Asher Hill v. Jerry Snyder , 817 F.3d 1037 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2607
ASHER B. HILL,
Plaintiff-Appellant,
v.
JERRY SNYDER, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division
No. 1:13-cv-68-RLY-MJD — Richard L. Young, Chief Judge.
____________________
SUBMITTED MARCH 18, 2016 * — DECIDED APRIL 5, 2016
____________________
Before BAUER, EASTERBROOK, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Asher Hill, an Indiana inmate,
sued prison staff under 42 U.S.C. § 1983, alleging that they
had violated the Eighth Amendment by failing to protect him
* After examining the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs
and the record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 15-2607
from inmates who threw feces at him on four occasions. The
district court granted summary judgment for defendants on
the ground that Hill had not exhausted administrative reme-
dies as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a). We conclude that summary judgment
was improper for three of the incidents, so we vacate the judg-
ment in part and remand the case for further proceedings.
Indiana’s grievance policy instructs prisoners to exhaust
administrative remedies in three steps: (1) seek informal res-
olution; (2) if dissatisfied, submit a formal grievance; and
(3) if dissatisfied with the response to the processed griev-
ance, appeal. See Ind. Dep’t of Corr., Admin. P. No. 00–02–301,
§§ XIII, XIV. The grievance policy lists 21 criteria, such as writ-
ing legibly in English and addressing only one issue per griev-
ance, that must be satisfied before the prison will process a
formal grievance. See § XIV.A–B. The prison’s executive assis-
tant may return a formal grievance unprocessed if the pris-
oner does not meet any of these criteria. § XIV.B. When that
happens the executive assistant “shall” explain “why the form
was returned and how it may be corrected.” Id. A prisoner has
five days to correct the grievance. The policy does not state
that a prisoner can appeal an unprocessed grievance.
Hill alleges that prison staff failed to stop prisoners from
throwing feces at him through the “cuff ports” in his cell door
on four dates in 2011 and 2012. We describe the evidence of
Hill’s efforts to grieve these four incidents in the light most
favorable to Hill, the non-moving party. See Tradesman Int’l,
Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013).
The first incident occurred in February 2011. Hill filed a
formal grievance, but it was returned to him unprocessed be-
cause he had failed to pursue first an informal resolution of
No. 15-2607 3
the problem. Hill then wrote a letter to prison staff seeking an
informal resolution. After receiving no response, he resubmit-
ted the formal grievance. It was again returned unprocessed.
This time, Hill received no advice about correcting the form.
The only information he received was a notation that a prison
staff member had “viewed the video and is not able to verify
this occurred.” Hill did nothing further about that incident
before filing suit.
The second incident occurred in May 2011. Hill again at-
tempted to resolve the issue informally. After receiving no re-
sponse, he submitted a formal grievance. This grievance was
also returned to Hill unprocessed. The explanation this time
was that the issue had already been resolved informally. Hill
believed it had not been resolved, but he took no further steps
about this incident before filing suit.
The third and fourth incidents took place in June and Au-
gust 2012. According to Hill’s affidavit, for both incidents he
never received a grievance form. After informal efforts did
not resolve his complaint about the June incident, his prison
counselor refused to give Hill the form to file a formal griev-
ance. After the August incident, Hill was also stymied. Before
he could file a formal grievance, his unit manager insisted that
Hill provide the exact time of the feces-throwing incidents,
which he did not know, thereby preventing any further griev-
ance efforts.
Hill then filed suit in state court against prison staff over
the attacks. Defendants removed the case to federal court un-
der 28 U.S.C. § 1441. The district court screened the complaint
pursuant to 28 U.S.C. § 1915A(b) and dismissed and severed
some unrelated claims in an order that Hill does not chal-
lenge.
4 No. 15-2607
The remaining defendants, Jerry Snyder and Brian Butler,
quickly moved for summary judgment. They asserted that
Hill had not complied with the prison’s grievance policy be-
cause he did not submit any formal grievances about any of
the incidents. Hill responded that prison staff had prevented
him from filing formal grievances. For the first two incidents,
they had improperly refused to process grievance forms. For
the third and fourth incidents, they prevented him from filing
formal grievances. His counselor refused to give him a griev-
ance form after the third incident, and after the fourth inci-
dent, defendant Snyder demanded to know its exact time.
The district judge ruled that Hill had not exhausted ad-
ministrative remedies and granted summary judgment. For
the first two incidents, the judge concluded that Hill could
have fixed and resubmitted the unprocessed grievances. For
the last two incidents, the judge reasoned that Hill could have
obtained grievance forms from other prison staff.
In the district court’s final judgment, Hill’s claims were dis-
missed without prejudice. A dismissal without prejudice is
not ordinarily appealable because it is not final. But because
Hill is now time-barred by the prison’s grievance policy from
further pursuing administrative remedies for these events, he
could do nothing to cure the failure to exhaust. The dismissal
is thus final for purposes of appellate review. See Dixon v.
Page, 291 F.3d 485, 488 (7th Cir. 2002).
Hill contends that he exhausted his claims for all four in-
cidents. We agree with him as to three of the four. We begin
with the first incident and conclude that defendants are not
entitled to summary judgment for failure to exhaust on that
incident from February 2011. After prison staff told him to at-
tempt an informal resolution, Hill did so and then submitted
No. 15-2607 5
his formal grievance. But the staff returned it unprocessed,
with only the notation that a staff member “had viewed the
video and is not able to verify this occurred.” The grievance
policy’s 21 requirements for processing grievances do not in-
clude the ability of staff to “verify” an alleged incident. See
Admin. P. No. 00–02–301 § XIV.A–B. And the notation did
not, as the policy requires, tell Hill what “correction” he
needed to make to have the grievance processed. See id.
§ XIV.B. Beyond that, the grievance policy did not tell Hill that
he could appeal a refusal to process.
“Prisoners are required to exhaust grievance procedures
they have been told about, but not procedures they have not
been told about.” King v. McCarty, 781 F.3d 889, 896 (7th Cir.
2015); see also Small v. Camden County, 728 F.3d 265, 273
(3d Cir. 2013) (exhaustion did not require appealing a “non-
decision” where such appeal was not provided in prison’s
procedures). Because the record permits a finding that Hill
did as much as the grievance policy required of him before he
hit a roadblock to further consideration, summary judgment
on this claim for failure to exhaust was improper.
The defendants respond that Hill should have figured out
how to enable its staff to process his grievance. By telling Hill
that a staff member “had viewed the video” but was unable
to confirm his allegations, defendants say, the prison staff im-
plied that Hill had written the wrong time or date of the inci-
dent on his grievance and needed to fix that detail. We are not
persuaded. The administrative exhaustion requirement of
§ 1997e(a) serves important purposes but does not invite
prison and jail staff to pose guessing games for prisoners.
In any event, even if Hill could have solved the implicit
riddle suggested by defendants, the prison staff improperly
6 No. 15-2607
required that, as a condition for processing his grievance, he
comply with a rule that the prison had never published be-
fore. See King, 781 F.3d at 896. Under the prison’s grievance
policy, a mistake in the date and time of an incident is simply
not a ground for refusing to decide a grievance. Because the
prison refused to process Hill’s grievance based on his devia-
tion from an unannounced rule, no further administrative
remedies were available to Hill. See Sapp v. Kimbrell, 623 F.3d
813, 823 (9th Cir. 2010) (concluding that further remedies are
unavailable when prison officials screen out grievances for
improper reasons). Defendants were not entitled to summary
judgment on this defense.
The district court’s exhaustion ruling regarding the second
incident, however, was correct. The prison again returned
Hill’s formal grievance unprocessed—this time asserting that
it had already addressed the grievance informally. One reason
that a grievance officer may return a grievance unprocessed
is if “[t]he matter addressed in the grievance has been raised
and addressed….” See Admin. P. No. 00–02–301 § XIV.B.10. If
Hill disagreed with this assertion, as he says he did, the griev-
ance policy gave him five days to resubmit his formal griev-
ance form. In this way, he could have corrected the assertion
that he had accepted an informal resolution, but he did not.
Because Hill failed to pursue an administrative remedy that
was available to him, this claim was not exhausted and sum-
mary judgment was proper.
For the third and fourth incidents, Hill asserts that prison
staff refused to provide him with a grievance form, so he is
excused from exhausting administrative remedies. Hill is cor-
rect that exhaustion is not required when the prison officials
responsible for providing grievance forms refuse to give a
No. 15-2607 7
prisoner the forms necessary to file an administrative griev-
ance. See Dale v. Lappin, 376 F.3d 652, 655–56 (7th Cir. 2004).
The defendants, citing Dale, contend that a prisoner in this
situation must pursue all available alternatives to obtain a
grievance form and show they were all unavailable. Defend-
ants suggest that under the grievance policy Hill could have
asked several staff members for a grievance form: his housing
unit manager, the law librarian, counselor, and executive as-
sistant. See Admin. P. No. 00–02–301 § XIV.A. But the defend-
ants propose an unworkable rule and read too much into Dale.
Under defendants’ proposed rule, there would be no way
for a prisoner to know when he had truly tried all available
alternatives at the very first step—just obtaining the right
form. The exhaustion requirement would invite prison staff
to require prisoners to go on scavenger hunts just to take the
first step toward filing a grievance. The PLRA does not im-
pose such a requirement. And although the prisoner in Dale
had in fact asked several members of the prison staff for a
grievance form (all had refused him), nothing in our opinion
suggested he was required to pursue all conceivable alterna-
tive sources to obtain a form.
In this case, Hill sought the required form not from a ran-
domly chosen staff member but from his counselor and unit
manager. Each of those officials was responsible under the
grievance policy for giving Hill an available grievance form
upon request. Hill’s affidavit shows that they refused to do so
for the third incident and, construed at this juncture in his fa-
vor, permits an inference they refused to do so for the fourth.
The record also does not indicate that either had any legiti-
mate reason for refusing his request. The evidence of their re-
fusals to give Hill an available form is sufficient to permit a
8 No. 15-2607
finding that Hill was prevented from grieving these incidents.
The administrative remedies were not available to him. He
was not required to hunt for a form from other staff members.
Defendants are not entitled to summary judgment based on
this defense.
Accordingly, we VACATE the judgment of the district
court in part, with respect to the exhaustion ruling on the
claim regarding the first incident of February 2011 and the
third and fourth incidents of June and August 2012, and
REMAND for further proceedings on those claims. In all other
respects, the judgment is AFFIRMED.