Truly, Clark v. Morris, Willie

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2005*
Decided May 23, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 04-2280
CLARK TRULY, Appeal from the United States District Court
Plaintiff-Appellant, for the Northern District of Illinois, Eastern
Division
v.
No. 01 C 9982
MICHAEL F. SHEAHAN, et al.,
Defendants-Appellees. John W. Darrah,
Judge.
ORDER
Clark Truly sued Cook County Sheriff Michael Sheahan and correctional
officers Willie Morris, Kieran Mundt, and Richard Brogan under 42 U.S.C. § 1983,
asserting among other things that they violated his rights under the Fourteenth
Amendment for failing to protect him from injuries caused by fellow prisoners at the
Cook County jail. The district court granted summary judgment for the defendants
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-2280 Page 2
under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), because Truly
failed to exhaust administrative remedies. We affirm.
When Truly was a pretrial detainee at Cook County jail, he got into a fight in
a common room with another detainee named Dante who belonged to a gang.
Although Truly won that first fight, he says that Dante came back shortly thereafter
with fellow gang members and beat him in retaliation. Defendant Morris was the
only guard on the tier of the jail that housed the common room, and he was stationed
in the “bubble”—an observation post separated from the room by bars. Within five
minutes after the outbreak of the second fight, Morris had gathered fellow guards,
entered the common room, and separated the prisoners. Truly and the rest of the
prisoners were disciplined for fighting and later confined to the same segregation
unit. While Truly was in segregation, no further violence occurred. Sometime
thereafter, Truly pleaded guilty to the charges for which he was awaiting trial
(aggravated assault and possession of a stolen motor vehicle) and was released on
probation, but he was soon arrested again (the record does not say why) and returned
to Cook County jail. In jail he sued Morris for failing to protect him from Dante’s
gang and Mundt and Brogan for putting him into segregation with his attackers
(though we are puzzled by the latter claim since he does not allege that any harm
came to him in segregation). Defendant Sheahan was dismissed because the
complaint was pleaded solely against the other defendants.
The district court granted summary judgment for the defendants because of
Truly’s failure to appeal grievances he filed before he being released from jail for the
first time. The court explained that Truly testified at his deposition that he filed
administrative grievances but did not appeal their denials. Instead, when he
received the denials he filed new grievances. The court further explained that after
the defendants moved for summary judgment Truly tried to retract his admission
about failing to appeal. Truly filed both an affidavit explaining that he received no
written responses to his grievances and errata sheets rewriting the substance of his
deposition transcript (for instance, changing answers like “I never appealed the
response” to read “I was never given a response” and “I didn’t file an appeal” to read
“Yes, I appealed subordinate shortcomings to superintendent”). But the court
concluded that Truly could not stave off summary judgment by contradicting sworn
deposition testimony.
On appeal Truly first argues that the district court erred in subjecting him to
the PLRA’s exhaustion requirement because he was a former pretrial detainee who
had been released. The PLRA, however, requires prisoners, including detainees of
any jail, to exhaust all available administrative remedies before bringing suits for
damages arising from conditions of confinement, 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 532 (2002). Whether a plaintiff is a prisoner subject to this
No. 04-2280 Page 3
requirement depends on his status at the time he brought the suit, Witzke v. Femal,
376 F.3d 744, 750 (7th Cir. 2004), and Truly was incarcerated in the Cook County
jail when he brought this suit. Thus Truly was properly required to exhaust
administrative remedies.
Truly also argues that the district court erred in granting summary judgment
because there was no evidence in the record that he received written responses
denying his grievances, and under the Department’s regulations his duty to appeal
did not arise until he received denials in writing. His argument is difficult to parse,
but he presumably means that the absence of written denials excuses his failure to
pursue administrative appeals.
In order to satisfy the PLRA’s exhaustion requirement, “a prisoner must file
complaints and appeals in the place, and at the time, the prison's administrative
rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see also
Booth v. Churner, 532 U.S. 731, 734–35, 741 (2001) (affirming dismissal for failure to
pursue administrative appeal). Nonetheless, we “refuse to interpret the PLRA so
narrowly as to permit prison officials to exploit the exhaustion requirement through
indefinite delay in responding to grievances.” Lewis v. Washington, 300 F.3d 829,
833 (7th Cir. 2002) (citations, alterations, and internal quotation marks omitted).
Here Truly himself admitted at his deposition that he did not properly pursue
administrative appeals before filing suit. That he simply filed more grievances in
response to particular denials does not satisfy the prison’s administrative
requirements. We agree with the district court that Truly may not contradict
deposition testimony with his subsequent affidavits or errata sheets stating
alternatively that he did not receive responses and that he appealed. See United
States v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars,
403 F.3d 448, 466 (7th Cir. 2005) (explaining that it would undermine the purpose of
summary judgment to permit litigants to contradict earlier sworn testimony with
sham affidavits); Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,
1168–69 (7th Cir.1996) (same); see also Thorn v. Sundstrand Aerospace Corp., 207
F.3d 383, 389 (7th Cir. 2000) (stating that a litigant may not rewrite deposition
testimony to manufacture issues of fact and defeat summary judgment where the
correction cannot be plausibly interpreted as a correction to the transcript).
Regardless, Truly’s argument that his affidavit did not contradict his earlier sworn
testimony because it merely clarified that he did not receive written responses does
not help him. His new story—that he both did and did not appeal—is itself
contradictory.
AFFIRMED.