Dole, Joseph v. Chandler, Officer , 438 F.3d 804 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1868
JOSEPH DOLE,
Plaintiff-Appellant,
v.
CORRECTIONAL OFFICER CHANDLER,
SERGEANT BUTLER,
SUPERINTENDENT HASEMEYER,
SUPERINTENDENT PICKERING,
LIEUTENANT BIGGS,
CORRECTIONAL OFFICER HESS,
KELLY RHODES, CHARLES HINSLEY,
UNKNOWN YARD OFFICERS,
UNKNOWN HCU OFFICERS,
and UNKNOWN TRANSPORT OFFICERS,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04-CV-61—David R. Herndon, Judge.
____________
ARGUED JANUARY 12, 2006—DECIDED FEBRUARY 24, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit
Judges.
FLAUM, Chief Judge. Joseph Dole, a prisoner, claims that
he was beaten by prison guards in retaliation for punching
2 No. 05-1868
an assistant warden. He attempted to file a grievance with
the Administrative Review Board (“the ARB” or “the
Board”), as required by Illinois regulations, before the
deadline to do so had lapsed. He placed his grievance in the
hands of prison authorities inside of an envelope addressed
to the ARB. He did not have the option of mailing the
grievance himself. When he heard no response from the
ARB, he sent another letter to inquire about his grievance’s
status. The ARB responded that it had no record of receiv-
ing the grievance. Dole was not given any instructions on
what to do next, and by the time he learned that the ARB
had not received his grievance, a new one would have been
untimely. Although the ARB will accept untimely filings
with good cause shown, Dole did not attempt to re-file his
grievance.
Dole has now filed a suit under 42 U.S.C. § 1983 in
federal court against the defendants. The district court
granted summary judgment to the defendants on the
ground that Dole failed to exhaust his administrative
remedies as required by the Prisoner Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a). Dole appeals, claiming that
he strictly complied with all regulations when filing his
grievance and did all that he was capable of doing to assure
that his complaint reached the ARB. This, he claims, should
constitute exhaustion under the PLRA.
For the following reasons, we find in favor of the plaintiff,
reverse the district court’s summary judgment ruling, and
remand for further proceedings.
I. Background
A. The conduct alleged in Dole’s suit
Joseph Dole was an inmate at Menard Correctional
Center on March 15, 2002, when he hit Assistant Warden
No. 05-1868 3
Al Frentzel in the prison yard.1 Shortly thereafter, as he
was being restrained in the prison yard, he claims that he
was beaten by defendants Biggs and Hess, and possibly
others. He states that he was then transported to the
Health Care Unit, where he was beaten by defendants
Chandler, Butler, Hasemeyer, Pickering, and possibly
others. The guards allegedly locked him in an examina-
tion room, slammed his head into a biohazard box and into
the sink, kicked him in the ribs, and beat him until he
passed out. A civilian nurse in the Health Care Unit beat
on the door and shouted for help, at which point Dole claims
that the guards ceased abusing him. When the nurse
entered the room, Dole was examined and it was discovered
that he had suffered a broken nose and several small
abrasions and bruises on his ribs.
After that incident, Dole alleges that he was transported
to Tamms Correctional Center in a van with the windows
open, which made the temperature inside the van unreason-
ably cold. He claims that although he requested that the
officers close the windows, they refused. According to Dole,
the officers were wearing heavy winter coats, and he was
wearing only a thin prison uniform and prison
shower shoes. Finally, Dole states that he was placed on
suicide watch for five days as retribution for attacking
the assistant warden and not out of medical necessity.
The nurse who intervened in the alleged beating at the
Health Care Unit complained to the Illinois Department
of Corrections’ (“the Department”) Internal Affairs Of-
fice, which initiated its own investigation of the incident the
same day. The Department also forwarded a request to the
1
As punishment for this action, Dole was transferred to Tamms
Correctional Center, a maximum security prison, and placed in
indefinite segregation. He plead guilty to aggravated battery,
for which he was sentenced to an additional five years in prison.
4 No. 05-1868
Illinois State Police, asking them to initiate a separate
investigation into the incident. Dole cooperated in both of
these investigations; over twenty staff members were also
interviewed. Both agencies issued full reports at the
conclusion of their investigations. The Illinois State Police
report was submitted to the Director of the Department of
Corrections (“Director”), and the matter was referred to the
State’s Attorney of Randolph County for possible prosecu-
tion. The State’s Attorney declined to prosecute, despite the
fact that the report found the allegations credible, citing
insufficient evidence, lack of witnesses, and conflicting staff
member statements. The internal affairs report was also
forwarded to the Director, as well as the Warden at
Menard. That report concluded that defendants Hasemeyer,
Pickering, and Chandler violated the Department’s regula-
tions governing the use of excessive force and failure to
report violations. Those defendants were disciplined.
B. The Illinois prisoner grievance process
The Illinois grievance process for prisoners usually
includes five levels of review. A prisoner first submits a
grievance to a counselor. ILL. ADMIN. CODE tit. 20,
§ 504.810(a). If the prisoner is not satisfied with the coun-
selor’s resolution of the complaint, he may then submit a
formal grievance to the prison’s grievance officer. ILL.
ADMIN. CODE tit. 20, § 504.810(a) and (b). The grievance
officer then reviews the grievance and forwards his recom-
mendation to the warden. ILL. ADMIN. CODE tit. 20,
§ 504.830(d). The warden makes the final decision at the
institutional level.
If the prisoner is not satisfied with the warden’s response,
he may file an appeal to the Director. ILL. ADMIN. CODE tit.
20, § 504.850(a). Appeals to the Director are to be addressed
to the ARB. The Director is deemed to have referred the
matter to the ARB, which in turn submits its recommenda-
No. 05-1868 5
tion to the Director. ILL. ADMIN. CODE tit. 20, § 504.850(b)
and (f). The Director issues the Department’s final decision.
With certain exceptions, a prisoner housed in a facility
other than the one where the incident giving rise to the
complaint occurred files his appeal directly with the ARB.
ILL. ADMIN. CODE tit. 20, § 504.870(a)(3).
Grievances must usually be filed within sixty days of
the incident giving rise to the complaint, but the ARB
reviews untimely grievances that include an explanation of
good cause for the untimeliness. ILL. ADMIN. CODE tit. 20,
§ 504.810(a).
C. Dole’s grievance
On April 15, 2002, Dole completed a grievance form,
complaining about the excessive force that he alleged the
guards at Menard had used. The grievance stated that
he had been beaten until a nurse stopped the guards, and
that two disciplinary reports detailing his conduct during
the incident were false. As relief, Dole requested that the
officers who beat him be fired, that he be transferred from
Tamms, that the disciplinary charge against him be
dropped, and that he be paid one million dollars in dam-
ages.
Dole believed that the Assistant Warden of Tamms, who
had just moved from the Assistant Warden position at
Menard, was taking a suspiciously active role in Dole’s
affairs at Tamms. He therefore wished to retain a copy
of his complaint in case it was “lost” by prison authorities.
He did not have access to a copy machine, so he copied the
entire complaint by hand. He handed the original form to
his counselor at Tamms on April 19. On April 22, the
counselor returned the grievance to him, with a note
indicating that it needed to be submitted directly to the
ARB since the incident had occurred at Menard and not
Tamms.
6 No. 05-1868
That same day, he placed his complaint in an envelope
addressed to the ARB. He placed the envelope in the
“chuckhole” of his cell for the guard to pick up and mail.
This was the only procedure that was available to him to
mail his grievance. The defendants agree that the guard
took the envelope.
Dole submitted two grievances to the Tamms Grievance
Officer on April 18, four days before he mailed the grievance
at issue in this case. In one, he complained of being put on
suicide watch as retaliation for hitting Assistant Warden
Frentzel. The ARB denied that appeal on July 25. In the
other grievance, he complained about being transferred to
Tamms. The ARB denied that appeal on July 24.
After Dole received decisions from the ARB on his other
two appeals, he wrote to the ARB to inquire about the
status of his third grievance, the one at issue in this case.
He was told that the ARB had no record of the grievance.
The letter did not contain any instructions on how Dole
should proceed. By this time, the sixty day period for fil-
ing a timely grievance had passed. Dole did not attempt
to re-file his complaint as untimely.
D. District court proceedings
Almost eighteen months after being informed that the
ARB had no record of his grievance on the subject, Dole
filed this § 1983 action seeking compensatory and puni-
tive damages for the beating he alleges he endured at
Menard. Defendants Biggs and Hess moved for summary
judgment on the ground that Dole had not complied with
the exhaustion requirement of the PLRA.
Dole responded, arguing that the grievance process was
“unavailable” to him after his initial complaint was lost, or,
alternately, that he had materially complied with the PLRA
in light of his participation in the Department’s internal
No. 05-1868 7
investigation and the Illinois State Police investigation. He
acknowledged that this circuit has taken a strict compliance
approach to the PLRA, but argued the issue in the district
court in order to preserve the argument for appeal.
Dole also noted that he had requested discovery from the
defendants, including documents such as mail logs and
postage disbursements from Tamms, and, from the ARB,
records and procedures for processing grievances. Dole had
not yet received a complete response to these requests when
the summary judgment motion was filed. Defendants had
submitted an affidavit by an ARB employee who stated that
the ARB had no record of Dole’s grievance. Defendants
claimed that this was the only evidence that they were able
to provide, and that the other documents that Dole had
requested did not exist. Dole was not satisfied with this
response and wished to conduct further discovery.
The magistrate judge filed his report and recommenda-
tion. While he recommended that Dole’s complaint be
dismissed for failure to exhaust administrative remedies
under the PLRA, he also found that it was undisputed that
Dole had given his complaint to the guard to mail to the
ARB. The magistrate judge also noted that “[i]t [was]
difficult to believe that more might have been done if
plaintiff had exhausted his available remedy with the
ARB.”
The district court adopted most of the magistrate
judge’s recommendations, including the recommendation
that summary judgment be granted for failure to exhaust.
The court found it significant that Dole had taken no
further action after learning that the ARB had no record of
his complaint. The court also believed that if merely placing
the grievance in the mail constituted exhaustion under the
PLRA, then any prisoner could circumvent the exhaustion
requirement by claiming that he mailed a complaint. The
court also rejected Dole’s analogy to cases that hold that
8 No. 05-1868
prison officials cannot exploit the exhaustion requirement
by indefinitely delaying response to grievances, ruling that
there was no evidence that prison officials destroyed or
mishandled the grievance. The district court also refused to
grant Dole’s motion to compel responses to discovery.
Dole now appeals.
II. Discussion
A. Exhaustion under the PLRA
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . until
such administrative remedies as are available are ex-
hausted.” 42 U.S.C. § 1997e(a). Exhaustion is necessary
even if the prisoner is requesting relief that the relevant
administrative review board has no power to grant, such as
monetary damages, Porter v. Nussle, 534 U.S. 516, 532
(2002), or if the prisoner believes that exhaustion is
futile, Booth v. Churner, 532 U.S. 731 (2001). “The sole
objective of § 1997e(a) is to permit the prison’s administra-
tive process to run its course before litigation begins.”
Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005)
(per curiam). The Supreme Court has also noted that
corrective action taken in response to a grievance might
satisfy the prisoner, thus obviating the need for the litiga-
tion, or alert prison authorities to an ongoing problem that
they can correct. Porter, 534 U.S. at 524-25.
The Supreme Court has stated that so long as the admin-
istrative authority has the ability to take some action in
response to the complaint (even if not the requested action),
an administrative remedy is still “available” under the
PLRA. Booth, 532 U.S. at 741; see also Larkin v. Galloway,
266 F.3d 718, 723 (7th Cir. 2001) (inmate must exhaust
prison remedies if the administrative body (1) was empow-
ered to consider the complaint and (2) could take some
No. 05-1868 9
action in response to it). Prison officials may not take unfair
advantage of the exhaustion requirement, however, and a
remedy becomes “unavailable” if prison employees do not
respond to a properly filed grievance or otherwise use
affirmative misconduct to prevent a prisoner from exhaust-
ing. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002);
Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
This circuit has taken a strict compliance approach to
exhaustion. A prisoner must properly use the prison’s
grievance process. If he or she fails to do so, the prison
administrative authority can refuse to hear the case, and
the prisoner’s claim can be indefinitely unexhausted. Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (“To
exhaust remedies, a prisoner must file complaints and
appeals in the place, and at the time, the prison’s ad-
ministrative rules require.”).
Exhaustion is an affirmative defense, and the burden of
proof is on the defendants. Dale, 376 F.3d at 655. Review of
a district court’s exhaustion finding is de novo. Mitchell v.
Horn, 318 F.3d 523, 529 (3d Cir. 2003).
B. Did Dole exhaust?
Dole argues that he has exhausted his administrative
remedies. He argues that under Strong v. David, 297 F.3d
646, 650 (7th Cir. 2002), he cannot be expected to do more
than the state’s regulations required of him. In that case,
this court held that the district court erroneously ruled that
the prisoner did not plead his case with enough particular-
ity, when the state regulations did not dictate the degree of
factual particularity necessary in a valid complaint. Id. The
court stated that the prisoner’s grievances were comprehen-
sible and “contained everything Illinois instructed him to
include,” and therefore ruled that “Defendants can’t
complain that he failed to do more.” Id.10 No. 05-1868
The defendants argue that the rules provided Dole with
the proper response when his complaint went missing. The
regulations provide that “if an offender can demonstrate
that a grievance was not timely filed for good cause, the
grievance shall be considered.” ILL. ADMIN. CODE tit. 20,
§ 504.810(a). The Defendants cite McCoy v. Gilbert, 270
F.3d 503 (7th Cir. 2001), in support of their position. In that
case, this court ruled that a prisoner did not exhaust his
administrative remedies because he did not ask for discre-
tionary untimeliness review under the federal pris-
on grievance system. The court first rejected McCoy’s
premise that his window of opportunity to file a grievance
had permanently closed, noting that discretionary review
was still available. “Our concern is not whether [prison
authorities] would have accepted or rejected the post-PLRA
grievance. Instead, we ‘merely need to ask whether the
institution has an internal administrative grievance
procedure by which prisoners can lodge complaints about
prison conditions.’ ” Id. at 511 (quoting Massey v. Helman,
196 F.3d 727, 734 (7th Cir. 1999)). Because prison officials
had the authority to take some sort of action with respect to
a tardy complaint, the court agreed that McCoy must
attempt to use the prison’s remaining administrative
process. Id.Strong and McCoy tilt in opposite directions in this case,
but we believe that Strong is more applicable here. See
Strong, 297 F.3d at 650 (when a grievance meets all of the
Administrative Code’s written requirements, it cannot
be dismissed because of a requirement on which “the
administrative rulebook is silent”). In McCoy, the plaintiff
had not filed any grievance. The PLRA was passed after the
deadline for a timely grievance had expired, but before
McCoy had filed suit in federal court. The McCoy court
based its holding in part on the fact that McCoy was
“merely being held to the same requirements as any other
prisoner who filed suit after the enactment of the PLRA.”
Id. The court went on to state that had the prison refused
No. 05-1868 11
to hear McCoy’s claim on untimeliness grounds, he would
have been impermissibly procedurally “mousetrapped” by
the PLRA, as his motivations for filing a grievance dramati-
cally changed when that act became law. Id. at 512. The
court noted that “we are of the opinion that McCoy has
always had an opportunity to exhaust, but he simply
chose not to,” id. at 508, and that his suit was “precisely the
type of litigious behavior the PLRA was designed to pre-
vent,” id. at 510.
Dole, unlike McCoy, has already given the prison admin-
istrative process an opportunity to resolve his complaint.
Unlike McCoy, who simply chose not to file a grievance at
all, the misstep in Dole’s case was entirely that of the
prison system. Dole could not maintain control of his
complaint once the guard picked it up. He had no choice in
the method used to transmit the complaint from the prison
to the Board. He also had no means of being alerted that
the ARB had not received his appeal in time to file a new,
timely complaint; Illinois has no receipt system for prisoner
mail.
Moreover, unlike McCoy, Dole would have little constitu-
tional recourse if the ARB had refused to hear his untimely
claim. Under Pozo, he would have indefinitely failed to
exhaust, whereas the McCoy court clearly believed that
McCoy would have had a valid argument that he had been
procedurally “moustrapped” by the PLRA had his claim
been refused. Because Dole was not specifically directed to
re-file by the ARB, if he had filed an untimely claim, he
might have ultimately prejudiced his case.
Defendants also cite Cannon v. Washington, 418 F.3d 714(7th Cir. 2005), in support of their positions. In that case,
an inmate’s complaint to the ARB, which had originally
been mailed within the time limits set forth in the regula-
tions, was returned to him because it contained insufficient
postage. The prisoner immediately re-sent it with the
12 No. 05-1868
proper postage, but the Board received the complaint after
the deadline for filing and marked it untimely. The Board
told the prisoner that it might reconsider its denial if he
submitted a copy of his original grievance along with a new
grievance explaining the delay. Instead of following that
procedure, the prisoner wrote to the Director himself to
seek reconsideration. The ARB denied the request because
the prisoner had not followed the ARB’s instructions. The
prisoner raised a mailbox rule argument similar to the one
Dole presses here, but the court rejected it. The court found
that the original complaint was untimely as of the time that
it was re-mailed. The court also ruled that because the
prisoner did not follow the instructions that the ARB gave
him, his letter to the Director did not exhaust his adminis-
trative remedies.
Cannon is distinguishable from this case. Cannon himself
made not one, but two errors. First, he did not place
sufficient postage on his original grievance. Then he did not
follow the ARB’s explicit instructions to rectify his original
mistake. Such is not the case with Dole. All parties recog-
nize that Dole’s grievance was properly mailed within the
correct time frame. Defendants also do not contend that the
ARB explicitly instructed Dole on how to proceed after his
grievance was lost. Thus, Dole has made neither of the
mistakes that handicapped the inmate in Cannon.
The other PLRA cases cited by the defendants can be
similarly distinguished. In each case, unlike this one, the
prisoner’s mistake triggered the exhaustion requirement.
See Pozo, 286 F.3d at 1023-24 (“Any other approach would
allow a prisoner to ‘exhaust’ state remedies by spurning
them, which would defeat the statutory objective . . .”);
Dixon v. Page, 291 F.3d 485 (7th Cir. 2002) (prisoner did not
exhaust when, after he did not receive the relief he was
promised, he did not appeal to the next level of review);
Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002) (pris-
oner’s appeal properly denied as untimely when he had
No. 05-1868 13
received notice of denial of a claim yet failed to appeal that
claim until his other claims had also been denied).
Because Dole properly followed procedure and prison
officials were responsible for the mishandling of his griev-
ance, it cannot be said that Dole failed to exhaust his
remedies. Although it is possible that our holding would
be different if the ARB had given Dole instructions on
how to proceed and Dole had ignored or improperly followed
those instructions, that is not the situation here.
We need not abrogate our holdings in Pozo and Lewis
to reach this result. Dole fully complied with Pozo’s strict
compliance requirement. He filed his suit “in the place, and
at the time, the prison’s administrative rules require.” Pozo,
286 F.3d at 1025. He followed Illinois administrative rules
to the letter; his complaint remains unresolved through no
apparent fault of his own. In this case, the prison authori-
ties acknowledge the initial deposit of the complaint, and
the possibility of fraud in filing does not exist. In this
limited context, prison authorities may not employ their
own mistake to shield them from possible liability, relying
upon the likelihood that a prisoner will not know what to do
when a timely appeal is never received.
We believe that our holding in Brengettcy v. Horton, 423
F.3d 674 (7th Cir. 2005), supports this conclusion. In
that case, a prisoner filed several unanswered grievances
and was told by prison officials that “sometimes the griev-
ances get torn up.” He did not file an appeal. This court
ruled that Brengettcy had done all that is reasonable to
exhaust, because the regulations did not instruct a prisoner
on what to do when prison officials did not answer his
grievance within the time frame prescribed in
the regulations. This case is analogous. The regulations
were not clear about how to proceed once a timely grievance
was lost. Perhaps the regulation governing untimely
grievances was inapplicable here, because Dole’s griev-
14 No. 05-1868
ance was not untimely but instead a timely complaint
that was never received. By properly mailing his ARB
complaint, alerting the ARB that the complaint was mailed,
and filing suit only after the ARB failed to clarify what he
should do next, Dole had done all that was reasonable to
exhaust his administrative remedies.
The district court found that Dole had not exhausted his
remedies in part because of fears that all prison inmates
could henceforth avoid the PLRA’s exhaustion require-
ment simply by claiming that they mailed a letter. How-
ever, as explained above, such was not the case here.
Moreover, we suggest that future false claims can be
minimized by setting up a receipt system for prison mail.
We are also mindful of the concerns the Supreme Court
expresses in Houston v. Lack, 487 U.S. 266 (1988). Although
that case concerned statutory interpretation of
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), and thus is not directly binding here, we find
the Court’s logic instructive. The Court in that case ruled
that a pro se prisoner’s appeal is “filed” within the meaning
of AEDPA when it is placed in the hands of the guards.
Certainly this holding would result in the potential for
prisoners to fraudulently claim that their appeal was
mailed within the statutory deadline when it was actu-
ally mailed shortly after that time. The Court chose to
accept that risk of fraud, however, reasoning:
The situation of prisoners seeking to appeal without the
aid of counsel is unique. Such prisoners cannot take the
steps other litigants can take to monitor the processing
of their notices of appeal and to ensure that the court
clerk receives and stamps their notices of appeal before
the 30-day deadline. Unlike other litigants, pro se
prisoners cannot personally travel to the courthouse to
see that the notice is stamped “filed” or to establish the
date on which the court received the notice. Other
No. 05-1868 15
litigants may choose to entrust their appeals to the
vagaries of the mail and the clerk’s process for stamp-
ing incoming papers, but only the pro se prisoner is
forced to do so by his situation. And if other litigants do
choose to use the mail, they can at least place the notice
directly into the hands of the United States Postal
Service (or a private express carrier); and they can
follow its progress by calling the court to determine
whether the notice has been received and stamped,
knowing that if the mail goes awry they can personally
deliver notice at the last moment or that their monitor-
ing will provide them with evidence to demonstrate
either excusable neglect or that the notice was not
stamped on the date the court received it. Pro se prison-
ers cannot take any of these precautions; nor, by
definition, do they have lawyers who can take these
precautions for them. Worse, the pro se prisoner has no
choice but to entrust the forwarding of his notice of
appeal to prison authorities whom he cannot control or
supervise and who may have every incentive to delay.
. . . And if there is a delay the prisoner suspects is
attributable to the prison authorities, he is unlikely to
have any means of proving it, for his confinement
prevents him from monitoring the process sufficiently
to distinguish delay on the part of prison authorities
from slow mail service or the court clerk’s failure to
stamp the notice on the date received. . . . [T]he only
information he will likely have is the date he delivered
the notice to those prison authorities and the date
ultimately stamped on his notice.
Houston, 447 U.S. at 270-72.
The same concerns apply in this case. We believe that the
potential for fraud does not justify obligating truthful
prisoners to prove that they mailed their complaints
when the prison authorities do not provide them with
means for verification.
16 No. 05-1868
Defendants argue that our holding would not serve the
goals of the PLRA, which they advance as (1) allowing the
prison to solve potentially systemic problems outlined in
grievances and (2) giving the prison notice that it is in
danger of being sued. We conclude that Dole’s complaint
could have achieved both, if it had not been misplaced by
the very system that, under the defendants’ theory, the
PLRA was designed to benefit.
Because Dole took all steps necessary to exhaust one
line of administrative review, and did not receive instruc-
tions on how to proceed once his attempts at review were
foiled, in the factual context of this case, he has exhausted
his administrative remedies under the PLRA.
III. Conclusion
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND for further proceedings
on the merits of Dole’s claim.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-24-06