Wenona White v. Timothy Bukowski ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3185
WENONA WHITE,
Plaintiff-Appellant,
v.
TIMOTHY F. BUKOWSKI, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:11-cv-02221-CSB-DGB — Colin S. Bruce, Judge.
____________________
ARGUED AUGUST 4, 2015 — DECIDED SEPTEMBER 1, 2015
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiff in this suit under 42
U.S.C. § 1983 accuses members of the Kankakee County
Sheriff’s Office of deliberate indifference to her need for
proper prenatal care and prompt transport to a hospital for
delivery of her baby while she was in their temporary custo-
dy at an Illinois county jail on suspicion of conspiring to
commit bank fraud (a federal offense). The district judge
2 No. 14-3185
dismissed the suit on the ground that the plaintiff had failed
to exhaust her available administrative remedies (that is,
remedies available within the correctional system itself) as
required by 42 U.S.C. § 1997e(a).
When she arrived at the jail she was almost eight months
pregnant. Eleven days later she experienced birth pangs and
was taken by ambulance to a hospital, where she gave birth,
to a girl, that day. Her complaint charges that the child suf-
fered serious birth defects because of oxygen deprivation at-
tributable to a displacement of the placenta from its proper
location in the uterus. She was returned to the jail several
days after the birth but remained there for only four days
before being transferred to another jail. Two months later,
having been shifted among several places of detention, she
pleaded guilty to the conspiracy charge, for which she was
later sentenced to 50 months in prison. She filed this suit two
years after the events of which she complains.
She alleges that the defendants failed to take a proper
medical history (which she claims would have revealed
complications in the birth of her most recent child) when she
was first placed in the jail; failed to respond to several re-
quests by her for medical assistance (though the record con-
tains only one request, a complaint about labor pains to
which a member of the medical staff responded, and also
reveals that a physician’s assistant at the jail wanted to check
up on her previously but she refused because she wasn’t
feeling well and it was too early in the morning); and, most
important, failed to react quickly enough when she went in-
to labor and needed to be rushed to the hospital.
Our opinion in Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008), encourages district courts to determine, before sched-
No. 14-3185 3
uling discovery relating to the merits of a prisoner’s civil
rights suit, whether administrative remedies have been ex-
hausted. The plaintiff points out that the defendants failed to
press the issue of exhaustion until after a year and a half of
discovery relating to the merits. She argues that their delay
forfeits their defense of failure to exhaust, and also that there
were no administrative remedies available to her. As the de-
fendants raised the defense of failure to exhaust in their an-
swer to the plaintiff’s complaint and as there is no indication
that their delay in pursuing that defense harmed her, we’ll
consider only her claim that she had no administrative rem-
edies.
The purpose of a prisoner’s filing a grievance is to obtain
a change of some sort—to obtain better medical care, for ex-
ample. To be motivated to file a grievance the prisoner has
to be aware of the need for action by the prison or jail. Sup-
pose he becomes ill because of unsanitary conditions in his
cell, reports his illness to a guard, is promptly whisked away
to the prison infirmary, is treated competently there, and
forthwith recovers. Provided he wasn’t anticipating a re-
newal of the unsanitary conditions, he would have no mo-
tive for filing a grievance.
This case seems similar. The plaintiff was almost eight
months pregnant when placed in the jail. Women at that
stage of pregnancy frequently experience symptoms such as
she did, like nausea. It is unclear from the record whether
she was aware that she was not receiving (as she claims in
her lawsuit) adequate medical care. True, she claims to have
asked for additional care, and that it was refused, but the na-
ture of the care she sought is unclear. It may have been care
designed to make her more comfortable but irrelevant to the
4 No. 14-3185
prospects for a successful delivery of the baby. It’s likewise
unclear whether she realized the possible significance of an
incomplete medical history.
Labor began and she was taken to the hospital and the
baby was delivered. It had serious birth defects, and sup-
pose the plaintiff suspected that they were attributable to
mistreatment that she had received in the jail, either a lack of
prenatal care during her eleven-day stay there or excessive
delay in transporting her to the hospital. Still, what good
would it have done her to file a grievance? She wasn’t about
to become pregnant again, and in fact had just a few more
days in the jail. What could she have gained from filing a
grievance? We can’t find an answer.
Section 1997e(a) provides that “no action shall be brought
with respect to prison conditions … until such administra-
tive remedies as are available are exhausted” (emphasis add-
ed). We gave an example of unavailability in Perez v. Wiscon-
sin Department of Corrections, 182 F.3d 532, 538 (7th Cir. 1999):
“Suppose the prisoner breaks his leg and claims delay in set-
ting the bone is cruel and unusual punishment. If the injury
has healed by the time suit begins, nothing other than dam-
ages could be a ‘remedy,’ and if the administrative process
cannot provide compensation then there is no administrative
remedy to exhaust.”
Some cases suggest that as long as there is something the
jail or prison could do in response to a grievance, even if it is
not the specific relief sought by the prisoner, a grievance
must be filed or the prisoner loses his right to sue. See, e.g.,
Porter v. Nussle, 534 U.S. 516, 524–25 (2002); Larkin v. Gallo-
way, 266 F.3d 718, 723 (7th Cir. 2001). The principal decision
in this line, Booth v. Churner, 532 U.S. 731 (2001), held that a
No. 14-3185 5
prisoner could not avoid the requirement of exhausting his
administrative remedies by suing only for damages, even if
the prison’s grievance system provided no damages remedy.
But in Booth the filing of a grievance could have provided
nonmonetary relief, such as disciplinary measures against
the officers who supposedly assaulted him—measures that
would have discouraged them from assaulting him in the
future. The Court specified that there was no requirement to
exhaust “where the relevant administrative procedure lacks
authority to provide any relief or to take any action whatso-
ever in response to a complaint.” Id. at 736 (emphasis add-
ed). For how could a prisoner be expected to file a grievance
that would be academic because no response would benefit
him or her in the slightest? Yet that appears to be the situa-
tion of the plaintiff in this case even more clearly than that of
the prisoner in the hypothetical case discussed in Perez v.
Wisconsin Department of Corrections, supra. In short, if one has
no remedy, one has no duty to exhaust remedies.
The plaintiff may have had no reason to think at the time
that her medical care in the jail was seriously inadequate,
that it posed a threat to the fetus. By the time she discovered
its inadequacy, or thought she had, which was when the ba-
by was born with severe birth defects, it was too late for her
to obtain a remedy of better prenatal care. The prenatal
phase was over. Likewise it was too late to request prompt
transport to the emergency room for her delivery. There was
no remedy within the power of the jail to grant for the baby’s
birth defects.
Some cases hold that even if the jail or prison can do
nothing whatever for the complaining prisoner, and even if
that’s obvious to a prisoner who not unreasonably believes
6 No. 14-3185
himself to be a victim of deliberate indifference to a medical
or other legitimate need—the prisoner must file a grievance
if he is to preserve his right to sue. Napier v. Laurel County,
636 F.3d 218, 223–24 (6th Cir. 2011); Ruggiero v. County of Or-
ange, 467 F.3d 170, 177 (2d Cir. 2006); Medina-Claudio v. Ro-
driguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002). Contra, Rodri-
guez v. Westchester County Jail Correctional Department, 372
F.3d 485, 488 (2d Cir. 2004). There is even a suggestion in the
Ruggiero case that the filing of a grievance is a prerequisite to
being allowed to sue if the grievance, though it could result
in no alleviation of harm or hardship to the grievant, “might
result in improvements to prison administration.” 467 F.3d
at 178. That would be tantamount to making prisoners who
want to file civil rights lawsuits serve as ombudsmen—as a
prerequisite to suing, such a prisoner would have to file a
grievance that sought a remedy inapplicable to his or her
personal situation, though maybe helpful to other prisoners.
The Rodriguez decision held that the plaintiff’s “transfer
from the jurisdiction of Westchester County officials pre-
cluded dismissal of his complaint because the transfer ren-
dered administrative remedies no longer ‘available,’ a condi-
tion of the exhaustion requirement of section 1997e(a).” In-
deed so, for that subsection of section 1997e (echoed in the
Booth opinion) provides that “no 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 adminis-
trative remedies as are available are exhausted” (emphasis
added). Surprisingly, the Second Circuit in Ruggiero did not
cite its earlier decision in Rodriguez, even though Rodriguez
postdates the Supreme Court’s decision in Booth v. Churner.
No. 14-3185 7
The defense that the plaintiff in the present case failed to
exhaust her administrative remedies failing, the case must
move on to proceedings on the merits with respect to her
claim that the delay in taking her to the hospital when she
went into labor contributed to the birth defects. She had no
opportunity to grieve that delay until after the harm done by
it was complete and could not be undone by the defendants.
But were that the only ground (call it the “too late”
ground) for rejecting the district court’s finding of a failure
to exhaust administrative remedies, we might need to re-
mand for a hearing to determine the applicability of the ex-
haustion defense to the second part of the plaintiff’s claim:
that inadequate medical care during the eleven days prior to
delivery contributed to the birth defects. The defense of fail-
ure to exhaust would be stronger with regard to that claim,
since a grievance submitted before the plaintiff gave birth
might have elicited improved medical care that could con-
ceivably have averted or at least reduced the birth defects,
although it might prove impossible to determine the causal
role of inadequate pre-delivery medical care or lack thereof.
But there is an alternative ground for finding administra-
tive remedies unavailable to the plaintiff, and that ground
applies to her entire claim—including therefore her claim
that her in-jail, pre-delivery care was inadequate. The jail’s
grievance procedure, as described in the inmate handbook,
established no deadline for filing a grievance, and, as admit-
ted by the appellees’ counsel at oral argument, the plaintiff
would not have known that she was going to be transferred
to another jail four days after she returned from the hospital.
The decision whether and when to transfer her was in the
hands of the U.S. Marshals Service, which determines when
8 No. 14-3185
federal prisoners are transferred between jails, and which for
reasons of security ordinarily doesn’t give prisoners advance
notice of when they’ll be transferred. The appellees conced-
ed at argument that the plaintiff could not file a grievance
after she was transferred from the jail, and so, because she
didn’t know when she’d be transferred, her possible admin-
istrative remedies had no knowable deadline.
King v. McCarty, 781 F.3d 889, 895 (7th Cir. 2015), held
that a county jail’s administrative remedies were unavailable
to an inmate transferred to a state prison. The jail required
that the grievance be filed within five days after he arrived
at the prison. We said “it is not plausible that he could have
asked for the form, received a response, and mailed back the
completed paperwork before the five-day deadline had
passed.” Id. Or as we explained in Hurst v. Hantke, 634 F.3d
409, 412 (7th Cir. 2011), “an administrative remedy that
would be forfeited for failure to comply with a deadline that
in the circumstances could not possibly be complied with [is]
not … ‘available’ within the meaning of 42 U.S.C.
§ 1997e(a).”
Uninformed about any deadline for filing a grievance—
not told that her transfer date would be the deadline or
when that transfer date might be—the plaintiff cannot be
faulted for not having filed a grievance before she was trans-
ferred from the jail for good. “Prisoners are required to ex-
haust grievance procedures they have been told about, but
not procedures they have not been told about.” King v.
McCarty, supra, 781 F.3d at 896; compare Woodford v. Ngo, 548
U.S. 81, 95 (2006). After she was transferred, it was too late
for her to file a grievance because, as the defendants’ lawyer
acknowledged, the jail would not entertain a grievance filed
No. 14-3185 9
by a person no longer detained in the jail, presumably be-
cause the jail could do nothing for such a person unless it
awards damages to successful grievants, which the jail in
this case does not.
Even if the plaintiff had been told upon her return from
the hospital that she had only four days in which to file a
grievance, that deadline would (as in Hurst) have been un-
reasonably short for a woman who had just given birth to a
severely impaired child. Like the plaintiff in the King case
she was effectively prevented from filing a grievance, and so
there can be no argument that she failed to exhaust her ad-
ministrative remedies.
The judgment must be vacated and the case remanded
for proceedings on the merits of the section 1983 claim. The
district judge erred in ruling that the plaintiff had failed to
exhaust administrative remedies; no administrative reme-
dies were available to her. We do not address the merits of
her claims or discuss the damages that may be available to
her if she prevails, as opposed to the damages to which her
child and the child’s father, who have brought suit separate-
ly from her, may be entitled.
REVERSED AND REMANDED