David Brengettcy v. William Horton , John Daley , Officer Farrow , John Does I-X

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3813
D AVID B RENGETTCY ,
Plaintiff-Appellant,
v.
W ILLIAM H ORTON , J OHN D ALEY ,
O FFICER F ARROW , J OHN D OES I-X, and
THE C OUNTY OF C OOK , I LLINOIS ,
Defendant-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 197—Amy J. St. Eve, Judge.
____________
A RGUED D ECEMBER 10, 2004—D ECIDED S EPTEMBER 8, 2005
____________
Before R IPPLE , M ANION , and W OOD , Circuit Judges.
W OOD , Circuit Judge. While he was awaiting trial at
the Cook County Department of Corrections (CCDOC),
David Brengettcy became embroiled in a physical alter-
cation with Officer William Horton that resulted in
Brengettcy’s spending two days in the hospital. Later, a
jury convicted him of aggravated battery on a peace
officer in violation of 720 ILCS 5/12-4(b)(6), for which he
received a sentence of three years’ imprisonment. Mean-
while, Brengettcy claims that he filed a grievance against
Officer Horton and the other officers involved in the
incident with the CCDOC on August 23, 2000, the day he

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2 No. 03-3813
was released from the hospital. The grievance asserted that
Horton attacked him, hitting him while he was handcuffed;
after that, someone kicked him down a nearby staircase.
After failing to receive a response to his initial grievance,
Brengettcy filed several others in November and Decem-
ber 2000. In January 2001, Brengettcy brought a civil rights
suit under 42 U.S.C. § 1983 in federal court against the
defendants, alleging violations of his federal constitutional
rights and state law. Judge Bucklo initially presided over
his case. The defendants filed two motions to dismiss, one
based on Heck v. Humphrey, 512 U.S. 477 (1994), and the
second on Brengettcy’s alleged failure to exhaust his
administrative remedies as required by the Prison Litiga-
tion Reform Act (PLRA), 42 U.S.C. § 1997e(a). After Judge
Bucklo denied both motions, Brengettcy’s case was trans-
ferred for administrative reasons to Judge St. Eve. Defen-
dants presented their Heck and exhaustion arguments to
her in the form of a motion for summary judgment; ruling
only on the exhaustion point, she entered judgment in their
favor. We conclude that this action was premature and that
the defendants’ other arguments in support of the judgment
are unavailing, and thus we remand to the district court for
further proceedings.
I
Our account of the facts takes them in the light most
favorable to Brengettcy. Rooney v. Koch Air, LLC, 410 F.3d
376, 380 (7th Cir. 2005). On August 21, 2000, Brengettcy
attended a Bible study meeting held in the mess hall on the
first floor of the CCDOC. After the meeting concluded, he
left the mess hall and started to walk up the stairs to the
second floor. When he reached the second floor landing, he
realized that he had forgotten to mail a letter. He went back
down the stairs to the first floor, mailed his letter, encoun-
tered a correctional officer without incident, and returned

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No. 03-3813 3
to the second floor.
Observing Brengettcy’s return to the second floor, Officer
Horton asked him why he had gone back downstairs.
Brengettcy described what happened next as follows:
After the first time when he said, mother fucker, who
told you to go downstairs, I told him I went to go
mail my letter, officer, and I set the bible down on his
desk. He continued talking with verbal assaults with
mother fuckers in it. I silenced myself. I didn’t say
nothing. I just looked him in the eye. He struck me. I
fell back. I didn’t—I looked at Halbert, Officer Halbert.
He didn’t say anything. So he proceeded to striking [sic]
me.
Brengettcy testified that he broke Horton’s attack by
backing up toward the other officers and then punching
Horton several times. The other officers called for assis-
tance and within two minutes, reinforcements were on
the scene. Brengettcy claims that he was then repeated-
ly beaten and kicked by the officers. He tried to defend
himself by assuming the fetal position and covering his
head until he was handcuffed. After he was handcuffed, the
officers continued to beat him and he was taken to
the stairwell where someone kicked him down the
stairs. The next thing he recalls is regaining conscious-
ness that evening in the hospital. His medical reports
indicate that he was experiencing pain in his throat,
shoulder, wrist, back, leg, and that he received sutures in
his bottom lip and chipped his front teeth.
Brengettcy was released from the Cook County Hos-
pital on August 22, 2000. In his verified complaints, he
alleged that he filed a grievance with the CCDOC the
following day, on August 23, 2000, which was within fifteen
days of the incident as required by CCDOC’s grievance
policy. He did not receive a reply within 30 days as specified
in the CCDOC’s grievance policy nor did he get a notifica-

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4 No. 03-3813
tion that his grievance would take longer than 30 days to
resolve. In October, Brengettcy inquired about the status of
his grievance with Officer McCullen, who told him that
sometimes the grievances get torn up. On November 27,
2000, he filed another grievance. Again, the CCDOC failed
to respond to his grievance with either a decision or a
notification that it would take longer than 30 days to
resolve.
On January 9, 2001, the clerk’s office for the Northern
District of Illinois received Brengettcy’s pro se verified
complaint alleging that Officer Horton had violated his civil
rights by using excessive force during the incident. The
clerk’s office filed his complaint on March 13, 2001.
On May 3, 2001, the defendants moved to dismiss
Brengettcy’s complaint on the grounds that Heck barred his
civil rights claims. On June 19, 2001, Brengettcy filed a pro
se amended verified complaint adding defendant John
Daley and alleging the same underlying facts. Judge Bucklo
denied the defendants’ motion to dismiss in an order dated
July 24, 2001, explaining that:
Brengettcy’s conviction necessarily implies that he
struck Horton, that he knew Horton was a peace officer,
and that his striking Horton was not legally justified. It
by no means necessarily implies that Horton’s use of
force against Brengettcy was lawful. In this action,
Brengettcy cannot dispute the legitimacy of the state’s
sentencing him to three years in prison for striking
Horton, but he can dispute the legitimacy of the alleged
extrajudicial “punishment” inflicted by Horton and the
other deputies.
After the court’s decision, it appointed counsel for
Brengettcy, and counsel filed a second amended complaint
on February 21, 2002, adding defendants Officer Farrow (to
whom we refer below as Pharaoh Halbert, his real name),
John Does I-X, and Cook County, and withdrawing Defen-

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No. 03-3813 5
dant Sheahan. The defendants filed a second motion to
dismiss arguing that Brengettcy failed to exhaust his
administrative remedies. Brengettcy responded with a
memorandum, to which he attached copies of his grievance
forms dated November 27, November 31, December 5, and
December 7.
On July 10, 2002, Judge Bucklo denied the defendants’
second motion to dismiss. She reasoned that “[p]laintiff’s
grievance was filed in the year 2000. Defendants do
not dispute that plaintiff never received a response . . .
A plaintiff is not requir[ed] to wait an unreasonable length
of time—during which evidence, witnesses, and memories
may be lost—for a decision before he can go forward
with his federal suit.” She did not explain whether she
was relying on Brengettcy’s alleged August 23, 2000, fil-
ing, or a later filing. On September 6, 2002, Brengettcy’s
case was transferred to Judge St. Eve.
On August 13, 2003, defendant Horton moved for sum-
mary judgment for essentially the same two reasons that
Judge Bucklo had considered: failure to exhaust and the
Heck bar. In addition, Horton raised a collateral estoppel
defense, claiming that the excessive force issue essential to
Brengettcy’s claim had been resolved adversely to him in
the state criminal proceeding. Horton claimed that
Brengettcy had admitted “that the only grievance form that
he filed pertaining to the underlying incident is the griev-
ance dated November 27, 2000.” Horton also alleged that
Brengettcy did not file an appeal, but he never mentioned
that the CCDOC had not responded to Brengettcy’s griev-
ances, nor did he note that Brengettcy had inquired about
the status of his grievance in the fall of 2000 (taking the
facts favorably to Brengettcy, at a time before the Novem-
ber 27 grievance).
Unfortunately, Brengettcy’s counsel did not respond to
Horton’s motion for summary judgment in the manner

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6 No. 03-3813
required by Local Rule 56.1(b)(3), which requires the non-
moving party to file “a response to each numbered para-
graph in the moving party’s statement . . .” and “a state-
ment, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judg-
ment . . . .” N.D. Ill. L.R. 56.1(b)(3)(A) & (B). Instead,
counsel filed a motion styled “Plaintiff’s Response to Defen-
dants’ Motion for Summary Judgment.” Because
this motion did not comply with the Local Rules, the district
court adopted Horton’s statement of facts. In doing so, the
court concluded that:
Plaintiff filed a single grievance on November 27, 2000,
three months after the date of the incident. Cook
County Department of Corrections procedure requires
inmates to file grievances with fifteen days of the
underlying incident. The facts also show that Plaintiff
did not file an appeal in connection within his untimely-
filed grievance, and that Plaintiff was not prevented
by Defendant from filing an appeal . . . . Because he has
not raised an issue of material fact in connection with
the exhaustion of administrative remedies, Plaintiff is
barred by 42 U.S.C. § 1997e(a) from pursuing this
lawsuit.
In this appeal, Brengettcy’s new counsel argues that the
portion of the deposition testimony on which Horton
relied does not support the conclusion the district court
(following the defendant’s argument) drew. That portion
instead is the place where Brengettcy admitted that he had
not filed an appeal relating to the November 27 grievance.
The excerpt, which we reproduce here, contains no admis-
sion that the sole grievance he filed was submitted on
November 27, 2000.
Q: So if I go through and pulled that they made a
decision and tendered it to you during the period of
time, you’re telling me you never appealed? Is that
what your testimony is? Did you or did you not file
an appeal?

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No. 03-3813 7
1 The following exchange is what was missing:
Q: And you say you filled this [November 27 grievance form]
out and you submitted it?
A: Yes. I submitted more than just this one, more than just
one because they don’t—they look in the box and they
tear them up. That’s what I heard.
Q: But I’m asking your specific—you filled out this griev-
ance form. Is there another grievance form you filled out?
A: I put in many grievances.
Q: About this incident?
A: And I didn’t hear nothing from them.
Q: Let me finish. You’re saying that you submitted this
(continued...)
A: No.
Q: You did not?
A: No.
Q: The only form you filed, according to your testi-
mony, is this grievance form that you identified
here today, right?
A: Yes.
In addition, appellate counsel argues that Horton failed
to attach the pages of Brengettcy’s deposition testimony
on which he relied to his summary judgment motion.
When he finally did attach the pages, he included only
pages 198-99 and 203-04. Acknowledging that the missing
pages were not officially part of the record, Brengettcy’s
counsel quoted them in his brief for purposes of showing
how drastically they change the inference one should draw
from the section quoted above. The other pages show that
immediately prior to this exchange, Brengettcy repeatedly
testified that he filed other grievances besides the one he
filed on November 27. 1

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8 No. 03-3813
1 (...continued)
grievance?
A: I have submitted many grievances . . . .
II
We review a district court’s grant of summary judgment
de novo. Rooney, 410 F.3d at 380. A grant of summary
judgment is proper “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” F ED . R. C IV . P. 56(c).
This case is complicated because two different district
court judges ruled on essentially the same issues in the
case, and they reached different results. Generally speak-
ing, a successor judge should not reconsider the decision
of a transferor judge at the same hierarchical level of
the judiciary when a case is transferred. See Williams v.
Commissioner, 1 F.3d 502, 503 (7th Cir. 1993); see also
John A. Glenn, Annotation, Propriety of Federal District
Judge’s Overruling or Reconsidering Decision or Order
Previously Made in Same Case by Another District Judge,
20 A.L.R. F ED . 13 (1974, updated Apr. 2005). “[T]he law
of the case doctrine in these circumstances reflects the
rightful expectation of litigants that a change of judges
mid-way through a case will not mean going back to square
one.” Best v. Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997);
see also Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 816 (1988). As we explained in Best, “[a]lthough
the second judge may alter previous rulings if he is con-
vinced they are incorrect, he is not free to do so . . . merely
because he has a different view of the law or facts from the
first judge.” Best, 107 F.3d at 546 (internal citations and
quotation marks omitted).

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No. 03-3813 9
In this case, however, Judge St. Eve was not presented
with “precisely the same question in precisely the same
way” as Judge Bucklo: Judge Bucklo considered a motion to
dismiss, while Judge St. Eve had a summary judgment
motion before her. We must therefore decide whether the
new evidence submitted with Horton’s motion for summary
judgment “gave the second court a compelling reason to
reopen the previously decided question.” Id. at 547. “[I]f so,
we would then review the second judge’s decision de novo,
but if not, we would again take the first judge’s decision
as our point of reference.” Id.
Before doing so, we must address the preliminary ques-
tion whether Brengettcy’s lawyer’s failure to comply with
Local Rule 56.1(b)(3) before the second judge dooms his
appeal. While we “have consistently held that a failure to
respond by the nonmovant as mandated by the local rules
results in an admission,” Smith v. Lamz, 321 F.3d 680, 683
(7th Cir. 2003), noncompliance with a court’s local rules
does not create a jurisdictional bar for the district court or
for us. See Smith v. Frank, 923 F.2d 139, 141 (9th Cir.
1991) (“[L]ocal rules should not be construed as affecting
the jurisdiction of the district court, but instead should
merely regulate the practice within the court.”). It merely
means that the noncomplying party cannot contradict facts
properly set forth in the moving party’s Local Rule 56.1
statement. Our evaluation of the record, to the extent we
need to look at the second judge’s action, therefore proceeds
on the basis of the facts Horton presented. See, e.g., Best,
107 F.3d at 549.
The question is thus whether the new evidence that
Horton submitted with his motion for summary judgment
provided a compelling reason for Judge St. Eve to over-
turn Judge Bucklo’s decision. The additional evidence
included portions of Brengettcy’s deposition testimony
and Horton’s statement of facts. In addition to those
two items, both judges had before them Brengettcy’s

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10 No. 03-3813
verified complaints and the various grievances that he filed.
We put to one side the controversy about what Brengettcy
said in his deposition testimony, because no one called the
district judge’s attention to the missing pages, and we are
deciding at this point whether there was enough before
Judge St. Eve to justify reopening these issues. Even when
a district court is proceeding on the basis of only one party’s
version of the facts, because of the local rules, it remains
true that the underlying facts alleged must be taken in the
light most favorable to the nonmoving party, and all
reasonable inferences must be drawn in his favor. On that
basis, we conclude that Horton’s summary judgment papers
did not present enough new material to justify overturning
Judge Bucklo’s evaluation of the two defenses. Brengettcy’s
original verified complaint and his first amended complaint
both alleged that he filed a grievance on August 23, 2000;
Horton’s statement contradicted that crucial fact. Taking
the inferences in Brengettcy’s favor, the deposition ex-
cerpt quoted above refers only to his failure to appeal
the November 27 grievance, not to the existence or non-
existence of any other grievances. The relevant facts had
not changed by the time Horton presented his summary
judgment motion to Judge St. Eve, because he never alleged
that the CCDOC issued a decision or reply to any of
Brengettcy’s grievances. We conclude that there was not a
“compelling reason” to disrupt Judge Bucklo’s ruling
regarding exhaustion.
This in itself does necessarily not mean, of course, that
Judge Bucklo was correct. At this juncture, we must simply
decide, exercising de novo review, whether Brengettcy’s case
should have been dismissed for failure to exhaust. (This
would be the standard of review whether we were consider-
ing Judge St. Eve’s decision on the summary judgment
motion or Judge Bucklo’s decision on the motion to dismiss.
Because we have concluded that there was no reason to set
aside the first decision, however, the procedural problems

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No. 03-3813 11
with the second decision are of lesser importance.) The
PLRA requires that “[n]o action shall be brought with
respect to prison conditions . . . by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 532
(2002); Booth v. Churner, 532 U.S. 731, 741 (2001).
Exhaustion is “an affirmative defense that the defendants
have the burden of pleading and proving.” Dale v. Lappin,
376 F.3d 652, 655 (7th Cir. 2004). In addressing exhaustion
within the context of the PLRA, we have held that §
1997e(a) requires “a prisoner [to] 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). Nevertheless, we have also held
that prison officials’ failure to respond to a prisoner’s claim
can render administrative remedies unavailable. See Lewis
v. Washington, 300 F.3d 829, 835 (7th Cir. 2002). In Lewis,
we followed the Eighth and Fifth Circuits in holding that
“administrative remedies [are] exhausted when prison
officials fail to respond to inmate grievances because those
remedies had become ‘unavailable’ . . . . We join [them] on
this issue because we refuse to interpret the PLRA so
narrowly as to . . . permit [prison officials] to exploit the
exhaustion requirement through indefinite delay in re-
sponding to grievances.” Id. (internal citations and quota-
tion marks omitted); see also Foulk v. Charrier, 262 F.3d
687, 698 (8th Cir. 2001); Miller v. Norris, 247 F.3d 736, 740
(8th Cir. 2001); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.
1999); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.
1998) (per curiam).
Judge Bucklo concluded that Brengettcy “ha[d] done
all that is reasonable to exhaust his administrative reme-
dies” because the prison officials failed to respond to his
grievance. She knew that Brengettcy had alleged that he
filed a grievance as early as August 23, 2000, in compliance

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12 No. 03-3813
with CCDOC’s internal timetables. Her ruling was reason-
able given the CCDOC’s grievance policy, which requires a
decision to be made on a prisoner’s grievance within 30 days
of filing; if no decision is possible within that time period,
the prisoner is entitled to a notice that his grievance will
require more than 30 days for resolution. Once a decision
has been made, the policy allows “five (5) working days from
receipt of the decision, to appeal to the Administrator of
Program Services or designee.” But the policy does not
instruct a prisoner on what he is to do when the CCDOC
fails to respond to his grievance and there is no decision to
appeal. Particularly in the light of Brengettcy’s allegations
that he filed a grievance within the time period mandated
by CCDOC’s rules, we conclude that Horton was not
entitled to judgment on the basis of any alleged failure to
exhaust.
Because we have concluded that the record here did
not support Judge St. Eve’s decision to reopen Judge
Bucklo’s conclusion on exhaustion, we do not have to
reach Horton’s argument that Brengettcy waived his
claim that Horton failed to comply with Rule 56 when
Horton did not attach the deposition pages on which he
relied to his summary judgment motion. The entire Rule 56
process gives us concern, however. We note that we
find Horton’s omission perilously close to the boundaries of
zealous advocacy; it bordered on misleading the court. This
is why we reproduced the omitted portion of Brengettcy’s
deposition testimony in footnote 1, supra. Looking at
Brengettcy’s actual testimony, and comparing it with what
the defendants represented to the court, is disturbing.
Judge St. Eve had no reason to suspect that the excerpt
submitted to her was taken so far out of context.
Even if Brengettcy exhausted his administrative reme-
dies, Horton argues in the alternative, his claims are barred
by collateral estoppel or Heck because of his state court
conviction for battery. Horton’s Heck argument is easily

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No. 03-3813 13
answered. As Judge Bucklo recognized, Brengettcy is not
barred by Heck because his challenge that Horton used
excessive force after he hit Horton does not undermine
Brengettcy’s conviction or punishment for his own acts of
aggravated battery. See Wilkinson v. Dotson, 125 S.Ct. 1242
(2005).
Neither is Brengettcy’s claim barred by collateral
estoppel. Horton suggests that the question whether he
used excessive force was necessarily decided during
Brengettcy’s state criminal trial. We therefore look to the
preclusion law of Illinois to determine the effect of that
judgment. 28 U.S.C. § 1738. In Illinois, issue preclusion
requires that: “(1) the issue decided in the prior adjudica-
tion is identical with the one presented in the suit in
question; (2) there was a final judgment on the merits in
the prior adjudication; and (3) the party against whom the
estoppel is asserted was a party or in privity with a party
to the prior adjudication.” Bajwa v. Metro. Life Ins. Co., 804
N.E.2d 519, 532 (Ill. 2004). The question whether Horton
used excessive force after Brengettcy hit him was not
presented or decided during Brengettcy’s criminal trial.
This means that neither the first nor the second of Illinois’s
requirements are met here: the issues decided in the
criminal case were not identical to those in the present
case, and the criminal case did not produce a
final adjudication on the excessive force point. The state
court’s decision not to give a self-defense instruction
determined only that Brengettcy was not legally justified in
hitting Horton. It implied nothing about the degree of force
Horton was allowed to use in responding to Brengettcy’s
assault.
Finally, we must consider whether the district court
properly dismissed on its own motion the defendants
who did not move for summary judgment—Pharaoh
Halbert, John Daley, John Does I-X, and the County of
Cook (that is, everyone except Horton). Without giving

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14 No. 03-3813
Brengettcy notice, an opportunity to show good cause, and
an opportunity to request an extension of time, the court
concluded that he had failed to perfect service in a manner
consistent with F ED . R. C IV . P. 4(m). This, we conclude, was
error. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d
338, 340 (7th Cir. 1996); see also Troxell v. Fedders of North
America, Inc., 160 F.3d 381, 382-83 (7th Cir. 1998). On
remand, Brentgettcy’s suit against the remaining named
defendants must be reinstated and he must be given an
opportunity to show either that there was good cause to
explain his earlier failure to effect service or that he is
otherwise entitled to an extension of time. The situation
with respect to John Does I-X is different; for them, there is
literally no one to serve. They were properly dismissed from
the action, and any effort Brengettcy may wish to make to
add additional named defendants at this point must comply
with all pertinent rules.
III
We R EVERSE the district court’s judgment for the defen-
dants and R EMAND to the district court for further pro-
ceedings consistent with this opinion.

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No. 03-3813 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-05

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