Thornton, Rodger v. Snyder, Donald

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1500
RODGER THORNTON,
Plaintiff-Appellant,
v.
DONALD N. SNYDER, JR., Director,
JAMES M. SCHOMIG, Warden, and
CAPTAIN JOSH J. SHETTLEWORTH,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 C 1347—Harold A. Baker, Judge.
____________
ARGUED JUNE 3, 2005—DECIDED NOVEMBER 3, 2005
____________
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Rodger Thornton, an inmate in
the Illinois Department of Corrections, filed a civil rights
action alleging that prison officials violated his right to be
free from cruel and unusual punishment. The district court
granted summary judgment in the defendants’ favor on his
cell conditions claims but allowed a claim concerning yard
exercise privileges to continue. Thornton raises two issues
on appeal. First, he argues that summary judgment on his
cell conditions claims was inappropriate, as he contends
that he exhausted his administrative remedies. Because
Thornton filed grievances concerning his cell conditions that
2 No. 04-1500
corrections officials remedied before the conclusion of the
administrative grievance process, we agree with Thornton
that he exhausted his administrative remedies. Therefore,
we reverse the grant of summary judgment on Thornton’s
cell conditions claims. In addition, although Thornton
maintains the district court’s decision to conduct the trial of
the yard exercise claim by videoconference was erroneous,
we conclude that the district court did not abuse its discre-
tion when it conducted the trial of his remaining claim by
videoconference and so affirm the judgment in favor of the
defendants on that claim.
I. BACKGROUND
Rodger Thornton is an inmate in the Illinois Department
of Corrections serving a life sentence. On January 13, 2000,
after a disciplinary charge, corrections officials placed
Thornton in Cell 106 of the Pontiac Correctional Center, a
segregation cell. Several days later, he wrote letters to
defendants Donald Snyder, Jr., Director of the Pontiac
Correctional Center, Warden James Schomig, and Captain
Josh Shettleworth expressing displeasure about the condi-
tions of his cell. He received no response. On January 28,
Thornton submitted an emergency grievance to Warden
Schomig complaining about the conditions in his cell. In
this grievance, he asked to be moved from his cell.1 Thorn
1
As written, the grievance stated in part:
This seg cell north 106 is in very poor shape. There
appears to be human feces smeared on the walls covering
most of the inside of the cell. It has a foul smell to it. The
toliet leaks. There is 2 to 3 inches of water on the floor,
it clearly has a sewer aroma to it. The water that comes
from the sink is discolored it looks like rust water. The
conditions of this mattress sir is so bad that there is no
way that I can or will sleep on it. Its stained and its got
(continued...)
No. 04-1500 3
ton subsequently received a let-ter stating that his griev-
ance did not constitute an emergency.
By February 22, officials had transferred Thornton from
Cell 106 to Cell 752. On that day, Thornton filed a griev-
ance concerning the poor condition of the mattress in Cell
752. He requested a clean mattress. After receiving another
unsatisfactory mattress, Thornton was furnished with a
satisfactory mattress on May 11. On May 12, prison officials
dismissed the February 22 grievance as moot because
Thornton had received an acceptable mattress. The record
contains no indication that Thornton appealed either
grievance to Director Snyder.
Thornton later filed a lawsuit pursuant to 42 U.S.C.
§ 1983, alleging that the defendants violated his Eighth
Amendment right to be free from cruel and unusual
punishment. First, he sought damages for the time confined
in Cell 106 and for the time confined in Cell 752 without
mattress. In addition to the claims concerning his cell
conditions, he alleged that officials denied him the privilege
of yard exercise for approximately 7½ months. The district
court granted the defendants’ motion for summary judg-
ment on his cell condition claims, reasoning that Thornton
failed to exhaust his administrative remedies with respect
to these claims.
In contrast, the district court denied the defendants’
motion for summary judgment on Thornton’s deprivation of
yard exercise claim. Before trial, the district court received
evidence concerning Thornton’s security risk at an ex
parte hearing. A casework supervisor at the Stateville
1
(...continued)
a piss smell to it . . . . I can’t even eat cuz of the smell
in this cell. I’ve already had several asthma attacks since
I’ve been back here. Sir please help this is just not right
at all. . . . Please I beg of you before I contract some
major health problems get me out of here.
4 No. 04-1500
Correctional Center in Joliet, Illinois, where Thornton was
incarcerated at the time, testified under oath that Thornton
was serving a life sentence. She further testified that
Thornton, thirty-four years old at the time, was classified as
an “extremely high escape risk.” She stated he had a
“moderate aggression level” and was currently assigned to
a unit for inmates with “high to moderate aggression
levels.” In addition, she told the court that at least two
security officers, including one lieutenant, would be needed
to transport him to court.
In light of the high security and escape risk Thornton
posed, in addition to the fact that approximately twenty
persons from the Department of Corrections (both in-
mates and employees) were listed as potential witnesses,
the district court decided to conduct the trial by video-
conference. At trial, Thornton and the prosecutors appeared
via videoconference and were not physically present in the
courtroom with the jury. In addition, all the witnesses
testified by videoconference, save one that testified by
telephone. The jury returned a verdict for the defendants,
and Thornton appeals.
II. ANALYSIS
A. Exhaustion of Administrative Remedies
We review the district court’s grant of summary judgment
de novo. McCoy v. Gilbert, 270 F.3d 503, 508 (7th Cir. 2001).
“Ordinarily, plaintiffs pursuing civil rights claims under 42
U.S.C. § 1983 need not exhaust administrative remedies
before filing suit in court.” Porter v. Nussle, 534 U.S. 516,
523 (2002). In 1996, however, as part of the Prison Litiga-
tion Reform Act (“PLRA”), Congress made exhaustion a
mandatory prerequisite for a prisoner’s suit concerning the
conditions of his confinement brought under section 1983.
Porter, 534 U.S. at 524. The PLRA’s exhaustion provision
now reads: “No action shall be brought with respect to
No. 04-1500 5
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).
“[T]he PLRA’s exhaustion requirement applies to all
inmate suits about prison life,” Porter, 534 U.S. at 532, and
“an inmate must exhaust irrespective of the forms of relief
sought and offered through administrative avenues.” Booth
v. Churner, 532 U.S. 731, 741 n.6 (2001). An inmate’s
perception that exhaustion would be futile does not excuse
him from the exhaustion requirement. Id.; Perez v. Wisc.
Dep’t of Corrections, 182 F.3d 532 (7th Cir. 1999). “Even
when the prisoner seeks relief not available in grievance
proceedings, notably money damages, exhaustion is a
prerequisite to suit.” Porter, 534 U.S. at 524 (citing Booth,
532 U.S. at 741); see also Riccardo v. Rausch, 375 F.3d 521,
523 (7th Cir. 2004).
The Illinois Department of Corrections has an established
grievance process. See 20 Ill. Admin. Code §§ 504.800 et seq.
An inmate can submit a written grievance to a designated
grievance officer, who submits his recommendation to the
institution warden. 20 Ill. Admin. Code §§ 504.810, 504.830.
The warden “shall advise the offender of the decision in
writing within 2 months after receipt of the written griev-
ance, where reasonably feasible.” 20 Ill. Admin. Code
§ 504.830(d). Alternatively, an inmate can request that a
grievance be handled on an emergency basis by submitting
the grievance directly to the warden. 20 Ill. Admin. Code
§ 504.840. If the warden determines that there is a substan-
tial risk of imminent personal injury or other serious or
irreparable harm, the grievance is to be handled on an
emergency basis. 20 Ill. Admin. Code § 504.840. The process
also provides: “If, after receiving the response of the
[warden], the offender still feels that the problem, com-
plaint, or grievance has not been resolved to his or her
6 No. 04-1500
satisfaction, he or she may appeal in writing to the Director
within 30 days after the date of the decision.” 20 Ill. Admin.
Code § 504.850. Money damages are not available.
We begin with the defendants’ argument that Thornton
did not even begin the grievance process for his claim
concerning the conditions in Cell 106. The defendants
contend that after corrections officials deemed the grievance
not an emergency, the grievance ceased to exist. We
disagree. Thornton followed the proper procedure for filing
a grievance that he considered an emergency by submitting
his grievance directly to the warden. See 20 Ill. Admin.
Code § 504.840 (“An offender may request a grievance be
handled on an emergency grievance by forwarding the
grievance directly to the [warden].”) The response he
received from the warden made no comment on the merits
of the grievance and indicated only that the warden did not
consider his complaint worthy of emergency treatment.
Perhaps, paradoxically, Thornton might have received a
transfer sooner had he not deemed his request an emer-
gency. There is nothing in the current regulatory text,
however, that requires an inmate to file a new grievance
after learning only that it will not be considered on an
emergency basis. In any event, even if the non-emergency
determination was a decision that should have been
appealed, corrections officials moved Thornton out of Cell
106 within three weeks of his January 28, 2000 grievance,
before the thirty-day time for an inmate to appeal a war-
den’s determination had expired.
We turn now to the heart of the case. Thornton contends
that he exhausted all the remedies that were available to
him with respect to his cell condition complaints, as he filed
grievances and then received exactly what he had requested
in these grievances. Thornton’s first grievance, filed
January 28, 2000, complained about the conditions in Cell
106. In the “Relief Requested” section of his grievance,
Thornton wrote, “To be moved from this dangerous cell
No. 04-1500 7
immediately.” By February 22, officials had transferred him
to Cell 752, thereby granting him the transfer out of Cell
106 he had requested. This transfer occurred before the
expiration of the two-month time period within which
grievance procedures provide that a warden should advise
an inmate of a decision on the merits.
Thornton also received the result he sought with re-
spect to his Cell 752 mattress grievance. On February 22,
2000, Thornton filed a grievance that complained about the
poor condition of his mattress in Cell 752. In his grievance,
he requested a clean mattress, and he subsequently re-
ceived an adequate mattress. The grievance officer then
recommended that “[Thornton’s] grievance be found moot as
he has been issued a replacement mattress.” The next day,
the warden concurred, and the grievance was dismissed as
moot.
In support of their argument that Thornton did not
exhaust his administrative remedies, the defendants point
to the provision in the grievance process for appeals to the
Director of the Department of Corrections from warden
determinations that do not resolve the grievance to an
inmate’s satisfaction. See 20 Ill. Admin. Code § 504.850.
They correctly state that there is no evidence Thornton
appealed either cell condition grievance to the Director. The
defendants then conclude that Thornton failed to exhaust
his administrative remedies, maintaining that even though
Thornton received what he requested in his grievances, he
nonetheless needed to continue to appeal to higher channels
in order to exhaust.
As the defendants emphasize, the PLRA requires exhaus-
tion of “all available” remedies, and this requirement
applies to “all” suits about inmate life. See Porter, 534 U.S.
at 524, 532. Unlike the defendants, however, we do not take
the requirement to exhaust “all available” remedies to mean
Thornton must appeal grievances that were resolved as he
requested and where money damages were not available.
8 No. 04-1500
The requirement to exhaust “all ‘available’ ” remedies
requires that some remedy is available to the inmate
through the administrative process, even if not necessarily
the relief desired. In Perez v. Wisconsin Department of
Corrections, 182 F.3d 532 (7th Cir. 1999), we observed:
It is possible to imagine cases in which the harm is
done and no further administrative action could
supply any “remedy.” . . . Suppose the prisoner
breaks his leg and claims delay in setting the bone
is cruel and unusual punishment. If the injury has
healed by the time suit begins, nothing other
than damages could be a “remedy,” and if the
administrative process cannot provide compensa-
tion then there is no administrative remedy to
exhaust.
Perez, 182 F.3d at 538. The Tenth Circuit’s decision in Ross
v. County of Bernadillo, 365 F.3d 1181 (10th Cir. 2004),
decided after Booth, is similarly instructive. There, an
inmate filed a grievance requesting that shower mats be
placed on his shower floor. Shortly thereafter, prison
officials furnished the shower with a mat, thus alleviating
the problem the inmate had raised in his grievance. The
court found that the inmate had exhausted his administra-
tive remedies with respect to the shower mat grievance,
stating, “Once a prisoner has won all the relief that is
available under the institution’s administrative procedures,
his administrative remedies are exhausted. Prisoners are
not required to file additional complaints or ap-
peal favorable decisions in such cases. When there is no
possibility of any further relief, the prisoner’s duty to
exhaust available remedies is complete.” 365 F.3d at 1187.
See also Ortiz v. McBride, 380 F.3d 649, 653 (2d Cir. 2004)
(“All parties agree, as do we, that Ortiz has exhausted
his administrative remedies with respect to his due process
claim. He appealed the Tier III hearing and obtained a
reversal. He did not appeal to the highest level of DOCS,
No. 04-1500 9
but inasmuch as he obtained a favorable determination
regarding his due process claim, no such further appeal was
required.”). Here, too, with monetary relief unavailable,
there was simply no “remedy” that a higher appeal could
provide after Thornton received the transfer and new
mattress he requested.
Nonetheless, the defendants persist in arguing that
Thornton’s situation is no different from that in cases such
as Booth v. Churner, 532 U.S. 731 (2001), which hold
that futility is not an excuse for the failure to exhaust
available administrative remedies. Booth, however, does not
help the defendants. In Booth, the Supreme Court consid-
ered whether the requirement to exhaust “such administra-
tive remedies as are available” required an inmate seeking
only money damages to “complete a prison administrative
process that could provide some sort of relief on the com-
plaint stated, but no money.” 532 U.S. at 734 (emphasis
added). Before filing suit in federal court, the inmate had
filed an administrative grievance. In it, he sought several
forms of injunctive relief and money damages, but as in
Illinois, the state grievance process did not provide for
money damages. The prison authority denied his request for
relief, and the inmate did not seek further review even
though the state provided for such process. The Supreme
Court held that although the prison administrative process
could not provide monetary compensation as relief, the
inmate was still required to exhaust his administrative
remedies.
Booth’s holding does not speak to Thornton’s circum-
stances. Unlike here, there was in Booth still the possibility
of some relief that prison officials could have offered that
might have satisfied the inmate. As we have said, here,
though, the inmate already received what he requested in
his grievances. If anything, Booth supports Thornton’s
position. The Court made it a point to state that in the case
10 No. 04-1500
before it, “Neither [party] denies that some redress for a
wrong is presupposed by the statute’s requirement of an
‘available’ ‘remed[y],’ ” 532 U.S. at 736, and then explicitly
noted, “Without the possibility of some relief, the adminis-
trative officers would presumably have no authority to act
on the subject of the complaint, leaving the inmate with
nothing to exhaust.” Id. at 736 n.4.
The defendants also point to policy considerations be-
hind the PLRA’s exhaustion requirement and contend
that these policies can only be served by requiring an
inmate like Thornton to continue to seek higher review in
the administrative chain. In particular, the defendants
stress that a grievance can put prison officials on notice of a
systemic problem that, once remedied, will allow them to
avoid similar complaints in the future. See Porter, 534 U.S.
at 524. Therefore, the defendants argue, an inmate
in Thornton’s situation should be required to pursue further
administrative review. We do not agree with the defen-
dants’ logic. Thornton submitted grievances, so prison
officials were on notice of his complaints, and we do not
think it Thornton’s responsibility to notify persons higher
in the chain when this notification would be solely for the
benefit of the prison administration. Moreover, appealing a
favorable result risks reversal. And reversals of once-
favorable results would tend to increase, not decrease, the
number of inmate suits, running counter to another recog-
nized policy behind the PLRA’s exhaustion requirement, “to
reduce the quantity and improve the quality of prisoner
suits.” See Porter, 534 U.S. at 524.
In short, the defendants’ notion that Thornton should
have appealed to higher channels after receiving the re-
lief he requested in his grievances is not only counter-
intuitive, but it is not required by the PLRA. Accordingly,
we find that Thornton exhausted his administrative
remedies, and we reverse the district court’s entry of
No. 04-1500 11
summary judgment against him on his cell conditions
claims.
B. Trial by Videoconference
Thornton also contends that the district court abused its
discretion when it conducted the jury trial of his remain-
ing civil rights claim by videoconference and did not
allow Thornton to be physically present in the courtroom.
The civil, not criminal, nature of Thornton’s trial is impor-
tant. Although due process prohibits the denial of access to
the courts, a prisoner does not have a constitutional right
to attend the jury trial of his civil rights claim involving the
conditions of his confinement. Jones v. Hamelman, 869 F.2d
1023, 1029-30 (7th Cir. 1989); Stone v. Morris, 546 F.2d
730, 735 (7th Cir. 1976); see also Price v. Johnston, 334 U.S.
266 (1948). Rather, the district court has discretion to
determine whether a prison inmate can attend court
proceedings in connection with an action initiated by the
inmate, and we review the district court’s decision to
conduct the trial by videoconference for an abuse of discre-
tion. See Stone, 546 F.2d at 735.
In Stone, we counseled that the lack of a constitutional
right to attend a civil action did not warrant summary
exclusion of an inmate plaintiff from his trial. 546 F.2d
at 730. “Rather the trial court must weigh the interest
of the plaintiff in presenting his testimony in person
against the interest of the state in maintaining the confine-
ment of the plaintiff-prisoner.” Id.
Clearly, a jury trial conducted by videoconference is
not the same as a trial where the witnesses testify in the
same room as the jury. Videoconference proceedings have
their shortcomings. “[V]irtual reality is rarely a substi-
tute for actual presence and . . . even in an age of advancing
technology, watching an event on the screen remains less
12 No. 04-1500
than the complete equivalent of actually attending
it.” United States v. Lawrence, 248 F.3d 300, 304 (4th Cir.
2001). “The immediacy of a living person is lost” with video
technology. Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir.
1993). As the court in Edwards v. Logan, 38 F. Supp. 2d 463(W.D. Va. 1999), observed, “Video conferencing . . . is not
the same as actual presence, and it is to be expected that
the ability to observe demeanor, central to the fact-finding
process, may be lessened in a particular case by video
conferencing. This may be particularly detrimental where
it is a party to the case who is participating by
video conferencing, since personal impression may be a
crucial factor in persuasion.” 38 F. Supp. 2d at 467.
Despite the limitations videoconferencing provides,
challenges to videoconference proceedings have been
rejected in other civil contexts. See Rusu v. U.S. I.N.S., 296
F.3d 316 (4th Cir. 2002) (rejecting challenge to asylum
proceeding conducted by videoconference); United States v.
Baker, 45 F.3d 837 (4th Cir. 1995) (same in civil commit-
ment proceeding); cf. Lawrence, 248 F.3d at 301 (finding
sentencing by videoconference violated Federal Rule of
Criminal Procedure 43’s requirement that criminal defen-
dant be present at sentencing). No circuit court has yet
published an opinion addressing the decision to conduct an
inmate’s civil rights trial by videoconference. Cf. Edwards,
38 F. Supp. 2d at 467 (grant by district court of state’s
request to conduct inmate’s § 1983 claim by videoconference
despite videoconferencing’s shortcomings).
The PLRA does not prohibit the use of videoconferencing
at trial. Nor does Federal Rule of Civil Procedure 43, which
governs the taking of testimony at a civil trial. In fact, Rule
43 affirmatively allows for testimony by videoconference in
certain circumstances, as it provides:
In every trial, the testimony of witnesses shall
betaken in open court, unless a federal law, these
No. 04-1500 13
rules, the Federal Rules of Evidence, or other rules
adopted by the Supreme Court provide otherwise.
The court may, for good cause shown in compelling
circumstances and upon appropriate safeguards,
permit presentation of testimony in open court by
contemporaneous transmission from a different
location.
The Advisory Committee Notes to this rule recognize
the shortcomings of contemporaneous transmission and
emphasize the importance of presenting live testimony
in court.2
The limitations videoconferencing presents demonstrate
that the decision to deny a prisoner the opportunity to
be physically present at a civil rights trial he initiates is not
one that should be taken lightly. Nonetheless, this decision
remains within the district court’s discretion, and our
recognition of videoconferencing’s limitations does not mean
that Thornton was denied due process. In this case, we find
that the district court did not abuse its discretion in
conducting the trial by videoconference.
First, we cannot say the district court abused its discre-
tion in finding good cause to conduct the trial by
2
The Advisory Committee Notes to the 1996 amendment to
Federal Rule of Civil Procedure 43 state in part:
Contemporaneous transmission of testimony from a
different location is permitted only on showing good
cause in compelling circumstances. The importance of
presenting live testimony in court cannot be forgotten.
The very ceremony of trial and the presence of the
factfinder may exert a powerful force for truthtelling.
The opportunity to judge the demeanor of a witness face-
to-face is accorded great value in our tradition. Transmis-
sion cannot be justified merely by showing that it is
inconvenient for the witness to attend the trial.
14 No. 04-1500
videoconference. The district court considered the sworn
testimony of a prison casework supervisor who testified that
Thornton was classified as an “extremely high escape risk.”
Moreover, the supervisor testified that Thornton
was already serving a life sentence, was only thirty-four
years old, had a “moderate aggression level” and was
housed in a unit with other inmates who had high to
moderate aggression levels. She stated that under these
circumstances, at least two officers, one of whom was a
lieutenant, would be needed to escort him to court. At the
time, Thornton was housed at a corrections facility ap-
proximately 120 miles from the courthouse. In addition to
these concerns, the district court considered the approxi-
mately twenty persons from the Department of Correc-
tions listed as potential witnesses, including both inmates
and employees, and noted that these witnesses were
“scattered all over the state.”
Appropriate safeguards were also in place during the
trial. The jury, seated in the courtroom, viewed a four-way
screen that showed the judge, Thornton, the witness,3 and
the defendants’ counsel. Thornton and the jury were also
able to see and hear everyone at the same time. Each
witness testified under oath and was subject to cross-
examination.
In addition, because Thornton was acting pro se, he did
not have counsel forced to choose between being in the same
room as his client and thus not in the same room as the
judge and jury, or remaining in the courtroom with the
judge and jury and thus unable to confer in person with his
client. Cf. Rusu, 296 F.3d at 323. We also note the relatively
straightforward nature of his claim that he had been denied
3
The jurors could watch the testimony of each witness on the
screen with the exception of Warden Schomig, who testified by
telephone from Nevada.
No. 04-1500 15
yard exercise privileges such that his right to freedom from
cruel and unusual punishment was violated.
Finally, Thornton has not identified anything he was
unable to do via videoconference that he could have done
had he been physically present in the courtroom. He
presented twelve witnesses, including himself. In addition,
he delivered an opening and closing statement, offered
other evidence, and cross-examined witnesses. Moreover,
although he points to minor technical issues, the record
reflects that they were small in number and quickly
resolved. In this case, then, we cannot say that the dis-
trict court abused its discretion in conducting the trial by
videoconference.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
grant of summary judgment on Thornton’s cell conditions
claims. We AFFIRM the judgment in favor of the defendants
on his denial of yard exercise claim.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-3-05