Asher Hill v. Jerry Snyder

817 F.3d 1037, 2016 U.S. App. LEXIS 6206, 2016 WL 1319752
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 5, 2016
Docket15-2607
StatusPublished
Cited by73 cases

This text of 817 F.3d 1037 (Asher Hill v. Jerry Snyder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asher Hill v. Jerry Snyder, 817 F.3d 1037, 2016 U.S. App. LEXIS 6206, 2016 WL 1319752 (7th Cir. 2016).

Opinion

‘ HAMILTON, Circuit Judge.

, Asher Hill, an Indiana inmate, sued prison staff under 42 U.S.C. § 1983, alleging that they had violated the Eighth Amend.ment by failing to .protect him from inmates who threw feces at him on four occasions. The district court granted summary - judgment for defendants on the ground that Hill had not exhausted administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We conclude that .summary judgment was improper for three of the incidents, so we vacate the judgment in part and remand the case for further proceedings.

Indiana’s grievance policy instructs prisoners to exhaust administrative remedies in three steps: (1) seek informal resolution; (2) if dissatisfied, submit a formal grievance; and (3) if dissatisfied with the response to the processed grievance, appeal. See Ind. Dep’t of Corr., Admin. P. No. 00-02-301, §§ XIII, XIV. The grievance policy lists 21 criteria, such as writing legibly in English and addressing only one issue per grievance, that must be satisfied before the prison will process ’ a formal grievance. See § XIV.A-B. The prison’s executive assistant may return á formal grievance unprocessed if the prisoner does not meet any of. these criteria. § XIV.B. When that happens the executive assistant *1039 “shall” explain “why the form was returned and how it may be corrected.” Id. A prisoner has five days to correct the grievance. The policy does not state that a prisoner can appeal an unprocessed grievance.

Hill alleges that prison staff failed to stop prisoners from throwing feces at him through the “cuff ports” in his cell door on four dates in 2011 and 2012. We describe the evidence of Hill’s efforts to grieve these four incidents in the light most favorable to Hill, the non-moving party. See Tradesman Int’l, Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir.2013).

The first incident occurred in February 2011. Hill filed a formal grievance, but it was returned to him unprocessed because he had failed to pursue first an informal resolution of the problem. Hill then wrote a letter to prison staff seeking an informal resolution. After receiving no response, he resubmitted the formal grievance. It was again returned unprocessed. This time, Hill received no advice about correcting the form. The only information he received was a notation that a prison staff member had “viewed the video and is not able to verify this occurréd.”' Hill did nothing further about that incident before filing suit.

The second incident occurred in May 2011. Hill again attempted to resolve the issue informally. After receiving no response, he submitted a formal grievance. This grievance was also returned to Hill unprocessed. The explanation this time was that the issue had already been resolved informally. Hill believed it had not been resolved, but he took no further steps about this incident before filing suit.

The third and fourth incidents took place in June and August 2012. According to Hill’s affidavit, for both incidents he never received a grievance form. After informal efforts did not resolve his complaint about the June incident, his prison counselor refused to give Hill the form to file a formal grievance. After the August incident, Hill was also stymied. Before he could file a formal grievance, his unit manager insisted that Hill provide the exact time of the feces-throwing incidents, which he did not know, thereby preventing any further grievance efforts.

Hill then filed suit in state court against prison staff over the attacks. Defendants removed the case to federal court under 28 U.S.C., § 1441. The district court screened the complaint pursuant to 28 U.S.C. § 1915A(b) and dismissed and severed some unrelated claims in an order that Hill does not challenge.

The remaining defendants, Jerry Snyder and Brian Butler, quickly moved for summary judgment. They asserted that Hill had not complied with the prison’s grievance policy because he did not submit any formal grievances about any of the incidents. ’ Hill responded that prison staff had prevented him from filing formal grievahces. For the first two incidents, they had improperly refused to process grievance forms. For the third and fourth incidents, they prevented him from filing formal grievances. His counselor refused to give him a grievance form after the third incident, and after the fourth incident, defendant Snyder demanded to know its exact time.

The district judge ruled that Hill had not exhausted administrative remedies and granted summary judgment. For the first two incidents, the judge concluded that Hill could have fixed and resubmitted the unprocessed grievances. For the last two incidents, the judge reasoned that Hill could have obtained grievance forms from other prison staff.

In the district court’s final judgment, Hill’s, claims were dismissed without *1040 prejudice. A dismissal without prejudice is not ordinarily appealable because it is not final. But because Hill is now time-barred by the prison’s grievance policy from further pursuing administrative remedies for these events, he could do nothing to cure the failure to exhaust. The dismissal is thus final for purposes of appellate review. See Dixon v. Page, 291 F.3d 485, 488 (7th Cir.2002).

Hill contends that he exhausted his claims for all four incidents. We agree with him as to three of the four. We begin with the first incident and conclude that defendants are not entitled to summary judgment for failure to exhaust on that incident from February 2011. After prison staff told him to attempt an informal resolution, Hill did so and then submitted his formal grievance. But the staff returned it unprocessed, with only the notation that a staff member “had viewed the video and is not able to verify this occurred.” The grievance policy’s 21 requirements for processing grievances do not include the ability of staff to “verify” an alleged incident. See Admin. P. No. 00-02-301 § XIV.A-B. And the notation did not, as the policy requires, tell Hill what “correction” he needed to make to have the grievance processed. See id. § XIV.B. Beyond that, the grievance policy did not tell Hill that he could appeal a refusal to process.

“Prisoners are required to exhaust grievance procedures they have been told about, but not procedures they have not been told about.” King v. McCarty, 781 F.3d 889, 896 (7th Cir.2015); see also Small v. Camden County, 728 F.3d 265, 273 (3d Cir.2013) (exhaustion did not require appealing a “non-decision” where such appeal was not provided in prison’s procedures).

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Bluebook (online)
817 F.3d 1037, 2016 U.S. App. LEXIS 6206, 2016 WL 1319752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asher-hill-v-jerry-snyder-ca7-2016.