Jeremy Cooper v. James Chandler

NONPRECEDENTIAL DISPOSITION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 April 14, 2015 *
Decided April 14, 2015
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14-2715
JEREMY COOPER, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 13-cv-0730-MJR-SCW
JAMES CHANDLER and Michael J. Reagan,
JAMES CHEATHAM, Chief Judge.
Defendants-Appellees.
ORDER
Jeremy Cooper, an Illinois prisoner, brought this suit under 42 U.S.C. § 1983against two prison officers, who, he asserted, used excessive force against him in
violation of the Eighth Amendment. The officers moved for summary judgment on
grounds that Cooper failed to exhaust administrative remedies, see 42 U.S.C. § 1997e(a),
*
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. 14-2715 Page 2
and the district court granted that motion after conducting an evidentiary hearing,
see Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Because Cooper has not supplied a
transcript of that hearing, we cannot meaningfully review the district court’s ruling and
thus dismiss the appeal.
Cooper alleged that Officer James Chandler “threw” him into a steel sink located
in the back of his cell, injuring his wrist and leg, and then Officer James Cheatham
punched him in the neck. At summary judgment the officers argued that Cooper had not
exhausted his administrative remedies because he did not try to resolve the issue
informally with his counselor before submitting a formal grievance, as required by
Illinois grievance procedures. Cooper countered that administrators did not reply to
numerous grievances that he submitted. A Pavey hearing was convened to resolve the
fact dispute, after which the district judge discredited Cooper’s testimony and ruled in
favor of the defendants. When Cooper then filed a notice of appeal, the deputy clerk of
the district court informed him that he must request transcripts needed for appellate
review within 14 days. Cooper apparently did nothing.
On appeal Cooper challenges the district court’s ruling, and maintains that
administrative remedies were effectively unavailable to him because the prison ignored
his attempts to properly complain about the assault. But we are unable to review the
court’s decision because Cooper never provided a transcript of the Pavey hearing.
Federal Rule of Appellate Procedure 10(b)(2) states that appellants who seek to challenge
a finding as unsupported by, or contrary to, the evidence, “must include in the record a
transcript of all evidence relevant to that finding.” FED. R. APP. P. 10(b)(2). By failing to
supply us with a transcript of the Pavey hearing, Cooper has forfeited any challenge to
the district court’s ruling. See Morisch v. United States, 653 F.3d 522, 529 (7th Cir. 2011);
Gramercy Mills, Inc. v. Wolens, 63 F.3d 569, 573–74 (7th Cir. 1995); Syncom Capital Corp. v.
Wade, 924 F.2d 167, 169 (9th Cir. 1991); Richardson v. Henry, 902 F.2d 414, 415–16 (5th Cir.
1990). And we will not give him additional time to secure the transcript because he has
already been notified about his obligation to order one. See RK Co. v. See, 622 F.3d 846,
853 (7th Cir. 2010); Learning Curve Toys, Inc. v. Playwood Toys, Inc., 342 F.3d 714, 731 n.10
(7th Cir. 2003).
Cooper insists, nevertheless, that the limited record before us provides sufficient
information to conclude that the district court’s credibility finding was clearly
erroneous. He points to an entry in his “Cumulative Counseling Summary,” which, he
says, contradicts testimony given by prison employees that he did not informally grieve
the attack by Officers Chandler and Cheatham. But the conclusion Cooper asks us to
No. 14-2715 Page 3
reach is not obvious from the face of the counseling summary. Without reviewing what
was actually said at the hearing about the meaning of that entry in the summary, we
cannot meaningfully determine whether the district court’s findings were implausible.
See RK Co., 622 F.3d at 853; Smith v. United States, 293 F.3d 984, 987 (7th Cir. 2002).
Accordingly, the appeal is DISMISSED.