Whitesell v. Burnham, 17-4050

Whitesell, a former Utah prisoner, claims deliberate indifference to serious medical needs arising from treatment in February 2010 (allegedly leading to pneumonia).
He did not file a Level One grievance within seven working days of the incident and was released and hospitalized about four months later.
Whitesell returned to prison in 2013 and filed a late Level One grievance about the 2010 treatment; officials rejected it as untimely.
He filed a Level Two appeal months later, which was denied, and he did not pursue a required Level Three appeal to the Utah DOC Hearing Office.
The district court granted summary judgment for the defendant for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a); Whitesell appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Whitesell exhausted available prison administrative remedies before suing under § 1983	Whitesell says he didn’t know of the injury until hospitalization months later, rendering timely grievance impossible	Exhaustion required; available procedures existed and were not timely used or completed	Held: No exhaustion; summary judgment for defendant affirmed
Whether late filing excused because plaintiff lacked medical diagnosis initially	Whitesell contends a medical diagnosis was needed to grieve, so delay was excusable	A grievance can be filed without a formal diagnosis; delay not excused	Held: Diagnosis not required; late filing insufficient to excuse exhaustion
Whether futility of further appeals excused failure to complete Level Three	Whitesell asserts a grievance officer told him Level Three would be rejected, making appeal futile	Futility is not an exception to statutory exhaustion under controlling precedent	Held: Futility does not excuse exhaustion; must complete Level Three
Whether district court’s delay in ruling on summary judgment warranted default judgment	Whitesell argues the court’s delay >180 days required default for plaintiff	No authority or rule supports default for either party due to court delay	Held: Delay does not justify default judgment

Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011) (standard of review: de novo; view evidence in plaintiff’s favor at summary judgment)
Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2002) (inmate who begins but does not complete grievance process is barred from § 1983 claim)
Woodford v. Ngo, 548 U.S. 81 (2006) (proper exhaustion requires timely and procedurally proper use of administrative remedies)
Booth v. Churner, 532 U.S. 731 (2001) (futility is not an exception to the exhaustion requirement)