ROBERT WILLIAMS, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC., Defendant-Appellee.
No. 19-1018
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 26, 2020 — DECIDED APRIL 30, 2020
Before WOOD, Chief Judge, and ROVNER and BARRETT, Circuit Judges.
Appeal from the United States District Court for the Central District of Illinois. No. 17-cv-1466-JBM — Joe Billy McDade, Judge.
WOOD,
I
Given the fact that our focus is on procedure, we do not need to say much about the underlying facts. In 2011, Williams was diagnosed with a cataract in his left eye. As time went on, his vision deteriorated until he was completely blind in that eye. Moreover, he experienced other symptoms, including dizziness, acute pain, photophobia, and the feeling that grit or some other foreign substance was in his eye. As early as 2011, his doctors recommended cataract extraction surgery for the left eye. They warned that without this operation (a common one), they would be unable to detect other vision-threatening conditions such as glaucoma.
Wexford refused to authorize the surgery, based on its “one good eye” policy. That was a dubious decision. In fact, after his 2011 diagnosis of the cataract in his left
On February 22, 2016, Williams filed his first grievance about Wexford‘s failure to treat his vision. He completed the “Offender‘s Grievance” form provided by the Illinois Department of Corrections (IDOC), explaining that he sought compensation for Wexford‘s deliberate indifference, and he checked a box indicating that his was an emergency grievance. Pontiac‘s warden received and reviewed this grievance. He responded by checking a box with the pre-printed statement “No; an emergency is not substantiated. Offender should submit this grievance in the normal manner.” Williams asserts that he appealed the warden‘s decision to the Administrative Review Board (ARB). At the district court level, Wexford did not dispute this fact, but before this court, it says for the first time that Williams did not file an appeal. In the district court, Williams represented that he received a response from the ARB denying his grievance, but he now (through recruited counsel) states that he did not receive a response to his appeal. We return to these discrepancies later.
Williams filed a second grievance on August 5, 2016. In it, he again complained
At that point Williams filed a pro se complaint under
II
Although there is no general exhaustion requirement for cases brought under
Illinois offers two paths for inmates who wish to complain about something. First, it has created a three-stage process for normal problems. See
A different procedure is available for emergency grievances. When an inmate believes that he confronts an emergency situation, state law permits him to bypass the counselor and grievance officer and submit his grievance directly to the warden. See
At the time Williams filed his two grievances in 2016, the Illinois Administrative Code did not expressly address what should happen if the warden concludes that the grievance does not present an emergency. Could the inmate challenge that assessment? Was the inmate required to provide additional information about why the grievance required emergency treatment? Did the inmate need to start over again with the standard procedure? In 2017, the Code was amended to fill in this gap. It now provides that “[i]f the Chief Administrative Officer determines that the grievance should not be handled on an emergency basis, the offender shall be notified in writing that he or she may resubmit the grievance as non-emergent, in accordance with the standard grievance process.”
This issue is presented more sharply with respect to the August 5 grievance than it is for the February 22, 2016, grievance. The problem with the February grievance is, in a word, waiver. Wexford concedes that Williams filed the February grievance, and that he marked it as an emergency. Indeed, Williams attached the February grievance to his original and amended complaints. For reasons best known to itself, Wexford ignored it in the district court — an omission that Williams noted in his summary judgment briefing. In this court, Wexford is now arguing that Williams failed to appeal the warden‘s decision that the February grievance was not an emergency to the ARB and thus he cannot rely on it for exhaustion purposes. But it is too late for that point. Wexford has waived any argument it might have wanted to make about the February grievance. (This is not a case in which exhaustion can be disregarded, see
The record is cleaner for the later, August grievance. Williams again marked it as an emergency; the warden again decided that it was not; and Williams attempted to appeal that determination to the ARB. As we noted earlier, the regulations in effect in 2016 did not provide for an appeal of such an order. Nor does the ARB seem to have thought that it was reviewing the warden‘s decision about the emergency nature of the grievance. Instead, the ARB responded by informing Williams that his
We faced a similar problem in Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005). Inmate Thornton, who had been placed in a segregation cell, filed an emergency grievance about the conditions there. In response, he received a letter stating that his grievance did not qualify as an emergency; later he was moved to another cell. Without refiling his grievance under the standard procedures, Thornton brought a lawsuit seeking damages for the time he spent confined in the segregation unit. Responding to the argument that he had failed to exhaust his remedies, we had this to say:
There is nothing in the current regulatory text, however, that requires an inmate to file a new grievance after learning only that it will not be considered on an emergency basis. In any event, even if the non-emergency determination was a decision that should have been appealed, corrections officials moved Thornton out of [the cell] within three weeks of his ... grievance, before the thirty-day time for an inmate to appeal a warden‘s determination had expired.
Id. at 694. We concluded that Thornton had done enough to exhaust his administrative remedies even without resubmission.
Williams pointed out in his briefs and at oral argument that we have followed Thornton in a number of non-precedential decisions, including Muhammad v. McAdory, 214 F. App‘x 610 (7th Cir. 2007), Glick v. Walker, 385 F. App‘x 579 (7th Cir. 2010), Bentz v. Ghosh, 718 F. App‘x 413 (7th Cir. 2017), and Cobian v. McLaughlin, 717 F. App‘x 605 (7th Cir. 2017). All of these cases held that under the version of section 504.840 that existed before the 2017 amendment, an Illinois inmate who filed an emergency grievance did not need formally to resubmit his complaint as an ordinary grievance if the warden concludes that it did not present an emergency. One can easily imagine why that might be so: it would be easy enough for the warden to transfer the presumptively non-emergency grievance back to the counselor and allow the full standard procedure to unfold, without placing that burden on the inmate and endangering the timeliness of his filing. But those possibilities are not explored in these non-precedential dispositions, and (as is typical for such orders) they are more summaries than fully reasoned explanations. We prefer for present purposes to stick to more authoritative sources.
When we do so, we find several reasons to conclude that Williams did enough under the 2016 version of the Code to exhaust his remedies. First, before the 2017 amendment, nowhere in the Code did it say that an inmate who invoked the emergency process in a non-frivolous way had to start all over again with the standard procedure whenever the warden concluded that no emergency existed. Although a prisoner must take all the steps the prison offers, see Ngo, 548 U.S. at 90 (citing Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)), and do so properly, id., this does not mean that the
We observed in Thornton that the regulatory text did not “require[] an inmate to file a new grievance after learning only that it will not be considered on an emergency basis.” 428 F.3d at 694. Even if we regard this statement as dicta, on the ground that we added that Thornton himself did not have enough time to file an appeal of the non-emergency determination, it is an accurate description of the Illinois regime at the time. Moreover, Williams did have time and did try to file an appeal of the non-emergency determination of his grievances, and he failed. We thus conclude that Williams exhausted the remedies that were available to him, as Ross required him to do.
Other circuits have considered failure-to-appeal scenarios, but their decisions are distinguishable. For example, in Bargher v. White, 928 F.3d 439 (5th Cir. 2019), the Fifth Circuit evaluated a case brought by Inmate Bargher, who was complaining about a vicious assault from another inmate and the Louisiana prison‘s failure to protect him from a known danger. Bargher filed a grievance about the incident with the warden, as required by Louisiana law, but when he did not hear from the warden within the 40-day period established by law, he filed his lawsuit. The court pointed out, however, that the grievance system provided that the inmate should proceed to the second step and file an appeal with the Secretary of the Louisiana Department of Public Safety and Corrections if the 40-day period ended with no response. Because Bargher did not do so, the court concluded, he failed to take advantage of all remedies the prison made available. The particulars of the Louisiana system drove this finding. Williams‘s case is different in at least two respects: first, there was nothing that Illinois law offered him that he did not use; and second, Illinois law itself is different from the regulations Louisiana has elected to adopt.
A case from the Third Circuit, Shifflett v. Korszniak, 934 F.3d 356 (3d Cir. 2019), further illustrates how important the differences among state procedures can be. This was a case in which the inmate, Shifflett, was attempting to bring a claim for deliberate indifference to a serious medical need. The district court found a failure to exhaust, but the Third Circuit saw matters otherwise. Shifflett had filed four grievances, but all of them were denied. He appealed all four denials, but he did not receive a timely answer on the merits to any of them. Under the applicable law, the prison was supposed to respond to an appeal within 15 working days after it was filed, but it did not do so. The court ruled that as of the due date for the response, Shifflett had done all he could, and he was thus entitled to bring his lawsuit. Id. at 366. Once again, both the facts in Williams‘s case and the law are different. Williams‘s problem was not the lack of any response. It was the lack of a mechanism under Illinois law to appeal the determination that his case did not present an emergency,
III
This case is not going to have a particularly great impact on the way in which Illinois runs its prisons, thanks to the 2017 amendments to the regulations. But it does make a difference to Williams. As Ross holds, he was obliged to follow whatever administrative remedies were available to him, but that is where his obligation ended. The competent authorities, including the warden and the ARB, did not have the right to move the goal posts while Williams was in the middle of his case and suddenly announce that special new requirements applied to him.
And let us be clear: Williams‘s assertion that his grievance was an emergency was not frivolous, even though a reasonable person may have disagreed with that characterization. A frivolous assertion of emergency would present an entirely different problem. So would a case in which the ARB simply asked for additional information related to the grievance, as it might have done (but did not) here. That largely answers Wexford‘s stated concerns — that all inmates would simply avoid the standard procedure by claiming an emergency, or that the warden or ARB would be unable to collect pertinent information. In addition, to the extent that IDOC wanted to avoid problems that are less easily resolved, its remedy was exactly what it did: amend the regulations.
We therefore REVERSE the judgment of the district court and remand for further proceedings consistent with this opinion.
ROBERT WILLIAMS, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC., Defendant-Appellee.
No. 19-1018
United States Court of Appeals For the Seventh Circuit
BARRETT, Circuit Judge, concurring in the judgment. Administrative exhaustion under the Prison Litigation Reform Act (PLRA) is an affirmative defense, so the defendant bears the burden of showing that the plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 212 (2007); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). At oral argument, Wexford stated that if the Administrative Review Board had denied Williams‘s appeal of his emergency grievance determination without comment, then Williams would have exhausted all of his available administrative remedies. That is enough to resolve this appeal, and I would reverse the district court‘s judgment on that ground.
I write separately because in my view, the majority‘s reasoning conflicts with the Supreme Court‘s interpretation of the PLRA.1 The majority‘s holding turns on the fact that the 2016 Illinois Administrative Code did not expressly say that an inmate should file a standard grievance if the prison decided that his emergency grievance did not warrant fast-track treatment. In the absence of such an explicit instruction, the majority holds, Williams‘s filing of the emergency grievance was enough to satisfy the PLRA‘s exhaustion requirement. It was reasonable for Williams to believe that he didn‘t have to do anything more.
Williams does not dispute that the normal grievance procedure was “available” to him in this sense. See Ross, 136 S. Ct. at 1859 (stressing that “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of‘” (citation omitted)). For example, he does not contend that the normal grievance procedure “operate[d] as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Nor does he claim that the prescribed process was “so opaque that it [was], practically speaking, incapable of use.” Id.; see also id. (explaining that “when a remedy is ... essentially ‘unknowable’ — so that no ordinary prisoner can make sense of what it demands — then it is also unavailable” (citation omitted)). Nor does he say that prison administrators misrepresented what was required of him, thereby “thwart[ing]” his efforts to file a grievance. Id. at 1860 (explaining that a remedy is unavailable when administrators “devise procedural systems” designed “to trip[] up all but the most skillful prisoners” (citation and internal quotation marks omitted)). Instead, his contention, which the majority accepts, is that the silence in the prison regulations made it reasonable for him to think that he didn‘t have to use the standard grievance procedure.
The problem is that the Court rejected this very argument in Ross v. Blake. There, the inmate contended that he had not pursued a remedy through the usual process because he thought the investigative process in which he had participated “served as a substitute for that otherwise standard process.” Id. at 1855. The Court held that such a mistake, even if reasonable, did not render the standard process exhausted. Id. at 1858. Indeed, the Court could not have been more explicit that the PLRA contains no exception for “cases in which a prisoner makes a reasonable mistake about the meaning of a prison‘s grievance procedures.” Id.
It‘s true that Thornton v. Snyder contains dicta to the contrary. 428 F.3d 690, 694 (7th Cir. 2005). (Like the majority, I put our nonprecedential decisions aside.) The majority‘s reliance on Thornton is misplaced, though, and not only because the relevant language is dicta. Thornton preceded Ross v. Blake by more than a decade. Whatever we may have said about the issue before Ross v. Blake was decided, the Court has now given us different marching orders. And, of course, as an inferior court, we are bound to follow them.
The majority observes that recent amendments to the Illinois Code blunt the significance of this opinion. But that is only true as to Illinois — we have no information about Wisconsin and Indiana law, so the case may well matter for the other states within our jurisdiction. Regardless, if the case truly lacks long-term impact, it would