Kevin Brooking v. Michael Branham, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. We thus VACATE the judgment and REMAND for further proceedings. Frank H. Easterbrook, Circuit Judge; Amy C. Barrett, Circuit Judge and Michael B. Brennan, Circuit Judge. [6933664-1] [6933664] [17-3438]
Case: 17-3438
Document: 19
Filed: 06/25/2018
Pages: 3
NONPRECEDENTIAL DISPOSITION
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 June 22, 2018*
Decided June 25, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17‐3438
KEVIN LEE BROOKING,
Plaintiff‐Appellant,
v.
MICHAEL BRANHAM, et al.,
Defendants‐Appellees.
Appeal from the United States
District Court for the Southern District
of Indiana, Evansville Division.
No. 3:17‐cv‐00013‐RLY‐MPB
Richard L. Young,
Judge.
O R D E R
Kevin Brooking appeals the entry of summary judgment in his inmate‐rights
suit. The district court ruled that Brooking had not opposed the defendants’ motion for
summary judgment. Before it ruled, Brooking had asked for more time to contest the
motion because he had not received a copy of it. The court did not exercise its discretion
to consider Brooking’s request for more time, and because Brooking has a potentially
valid response to the defendants’ motion, we vacate the judgment and remand.
* We have agreed to decide this 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. FED. R. APP. P. 34(a)(2)(C).
Case: 17-3438
Document: 19
Filed: 06/25/2018
Pages: 3
No. 17‐3438
Page 2
Kevin Brooking was arrested in March 2015 and taken to the Lawrence County
jail. Brooking contends that he warned jail officials that he had a conflict with an inmate
in the jail’s general population, but no official separated them. The next morning, that
inmate beat Brooking, breaking his shoulder blade and lower leg. A few hours after the
attack, he was taken to the hospital and released from custody once his mother posted
bond. He did not (and, he argues, could not) file a grievance about the attack before his
release. The next month Brooking returned to the same jail on new charges. Jail officials
assert that the jail’s grievance procedures impose no time limits on filings. They further
assert that Brooking did not file a grievance about the attack any time after his return.
As relevant on appeal, Brooking sued jail officials for violating the Constitution
by not preventing the assault, and the defendants answered by asserting that he had not
exhausted his administrative remedies. The district judge ordered the defendants to
select one of three options by August 21, 2017: (1) file a motion in support of their
exhaustion defense, (2) notify the court that the exhaustion issue could not be resolved
by motion, or (3) tell the court that they had abandoned the defense. One day after the
deadline, the defendants moved for summary judgment based on Brooking’s failure to
exhaust. (They did not ask for permission to file late.) That same day, they attempted to
serve Brooking by mail, sending the motion to Brooking at his listed home address. The
mailing included the notice to pro se litigants required by Timms v. Frank, 953 F.2d 281,
285 (7th Cir. 1992). The notice explained Brooking’s obligation to respond to the motion,
a response deadline of September 22, and the right to request more time to respond.
Brooking did not receive the motion or notice because he had been returned to
jail. The court’s clerk received from Brooking on September 29 a “Notice of Address
Change & Request for Continuance of Any Deadlines.” Brooking explained that he was
again in the Lawrence County jail and had been there since August 24 (two days after
the defendants mailed their motion and notice to his home). He had not yet received
from his only living relative (his disabled mother) his papers from this case. And he had
“just received the address to notify the court” of his new location because the jail “has
no law library or directories.” He asked for an extension of any pending deadlines.
The district court did not address Brooking’s request. Instead, on the next
business day, October 2, the court entered summary judgment for the defendants. It
ruled that Brooking did not oppose the defendants’ motion, so the court accepted as
true their statement of material facts. Relying on their assertion that the jail’s grievance
procedure imposes no deadlines and that Brooking never filed a grievance about the
Case: 17-3438
Document: 19
Filed: 06/25/2018
Pages: 3
No. 17‐3438
Page 3
attack, the judge concluded that Brooking had not exhausted his administrative
remedies.
On appeal, Brooking argues that the district court did not allow him a reasonable
opportunity to oppose the motion for summary judgment. He repeats that he never
received the motion or notice of deadlines before the court’s ruling; that because the jail
does not have any court directories, he could not immediately notify the court of his
new address; and that he did so as soon as he received the court’s address. If given the
chance to oppose the exhaustion defense, Brooking would argue that he exhausted all
available administrative remedies: the jail did not inform him about the grievance
process before his attack; at the hospital he was released from custody, leaving him
unable to file a grievance; and when he was later jailed again, corrections officials told
him that it was too late to file a grievance about the assault.
The district court should have considered Brooking’s request that, because he
acted diligently to contact the court with his new address and had not received any
court papers, he deserved more time to meet pending deadlines. When a court
considers a motion (as the district court did with the motion for summary judgment), it
has discretion to grant a request to file a late response to that motion if the requester
shows “excusable neglect” for missing a deadline. FED. R. CIV. P. 6(b)(1)(B). Even if the
court did not see Brooking’s request until after it entered summary judgment, it still
possessed discretionary power to reconsider that judgment in light of the request.
See FED. R. CIV. P. 59(e). But the district court never exercised its discretion to consider
Brooking’s request. It never evaluated whether Brooking’s assertions in his request
were true and, if true, whether they justified a discretionary grant of more time to
respond. A judge’s failure to exercise discretion is an abuse of discretion. See Childress v.
Walker, 787 F.3d 433, 443 (7th Cir. 2015).
Although we could affirm if the district judge’s inaction was harmless, it was not.
Brooking has a potential response to the exhaustion defense: he contends that he had no
available administrative remedies because he had left custody once released from the
hospital and jail officials thwarted his later efforts to file a grievance. We therefore must
remand. The district court is free to decide on remand whether it accepts as true
Brooking’s assertion that he did not receive the motion for summary judgment and
could not contact the court sooner, and whether that assertion warrants a discretionary
grant of added time to respond. See May v. Mahone, 876 F.3d 896, 899 (7th Cir. 2017).
We thus VACATE the judgment and REMAND for further proceedings.
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