Michael Whitener v. Edwin Buss, et. al

*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).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 12, 2008 *
Decided March 13, 2008
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 07‐1490
MICHAEL WHITENER,
Plaintiff‐Appellant,
v.
EDWIN BUSS, et. al,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:06cv291 RM
Robert L. Miller, Jr.,
Chief Judge.
O R D E R
Indiana inmate Michael Whitener brought suit under 42 U.S.C. § 1983 claiming that
the superintendent of the Indiana State Prison and three prison officers violated his Eighth
Amendment rights by confining him in a prison cell with a defective ceiling that eventually
fell and injured him. The district court granted the defendants’ motion for summary
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐1490 Page 2
judgment, reasoning that Whitener had failed to exhaust his available administrative
remedies as required by the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a).
Whitener appeals, and we affirm the judgment.
It is undisputed that in July 2005 the superintendent ordered Whitener placed in
solitary confinement. While in solitary Whitener complained several times that his cell was
structurally unsound. When the plaster ceiling collapsed and injured Whitener, he was
moved to another cell. More than a week later, he filed a prison grievance alleging that he
was injured because unnamed officers he told about the ceiling had done nothing.
Whitener’s grievance was rejected as untimely.
In his federal complaint Whitener identified three officers (all defendants) who
allegedly knew about the ceiling. The defendants countered at summary judgment that
their investigation had established that plaster and debris did fall from the ceiling but only
because Whitener was chipping away at it. More importantly, though, the defendants
submitted uncontroverted evidence that prison regulations require grievances to be
submitted within 48 hours of an incident (not including weekends and holidays), and that
Whitener missed that deadline by a week. Whitener responded that he did his best to
submit a timely grievance; he contended that prison officials made it impossible for him to
comply with the 48‐hour deadline because, following his transfer, he was unable to
determine the names of the officers he told about the ceiling so that he could name them in
his grievance. Whitener argued that he faced a “Catch‐22ʺ because he could not comply
both with the time limit for filing a grievance and a different requirement that he name the
officers involved. The defendants submitted evidence, however, that Whitener could have
requested that the 48‐hour limit be waived, but he did not.
We review a grant of summary judgment de novo. Sides v. City of Champaign, 496
F.3d 820, 826 (7th Cir. 2007). Whitener first argues that exhaustion under the PLRA should
not be subject to prison procedural requirements, but it is well established that inmates
must comply with prison rules and procedures governing grievances, including time
limitations. See Woodford v. Ngo, 126 S.Ct. 2378, 2386 (2006); Pozo v. McCaughtry, 286 F.3d
1022, 1025 (7th Cir. 2002).
Whitener also argues that his transfer to another cell after his injury prevented him
from complying with the 48‐hour deadline because in that brief time it was impossible for
him to learn the names of the officers involved in the incident. Whitener presented no
evidence that a timely grievance would not have been considered if it did not name the
officers, but the defendants have not disputed that names were required, so we presume
that they were. Still, there is no evidence that his relocation kept Whitener from meeting the
time limit even if he didn’t already know the names of the officers he allegedly told about

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No. 07‐1490 Page 3
the ceiling. Indeed, Whitener submitted no evidence that he tried to learn the names during
the 48‐hour period. In any event, Whitener could have requested that prison officials waive
the time limitation, but did not. This is not a case where prison officials made their
grievance procedures effectively “unavailable” by preventing the inmate from complying.
See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Doyle v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006). Rather, Whitener is simply trying to justify the untimely submission of his
grievance after the fact.
We agree with the district court that Whitener’s failure to exhaust his administrative
remedies is undisputed. Exhaustion was required before Whitener could proceed with his
federal lawsuit, so the district court was correct to dismiss it. See Burrell v. Powers, 431 F.3d
282, 285 (7th Cir. 2005).
AFFIRMED.

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