Burrell, Roosevelt v. Powers, Marvin ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3745
ROOSEVELT BURRELL,
Plaintiff-Appellant,
v.
MARVIN POWERS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Illinois.
No. 00 C 940-–William D. Stiehl, Judge.
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ARGUED OCTOBER 27, 2005—DECIDED DECEMBER 9, 2005
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Before RIPPLE, KANNE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Roosevelt Burrell brought this § 1983
action against Dr. Marvin Powers, the medical director of
Tamms Correctional Center (“Tamms”) where Mr. Burrell
is an inmate. Mr. Burrell alleged that Dr. Powers was
deliberately indifferent to his medical needs and therefore
violated the Eighth Amendment’s prohibition of cruel and
unusual punishment. The district court converted Dr.
Powers’ motion to dismiss into a motion for summary
judgment and dismissed the action for failure to exhaust
administrative remedies, as required by the Pris-
on Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
2 No. 04-3745
The court also awarded summary judgment to Dr. Powers
on the alternative ground that the record did not establish
Dr. Powers’ deliberate indifference. Mr. Burrell has ap-
pealed. For the reasons set forth in the following opinion,
we affirm, with modification, the judgment of the dis-
trict court.
I
BACKGROUND
A. Facts
Shortly before beginning his prison sentence, Mr. Bur-
rell suffered five near-fatal gunshot wounds. The treating
physicians were able to remove only one of the five bul-
lets that had entered Mr. Burrell’s body. These doctors
advised him that the bullets could safely remain in his body,
but that he must undergo periodic X-rays to monitor their
location. Because the bullets were lodged close to vital
organs, their movement within Mr. Burrell’s body could
place his health in serious jeopardy.
After serving fourteen years in several other prisons,
Mr. Burrell was transferred to Tamms in 1998. While at
this institution, Mr. Burrell submitted several resident
request forms that requested X-ray monitoring of the bullets
lodged in his body. Mr. Burrell also submitted resident
requests that sought treatment for a severe skin condition
and a sharp pain in his left foot. He was seen by a physician
and nurses for his skin condition; topical cremes were
prescribed. On at least three occasions, he was also treated
by a physician and nurses for his foot pain. However, Mr.
Burrell never was treated by a physician for his bullet
wounds, and Tamms officials refused to take X-rays to
monitor the locations of the lodged bullets.
No. 04-3745 3
Mr. Burrell filed a committed person’s grievance re-
port with Tamms officials on August 2, 2000, that in-
cluded complaints regarding inadequate medical care for
his skin condition, foot pain and bullet wounds. Upon
recommendation from the Grievance Officer assigned to Mr.
Burrell’s case, Warden George Welborn denied the griev-
ance on October 16, 2000. Mr. Burrell did not further appeal
this decision to the Administrative Review Board (“ARB”).
B. District Court Proceedings
The district court converted Dr. Powers’ motion to dismiss
into a motion for summary judgment because the parties
relied upon materials outside of the pleadings. See Fed. R.
Civ. P. 12(b). As required by Rule 12(b), the district court
allowed both parties to submit additional materials. After
reviewing the pleadings, Mr. Burrell’s grievance forms and
an affidavit from the chairperson of the ARB, the district
court held that Mr. Burrell had failed to exhaust his admin-
istrative remedies and, alternatively, that his claim of
deliberate indifference failed as a matter of law.
II
DISCUSSION
Section 1997e(a) of the PLRA provides, in pertinent
part, that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). Exhaustion of administrative remedies, as
required by § 1997e, is a condition precedent to suit
4 No. 04-3745
in federal court. Perez v. Wisconsin Dep’t of Corr., 182 F.3d
532, 535 (7th Cir. 1999).
The Illinois Department of Corrections has a three-step
grievance procedure. See Ill. Admin. Code tit. 20, § 504.800et seq. (detailing grievance procedure). If a prisoner has
a grievance or complaint, he must first seek the assistance of
an inmate counselor. Id. § 504.810. If the prisoner’s com-
plaint remains unremedied despite the help of a counselor,
the prisoner may then file a written grievance. Id. The
written grievance is reviewed by a grievance officer who
submits a recommendation to the chief administrative
officer—in Mr. Burrell’s case the warden. Finally, if the
warden denies the prisoner’s grievance, the prisoner has 30
days in which to appeal the warden’s decision to the
Director, who then may order a hearing before the ARB. Id.
§ 504.850.
The record makes clear that Mr. Burrell never appealed
fully the denial of his grievances and, therefore, failed to
exhaust his administrative remedies. Mr. Burrell’s Response
to Dr. Powers’ motion to dismiss attaches a number of
“Committed Person Grievance Reports” that document the
filing of Mr. Burrell’s grievances with Tamms officials. After
denial of his grievances by the warden, Mr. Burrell received
grievance officer’s reports. Each one of these reports
contained a text-box captioned “Committed Person’s
Appeal to the Director,” which provided a line for Mr.
Burrell to sign and date in order to “appeal[] the Chief
Administrative Officer’s decision to the Director, via the
Administrative Review Board.” Id. Mr. Burrell’s signature
does not appear on this line in any of the three Grievance
Officer’s Reports attached to Mr. Burrell’s pleadings. See id.
On this record, the district court correctly concluded that
Mr. Burrell never appealed the denial of his grievances. Mr.
No. 04-3745 5
Burrell offers no evidence to refute this conclusion. Nor
does he even argue in his appellate briefing that he ever
sought review of his grievance denials within the prison
system.1
For a prisoner to exhaust his remedies within the meaning
of § 1997e(a), he “must file complaints and appeals in the
place, and at the time, the prison’s administrative
rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002); see also Dixon v. Page, 291 F.3d 485, 490 (7th
Cir. 2002) (holding that, because prisoner did not appeal the
dismissal of his grievance to the Director, he failed
to exhaust his administrative remedies). In this case,
Mr. Burrell’s failure to take a timely administrative ap-
1
Instead, Mr. Burrell makes something akin to a waiver argu-
ment. He contends that Dr. Powers has not argued until this
appeal that Mr. Burrell failed to appeal his grievances. According
to Mr. Burrell, Dr. Powers argued in his motion to dismiss not
that Mr. Burrell failed to appeal, but that he had submitted no
grievance at all pertaining to the denial of medical care.
Dr. Powers’ arguments for dismissal were indeed im-
precise; despite stating that “[Mr. Burrell] has failed to file any
grievance during 1999 with the Illinois Department of Correc-
tions,” R.62 at 4, Dr. Powers seemed to have meant that Mr.
Burrell never grieved his complaints to the review board.
Nevertheless, Dr. Powers provided the district court with the
affidavit of Nancy Tucker, an Illinois prison official, which
described Mr. Burrell’s failure to appeal his denied grievances to
the ARB. This affidavit provided a sufficient basis for the district
court to rule that Mr. Burrell had failed to exhaust his administra-
tive remedies. We may therefore affirm the district court on that
basis. Taylor v. Canteen Corp., 69 F.3d 773, 784 (7th Cir. 1995)
(“[W]e may affirm the judgment of the district court on the basis
of any ground supported by the record.”).
6 No. 04-3745
peal within the state system means that he has failed to
exhaust his state remedies for purposes of § 1997e(a).
Dismissal was therefore proper. However, that dismissal
should be without prejudice to Mr. Burrell’s initiating
another action if he deems it appropriate after he has
exhausted administrative remedies.2 Walker v. Thompson, 288
F.3d 1005, 1009 (7th Cir. 2002) (“Dismissal for failure
to exhaust is without prejudice and so does not bar the
reinstatement of the suit unless it is too late to exhaust.”); see
also Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (holding
that “all dismissals under § 1997e(a) should be without
prejudice”) (emphasis in original).
Conclusion
Because Mr. Burrell had failed to exhaust his admini-
strative remedies before filing his complaint, this action was
properly dismissed. However, the dismissal should have
been without prejudice.
AFFIRMED as MODIFIED
2
Because administrative remedies have not been exhausted,
we express no opinion on the merits.
No. 04-3745 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-9-05