Lawrence Burns v. Sterling Polk

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-1556
LAWRENCE GREGORY BURNS,
Plaintiff-Appellant,
v.
S
TERLING POLK and JOHN PROEBER,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 23-cv-1266 — Nancy Joseph,
Magistrate Judge.
____________________
ARGUED NOVEMBER 12, 2025 — DECIDED AUGUST 18, 2026
____________________
Before ROVNER, PRYOR, and KOLAR, Circuit Judges.
PRYOR, Circuit Judge. Lawrence Gregory Burns, previously
a pretrial detainee, sued Sterling Polk and John Proeber (col-
lectively “Defendants”), corrections officers at the Milwaukee
County Jail under 42 U.S.C. § 1983. He alleged Defendants vi-
olated his Fourteenth Amendment rights when they failed to
provide him with medical attention during a COVID-19 epi-
sode. After being served with Burns’s complaint, Defendants
moved for summary judgment on the grounds that Burns

2 No. 25-1556
failed to exhaust his administrative remedies within the jail.
See 42 U.S.C. § 1997e(a). The district court agreed and granted
summary judgment to Defendants. On the record before us,
Burns has raised a genuine dispute of material fact as to
whether the grievance appeals process was available to him.
So, we reverse the district court’s entry of judgment and re-
mand for proceedings consistent with this opinion.
I.
BACKGROUND
A. Factual Background
We present the following facts in the light most favorable
to Burns, the non-moving party. Breyley v. Fuchs, 156 F.4th
845, 846 (7th Cir. 2025).
Burns was a pretrial detainee at the Milwaukee County
Jail in Milwaukee, Wisconsin from August 1, 2020, to Novem-
ber 27, 2023. On December 24, 2021, Burns experienced chest
pain and shortness of breath. Because of his distress, h e used
his in-cell intercom to call for help. Despite being on duty, De-
fendants did not answer Burns’s call.
Later that day, Officer Polk was doing his rounds with a
nurse. Burns flagged them to his cell. Burns reported to the
nurse that he had a history of asthma, but was now “having
problems seeing, ... having bad chest pains and was weak
and having trouble walking.” The nurse administered a
COVID-19 test to Burns. She told him that if the result was
positive, she would call Officer Polk and that Officer Polk
would relay the information to him. Officer Polk stood by the
nurse during the entirety of her interaction with Burns.
As instructed, Burns waited, but no one contacted him
about the result of his COVID-19 test. Defendants were as-
signed to the officer’s station that the nurse would have called

No. 25-1556 3
with the test results, but neither informed Burns of the test
results nor checked on him.
While waiting, Burns’s condition worsened, and he
pressed the medical alert button in his cell. Burns eventually
passed out. When found, several officers carried him to the
jail’s dayroom and placed him in a wheelchair. The j ail’s med-
ical staff called for an ambulance. Once onsite, the paramedics
assessed Burns as almost having a stroke or heart attack due
to high blood pressure and asthma complications. Burns was
transported to a hospital where he tested positive for COVID-
19. Later that night, Burns was medically cleared and re-
turned to the jail.
B. Burns’s Grievances
The Milwaukee County Jail’s handbook provides the pro-
cedures an inmate must take for the jail to process his griev-
ance. It requires a prisoner to:
1. Complete grievance in the Kiosk. If you need help, ask
the officer, or request the assistance of an advocate.
2. The grievance will be reviewed and answered by a Jail
Representative.
3. If you are dissatisfied with the result[,] you may appeal
the decision by writing supporting documentation in-
cluding full names of witnesses. The appealing Jail
Representative will review and rule on your appeal.
4. Once the appealing representative has ruled,
and more evidence is available[,] you may make
one final appeal to the Jail Commander or
his/her designee. This appeal must include all
previous writings and supporting testimony

4 No. 25-1556
and evidence and the new-found infor-
mation/evidence. This decision/action is final.
1

The procedure imposes no time limit for filing a grievance or
appealing one. According to Defendants, an inmate can com-
plete each grievance step at the kiosk.
A week after his medical emergency, on December 31,
2021, Burns submitted his first grievance, alleging Defendants
did not respond to his medical emergency on December 24,
2021, when he first called for medical assistance. While still
waiting for a response, Burns updated his grievance on Janu-
ary 6, 2022. He added that he “could have died” and “almost
had a heart attack.” On January 21, 2022, jail staff responded,
“Mr. Burns, Officer Poke [sic] was dealing with a situation in
the other sub pod in 4B.” The grievance was then “closed.”
On March 10, 2022, Burns submitted another grievance re-
garding the lasting effects of his December medical incident.
Specifically, he complained of vision problems and that he
had not yet received his glasses. On March 11, 2022, jail staff
responded that he had not been denied medical attention and
that his glasses had been ordered.
C. Procedural History
Based on the events that transpired on December 24, 2021,
Burns, proceeding pro se, sued Defendants in federal court,
under 42 U.S.C. § 1983, claiming they had failed to provide
adequate medical attention. See Miranda v. County of Lake, 900
F.3d 335, 350 (7th Cir. 2018) (noting that pretrial detainees
have a constitutional right to adequate medical treatment).

1
District Court Dkt. 29-1 at 3.

No. 25-1556 5
Before discovery, Defendants moved for summary judg-
ment, arguing Burns failed to exhaust his administrative rem-
edies. Burns opposed Defendants’ motion. He argued the
grievance process was “inadequate to prevent irreparable in-
jury” because “[he] already went to the [h]ospital” due to the
“[n]egligence of [the] [s]taff.” Burns also contended that he
was not allowed to appeal because “the appeal has to be
granted by the designee who has reviewed the grievance,”
and, he claims, his grievance and corresponding response had
not been forwarded to the responsible or proper designee.
Therefore, he was not provided with the option to appeal his
grievance.
Without holding an evidentiary hearing on the exhaustion
issue, the district court granted Defendants’ motion and dis-
missed Burns’s claims. First, the district court found it was
undisputed that Burns did not appeal the relevant grievances
even though the Prison Litigation Reform Act mandates that
prisoners exhaust their administrative remedies before seek-
ing relief in federal court. Second, the district court concluded
that Burns’s administrative remedies were available despite
his affidavit claiming otherwise. In the district court’s view,
Burns misunderstood the grievance procedures but misun-
derstanding the procedures did not excuse failing to exhaust
them.
Burns timely appealed.
II.
ANALYSIS
Burns challenges the district court’s conclusion that he
failed to exhaust his administrative remedies. I n the alterna-
tive, he argues the district court incorrectly concluded that he

6 No. 25-1556
failed to raise a genuine material fact issue as to whether the
administrative remedies were available to him.
We review a district court’s decision to grant summary
judgment on whether a defendant exhausted his administra-
tive remedies under the Prison Litigation Reform Act de
novo. Breyley, 156 F.4th at 847. Because exhaustion is an af-
firmative defense, the jail bears the burden to demonstrate
Burns failed to exhaust his administrative remedies. Williams
v. Ortiz, 937 F.3d 936, 941 (7th Cir. 2019).
A. Legal Background
The Prison Litigation Reform Act requires incarcerated in-
dividuals to exhaust available administrative remedies prior
to filing lawsuits in federal court under § 1983. Pozo v.
McCaughtry, 286 F.3d 1022, 1023–24 (7th Cir. 2002); 42 U.S.C.
§ 1997e(a). To properly exhaust administrative remedies,
prisoners must complete the administrative grievance review
process in accordance with the prison’s grievance procedural
rules, which are not prescribed by the Act itself. Jones v. Bock,
549 U.S. 199, 218 (2007).
A defendant can assert failure to exhaust administrative
remedies under the Act and move for summary judgment on
that basis. Breyley, 156 F.4th at 847. To succeed “the defendant
must lay out the elements of the defense, cite the facts which
the defendant believes satisfies these elements, and demon-
strate why the record is so one-sided as to rule out the pro-
spect of a finding in favor of the plaintiff on the defense.” Jones
v. Lamb, 124 F.4th 463, 467 (7th Cir. 2024) (citation modified).
When applying the summary judgment standard in the ex-
haustion context, “a defendant prison official must demon-
strate that the plaintiff prisoner failed to exhaust the

No. 25-1556 7
applicable grievance procedures and that those procedures
were available to him as a matter of law.” Id. “If genuine fac-
tual disputes exist related to the availability of remedies, sum-
mary judgment is inappropriate.” Breyley, 156 F.4th at 848
(quoting Hernandez v. Lee, 128 F.4th 866, 869 (7th Cir. 2025)).
In this vein, a prisoner need only exhaust administrative
remedies that are “actually ‘available’” to him. Smallwood v.
Williams, 59 F.4th 306, 313 (7th Cir. 2023) ( quoting Ross v.
Blake, 578 U.S. 632, 642 (2016)); Hernandez, 128 F.4th at 869
(“[A] prisoner need not exhaust remedies that are unavaila-
ble.”). “Administrative remedies are ‘available’ if they are ‘ca-
pable of use to obtain some relief for the action complained
of’” by the prisoner. Gooch v. Young, 24 F.4th 624, 627 (7th Cir.
2022) (per curiam) (quoting Ross, 578 U.S. at 642).
“[W]hether a remedy is available to exhaust is a fact-spe-
cific inquiry.” Smallwood, 59 F.4th at 314. The Supreme Court
in Ross provided several examples to guide courts in deter-
mining when “an administrative remedy, although officially
on the books,” is unavailable. 578 U.S. at 643. First, “an ad-
ministrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as
a simple dead end—with officers unable or consistently un-
willing to provide any relief to aggrieved inmates.” Id. Sec-
ond, “an administrative scheme might be so opaque that it be-
comes, practically speaking, incapable of use.” Id. Third, an
administrative remedy is unavailable “when prison adminis-
trators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimida-
tion.” Id. at 644. As a result, attacks, threats, or intimidation to
a prisoner can “transform[] ... remedies from available to un-
available.” Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir. 2006).

8 No. 25-1556
Likewise, a prison official’s refusal to allow a prisoner to ac-
cess the mechanism for filing a grievance or failure to process
a prisoner’s grievance amounts to unavailability. See Gooch, 24
F.4th at 627 (“Evidence of the appropriate official’s refusal to
give a prisoner an available form is sufficient to permit a find-
ing that the administrative remedies were not available.” (ci-
tation modified)); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006).
Given the fact-intensive nature of the availability inquiry,
disputed factual questions not intertwined with the merits
bearing “on exhaustion can be resolved by a district court
judge ... as a preliminary matter, in what is known as a ‘Pavey
hearing.’” Smallwood, 59 F.4th at 315 (citing Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008)); Hernandez, 128 F.4th at 869–
71 (explaining when genuine factual disputes exist related to
exhaustion the district court must hold an evidentiary hear-
ing); see also Perttu v. Richards, 605 U.S. 460, 479 (2025) (hold-
ing that factual disputes bearing on exhaustion intertwined
with the merits of a claim are to be resolved by a jury). “In
short, if there are contested facts as to whether a prison griev-
ance process was available (keeping in mind that the burden
of proof is on the defendants to show a lack of exhaustion),
summary judgment is not appropriate.” Smallwood, 59 F.4th
at 315.
B. Availability of the Jail’s Grievance Procedures
Burns lodges two objections to the district court’s sum-
mary judgment ruling. But we need only address his second:
whether a genuine dispute of fact precludes finding as a mat-
ter of law that the jail’s grievance procedures were available
to him.

No. 25-1556 9
Burns argues that the district court erred in granting sum-
mary judgment because his sworn declaration, written when
he was pro se, established that there was a factual dispute
about whether his administrative remedies—meaning the ap-
peal process—were available. Burns contends he proffered
evidence that he was unable to access the jail’s grievance ap-
peals process through his sworn declaration stating, “due to
the grievance system in the jail, [it] was not forwarded to the
responsible or proper designee, and no appeal was granted to
further pursue this grievance.”
Once Burns made that showing, the burden of proof
shifted to Defendants to show administrative remedies were
in fact available. Gooch, 24 F.4th at 627. Defendants posit that
the jail’s handbook and the kiosk inmates use to file their
grievances clearly explain occupants are entitled to appeal a
response as a matter of right. They argue that Burns provided
no evidence that “he ever attempted to file an appeal.” Plus,
Defendants contend Burns’s proffered statement in his decla-
ration indicates that he had a “misunderstanding of the
[grievance] process” if he thought he needed approval to file
a grievance appeal.
While t he handbook text shows the jail had a procedure
for handling grievances, it alone is insufficient evidence to
prove the appeals process was “actually available” to Burns.
Smallwood, 59 F.4th at 313 (citation modified). An administra-
tive remedy can be “officially on the books” but still unavail-
able because it is “incapable of use in practice.” Miles v. Anton,
42 F.4th 777, 780 (7th Cir. 2022) (citing Ross, 578 U.S. at 643–
44) (emphasis in original). “[W]hen prison officials prevent
inmates from using the administrative process detailed in the

10 No. 25-1556
[policy], the process that exists on paper becomes unavailable
in reality.” Kaba, 458 F.3d at 684.
What’s more, a genuine dispute about the availability of
remedies can be raised by sworn affidavits and supporting
documentation. See Jackson v. Esser, 105 F.4th 948, 957–58 (7th
Cir. 2024); Hernandez, 128 F.4th at 869–70; F
ED. R. CIV. P.
56(c)(1)(A). Here, t he district court reviewed Burns’s affidavit
and inferred Burns misunderstood the grievance appeal pro-
cedure. With that inference in mind, the district court granted
summary judgment to Defendants. That was error. See Taylor
v. City of Milford, 10 F.4th 800, 806 (7th Cir. 2021) (“On sum-
mary judgment a court may not make credibility determina-
tions, weigh the evidence, or decide which inferences to draw
from the facts.” (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003))).
Burns stated in a sworn declaration that “due to the griev-
ance system in the jail[,] [it] was not forwarded to the respon-
sible or proper designee[,] and no appeal was granted to fur-
ther pursue this grievance.” Defendants, for their part, prof-
fered evidence that the grievance process was available and
operating. This “swearing contest” creates a dispute of fact as
to whether the grievance appeals system was available to
Burns. Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014) (noting
that a “swearing contest requires an evidentiary hearing to re-
solve”). Construing Burns’s affidavit in the light most favora-
ble to him, a reasonable factfinder could conclude the jail’s
grievance process was unavailable to him—not that he mis-
understood the process. See, e.g., Hernandez, 128 F.4th at 869–
70. In other words, the district court erred by making an im-
proper inference that Burns’s statement meant that he misun-
derstood the grievance appeal procedure without first asking

No. 25-1556 11
him for an explanation. Ingram v. Watson, 67 F.4th 866, 871 (7th
Cir. 2023) (holding a court “cannot disbelieve statements in
affidavits without holding a hearing”).
In sum, the grant of summary judgment in favor of De-
fendants was inappropriate because a genuine dispute of ma-
terial fact exists as to whether the grievance appeal process
was available to Burns. Smallwood, 59 F.4th at 315. “The vehi-
cle for deciding what happened during a prisoner’s effort to
exhaust the grievance process” is typically a “Pavey hearing.”
Ingram, 67 F.4th at 871. But after the briefs in this case were
submitted, the Supreme Court in Perttu v. Richards held “par-
ties are entitled to a jury trial on [Prison Litigation Reform
Act] exhaustion when that issue is intertwined with the merits
of a claim protected by the Seventh Amendment.” 605 U.S. at
479. We leave it to the sound judgment of the district court to
evaluate in the first instance whether the issue of exhaustion
here is intertwined with the merits of Burns’s claims needing
resolution by a jury or, instead, can be resolved by a judge in
a Pavey hearing. See Breyley, 156 F.4th at 849.
III.
CONCLUSION
For these reasons, we VACATE the judgment of the district
court and REMAND for proceedings consistent with this opin-
ion.