Kevin E. Hudson v. Corizon Medical Services ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 17, 2014*
Decided March 6, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13-2237
KEVIN HUDSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:12-cv-1206-JMS-DML
CORIZON MEDICAL SERVICES, et al.,
Defendants-Appellees. Jane E. Magnus-Stinson,
Judge.
ORDER
Kevin Hudson, an inmate at the Plainfield Correction Facility in Indiana, appeals
the grant of summary judgment against him in this deliberate-indifference suit on the
ground that he failed to exhaust administrative remedies. Hudson argues that summary
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 13-2237 Page 2
judgment was inappropriate because no administrative remedy was available to him.
We affirm.
Near the end of 2012, Hudson contacted a member of Plainfield’s medical staff
with concerns about the treatment he was receiving for his medical ailments, including
genital warts and a staph infection. About three weeks later, before he and that staff
member could resolve his complaint, Hudson filed a formal grievance. Under Indiana’s
grievance procedure, an informal grievance process must be completed before a
prisoner may file any formal grievance. IND. DEP’T OF CORRS. ADMIN. PROCEDURES,
PROCEDURE 00-02-301, section XIII. The grievance officer accordingly returned the
grievance to Hudson and, on an accompanying form, checked a box reflecting that
Hudson had not tried to resolve the complaint informally and that he had five days to
begin that process.
Rather than begin that process, Hudson sued Corizon Medical Services (a private
company that provides medical care at Plainfield), the Indiana Department of
Corrections, Brian Smith (Plainfield’s Superintendent), John Dallas (Corizon’s Vice
President of Operations), Richard Tanner (a doctor at Plainfield), and Marla Gadberry
(Plainfield’s Medical Director). He alleged that these defendants provided
constitutionally inadequate or delayed medical care for his ailments. At screening the
district court dismissed Hudson’s claims against the Indiana Department of Corrections
on sovereign-immunity grounds; the court also dismissed the claims against Smith
because Hudson did not allege his personal involvement in any constitutional
deprivation. The court did however allow Hudson to proceed on his deliberate-
indifference claims against the remaining defendants.
After discovery the remaining defendants moved for summary judgment,
arguing that Hudson failed to exhaust his administrative remedies. They insisted that
Hudson should have done one of two things when his grievance was
returned—resubmit the grievance or appeal its denial—and introduced an affidavit
from the grievance officer stating that Hudson had taken neither course. In response
Hudson asserted that administrative remedies were unavailable to him because no one
at the prison informed him of his right to appeal. The district court granted summary
judgment for the defendants, explaining that Hudson presented no evidence to suggest
that he could not obtain a grievance appeal form or that the grievance officer misled
him about the grievance process.
No. 13-2237 Page 3
On appeal Hudson challenges the court’s ruling by reiterating that the grievance
officer did not inform him of his right to appeal. Failure to exhaust may be excused
when administrative remedies are unavailable through no fault of the prisoner, see
Turley v. Rednour, 729 F.3d 645, 650 n.3 (7th Cir. 2013); Dole v. Chandler, 438 F.3d 804,
809–11 (7th Cir. 2006), and Hudson argues that the grievance officer’s nonfeasance here
excuses his failure to appeal.
But that would be true only if the grievance procedure was concealed by prison
officials or otherwise unknowable to Hudson. See Albino v. Baca, 697 F.3d 1023, 1037–38
(9th Cir. 2012). Hudson, however, makes no such showing. He submitted nothing to
suggest that the appeals procedure could not have been discovered through reasonable
diligence, and his bare claim that he was unaware of the proper procedures does not
render them unavailable. See id. at 1037 (“In short, the plaintiffs’ ignorance of the
administrative remedies alone did not excuse exhaustion.”). Hudson failed to follow the
administrative grievance procedures established by the state, Pavey v. Conley, 663 F.3d
899, 905 (7th Cir. 2011); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), either
resubmitting his grievance (and indicating completion of the informal grievance
process) or appealing its denial within 10 days. See PROCEDURE 00-02-301, Section XIV.
AFFIRMED.