Carl Roberts v. Brian Neal

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1335
C ARL R OBERTS,
Plaintiff‐Appellant,
v.
BRIAN NEAL , et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:11‐cv‐00266‐JPG — J. Phil Gilbert, Judge.
____________________
SUBMITTED FEBRUARY 13, 2014 — DECIDED MARCH 11, 2014
____________________
Before P OSNER , WILLIAMS, and H AMILTON, Circuit Judges.
P OSNER , Circuit Judge. The plaintiff appeals from the dis‐
missal of his pro se civil rights suit (see 42 U.S.C. § 1983) for
failure to exhaust administrative remedies. Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). He is an Illinois prison in‐
mate who had been transferred to the Pinckneyville Correc‐
tional Center from the Big Muddy Correctional Center. The
defendants are employees of the two prisons—Davis, Doty,
Neal, Selby, and Woodside are employed by Big Muddy,

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2 No. 13‐1335
and Alvis by Pinckneyville. The district court granted sum‐
mary judgment in favor of all the defendants. We discuss the
claim against Alvis first, then the claim against the Big
Muddy defendants, including the separate grievance that
Roberts claims to have filed against Davis.
While at Big Muddy, Roberts had broken his right hand
in a fight with his cellmate, and he complains that he re‐
ceived inadequate treatment for the pain caused by the
break. He says that he filed an “emergency” grievance (ex‐
plained below) with Big Muddy’s warden and received no
response to it; the Big Muddy defendants claim there’s no
record of such a grievance.
It was several weeks after the injury that he was trans‐
ferred to Pinckneyville. He says he told the receiving officer,
defendant Alvis, that the staff at Big Muddy had authorized
him to be assigned to the bottom bunk of the bed in his cell
(it is difficult to climb into a top bunk with a broken hand),
but that Alvis told him he’d have to work out his sleeping
arrangements with his cellmate. He claims to have filed a
grievance against Alvis, but Pinckneyville officials deny hav‐
ing received such a grievance.
The district court dismissed the claim against Alvis on
the ground that there was no evidence besides Roberts’s say‐
so that he had filed a grievance against him, and if he hadn’t
then he hadn’t exhausted his administrative remedies and
couldn’t sue. Roberts provided no documentation to back up
his claim, such as a copy of the grievance. But that was not
an adequate basis for a grant of summary judgment. Roberts
may have been lying about having filed a grievance—but
alternatively the defendants may have been lying when they
denied there was any record of such a grievance. A swearing

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No. 13‐1335 3
contest requires an evidentiary hearing to resolve, and none
was held. It’s true that while a trial is the standard means of
resolving factual disputes, a judge can resolve an issue of
exhaustion, like other threshold issues (such as jurisdiction),
himself, in order to avoid multiple trials in the same case.
But he can do that only after conducting an evidentiary hear‐
ing. Pavey v. Conley, 544 F.3d 739, 741–42 (7th Cir. 2008).
On appeal, however, Roberts has forfeited his claim
against Alvis by acknowledging that his grievance, though
he says it was intended to embrace his mistreatment by
Alvis, neither mentioned Alvis by name nor provided in‐
formation that should have identified him to the grievance
officer. That was a fatal defect, as we’ll be noting with re‐
spect to another of Roberts’s grievances.
His other claims concern employees of Big Muddy. He
complained to a prison counselor at Pinckneyville about the
lack of response to his Big Muddy grievance that named all
but Davis, and was advised to refile the grievance with the
Administrative Review Board. The Illinois prison system’s
grievance process, prescribed in 20 Ill. Admin. Code
§§ 504.800 et seq., typically begins at the prison level, with
the filing of a grievance with a grievance officer. §§ 504.810–
504.820. If the officer denies the grievance, and the warden
affirms that denial, § 504.830(d), the prisoner can appeal to
the Administrative Review Board, § 504.850(a), an entity
within the Illinois Department of Corrections having state‐
wide jurisdiction. §§ 504.800, 504.850(b)–(e). If, however, the
grievance concerns events that took place at a prison other
than the one in which the inmate is currently housed—as
Roberts’s refiled grievance did since he’d been shunted to
Pinckneyville after his injury at Big Muddy—the inmate is

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4 No. 13‐1335
directed to skip the grievance officer and send his grievance
directly to the Administrative Review Board.
§§ 504.870(a)(3), (4). Roberts did that. But the Board ruled
that his appeal was untimely, coming as it did 70 days after
his hand injury and thus ten days too late; for sec‐
tion 504.810(a) provides that “a grievance shall be filed
within 60 days after the discovery of the incident, occur‐
rence, or problem that gives rise to the grievance.” The dis‐
trict judge agreed, and so ruled that the Board had properly
refused to accept Roberts’s appeal and therefore Roberts
hadn’t exhausted his administrative remedies.
Roberts claims to have filed a separate grievance against
one of the Big Muddy employees, nurse Davis. That claim
was dismissed because, though she had mistreated him (he
contends) at Big Muddy, Roberts had filed his grievance
with a grievance officer at Pinckneyville; he should have
filed it with the Administrative Review Board, as noted in
the preceding paragraph. Dismissal on that ground was too
abrupt, however, given the absence of any inquiry into what
Roberts could reasonably be expected to know about the
proper way to proceed against a prison employee in a differ‐
ent prison. It can’t be assumed without some evidence that a
prisoner is aware of section 504.870(a)(4), which required
Roberts, so far as his claim against Davis (or anyone else at
Big Muddy) was concerned, to bypass all grievance officers
and go directly to the Administrative Review Board, even
though ordinarily the grievance procedure begins, as pris‐
oners must know, with a complaint to a grievance officer.
We have searched for publicly available material explaining
in terms intelligible to lay persons how to proceed in the
situation in which Roberts found himself, and have not
found any; nor is there any in the record. Although “when

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No. 13‐1335 5
administrative procedures are clearly laid out … an inmate
must comply with them in order to exhaust his remedies,”
Pavey v. Conley, 663 F.3d 899, 905 (7th Cir. 2011), prisoners
must “be informed of the grievance procedure at the admit‐
ting facility.” § 504.810(d). Roberts filed his grievance against
Davis at Pinckneyville, and, as we’re about to see, it was
likely to be interpreted as concerning mistreatment there
rather than at Big Muddy, and in that event the grievance
officer would not have told him to refile the grievance with
the Administrative Review Board—and so far as we know
did not tell him that.
The grievance has a fatal defect, but it lies elsewhere; it
lies in the absence of anything in it to indicate that Davis was
the target. It’s not merely that Roberts didn’t name her; a
grievant is not required to know the name of the prison em‐
ployee whom he’s complaining about—often he will not
know the employee’s name—and so it is enough if he “in‐
clude[s] as much descriptive information about the individ‐
ual as possible,” § 504.810(b). Roberts had failed to do this in
his grievance against Alvis. He failed in spades to do so in
the grievance that he now says was against Davis. For it
states at the outset that it is intended “to express opposition
[to] and disagreement” with a document issued by a doctor
at Pinckneyville named Obadina. The Pinckneyville griev‐
ance officer would naturally have inferred that Roberts was
complaining about the medical treatment he was receiving
there. The grievance does go on to say that “the Big Muddy
River doctor” had told Roberts that the “necessities”
(namely pain medication and the lower bunk) would be
provided at Pinckneyville and that they weren’t. But the
only suggestion that the doctor was at fault is Roberts’s fur‐
ther statement that “I was told by the intake screening nurse

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6 No. 13‐1335
[i.e., at Pinckneyville] that my medical records she was re‐
viewing showed nothing.” This could mean that the Big
Muddy doctor had failed to convey the necessary informa‐
tion to Pinckneyville. But the grievance is not against that
doctor, and anyway Davis is not a doctor. Roberts thus did
fail to exhaust his remedies against Davis, and so cannot sue
her.
Regarding his grievance against the other Big Muddy de‐
fendants, affidavits from the custodians of grievance records
both at Big Muddy and at the Administrative Review Board
state that searches of the records revealed no timely griev‐
ance by Roberts against the Big Muddy employees; in an‐
other affidavit a member of the Board swore that she could
find no record of a timely grievance filed by him with the
Board. But remember that his claim is that he filed an emer‐
gency grievance against the Big Muddy defendants after his
injury but before his transfer to Pinckneyville, and emer‐
gency grievances are to be submitted directly to the warden
and allege “a substantial risk of imminent personal injury or
other serious or irreparable harm to the offender.”
§ 504.840(a). Such grievances require expedited treatment
and entitle the grievant to a response by the warden “indi‐
cating what action shall be or has been taken” on the griev‐
ance. § 504.840(b). It is unclear whether Roberts’s emergency
grievance, since it would bypass the grievance officers, was
in the records that the records custodian searched; and as‐
suming it was filed, Roberts never received a response from
the warden, and so didn’t have to do anything further to
keep his grievance alive. See Lewis v. Washington, 300 F.3d
829, 833 (7th Cir. 2002); cf. § 504.850(a). That his subsequent
grievance filed with the Administrative Review Board was
untimely is therefore irrelevant. And so he didn’t fail to ex‐

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No. 13‐1335 7
haust his administrative remedies. Thornton v. Snyder, 428
F.3d 690, 694 (7th Cir. 2005).
This is on the assumption, however, that he did file the
emergency grievance. The magistrate judge, whose recom‐
mendations the district judge accepted, indulged that as‐
sumption. The case was before him on the defendants’ mo‐
tion for summary judgment, and so there hadn’t been an
evidentiary hearing. If the defendants want to contest the
issue whether the grievance was filed, this will require such
a hearing in the district court, just as the question whether
Roberts filed a grievance against Alvis would have required
an evidentiary hearing to answer had Roberts not forfeited
the issue in this court.
The judgment of the district court is affirmed with regard
to Alvis and Davis but reversed with regard to the other de‐
fendants, and the case is remanded for further proceedings
consistent with this opinion.
A FFIRMED IN P ART , R EVERSED IN P ART , AND R EMANDED.

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