United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan, Chief District Judge
James Owens is currently incarcerated at the Lawrence
Correctional Center in Sumner, Illinois. On November 16,
2015, he filed suit against a number of Lawrence officials,
claiming that they violated his constitutional rights by not
providing appropriate dental care during his tenure at the
prison. Owens' complaint was screened pursuant to 28
U.S.C. § 1915A, and a number of his claims were allowed
to proceed through threshold review. One of those claims was
directed at Dr. Litherland, the dentist at Lawrence, who
Owens says bungled a bone spur procedure on him on June 18,
2015, causing injury to Owens' jaw in the process. Dr.
Litherland has now moved for summary judgment, maintaining
that Owens' claims against him must be dismissed because
he didn't properly exhaust his prison administrative
remedies before suit. According to Dr. Litherland, Owens
didn't submit his grievance concerning the bone spur
procedure until August 21, 2015, and that was four days late
under the prison's rules. Owens concedes that his
grievance was untimely but insists that the grievance process
was unavailable to him from August 10, 2015 to August 17,
2015, as his housing unit was on lockdown and Lawrence
officials refused his requests for grievance forms during
that time. Alternatively, Owens claims that there was good
cause for his late filing. The undersigned referred Dr.
Litherland's motion to Magistrate Judge Williams, who has
since filed a report advising that Dr. Litherland's
exhaustion motion be granted. The propriety of that report is
now before the Court for review.
Owens' response to Dr. Litherland's motion,
Magistrate Judge Williams held an evidentiary hearing in July
2016 to flesh out the availability and timeliness points. Dr.
Litherland called two witnesses at the hearing: Kimberly
Ulrich, who was a paralegal in the law library in August
2015, and Jeffrey Strubhart, who was Lawrence's grievance
officer during that same period. Ulrich testified that
prisoners were allowed to obtain grievance forms during a
lockdown: they could request forms from the wing officer,
they could obtain them from the housing unit counselor, they
could send the paralegal in the law library a request and the
paralegal would mail them, or they could ask the paralegal
for forms during her housing rounds and she would provide
them then. Ulrich couldn't recall one way or the other
whether Owens had requested grievance forms from her during
the August 2015 lockdown. For his part, Strubhart confirmed
that prisoners could obtain grievance forms from the law
library, that they could obtain them from the back of their
housing wing, or that they could ask an officer to obtain a
grievance form from a counselor for the prisoner. Strubhart
didn't testify one way or the other concerning the steps
Owens took in August 2015 to file a form.
also testified at the hearing. He stated that he typically
kept extra grievance forms in his cell but had ran out by the
time his housing unit was on lockdown in August 2015. He
claimed he sent three requests to the law library for
grievance forms so that he could file a grievance against Dr.
Litherland-once on August 7th, once on August 11th, and once
on August 14th-but that he never heard back from the law
library and never received any forms. He also asked officers
on his unit, but they wouldn't give him forms, either.
Owens conceded that he didn't ask his counselor for a
grievance form during the lockdown, but said that he
didn't know he could. He also said that he never asked
his counselor for forms during his sixteen-year tenure in the
Department of Corrections-a curious statement given that
Owens' counseling summary indicated that he had received
forms from his counselor on at least six occasions during his
lengthy incarceration. When lockdown ended on August 18th,
Owens requested a library pass, and he was finally able to go
to the library on August 21st. He obtained a grievance form
from the library and filed a grievance against Dr. Litherland
that day, which was ultimately denied on procedural grounds.
light of the testimony at the hearing, Magistrate Judge
Williams viewed Owens' failure to request a grievance
form from his counselor as fatal, finding that the remedy
process was still available to Owens while he was on lockdown
because he could still have accessed forms through his
counselor. For similar reasons, he also found that Owens'
four-day delay in submitting his grievance couldn't be
excused under the Illinois Administrative Code on good cause
grounds, as Owens' failure to request a form from his
counselor during lockdown indicated a lack of diligence on
his part. Owens has filed objections to Judge Williams'
recommended disposition, meaning that the undersigned must
conduct an independent review of the evidence and arguments
offered by the parties, without giving any presumptive weight
to Judge Williams' conclusions. See Mendez v.
Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013).
Court has reviewed the law on exhaustion and, especially in
light of some recent authority decided after Dr.
Litherland's motion was submitted, the Court can't
agree with Judge Williams' recommendation in this case.
There are two problems with dismissing Owens' claim on
exhaustion grounds. The first concerns the availability of
administrative remedies: a prisoner must exhaust the
administrative remedies set by prison rules before suing over
prison conditions, but he need only exhaust those remedies
that are “available” to him, and administrative
remedies typically aren't available when an official
refuses to provide a prisoner with the very forms he needs to
start the grievance process. E.g., Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008); Dale v.
Lappin, 376 F.3d 652, 655-56 (7th Cir. 2004). In that
vein, Owens offered evidence that he attempted to obtain
forms from the law library and officers at the prison but was
rebuffed, and that evidence, left undisputed by Dr.
Litherland, would normally mean that Owens'
administrative remedies should be regarded as exhausted.
Court says “normally” because there are
situations where the prison's administrative process
might remain available to a prisoner despite one
official's refusal to provide grievance forms. The
obvious example is when a prisoner fails to abide by a
prison's rules for obtaining a form. A prisoner has an
obligation to follow a prison's procedures for
grievances, Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002), so if the rules compel the prisoner to
obtain a grievance form from a corrections officer and he
instead demands it from the prison's janitor, the
janitor's refusal to provide the form won't preclude
officials from asserting an exhaustion defense. See Pavey
v. Conley, 663 F.3d 899, 905 (7th Cir. 2011) (prisoner
didn't exhaust merely by making informal complaints to
someone at the prison, as he didn't abide by the
prison's rule to file a formal grievance). The less
obvious example is when a prison's rules are ambiguous as
to where to obtain a grievance form. A plaintiff must do all
he can to avail himself of the administrative process,
Wilder v. Sutton, 310 F. App'x 10, 13 (7th Cir.
2009), so when a prison's rules are open-ended about the
location of forms, it's incumbent on the prisoner to make
a reasonable go at finding a form at the location envisioned
by the rule. If a prisoner doesn't do that-if he asks one
person for the form and that person declines but sends him to
the right person to get it-he can't summarily deem his
remedies exhausted. Cf. Jones v. Smith, 266 F.3d
399, 400 (6th Cir. 2001) (affirming exhaustion dismissal
because prisoner only asked once for a grievance form).
in light of recent Seventh Circuit authority, the undersigned
can't conclude that this case involves either situation.
The Illinois Department of Corrections' rules don't
specify who provides grievance forms at a prison-the
regulations only say that an offender should attempt to
resolve incidents with his counselor first, and failing that
he should file a grievance form, which “shall be made
available in all living units.” See Ill.
Admin. Code tit. 20, § 504.810; see also Smith v.
Buss, 364 F. App'x 253, 255 (7th Cir. 2010)
(Illinois grievance procedures required the prison “to
maintain a supply of grievance forms in each unit and called
for inmates to be given forms within one working day of a
request”). There's nothing in the Illinois rule
that directs a prisoner to obtain a form from his counselor,
and the Seventh Circuit's recent decision in Hill v.
Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016), discourages
this Court from imposing that kind of mandatory requirement
when the prison's rules don't go that far.
Hill involved an Indiana prisoner who claimed that
his counselor failed to give him a grievance form-the prison
officials claimed he hadn't exhausted because he
didn't ask other officials at the prison for a form, but
the Seventh Circuit rejected that argument, as the
prison's rule only required the prisoner to go to two
people for the form, and the prisoner made a reasonable
effort at complying with the rule by asking both for a form.
As was the case in Hill, Owens behaved in a manner
contemplated by the Illinois rule, and he made a reasonable
effort to secure forms in light of the open-ended language of
that rule. Owens asked his unit officers for forms and sent
three requests to the law library (whose paralegals sometimes
visited the units to distribute forms), and those efforts
appear reasonable in light of the officials' testimony
that those paths were viable ways of obtaining grievance
forms at Lawrence.
another basis for deeming Owens' administrative remedies
exhausted in this case, one less to do with Illinois'
rules or Owens' efforts to comply with those rules and
more to do with a form of mousetrapping. If a prison provides
direction to an inmate concerning the operation of the
grievance procedure, the prison can't later argue failure
to exhaust when the prisoner follows the directions laid out
for him. E.g., Kaba v. Stepp, 458 F.3d 678,
684 (7th Cir. 2006); Brown v. Croak, 312 F.3d 109,
112 (3d Cir. 2002). At the evidentiary hearing, Owens
testified that he routinely obtained grievance forms by
sending written requests to the law library, and the law
library paralegal confirmed that this is a proper method for
prisoners to obtain grievances. Because the undisputed
testimony shows that Owens tried the library path but that
his requests to the law library were ignored, his remedies
must be regarded as exhausted.
Owens' administrative remedies could somehow be regarded
as available despite officials' failure to give him
grievance forms, the undersigned is of the view that any
untimely submission should be excused. The Illinois
Administrative Code provides that untimely grievances can be
excused if there was “good cause” for the delay,
Ill. Admin. Code tit. 20, § 504.810(a), and the Seventh
Circuit has applied a “flexible, equitable” test
on that front. Pyles v. Nwaobasi, - F.3d -, 2016 WL
3924376, at *4-6 (7th Cir. 2016). If a prisoner shows that he
was “diligent, ” that he “followed the
Illinois administrative procedures to the greatest extent
possible, ” and that despite these efforts matters
outside of his control caused a delay, he has established
good cause. Id. Owens clears those requirements
here: he asked for grievance forms in a manner contemplated
by the Illinois administrative rules and confirmed as viable
by prison officials; he had no control over prison
officials' failure to provide those forms; and he
obtained a form and filed a grievance shortly after he exited
Williams determined that Owens didn't have good cause for
his late submission under the Illinois rule because he
didn't ask his counselor for a grievance form while he
was on lockdown. That recommendation was understandable at
the time, as the Seventh Circuit's decision in
Hill wasn't decided until after Dr. Litherland
submitted his briefing on the motion for summary judgment and
the Seventh Circuit's decision in Pyles
wasn't decided until after Judge Williams submitted his
recommendation. With the benefit of those cases, though, the
undersigned can't agree that Owens lacked good cause
merely because he failed to ask his counselor for a grievance
form. He wasn't necessarily required to go to his
counselor for a form under the Seventh Circuit's thinking
in Hill, and his efforts to obtain a form were
consistent with the prison's rules and thus reasonable
under the approach in Pyles.
closing note is in order concerning a point Judge Williams
flagged in his report and recommendation. At the hearing,
Owens said that he didn't ask his counselor for a
grievance because he didn't know that he could, and
claimed that he had never received a grievance form through a
counselor during his tenure with the Illinois Department of
Corrections. That testimony was refuted by Owens'
cumulative counseling summary, which showed that he had
received counseling forms on at least six occasions from his
counselor, the latest occurring in 2010. Judge Williams
warned Owens of the consequences of lying to the Court in his
report, and Owens shouldn't view anything in this order
as contradicting that warning. In his objections, Owens says
that he failed to remember those events due to memory loss
and the passage of time. Whether that's true or not is
beside the point for now-Owens is cautioned that he has a
duty of candor to the Court, and if he makes a factual
misrepresentation again, he may see sanctions, up to the
dismissal of his case. E.g., Ayoubi v.
Dart, 640 F. App'x 524, 528-29 (7th Cir. 2016);
Hoskins v. Dart, 633 F.3d 541, 543-44 (7th Cir.
up, because Owens' administrative remedies were rendered
unavailable, and because he had good cause for his untimely
grievance as to Dr. Litherland either way, the Court must
REJECT the July 2016 report and recommendation (Doc. 47) ...