Patrick Tullis v. Vipin Shaw, et al
Filed Nonprecedential Disposition PER CURIAM. We VACATE the district court s judgment and REMAND the case for further proceedings. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6812874-1]  [16-1130]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2017*
Decided January 19, 2017
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
VIPIN K. SHAW, et al.,
Appeal from the United States District
Court for the Southern District of Illinois.
J. Phil Gilbert,
O R D E R
Patrick Tullis, an inmate in Illinois, appeals the dismissal of his civil‐rights
lawsuit against prison staff. He argues that the district court erred in concluding that he
filed his suit without first exhausting his administrative remedies, as he was required to
do under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Because the
record is insufficiently developed for us to decide this issue one way or the other, we
* We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
vacate the district court’s judgment and remand for a hearing on the issue of
administrative exhaustion. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
From November 2011 through May 2013, Tullis filed eight grievances alleging
that he received inadequate medical treatment, particularly for stomach pain, and also
that prison staff retaliated against him for filing prior grievances. Six of the grievances
were returned to Tullis for procedural missteps of one sort or another.
Prison administrators gave full consideration to two grievances he filed in
May 2013. In the first grievance, he requested treatment for vision loss and ongoing
pain in his stomach, eyes, hand, neck, shoulders, and back. He added in the second
grievance that he thought a C.T. scan or M.R.I. would reveal “a tear in stomach muscle
or acid reflux erosion problem.” A counselor denied both grievances the following
month, noting that Tullis was scheduled to see an eye specialist and that a doctor had
ordered unspecified “meds” and “labs” for his stomach problems. Tullis appealed, and
in March 2014 the Director of the Illinois Department of Corrections upheld the
grievance officer’s decision, concluding that Tullis’s concerns had been “appropriately
addressed by the institutional administration.”
In January 2014, when his appeal to the Director had been pending for nearly
seven months, Tullis brought this civil‐rights lawsuit against prison staff. After initial
screening the district court permitted Tullis to proceed on the following claims:
(1) Dr. Vipin Shaw, Dr. Art Funk, and Christine Brown (a healthcare administrator)
exhibited deliberate indifference to Tullis’s medical needs by refusing to authorize
treatment for Tullis’s stomach problems; and (2) Allan Martin (the warden) and
Kendra Seip (a counselor) engaged in various acts of retaliation against Tullis because
he had submitted grievances.
The defendants then moved for summary judgment, arguing that Tullis did not
exhaust his administrative remedies before he filed his lawsuit, as the PLRA requires.
See 42 U.S.C. § 1997e(a); Ross v. Blake, 136 S. Ct. 1850, 1854–55 (2016). They noted that
prison administrators returned six of the grievances to Tullis with the explanation that
he had sent the grievances to the wrong decision‐maker, missed a deadline, or failed to
include necessary paperwork. And since Tullis filed his lawsuit before the Director
issued a decision on his May 2013 grievances, the defendants argued that those
grievances could not satisfy the exhaustion requirement. A magistrate judge agreed and
recommended that the district court enter summary judgment for the defendants.
Tullis objected to the magistrate judge’s recommendation and focused entirely
on the two grievances from May 2013. He argued that he exhausted the remedies
available to him because his appeal to the Director had been pending for almost seven
months when he filed suit and a regulation provides that the Director shall decide
grievance appeals within six months “where reasonably feasible under the
circumstances.” ILL. ADMIN. CODE tit. 20, § 504.850(f) (2016); see Lewis v. Washington,
300 F.3d 829, 833 (7th Cir. 2002) (recognizing that administrative remedies are
unavailable when prison officials do not respond to grievances).
The district judge overruled Tullis’s objection and granted summary judgment to
the defendants. The judge reasoned that the six‐month window is a mere “aspirational
goal” and Tullis should not have short‐circuited the administrative process by filing his
lawsuit before giving the Director “a reasonable opportunity to address his grievance.”
On appeal Tullis again insists that he exhausted his administrative remedies and,
once again, focuses on the May 2013 grievances. In response the defendants rely on Ford
v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004), in which we determined that administrative
remedies are still available when prison administrators delay somewhat in responding
to grievances. In Ford a prisoner filed a grievance accusing guards of beating him, and
then he sued the guards while his administrative appeal from the denial was still
pending. Id. at 397–98. To justify why he filed suit so quickly, he invoked a regulation
providing that grievance appeals should be decided within two months “whenever
possible.” Id. at 400. He argued that because his appeal had been pending for more than
two months when he sued, that remedy was effectively unavailable to him. Id.
We disagreed, noting that the appeal was complex and that the prisoner should have let
the administrative process run its course “rather than make a beeline for court just
because the administrative officials gave his appeal the time needed to resolve it.” Id.
Given the scant record in this case, we think it premature to decide whether,
under Ford, Tullis should have waited longer for the Director to act on his appeal before
he filed suit. As near as we can tell, Tullis received no communication regarding his
pending appeal for almost nine months. Yet the defendants have never offered any
explanation why the appeal took so long. Unlike Ford, in which prison administrators
had sought to interview the prisoner regarding his serious allegations of staff
misconduct, Tullis’s appeal does not appear to have been particularly complex—
the Director’s decision is cursory and appears to have been based entirely on a review
of Tullis’s grievances and medical records. Further factual development could show
that Tullis knew when he filed his lawsuit in January 2014 that he could expect a
decision from the Director reasonably soon, but we cannot conclude from this record
that Tullis was wrong to pursue judicial remedies after waiting expectantly for seven
months without sign of activity. See Turley v. Rednour, 729 F.3d 645, 650 n.3 (7th Cir.
2013) (“[W]hen 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.”); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005) (rejecting the
argument that the prisoner failed to exhaust where the prison’s policy did not instruct
the prisoner on what to do if the officials failed to respond to his grievance).
We note in closing that three of the defendants—Martin, Seip, and Brown—now
concede that the district court should have held a Pavey hearing before concluding that
Tullis did not properly exhaust four of the six grievances that were returned for
supposed procedural mistakes. In light of that concession, the district court on remand
should also reconsider whether those grievances were properly exhausted.
Accordingly, we VACATE the district court’s judgment and REMAND the case
for further proceedings.
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