Bulmer, Samuel v. Young, Donald S.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2005*
Decided December 23, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-2074
Appeal from the United States District
SAMUEL B. BULMER, Court for the Southern District of
Illinois.
Plaintiff-Appellant,
v. No. 02 C 389
DONALD S. YOUNG, Warden, David R. Herndon, Judge.
ANGELA K. WINSOR, DAVID R.
CHEEK, et al.,
Defendants-Appellees.
ORDER
Illinois inmate Samuel Bulmer brought suit under 42 U.S.C. § 1983 claiming
that prison officials violated his rights by failing to provide him with a Kosher diet
*
After examining 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. 05-2074 Page 2
that met his diabetic needs. A magistrate judge assigned to the case recommended
that summary judgment for the defendants be granted because Mr. Bulmer failed to
exhaust his administrative remedies before filing suit. The district court adopted
the magistrate judge’s report and recommendation and denied Mr. Bulmer’s
subsequent motion for reconsideration. Mr. Bulmer timely appealed, and we now
affirm.
Mr. Bulmer is Jewish and diabetic. Upon arriving at the Shawnee
Correctional Institution in late 2001, Mr. Bulmer requested Kosher meals that
would also meet the dietary restrictions prescribed for his diabetes. But when his
Kosher meal service commenced, Mr. Bulmer concluded that the meals he was
served did not provide the minimum calories required to satisfy his diabetic needs,
and in February 2002 he submitted an emergency grievance requesting higher-
calorie meals. The chief administrative officer at Shawnee concluded that the
grievance was not an emergency as defined by Title 20, section 504.840(a), of the
Illinois Administrative Code, and a grievance liaison officer then advised Mr.
Bulmer to resubmit the grievance in the normal manner. Mr. Bulmer insists that
he subsequently pursued two different routes of review. First, he says, he was told
that he could appeal the determination of non-emergency status, which he did on
April 26 but never received an answer. Second, Mr. Bulmer says, he refiled his
emergency grievance as a routine grievance, which the chief administrative officer
denied on the recommendation of a grievance officer. At that point, continues Mr.
Bulmer, he appealed the denial to the Director of the Department of Corrections
(who is responsible for processing appeals, see 20 Ill. Admin. Code § 504.850 (2002)),
who also denied it on June 10, 2002, on the recommendation of the Administrative
Review Board (“ARB”). The defendants concede that Mr. Bulmer followed the
second route, but maintain that he could not have pursued the first route because a
determination that a grievance is not an emergency is not subject to appeal.
In March 2002, with his refiled emergency grievance still working its way
through the routine review process, Mr. Bulmer filed a second emergency grievance
asserting the same dietary deficiencies. Once again, the grievance liaison officer
returned it to him with the notification that it would not be deemed an emergency
and that he should file it as a routine grievance. Mr. Bulmer did not pursue this
emergency grievance through routine channels.
Meanwhile, Mr. Bulmer filed this action in federal court on May 3, 2002, a
month before the Director upheld the denial of the February emergency grievance
that Mr. Bulmer resubmitted as a routine grievance. In his original complaint Mr.
Bulmer cites the refusal to address his February and March 2002 grievances on an
emergency basis and faults the defendants for denying him a medically sufficient
Kosher diet in violation of his First Amendment right to the free exercise of his
religion. During the summer of 2002, Mr. Bulmer was transferred to a different
No. 05-2074 Page 3
prison, and in 2003 he filed additional grievances about the diet provided to him
there that were also denied. The district court twice granted Mr. Bulmer leave to
amend his complaint to include parties and claims for incidents that occurred after
his transfer.
At summary judgment, the defendants argued that Mr. Bulmer failed to
exhaust his administrative remedies before bringing suit as required by 42 U.S.C.
§ 1997e(a). In support of the motion, the chairperson of the ARB submitted an
affidavit listing the four appeals relating to Mr. Bulmer’s Kosher diet that had been
received by the ARB and resolved by the Director to date. All four of those
grievances became final after Mr. Bulmer filed his lawsuit. According to the
chairperson, only one of those appeals--the one involving Mr. Bulmer’s refiled
emergency grievance decided on June 10--had even been received when Mr. Bulmer
filed suit. Mr. Bulmer replied that the list was incomplete, and, in particular, he
asserted that his unanswered “appeal” of the determination that his February 2002
emergency grievance was not really an emergency is missing from the list.
On February 18, 2005, the magistrate judge assigned to the case issued a
report and recommended that summary judgment be granted for the defendants
because Mr. Bulmer conceded that the first of his appeals to be finalized was not
decided until June 10, 2002, after he filed suit. Mr. Bulmer failed to timely object to
the magistrate judge’s report and recommendation, and on March 8 the district
court adopted its factual and legal analysis. Mr. Bulmer finally did file objections
on March 18, and though they were late, see Fed. R. Civ. P. 72(b) (giving parties 10
days to object to magistrate judge’s report and recommendation), the district court
treated them as a motion for reconsideration and addressed Mr. Bulmer’s
arguments. Once again the court adopted the magistrate judge’s analysis and
entered summary judgment for the defendants.
Mr. Bulmer’s only contention on appeal is that he exhausted his
administrative remedies before filing suit on account of his February 2002
emergency grievance. Mr. Bulmer does not contend that he exhausted his remedies
by resubmitting that grievance in the normal manner because he concedes that his
appeal to the Director was not finalized until a month after he filed his federal
complaint. He argues, however, that he exhausted all available remedies as to the
emergency grievance itself because the Director never acted on his purported
“appeal” from the chief administrative officer’s denial of emergency status.
Mr. Bulmer is correct that inmates must exhaust only those remedies that
are available, see Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002), but there
was a remedy available to Mr. Bulmer: the grievance liaison officer advised him to
refile his February 2002 emergency grievance as a routine grievance, and he did.
Mr. Bulmer produced no evidence to counter the affidavit testimony of the ARB
No. 05-2074 Page 4
chairperson, who explained that an inmate must pursue a grievance that has been
denied emergency status by resubmitting it for processing as a routine grievance.
And inmates must follow the prison’s rules for exhausting their claims. See Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Lewis, 300 F.3d at 833.
Mr. Bulmer, lacking evidence that the chief administrative officer’s decision
as to emergency status is even reviewable, was left to contend that there must be
another route to review since he was told that he could appeal the denial of
emergency status; he took this second route, he says, but the Director rendered it
unavailable by not acting on his “appeal.” But even assuming Mr. Bulmer was so
advised, his verified declaration that he “appealed” the determination of non-
emergency status is an overstatement. The letter that Mr. Bulmer calls his appeal
could not have put the Director or ARB on notice that he sought to challenge the
denial of emergency status. After the chief administrative officer had decided that
Mr. Bulmer’s February 2002 emergency grievance did not constitute a true
emergency, Mr. Bulmer simply forwarded a copy of the grievance on to the ARB
with a letter stating that “this is an emergency.” See McCoy v. Gilbert, 270 F.3d
503, 512 (7th Cir. 2001) (noting that prisoner must clearly give the institution
notice of his particular demands). No reasonable factfinder could determine on the
basis of this letter that Mr. Bulmer had filed an appeal of the non-emergency
determination. See Cont’l Cas. Co. v. Nw. Nat. Ins. Co., 427 F.3d 1038, 1041 (7th
Cir. 2005). Moreover, an appeal as to whether the grievance should have been
treated as an emergency, if successful, logically would have resulted in expedited
handling of the grievance by the grievance officer and chief administrative officer at
Shawnee, but would not have resolved the merits of the grievance. And it is the
substance of the grievance, not the question whether it should be expedited as an
emergency, that was required to be decided by prison administrators before Mr.
Bulmer turned to federal court. See Pozo, 286 F.3d at 1025 (noting that prison
official’s decision not to entertain untimely appeal of grievance does not imply any
view about merits of grievance).
Thus, the undisputed evidence shows that no grievance was finalized before
Mr. Bulmer filed his complaint. Although all but one of Mr. Bulmer’s grievances
about the diet provided to him at Shawnee had been finalized before the district
court granted him leave to amend his complaint, the subject of the amended
complaint does not concern these exhausted grievances. Thus, prison officials
lacked the opportunity to take corrective action concerning the diet provided to Mr.
Bulmer at Shawnee before “incurring the hassle and expense of litigation.” See
Cannon v. Wash., 418 F.3d 714, 719 (7th Cir. 2005); Ford, 362 F.3d 398-99; Perez v.
Wis. Dep’t Corr., 182 F.3d 532, 535 (7th Cir 1999). Mr. Bulmer simply brought
complaint for the diet provided at Shawnee before his appeals were finalized, and
that was too early. See Ford, 362 F.3d at 400; Perez, 182 F.3d at 535.
No. 05-2074 Page 5
Finally, Mr. Bulmer argues that the defendants should be equitably estopped
from relying on the defense that he failed to exhaust his administrative remedies
because, if a determination of non-emergency status is not appealable, then prison
officials misrepresented to him that he could appeal that determination. We have
not yet held that the exhaustion defense is subject to equitable estoppel, but as in
Lewis, 300 F.3d at 834, we need not answer that question because Mr. Bulmer did
not establish the elements of equitable estoppel. To establish equitable estoppel a
litigant must show: (1) a misrepresentation by the opposing party; (2) reasonable
reliance on that misrepresentation; and (3) detriment. Id. Moreover, a party
asserting estoppel against the state must show affirmative misconduct. Id. Mr.
Bulmer says that the defendants misrepresented to him that he could appeal the
determination as to emergency status, but his evidence shows that the exact
opposite is true: the letter from the grievance liaison officer specifically instructed
him that the proper course when a grievance is denied emergency status is not to
appeal that determination to the ARB, but to resubmit the emergency grievance as
a routine grievance. And that Mr. Bulmer followed that course before allegedly
filing his appeal demonstrates that he understood the procedure and did not
reasonably rely on any oral representation. At best, a representation that he could
appeal amounted to negligent misinformation, which does not constitute affirmative
misconduct. See LaBonte v. United States, 233 F.3d 1049, 1053 (7th Cir. 2000).
AFFIRMED