Richard Branch v. Officer Black

NONPRECEDENTIAL DISPOSITION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 6, 2015 *
Decided January 7, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-1480
RICHARD D. BRANCH, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 12 C 6711
CORRECTIONAL OFFICER BLACK,
Defendant-Appellee. Robert W. Gettleman,
Judge.
ORDER
Richard Branch claims in this suit under 42 U.S.C. § 1983 that “C/O Black,” a guard
at the Cook County Department of Corrections, was deliberately indifferent to his heart
condition. The defendant sought dismissal on the ground that Branch had not exhausted
his administrative remedies before filing suit, see 42 U.S.C. § 1997e(a), and the district court
granted that motion after conducting an evidentiary hearing, see Pavey v. Conley, 544 F.3d
*
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).
No. 14-1480 Page 2
739, 742 (7th Cir. 2008). Branch challenges this ruling on appeal, but he has not provided us
with a transcript of the evidentiary hearing. Accordingly, we dismiss his appeal.
The defendant had escorted Branch to the jail’s medical center and was with him
in the waiting area when Branch complained of a headache and chest pains and asked
that his handcuffs be moved from behind his back to the front so that he could take his
heart medication. The defendant refused but another guard changed the handcuffs as
requested. Branch took the medication but fainted after a nurse had placed an IV in his
arm. He was then taken to the emergency room.
At summary judgment the defendant guard argued that Branch had not
exhausted his administrative remedies because he did not file an administrative appeal
after his grievance about the incident was rejected. Branch replied that jail
administrators did not timely respond to his grievance and then, when it was finally
rejected, his counselor told him that submitting an administrative appeal would do no
good because the time to appeal had already expired. The district court recruited counsel
for Branch and, after the evidentiary hearing, ruled against him from the bench,
explaining the decision orally. When Branch then filed a notice of appeal, the clerk of the
district court informed him that he must request transcripts needed for appellate review
within 14 days. Branch did nothing (even though his lawyer apparently had not been
discharged). Four months later we reminded Branch that he still needed a transcript of
the evidentiary hearing, and we explained the procedure for obtaining it. By then Branch
was pro se, but still he did nothing.
On appeal Branch argues that the district court erred in ruling for the defendant on
the affirmative defense of failure to exhaust, but we are unable to review the court’s
decision because Branch never obtained a transcript of the evidentiary hearing. See FED R.
APP. P. 10(b)(2); Morisch v. United States, 653 F.3d 522, 529 (7th Cir. 2011); Learning Curve
Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n.10 (7th Cir. 2003). And we will not give
Branch additional time to secure the transcript, since five months have elapsed since we
reminded him that it was needed, and yet he has not explained why he did not act.
See RK Co. v. See, 622 F.3d 846, 853 (7th Cir. 2010); Learning Curve Toys, 342 F.3d at 731 n.10.
Accordingly, we DISMISS this appeal. Given this disposition, we express no
opinion about either the issue of administrative exhaustion or whether Branch’s
complaint states a plausible claim of deliberate indifference.