Christopher Dirig v. William Wilson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 21, 2015 *
Decided April 22, 2015
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐3093
CHRISTOPHER DIRIG,
Plaintiff‐Appellant,
v.
WILLIAM WILSON, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:12‐cv‐549
William C. Lee,
Judge.
O R D E R
Christopher Dirig, an Indiana prisoner, has sued the former warden and three
guards at his prison claiming that he was gratuitously beaten and abused in violation of
the Eighth Amendment. The district court granted summary judgment for the
defendants on the ground that Dirig’s failure to exhaust his administrative remedies
before filing suit is undisputed. Because Dirig was not adequately informed that
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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admissible evidence rather than unsworn allegations is necessary to oppose a motion for
summary judgment, we vacate the decision and remand for further proceedings.
The underlying facts, as Dirig tells them in his submissions to the district court,
are as follows. On April 19, 2011, the three guards, acting on orders from the warden,
beat him while he was in segregation on suicide watch. After taking him to a “dog‐like
cage” without security cameras, the guards sprayed him with Mace, spit on him,
undressed him, and chained him to a chair in the cage. The guards also hurled racial
slurs at him. Dirig was kept in the cage for over five hours and then placed in a
protective cell, still naked, without water, a mattress, blankets, or a working toilet.
The next day, Dirig contends, he reported the incident to a counselor who
promised to notify the warden. That was the last he heard from the counselor. Dirig was
released from suicide watch on May 5, 2011, and afterward he submitted a grievance
form to the executive assistant, who oversees the grievance process at the prison. The
executive assistant wrote Dirig (a copy of this letter is part of the record) saying that his
grievance form was untimely and would not be accepted but promising to pass Dirig’s
allegations along to Internal Affairs.
Dirig filed this suit in state court in August 2012, and the defendants removed it
to federal court. See 28 U.S.C.A. § 1441(a). After screening, see 28 U.S.C. § 1915A, the four
defendants filed a “motion to dismiss,” arguing that Dirig had not exhausted his
administrative remedies, see 42 U.S.C. § 1997e(a). They attached Dirig’s grievance
history and a declaration by a prison administrator attesting that “Dirig did not file a
grievance” about the cage incident. The administrator did not acknowledge, though,
that Dirig’s grievance was received but returned to him by the executive assistant. The
defendants’ motion and supporting memorandum of law mention “summary
judgment” only in passing, but still the defendants sent Dirig copies of Federal Rule of
Civil Procedure 56, Local Rule 56‐1, and a “Notice to Pro Se Litigant” in the form
mandated by paragraph (f) of the local rule.
Three days later, the district court sent Dirig its own Notice and Order. The
court’s order is explicit that the defendants had filed, not a motion for summary
judgment, but a motion to dismiss. In opposing that motion, the court’s order explains,
Dirig could rely “solely” on the allegations in his complaint, which would be “assumed
by the court to be true.” Dirig opposed the motion to dismiss, asserting that he had filed
a grievance, which the prison’s executive assistant rejected as late. His grievance was
delayed, Dirig said, because he was in segregation on suicide watch without paper or a

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No. 14‐3093 Page 3
writing implement. Like the defendants, Dirig attached several documents to his
submission. But he did not verify any of his factual allegations concerning the grievance.
Because the parties had attached evidentiary materials to their submissions, the
district court issued a second order, this time explaining that the defendants’ motion to
dismiss would be deemed a motion for summary judgment and requesting further
briefing. See FED. R. C IV. P. 12(d). The court said the parties’ submissions were “not
sufficient for a summary judgment ruling” but did not tell Dirig what he must do to
make his opposition to the defendants’ motion “sufficient.” Dirig responded with
medical records confirming that he was in segregation on April 19, but again did not
verify statements about the delayed grievance.
The district court granted summary judgment for the defendants without
conducting an evidentiary hearing. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
After noting that a “party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials,” the court concluded that Dirig had failed
to “present any evidence that he was precluded from exhausting” his administrative
remedies. The court rejected Dirig’s argument that he was unable to submit a grievance
while on suicide watch, explaining that Dirig had not submitted evidence showing when
he was released from segregation and thus regained access to writing instruments. The
district court also was skeptical that Dirig could not have gotten staff assistance in
preparing a grievance. Without prompting from the defendants, the district seized on a
mental‐health professional’s statement in Dirig’s medical records saying a guard told
her that Dirig participated in “recreation” on April 20, the day after he was placed on
suicide watch. The court further noted, again without prompting, that Dirig had not said
he took advantage of a prison regulation allowing prisoners to get help from staff to
write a grievance. The district court did not acknowledge, however, that the defendants
had never asserted, much less offered evidence, that they complied with a
corresponding regulation placing the onus on administrators to “ensure that a
mechanism is in place in each housing unit or Unit Team to ensure that
offenders . . . who have medical or psychological disabilities have assistance in
preparing and submitting a grievance form in accordance with this policy and
administrative procedure.” IDOC MANUAL OF P OLICIES AND P ROCEDURES , No. 00‐02‐301
(“Offender Grievance Process”) § XIV(A).
On appeal, Dirig’s opening brief is difficult to follow (his reply brief is much
clearer). Still, the defendants understand him to argue that whether or not an
administrative remedy was available to him is a disputed question. Prisoners are

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No. 14‐3093 Page 4
required to exhaust only those remedies that are available. See Woodford v. Ngo, 548 U.S.
81, 85 (2006); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). And though the defendants
in their brief repeatedly insist that Dirig’s factual contentions are not supported by
“competent evidence,” it was their burden to prove the availability of a remedy, since
failure to exhaust is an affirmative defense. See Westefer v. Snyder, 422 F.3d 570, 577, 580
(7th Cir. 2005); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
In a different case, the defendants’ focus on Dirig’s continued use of unsworn
allegations at summary judgment would be a fair—and probably dispositive—point. But
not in this case. The defendants’ position presupposes that Dirig was appropriately
notified about the import of submitting evidence in response to a motion for summary
judgment. When a defendant moves for summary judgment against an unrepresented
prisoner, the prisoner must be notified “of the consequences of failing to respond with
affidavits” or other evidence. Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982);
see Bryant v. Madigan, 91 F.3d 994, 996 (7th Cir. 1996); see also Timms v. Frank, 953 F.2d 281,
285 (7th Cir. 1992) (extending rule of Lewis to all pro se plaintiffs). If the defendant does
not supply the required notice, then the responsibility to do so falls on the district court.
See Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992).
Dirig did not receive adequate notice. Although the defendants included a notice
with their “motion to dismiss,”1 the district court promptly negated that notice by
issuing an order that is directly contradictory. The court’s order, which the defendants
nowhere acknowledge in their brief, recites the standard for a motion to dismiss. That
order assured Dirig that he could rely “solely” on factual allegations “in defending
against” the motion to dismiss, since the court would assume those allegations to be
true. When the district court later converted the defendants’ motion to dismiss into one
for summary judgment, the court did not recite the standard for summary judgment or
alert Dirig that his task in responding was significantly greater than what the court had
told him previously. Thus, Dirig never received notice that evidence is necessary to
counter a motion for summary judgment. See Jones v. Simek, 193 F.3d 485, 489 (7th Cir.
1 The notice provided by the defendants is taken verbatim from Appendix C of
the Northern District of Indiana’s local rules. See N.D. IND. L.R. 56‐1(f). But we question
whether the prescribed form satisfies our admonition that a Lewis notice include the text
of Federal Rule of Civil Procedure 56 and also explain in “ordinary English” that
evidence is essential to combat a motion for summary judgment. See Timms, 953 F.2d at
285; Lewis, 689 F.2d at 102. The “ordinary English” portion of the defendants’ notice
nowhere mentions affidavits or other evidence.

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No. 14‐3093 Page 5
1999) (explaining that district court must provide notice under Lewis when effectively
treating motion to dismiss as motion for summary judgment); Lewis, 689 F.2d at 101–02
(requiring notice when party moves to dismiss or alternatively for summary judgment
and court treats as motion for summary judgment). The defendants did nothing to
remedy the court’s oversight, which is another fact not mentioned to us in their brief.
Reversal for failing to notify a pro se plaintiff about the means of opposing a
motion for summary judgment is appropriate if the plaintiff suffered prejudice.
See Outlaw v. Newkirk, 259 F.3d 833, 841–42 (7th Cir. 2001); Timms, 953 F.2d at 286. Dirig
was prejudiced because he alleged facts that, if sworn, would have created disputed
issues of material fact concerning the availability of a remedy for him to exhaust.
See King v. McCarty, No. 13‐1769, 2015 WL 1396611, at *2 (7th Cir. Mar. 27, 2015); Hurst v.
Hantke, 634 F.3d 409, 411 (7th Cir. 2011). Under Indiana’s grievance procedures, Dirig
first had to seek an informal resolution within five working days of the incident by
speaking with a designated staff member, including a counselor. See IDOC MANUAL OF
P OLICIES AND P ROCEDURES, No. 00‐02‐301 (“Offender Grievance Process”) § XIII(A), (C).
He then had to submit a grievance within five working days of the earliest of (1) being
told that an informal resolution was impossible, (2) refusing the offered resolution, or (3)
waiting ten working days and receiving no reply to the request for an informal
resolution. See id. § XIII(C).
Dirig contends that he told a counselor about the assault on April 20, 2011, and
that same day received her reply that she would tell the warden. If Dirig rejected this
resolution as insufficient the same day, then he had until April 27 to submit his
grievance. Dirig insists, though, that he was kept in segregation on suicide watch until
May 5. While in segregation, he contends, he lacked access to paper and writing
implements. He also tells us, in response to the district court’s assumption that he could
have requested staff assistance in preparing a grievance, that he did not have access to
the grievance procedures and also was brushed off each time he asked to speak with a
shift supervisor. To this we add that the defendants have never asserted that Dirig
previously had submitted grievances while on suicide watch or that they had complied
with the requirement to provide a “mechanism” to ensure that inmates in his position
would “have assistance in preparing and submitting a grievance form.”
Under Dirig’s version of events, he was unable to submit a grievance during the
relevant time period, making the remedy unavailable. See Dole v. Chandler, 438 F.3d 804,
807, 811 (7th Cir. 2006); Kaba, 458 F.3d at 684; Dale, 376 F.3d at 656. And if Dirig had been
told of the need to respond with affidavits at summary judgment, then he could have

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sworn to these facts. This would have created disputed factual issues regarding
exhaustion, necessitating an evidentiary hearing. See Wagoner v. Lemmon, 778 F.3d 586,
591 (7th Cir. 2015); Pavey, 544 F.3d at 742.
The judgment of the district court is VACATED, and the case is REMANDED for
further proceedings consistent with this order against William Wilson, Aaron Jonas,
Ralph Calhoun, and William Aubin.

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