, 24 F.4th 624 (7th Cir. 2022) (failure to exhaust is an affirmative defense)