HOWARD SMALLWOOD v. DON WILLIAMS, et al.
No. 21-3047
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 9, 2022 — DECIDED FEBRUARY 3, 2023
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:20-cv-00404-JPH-DML — James P. Hanlon, Judge.
ROVNER, Circuit Judge. Howard Smallwood, an Indiana inmate, alleged physical and sexual abuse, excessive force, and mistreatment at the hands of prison employees and independent contractors associated with the Indiana Department of Correction (IDOC). The district court dismissed his suit on the defendants’ motion for summary judgment, holding that Smallwood had failed to exhaust the prison grievance proce-
I.
This case comes to us on a motion for summary judgment, therefore we recite the facts in the light most favorable to Smallwood. Gupta v. Melloh, 19 F.4th 990, 997 (7th Cir. 2021). On October 22, 2017, correctional staff found Smallwood unresponsive in his cell and brought him to the prison medical facility where he was given two doses of Narcan as a response to a presumed overdose. When he awoke and the nurse inquired about what drugs he had taken, Smallwood assured her that he had not taken any, and reminded her that he is diabetic and had been found similarly unresponsive in his cell before, and, in that event, an outside hospital treated him for respiratory distress, not an overdose. Nevertheless, defendant Dr. Paul Talbot, an employee of Wexford of Indiana, LLC, with whom IDOC contracts to provide medical care, ordered a urinalysis to screen Smallwood for illegal drugs. Smallwood consented to the urinalysis and the results were negative.
Despite the negative result, Dr. Talbot ordered a blood test to further screen for drugs. Smallwood asked for a standard form to refuse the blood draw, reasoning that the urinalysis was negative, and he had not, in fact, been using drugs. The prison guards, however, declined to provide him with one, and informed him that he did not have the option to refuse. When Smallwood continued to ask for a refusal form, the prison guards called for backup guards who twisted his hands and wrists, placed him in a head lock, and held a taser
After the forced blood draw, Smallwood alleges that the officers brought him to an observation cell where they threw him onto a bed, placed him in a chokehold, pulled his shirt over his head, and punched him. The officers then pulled Smallwood‘s pants down, placed a knee on his back, and inserted a cold object into his rectum. After the assault, the officers left him naked in the observation cell.
One hour later, two guards working in the hospital found Smallwood injured and curled up in the corner of his cell and called a nurse to assess him. The nurse gave Smallwood aspirin for his pain, ice for the swelling in his neck and wrist, and submitted a referral for Dr. Talbot to examine him. The next day, Dr. Talbot gave Smallwood a shot for pain, but ignored his requests for an X-ray or MRI. Guards then placed Smallwood in segregation for physically resisting staff members in the performance of their duties. As a result of this use of force and sexual abuse, Smallwood alleged that he continues to have pain and discomfort in his shoulder, wrists, back, and neck.
Smallwood filed a grievance about the event, but it is undisputed that he did not properly make use of the grievance procedures outlined in the IDOC Manual of Policy and Procedures, Offender Grievance Process (Grievance Manual). The question presented in this appeal is whether that grievance procedure was available to Smallwood.
On November 1, 2017, ten days after the forced blood draw event, Smallwood filed a timely formal grievance which stated: “I was sexually abused by 5/6 custody officers 10-22-17 Sunday in the infirmary ... I also was forced into taking a blood test against my will—I was hurt during the process ... wrist, back, neck and hip. I contacted Sgt. Dinkin and Officer William—Filed a grievance 10-23-17.” R. 59-4 (first ellipsis added, second ellipsis in original).
Five days later, the grievance specialist returned Smallwood‘s grievance for failing to show that he had completed step 0—proof that he had tried to informally resolve his complaint before filing the grievance. The “Return of Grievance Form” made no mention of the fact that a prisoner is not required to use an informal grievance process to resolve an alleged incident of sexual abuse. The form also instructed Smallwood that he had five days to either begin the informal resolution process or return the grievance form with an indication that he had already attempted to resolve the matter informally. Smallwood did not resubmit the grievance.
Smallwood made other written complaints about the incident—in appeals of other grievances or through letter writing, but none that complied with the steps outlined in the grievance procedure. And during at least one of his other unrelated grievance attempts, Smallwood expressed frustration with his ability to understand the grievance process, stating that he was “incompetent to understanding the procedures.”
On November 5, 2018, about a year after the alleged incident, Smallwood attempted to informally resolve his grievance by submitting a request-for-interview form regarding the events of October 22, 2017. The grievance specialist rejected it as untimely the same day. Smallwood then proceeded to file another grievance about the October 2017 incident, followed by two appeals, all of which were rejected as untimely.
Having failed at filing a successful grievance, Smallwood turned to a writ writer to help him file a complaint in the district court.2 Smallwood brought an action pursuant to
II.
Access to the federal courts by prisoners is not automatic. It is restricted by the prerequisites set forth in the Prison Litigation Reform Act (PLRA), which serve the purpose of giving prison administrators notice and an opportunity to resolve issues internally before a prisoner turns to the courts. Schillinger v. Kiley, 954 F.3d 990, 995 (7th Cir. 2020). The PLRA instructs that “[n]o action shall be brought with respect to prison conditions under
The Supreme Court in Ross set forth several examples of ways in which a grievance system might be unavailable, including if the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use.” Ross, 578 U.S. at 643–44. Consequently, whether a remedy is available to exhaust is a fact-specific inquiry. Lanaghan, 902 F.3d at 688.
That fact-specific inquiry looks generally at whether the “procedures [were] knowable by an ordinary prisoner in [the plaintiff‘s] situation, or was the system so confusing that no such inmate could make use of it?” Ross, 578 U.S. at 648. More specifically, when assessing whether the grievance process could have been understood by a particular prisoner, the inquiry must consider individual capabilities. Ramirez v. Young, 906 F.3d 530, 535 (7th Cir. 2018). And so, for example, a grievance system manual that is written in English and then explained in English to a Spanish-speaking prisoner with little, if any, English comprehension, is not a process that is available to that prisoner. Id. at 540. Likewise, an inmate with severe
Remedies may be unavailable to prisoners for other fact-specific reasons unrelated to physical health or mental capacity, in particular where the prison acts in a manner that causes the grievance procedure to be unavailable—for example, where the process exists in theory but operates as a dead end, or where prison administrators thwart the use of the process through “machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644. We explore these reasons further below, but we stress here that a grievance procedure might be
To be certain, the PLRA does not excuse a failure to exhaust based on a prisoner‘s ignorance of administrative remedies where a prison has done an adequate job of informing the prisoner about the grievance procedure. Ramirez, 906 F.3d at 538. Nor does it excuse noncompliance because of a prisoner‘s subjective lack of awareness of a grievance procedure, (Id.) or when he is simply mistaken about the meaning of the prison‘s grievance procedures. Ross, 578 U.S. at 644 (“The procedures need not be sufficiently ‘plain’ as to preclude any reasonable mistake or debate with respect to their meaning.“). But when a prisoner‘s ignorance of the process is not within his control—that is, because he has not been informed of the process, whether due to misconduct by prison employees, or because his personal circumstances preclude him from being able to make use of the process, it is not available to him.
In this case, we are evaluating the availability of the grievance process within the framework of the defendants’ motion for summary judgment, where, in our de novo review, we construe the facts in the light most favorable to Smallwood. McIntosh v. Wexford Health Sources, Inc., 987 F.3d 662, 666 (7th Cir. 2021); Pyles, 829 F.3d at 864. Moreover, we must bear in mind that failure to exhaust is an affirmative defense, and as such the burden of proof is on the defendants to establish that administrative remedies were not exhausted, and not on the prisoner to show that administrative remedies were unavailable. Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022); Lanaghan, 902 F.3d at 688; Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016).
In this circuit, we have determined that disputed factual questions that bear on exhaustion can be resolved by a district
Our inquiry then is whether there were contested facts material to the question of whether the grievance process was available to Smallwood. Taking the facts in the light most favorable to Smallwood, he alleges that he was unable to exhaust the grievance process because his low IQ and lack of access to anyone who might help him made it impossible for him to understand and make use of the procedures and requirements of the administrative process. As evidence of this, he points to his school record documenting his IQ as 75, the fact that he was in restrictive housing and without access to the assistance of writ writers on whom he usually depended during the time period in which the grievance had to be filed, and the fact that, although he had attempted to file twenty-one grievances between 2005 and 2020, not once had he successfully navigated a grievance through to exhaustion.
The defendants, on their part, allege that Smallwood was not so impaired, claiming that he demonstrated no evidence that he was incapable of meeting the requirements of the grievance process or that prison officials were aware of any impediment to his understanding of the process. Under the defendants’ version of events, there is no evidence that any prison official knew of any reason why Smallwood could not
The district court, however, was obligated to accept the plaintiff‘s factual averments as true for the limited purposes of evaluating the motion for summary judgment. Smallwood‘s low IQ score may have been old, but contrary to the defendants’ claim that he presented no evidence of incapacity, his low IQ score was certainly some amount of evidence of an inability to understand a dense grievance process. According to the American Association on Intellectual and Developmental Disabilities, an IQ score between 70 and 75 indicates significant limitations in intellectual functioning.5 A
The district court also viewed Smallwood‘s “coherent” and “appropriate” filings in the case before it as evidence of his ability to file a grievance. R. 67 at 7. In doing so, the district court overlooked Smallwood‘s claims that although he ordinarily receives assistance from writ writers and other competent fellow prisoners in writing grievances and filing court documents, that assistance was not available to him during the ten days he had to file a complaint after the October 22, 2017 incident, as he was in restrictive housing and moved from cell to cell. For example, the complaint and amended complaint filed in the district court both indicate that they were prepared by writ writers. See R. 1 at 16, R. 15 at 19. Smallwood also indicated in an earlier filing asking for an extension of time in which to file his response to the defendants’ motion for summary judgment that he
had to seek out the assistance of a Law Library Clerk ... to assist him in responding to the Motion for Summary Judgment because Smallwood does not have the Legal skills to perfect a response to the Attorney General‘s Motion. Smallwood‘s I.Q. is about 75 and has disabilities
with understanding legal terms, researching and how to draft out responses in the correct Legal terms.
R. 61 at 2 (capitalization in original).
As for the claim that there was no evidence in the record that the prison knew that Smallwood was unable to make use of the grievance system, nothing in the text of the PLRA requires that prison officials know that the grievance process is unavailable. As we have explained, unavailability “does not include any requirement of culpability on the part of the defendant.” Lanaghan, 902 F.3d at 688. Even if it did, Smallwood points to evidence both that he could not navigate the grievance system, and that the defendants knew he could not. For example, on June 7, 2018, (a few months before his second round of attempts at filing a grievance regarding the underlying incident), he filed a grievance about another matter in which he informed the prison grievance officers, “I am not familiar with the policy and administrative procedures ... because I am incompetent to understanding [sic] the procedures.” R. 46-2 at 54. Smallwood also notes that the defendants’ own evidence compellingly demonstrated his inability to navigate the grievance procedure. According to the prison‘s grievance log, despite approximately twenty-one tries, Smallwood had never navigated the IDOC grievance process to completion. R. 46-2 at 1–4. In the twenty-one grievances that made it to step one of the process (and thus were recorded in the log), only one made it to step two. Id. None made it through all three steps. Id. Moreover, the defendants’ own evidence also contained a record of eighteen attempts in which Smallwood failed to reach even the first step of filing. Eight of the grievances were returned because Smallwood
Once Smallwood pointed to sufficient factual allegations demonstrating a genuine dispute as to whether the administrative remedies were available to him, the district court was obligated to conduct a Pavey hearing to resolve the factual dispute. See Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014) (citing Pavey, 544 F.3d at 741–42) (a district court must resolve contested facts at a Pavey hearing). A court can grant a motion for summary judgment without holding a Pavey hearing only if, after taking the facts in the light most favorable to the nonmovant (Smallwood), the court determines that there are no genuine issues of material fact, and the defendants met their burden of establishing that the grievance process was available to Smallwood as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also, e.g., Roberts, 745 F.3d at 234; Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir. 2006)
Because we remand for the district court to conduct a Pavey hearing to resolve the factual dispute, we need not make any separate determinations about exhaustion of the sexual assault claims, as the district court can consider this matter on remand. It is worth noting, however, a few things about Smallwood‘s sexual assault claim.
First, the prison administration has defended this lawsuit by arguing that Smallwood failed to exhaust all of his claims through the prison grievance system, including by failing to informally resolve his concerns at what we have called step 0, and by arguing that the statute of limitations for all of his claims had passed. See State Defendants’ Memorandum in Support of their Motion for Summary Judgment as to Issue of
It is no wonder that Smallwood did not raise this issue while in prison or raise the issue in the district court. The prison administrators themselves told him just the opposite—first, that they would not entertain his grievance as he failed
Finally, in addition to the sexual assault statute of limitations question, there is a broader time limit issue. Along with
We VACATE the decision of the district court and REMAND for further proceedings consistent with this opinion.
I.
The case begins and ends for me with the grievance form Smallwood prepared and submitted from a restricted housing cell on November 1, 2017. All indications are that he completed the form in his own hand with a ballpoint pen, as the signature matches other documents he signed on different occasions.
In no uncertain terms, Smallwood complained that he “was sexually abused by 5/6 custody officers [on] 10-22-17 Sunday in the infirmary [upon] returning back to my cell” after being “forced into taking a blood test against my will” and being “hurt during the process—[on my] wrist, back, neck and hip.” Smallwood added that he had “contacted Sgt. Dinkin and Officer William” about these matters and urged some “independent person to review videotapes regarding [the] sexual[ ] abuse and excessive force,” observing further that the prison should “stop forcing inmates into taking blood test[s] against their will.”
In equally clear terms, the Indiana Department of Correction Offender Grievance Process tells prisoners that they are “not require[d] ... to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident
As best I can tell, the Department—and by extension, the defendants—have never explained why this provision of the Grievance Manual did not excuse Smallwood from pursuing the so-called step zero measure of seeking informally to resolve his sexual-abuse complaint. To take a contrary position and require informal resolution is at complete odds with the language of the policy, so much so that compelling a prisoner to follow that course would prove the grievance process at best unworkable and at worst implemented in something less than good faith. See Ross v. Blake, 578 U.S. 632, 643–44 (2016) (explaining that remedies are not “available” within the meaning of the PLRA when a prison‘s policy is an administrative “dead end” or prison administrators “thwart” filings through misrepresentation).
I would stop there and remand to allow the district court to hold a hearing to determine why, in the prison‘s view, Smallwood‘s November 1 grievance was insufficient to excuse any informal effort to resolve his complaint with his alleged attackers. Something seems amiss with the Pendleton Correctional Facility‘s grievance process, and the district court ought to get to the bottom of it. What Smallwood alleged in his grievance is as awful as it is clear, and the Department‘s policy of not forcing victims of sexual assault to confront their abusers seems directly on point. Smallwood is entitled to the same protection under the Department‘s policy as any other inmate who suffers sexual assault by prison staff. See generally J.K.J. v. Polk County, 960 F.3d 367 (7th Cir. 2020) (en banc).
II.
Nothing about my reasoning hinges on any conclusion about Smallwood‘s IQ, ability to understand or navigate the Department‘s grievance process, or access to other inmates to assist with preparing and submitting any required paperwork. Indeed, to my eye, Smallwood‘s initial grievance was admirable for its concision and clarity: anyone reading it would see an inmate complaining of being sexually assaulted and experiencing other harms in connection with a broader incident involving a forced blood draw.
No doubt the majority opinion is right to struggle with how to define when a failure to exhaust can be excused because of a prisoner‘s intellectual limitations. The questions we should explore in future cases are many, including (to name but a few):
- At what point do intellectual limitations (manifesting, for example, in the form of illiteracy or diminished writing skills or a very limited formal education) become so severe as to inhibit compliance with an otherwise objectively reasonable administrative grievance process?
What must prisons affirmatively do to show that administrative remedies are available to prisoners with intellectual limitations? - How should courts distinguish between prisoners with subjective unawareness of an institution‘s grievance process and inmates with intellectual limitations significant enough to prevent their compliance with exhaustion requirements imposed by a prison?
Howard Smallwood seems to have done everything required of an inmate who advances an allegation of sexual assault by a prison guard. If the district court reaches that same conclusion, we can save these and other hard questions about where to draw the lines with prisoners with intellectual disabilities for another case and day.
For these reasons, I concur in today‘s judgment.