Gregory Turley v. Dave Rednour, et al

Filing

Filed opinion of the court by Judge Cudahy. We REVERSE in part and AFFIRM in part the judgment of the district court. Frank H. Easterbrook, Chief Judge, concurring; Richard D. Cudahy, Circuit Judge and Michael S. Kanne, Circuit Judge. [6497943-1] [6497943] [11-1491]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 11-1491
G REGORY J. T URLEY,
Plaintiff-Appellant,
v.
D AVE R EDNOUR, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cv-00789-MJR—Michael J. Reagan, Judge.

A RGUED S EPTEMBER 10, 2012—D ECIDED JULY 3, 2013

Before E ASTERBROOK, Chief Judge, and C UDAHY and
K ANNE, Circuit Judges.
C UDAHY, Circuit Judge. This is a case about a prison’s
lockdowns and Eighth Amendment, conspiracy, and
Due Process claims arising from those repeated lockdowns.
Gregory J. Turley is serving a life sentence in Menard
Correctional Center, a state prison in downstate Illinois.
He is classified as a low-aggression offender, and housed
in a unit with other prisoners of similar aggression levels.
In the period between January 7, 2008, and October 4, 2010,

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prison administration frequently placed the prison on
lockdown wherein prisoners were confined to their
cells without any yard time. In all, 25 lockdowns were
imposed, with 81 days being the longest continuous
period of lockdown, and totaling 534 lockdown days.
Thus, prisoners were confined in lockdown status for
more than 50% of the period in question.
Turley brought two intertwined Eighth Amendment
violation claims, a conspiracy claim and a Due Process
claim with regard to Menard’s lockdowns. He alleged
that these lockdowns were often imposed for nonpenologically-related purposes, such as isolated fights
between two inmates from other cellhouses, rumors of
a potential fight or for no reason at all. The repeated
lockdowns resulted in lack of exercise for inmates. Turley
further claims that by confining two inmates together
in a small cell, in the context of the frequent use of
lockdowns, prison officials showed deliberate indifference to inmates’ physical and psychological injuries.
Specifically, Turley claims that he suffered injuries such
as irritable bowel syndrome, headaches, tinnitus, sleep
deprivation, colon spasms, nosebleeds, weight loss and
extreme stress.
Turley alleges that the excessive use of lockdowns
arose out of a conspiracy among prison officials and
union employees to create a staff shortage and negotiate a pay raise. Additionally, Turley alleges there was
a conspiracy to exaggerate prison response to minor
incidents, or no incidents at all, in order to allow staff
to take vacation and/or to psychologically punish all
prisoners for the misconduct of a few. Finally, Turley

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claims that his $10 per month idle pay stipend was withheld during lockdown periods without due process.
His complaint was brought against various prison personnel. See SA at A-16 (listing names and positions).
Before bringing this claim, Turley filed several grievances with Menard Correctional Center. The record
includes a letter from the Administrative Review Board,
the highest authority within the prison’s complaint
system, denying a grievance Turley filed based on “Administrative Policy (Lockdowns)” in 2008. SA at A-24.
The underlying grievance report is not included in
the record.
Turley also filed a grievance in February 2009. SA at A18. There, he challenged the frequent use of lockdown
as an exaggerated response to security concerns, a way
to avoid paying overtime to employees and a way
to give staff vacation time (particularly around holidays).
A-19-22. Turley specifically listed lockdowns that occurred from November 24, 2008 to December 9, 2008, and
from December 29, 2008 to January 12, 2009. A-19.
Further, Turley listed 14 other lockdowns occurring
throughout 2008 that showed a pattern of lockdowns
coinciding with holidays. Id. He also complained that
a lockdown in his own low-to-medium-aggression
cellhouse was frequently imposed due to incidents between inmates in other, completely separate cellhouses.
A-20, A-23. His grievance was denied by the Administrative Review Board on June 10, 2009. SA at A-17.
Turley then filed an October 2009 grievance. SA at A-27
(partially illegible). In this grievance, Turley described

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his confinement to a 40 square foot segregation cell
with another prisoner. Turley alleges that this grievance
was ignored by prison officials. Similarly, he received
no response to a grievance filed in August 2010.
In October 2010, Turley filed his pro se federal complaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C.
§ 1915A, the district court reviewed this claim for sufficiency.1 The court dismissed both Eighth Amendment claims at the screening review stage and did not
address the conspiracy or Due Process claims. The
district court erroneously noted that Turley did not state
“how long the lockdown lasted, making it impossible
for the Court to determine . . . whether there had been
an eighth amendment violation.”
Turley, now represented by counsel, is appealing the
dismissal of his complaint. The state of Illinois has filed
a brief as a party in interest in the matter.

1

Section 1915A provides as follows: (a) Screening.—The court
shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.—On review, the court
shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.

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This court reviews § 1915A dismissals under the Federal
Rule of Civil Procedure 12(b)(6) standard for stating a
claim for relief. Santiago v. Walls, 599 F.3d 749, 755-56
(7th Cir. 2010). Dismissal orders are reviewed de novo,
“taking all well-pleaded allegations of the complaint as
true and viewing them in the light most favorable to the
plaintiff.” Id. at 756 (quoting Zimmerman v. Tribble, 226 F.3d
568, 571 (7th Cir. 2000) (internal quotation marks omitted)).
We must examine whether Turley properly exhausted
administrative remedies before filing suit, whether
these federal claims are time-barred and whether
Turley’s complaint sufficiently states a claim to survive
dismissal. We find that Turley’s Eighth Amendment
claim clears these hurdles, but his Due Process claim
does not, and so we partially reverse the judgment of
the district court. Turley’s conspiracy claim is superfluous in light of the fact that all named defendants
are state actors.2

I.
Prisoners must properly exhaust all available administrative remedies before pursuing claims, including

2

We need not conduct a separate analysis of the conspiracy
claim outside of our treatment of Turley’s Eighth Amendment
claims. As we noted in Fairley v. Andrews, 578 F.3d 518, 526
(7th Cir. 2009), the function of a conspiracy claim under 42
U.S.C. § 1985(3) is to “permit recovery from a private actor
who has conspired with state actors.” When, as here, the
defendants are all state actors, “a § 1985(3) claim does not
add anything except needless complexity.” Id.

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§ 1983 actions, in federal court. Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a) (2006). A prisoner must exhaust his grievances in accordance with prison procedural rules. Woodford v. Ngo, 548 U.S. 81, 84, 88 (2006).
In Illinois, the last level of appeal for a prisoner
pursuing a grievance is a final determination by the
Director. 20 Ill. Admin. Code 504.850(a)-(f). The exhaustion requirement’s primary purpose is to “alert[] the
state” to the problem “and invit[e] corrective action.”
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004); see
also Jones v. Bock, 549 U.S. 199, 219 (2007). Exhaustion is
an affirmative defense, with the burden of proof on the
defendants. Jones, 549 U.S. at 203-04; Maddox v. Love,
655 F.3d 709, 720 (7th Cir. 2011).
The State asserts that Turley did not exhaust all of his
administrative remedies because first, he mentioned
only two specific instances of lockdown in his grievances,
and second, his latter two grievances did not receive
a response. We disagree.
Turley’s February 2009 grievance, which was pursued
to a final decision by the Director, suffices to exhaust
the claims challenging lockdown policy. The state is
right that Turley listed only two specific dates of
lockdowns, but the state does not note the fact that he
also mentioned 14 other lockdown incidents in 2008.
Turley was challenging not just specific incidents of
lockdown, but Menard’s lockdown policies in general.
This is confirmed by the 2008 decision letter, which
indicates that Turley was challenging lockdown policy
as a continuing violation of his rights.

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In order to exhaust their remedies, prisoners need not
file multiple, successive grievances raising the same
issue (such as prison conditions or policies) if the objectionable condition is continuing. See, e.g., Parzyck v.
Prison Health Servs. Inc., 627 F.3d 1215, 1219 (11th Cir.
2010) (prisoner “not required to initiate another round
of the administrative grievance process on the exact
same issue each time” a deprivation occurred); Howard
v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008); Johnson v.
Johnson, 385 F.3d 503, 521 (5th Cir. 2004). Separate complaints about particular incidents are only required if
the underlying facts or the complaints are different. See,
e.g., Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir.
2011) (distinguishing Johnson and another case finding
exhaustion, because in those cases the underlying complaint was the same); Moore v. Bennette, 517 F.3d 717,
728-29 (4th Cir. 2008) (finding no exhaustion where prisoner complained of inadequate medical care for
Hepatitis C but not for gout). Thus, once a prison has
received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion requirement. Here, Turley’s complaints centered
around continuing prison policies, including allegedly
illegal lockdowns, and one occurrence of notice from
Turley was sufficient to give the prison a chance to
correct the problems.
The present grievance was likely sufficient to exhaust
all Turley’s complaints. For instance, he made related
allegations such as that his state stipend was confiscated
during lockdowns, and discussed how his tiny cell prevented exercise and how prison officials knew prison
conditions led to injuries.

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The state’s argument that Turley’s latter two grievances—
those to which he had not received a response when he
filed suit—were not exhausted is unpersuasive since
the original grievance suffices. 3

II.
The State asserts that some portion of Turley’s complaint was clearly time-barred and should have been
dismissed on this basis. This argument is without merit.

3

Even if Turley’s February 2009 grievance were deficient,
Turley’s August 2009 and 2010 grievances would satisfy
exhaustion regardless of the prison’s failure to respond. This
court has declined to find exhaustion where the prisoner
himself made some error in following grievance procedure.
See, e.g., Dixon v. Page, 291 F.3d 485, 488-89 (7th Cir. 2002)
(prisoner failed to exhaust before filing suit; failed to appeal
to highest level); Cannon v. Washington, 418 F.3d 714, 718 (7th
Cir. 2005) (per curiam) (prisoner failed to use sufficient postage). However, when the prisoner follows procedure but
receives no response due to error by the prison, this court
has found that the prisoner exhausted his administrative
remedies. See, e.g., Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006)
(prisoner’s grievance received no response because prison lost
it; prisoner waited 18 months before filing suit); Brengettcy v.
Horton, 423 F.3d 674 (7th Cir. 2005) (grievance received no
response; prisoner waited between 1 and 4 months before
filing suit); Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002)
(holding that a prison’s failure to respond to a grievance
would make remedies “unavailable” and thus the prisoner
would have exhausted). Here, Turley committed no procedural error in filing his grievances.

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Section 1983 suits in Illinois have a two-year statute
of limitations, which is tolled while the prisoner
exhausts the administrative grievance process. Johnson
v. Rivera, 272 F.3d 519, 521-22 (7th Cir. 2001). For continuing Eighth Amendment violations, the two-year
period starts to run (that is, the cause of action accrues)
from the date of the last incidence of that violation, not
the first. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir.
2001) (finding that an Eighth Amendment deliberate
indifference claim for failure to treat an inmate’s hernia,
a continuing violation, accrued when the inmate left
the prison). A violation is continuing where “it would
be unreasonable to require or even permit [a prisoner] to
sue separately over every incident of the defendant’s
unlawful conduct.” Id. at 319.
Turley’s Eighth Amendment and conspiracy complaints concern continuing actions. The nature of his
allegations are that prison officials repeatedly and regularly imposed lockdown for improper purposes, and
with each continuing day and period of lockdown,
Turley’s injuries increased. The statute of limitations
began running from the last date of lockdown, or last
day confined to the tiny cell, and consequently, Turley
is well within the two-year statute of limitations.
Alternatively, Turley’s claims could conceivably also
be tolled under the cumulative approach to the continuing violation doctrine as described in National

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Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).4
Morgan concerned the timeliness of a hostile work environment claim brought under Title VII. The Court
held that the continuing violation doctrine applied to
repeated conduct “occur[ing] over a series of days or
perhaps years” in light of the fact that “a single act of
harassment may not be actionable on its own.” Id. at 115.
Similarly, the case before us focuses on the cumulative
impact of numerous imposed lockdowns.

III.
Having held that Turley’s suit is not procedurally
barred, we must next determine if he has sufficiently
made out a claim to survive dismissal. Twombly and
Iqbal direct us to consider whether the plaintiff’s claims
are plausible. However, it is important to keep in mind
that even after Twombly and Iqbal, pro se complaints like
Turley’s are to be construed liberally. See, e.g., Erickson
v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam); Munson
v. Gaetz, 673 F.3d 630, 632-33 (7th Cir. 2012). Here,
Turley survives dismissal because his claims are plausible

4

Though Morgan concerned Title VII, at least one other circuit
has applied Morgan to Eighth Amendment claims arising
from deliberate indifference. See Shomo v. City of New York, 579
F.3d 176 (2d Cir. 2009). The Shomo Court also noted that Heard
comports with “Morgan’s application of the continuing violation doctrine to a series of predicate acts forming the basis for
a single claim.” Id. at 182. Neither party discussed Morgan in
its briefs.

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and his complaint sets out more than conclusory statements.

A. Eighth Amendment Claims
Turley argues that frequent lockdowns for substantial
periods of time have deprived him of exercise and
caused him various health issues. The State’s response
is that Turley has failed to allege a constitutionally sufficient injury, especially since no individual lockdown exceeded 90 days, and the defendants were not
deliberately indifferent to Turley’s or the other inmates’
situation. The district court dismissed this claim because
it thought that Turley had not listed specific periods
of confinement, but this conclusion is incorrect.
The State relies heavily on Pearson v. Ramos, 237 F.3d
881, 886 (7th Cir. 2001), for the notion that there exists
an ironclad rule that a denial of yard privileges shorter
than 90 consecutive days cannot be the basis for an
Eighth Amendment claim. However, the State has misconstrued this rule. In Pearson, we stated that we
thought “it a reasonable rule that a denial of yard privileges for no more than 90 days at a stretch is not cruel
and unusual punishment.” Id. at 884. However, we were
careful to explain that the “norm of proportionality”
would guide the acceptable duration of lockdown. Even
a lockdown not exceeding 90 days could violate that
norm if it were “impos[ed] . . . for some utterly trivial infraction of the prison’s disciplinary rules.” Id. at 885. Pearson focused on the period of confinement for a single
prisoner in response to that prisoner’s specific actions, so

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that the prison’s decision “[t]o confine in ‘solitary’ a
prisoner who behaves like a wild beast whenever he is
let out of his cell is the least cruel measure that occurs
to us for dealing with such a person.” Id. In contrast,
here we are confronted with a pattern of prison-wide
lockdowns, which Turley alleges occurred for flimsy
reasons or no reason at all.
In a similar unit-wide lockdown case, this court found
a viable claim for deprivation of exercise. In Antonelli
v. Sheahan, 81 F.3d 1422 (7th Cir. 1996), a prisoner was
housed in a cramped cell with “no room” to exercise
and “not permitted to recreate ‘for periods up to seven
weeks in succession,’ and at most, was called ‘once
every two weeks for sessions of no longer than one hour
at one time.’ ” Id. at 1432. The court in Antonelli noted
that no doubt the State would raise any valid justification for the restriction “in due course,” but that “at this
stage,” the prisoner had a viable claim for deprivation
of exercise. Id.
Turley has not had the benefit of discovery, and the
defendants have yet to answer the complaint. Turley
has alleged sufficiently serious injuries stemming from
his confinement without exercise, including irritable
bowel syndrome, severe stress, headaches and tinnitus.
He alleges that he could not “improvise” with in-cell
exercise, because the unencumbered floor space in his
tiny cell measured only 7'8" by 1'7", which is not even
enough space to lie down, much less exercise. Turley
filed numerous grievances involving the issue, directed
at a similar group of defendants. Similar allegations
were sufficient to show deliberate indifference in other

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cases. See, e.g., Delaney v. DeTella, 256 F.3d 679, 685-86
(7th Cir. 2001) (requiring 5 hours of exercise per week
after 90 days segregation due to grievances filed and
medical care sought). The State is free to produce evidence or studies, if any exist, that the intervals between
weeks-long (or even months-long) lock-downs are sufficiently restorative.
As for deliberate indifference, Turley filed multiple
grievances about the conditions at Menard, including in
his October 2010 grievance specific challenges to the
small cells. The administration should have been well
aware of multiple grievances from inmates regarding
small cells. In fact, Menard was the subject of numerous
past lawsuits, including one specifically describing
and ordering a remedial plan for overcrowding, small
cells and lack of adequate medical care and hygiene, all
conditions similar to those described by Turley. See
Lightfoot v. Walker, 486 F.Supp. 504, 511 (D.C. Ill. 1980).
Finally, in Munson v. Hulick, 2010 WL 2698279 (S.D. Ill.
July 7, 2010), a complaint similar to Turley’s passed
§ 1915A screening. There, a Menard prisoner challenged the same 40' cells where two inmates were
confined for 21-22 hours per day, and the court allowed
the claim to proceed, finding that the grievances by the
plaintiff and other prisoners were sufficient to provide
notice to prison officials.

B. Due Process Claim
The district court did not address Turley’s Due Process
claim. Turley alleges that when he was on lockdown,

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he was not paid his $10 per month state stipend, provided for in a state administrative directive. The State
argues that first, Turley had no property interest in his
stipend, and second, he was not denied Due Process
through loss of the stipend, but rather had several
avenues of recovery open to him, specifically an action
in the Court of Claims to challenge the deprivation.
We will assume without deciding that Turley has a property interest in the stipend he would have received had
he not been in segregation.5 However, we agree with
the State’s second argument.
The Illinois Court of Claims provides an exclusive
remedy for “[a]ll claims against the State founded upon
any law of the State of Illinois or upon any regulation
adopted thereunder by an executive or administrative
officer or agency,” 705 ILCS 505/8(a), and “[a]ll claims

5

While we have found that Illinois law does not create a
property interest in prison employment, see Wallace v. Robinson,
940 F.2d 243 (7th Cir. 1991) (en banc), that is not quite the
issue presented here. This case involves unassigned pay
potentially unlawfully withheld during wrongful segregation.
The Illinois Court of Claims has noted that though “an
inmate in a correction institution in . . . Illinois does not have
a right to a job”, he “ha[s] a right to his unassigned pay [if]
he was wrongfully placed in segregation.” Pippion v. State, 43
Ill. Ct. Cl. 327, 328 (1990). In cases decided after Wallace, the
Illinois Court of Claims has pondered, without deciding, the
interests at stake in matters of stipend confiscation. See TurnerEl v. Illinois Bd. of Educ., 1995 WL 506011, *8 (N.D. Ill. Aug. 22,
1995).

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against the State for damages in cases sounding in tort,
if a like cause of action would lie against a private
person or corporation in a civil suit,” 705 ILCS 505/8(d).
The Illinois Court of Claims has recognized that
prisoners do have a right to their unassigned pay when
not in segregation, even though they do not have a
right to a job or wages therefrom while in prison. Pippion
v. State, 43 Ill. Ct. Cl. 327, 328 (1990). The Court of
Claims has consistently awarded prisoners “back pay”
when they were denied their stipend during unlawful
confinement in segregation.
There is nothing to indicate that this post-deprivation
remedy is inadequate in Turley’s case. The monetary
amount in question is rather small,6 and it is unclear
what value additional safeguards would provide. Cf.
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). As Turley
had the opportunity for an adequate post-deprivation
remedy, and his deprivation was not of a type that
would require a pre-deprivation hearing, his Due
Process claim must fail. See Logan v. Zimmerman Brush
Co., 455 U.S. 422, 436 (1982).
We R EVERSE IN P ART and A FFIRM IN P ART the judgment of the district court.

6

We note that prisoners often do not have full enjoyment of
their earnings, as these earnings may be reserved for restitution. The Eighth Circuit has determined that post-deprivation procedures are adequate for recovering victim restitution
payments from an inmate’s prison trust account or freezing
them. Mahers v. Halford, 76 F.3d 951, 955 (8th Cir. 1996).

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E ASTERBROOK, Chief Judge, concurring. Although I join
the court’s opinion, I think it helpful to elaborate on the
limitations issue discussed in Part II.
Turley contends that his suit is timely because the
lockdowns constituted a “continuing violation” and the
suit was filed within two years of the most recent
lockdown. He relies on Heard v. Sheahan, 253 F.3d 316 (7th
Cir. 2001), which used that phrase, but later decisions
such as Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618
(2007), and National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002), show that some refinement is essential.
That something is continuing could matter to the
period of limitations in at least three ways:
•

Violations begin and continue, and the prevailing rule treats new acts, or ongoing inaction, as new violations. The eighth amendment creates such a doctrine: failure to treat
a significant painful medical condition, with
deliberate indifference to the prisoner’s situation, is a form of inaction that offends the
Constitution. Estelle v. Gamble, 429 U.S. 97
(1976). The period of limitations runs from
each independently unlawful act or failure to
act.

•

Deeds that are not themselves violations of
law become actionable if they add up. This
situation was addressed by the hostile-environment part of Morgan, 536 U.S. at 115–21. One
or two offensive remarks do not violate Title
VII, but a cascade of remarks over the course

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of months may do so—and Morgan holds
that the period of limitations for a hostileenvironment claim runs from the last remark
rather than the first.
•

A discrete wrongful act causes continuing
harm. Morgan and Ledbetter hold that a continuation of injury does not extend the period
of limitations. 536 U.S. at 110–15. Likewise
a new discrete violation does not extend the
time to sue about an old discrete violation,
even if the new violation occurs while the
injury from the old discrete violation continues.

Grouping all three of these situations under a single
name has the potential for confusion—a potential
realized here, where the parties discuss Heard, which
deals with the first situation, as if it were an exemplar
of the second. And on other recent appeals lawyers have
treated continuing injury, the third situation, as if it
were the same as ongoing wrongs.
Giving different things different names promotes
clarity of thought. The first situation is a genuine continuing violation. The second should be called a cumulative violation. And the third should be labeled a continuing injury.
Lockdowns of 90 days or fewer are not independent
violations of the eighth amendment. But lockdowns
that cumulate to much longer periods, with only short
breaks, may be. This case thus is within the scope of the
cumulative-violation doctrine, for the reasons given in

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Morgan, 536 U.S. at 115–21. But the fact that Turley
may continue to suffer injury from lockdowns has no
bearing on the period of limitations.
The court reaches this conclusion, though using different terminology, so I join its opinion.

7-3-13