Harper v. Dart et al

Filing 80

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the defense motion to dismiss for failure to exhaust is denied. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARRYL HARPER,
Plaintiff,
v.
THOMAS DART, et al.,
Defendants.

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No. 14 C 01237
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Darryl Harper, a disabled inmate at Cook County Jail, filed this suit
against Sheriff Thomas Dart and Cook County alleging violations of his civil rights
under 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq.1 R. 19, First Am.
Compl. Under the Prison Litigation Reform Act (PLRA), a prisoner may not bring
any suit about his prison conditions under federal law without first exhausting
“such administrative remedies as are available.” 42 U.S.C. § 1997e(a). Defendants
alleged that Harper had not properly exhausted his administrative remedies, and
the Court convened what is known as a Pavey hearing to resolve factual issues
related to exhaustion. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008); R. 42, Mot.
for Pavey Hrg. Based on the evidence presented at the hearing, the Court now
concludes Defendants have not carried their burden to show that Harper failed to

1The

Court has federal-question jurisdiction over Harper’s claims under 28 U.S.C.
§ 1331. Citations to the docket are “R.” followed by the docket entry number.

exhaust the available administrative remedies. Harper’s suit will therefore not be
dismissed for a failure to exhaust under the PLRA.
I. Background
Darryl Harper has been a pretrial detainee in the Cook County Jail since
March 12, 2013. First Am. Compl. ¶ 5. Harper, who is paralyzed from the chest
down, is wheelchair bound.2 R. 75-2, Compassionate Consideration Letter at 1; First
Am. Compl. ¶ 2. Because of his medical condition, Harper has primarily been
housed at the Cermak Infirmary. R. 57, Pl.’s Pre-Hrg. Resp. Br. at 3. Harper alleges
that his rights have been violated during his time at Cermak because (1) he has not
been housed in an ADA-compliant (that is, wheelchair-accessible) unit and (2) the
grievance system is inadequate. First Am. Compl. ¶¶ 9-12, 16-19.
When Harper arrived at Cook County Jail, he was processed directly through
the Cermak Infirmary rather than through the jail’s “receiving” department. R. 74,
Hrg. Tr. at 44:8-45:9. At some point during the admissions process, Harper signed a
document which stated that he had received the Inmate Rules and Regulations.
R. 53-1, Jail History Card at 1; Hrg. Tr. at 21:16-22:25 (Harper admitting that he
signed the jail history card). The Inmate Rules and Regulations (also known as the
Inmate Information Handbook) spell out the procedures for inmate grievances and
requests. R. 53-1, Inmate Handbook at 20-22; see also Hrg. Tr. at 97:1-21 (noting
that the Inmate Rules and Regulations and the Inmate Handbook are the same
document). Although Harper signed the jail history card and the card bears an
2Harper

also suffers from several other ailments, including chronic and recurring
infections, hypertension, anemia, and hepatitis C. R. 75-2, Compassionate Consideration
Letter at 1.

2

acknowledgment of receipt of the handbook, he claims he did not actually receive
the handbook itself. Hrg. Tr. at 23:3-5, 45:13-15. Instead, he learned about the
grievance procedures from other inmates in the jail. Id. at 45:16-46:4.
The Inmate Handbook distinguishes between “requests” and “grievances.”
Inmate Handbook at 20-22. The Handbook instructs an inmate to make a request
“when [he] would like or need[s] assistance, services, or basic supplies.” Id. at 20.
For example, and inmate should file a request “[i]f [he] require[s] accommodations
because [he has] a disability.” Id. Grievances, on the other hand, are used to “seek
review of a problem related to [a detainee’s] conditions of confinement.” Id. An
inmate should file a grievance if he believes his “Constitutional or other legal rights
have been violated,” among other things. Id. at 20-21. A grievance must be filed
within fifteen days of the event giving rise to the complaint. Id. at 21. The
Department of Corrections or one of its departments then has fifteen business days
to respond. Id. The inmate will get a written decision; if he does not agree with the
decision, he has fourteen days to appeal. Id. at 22.
The Inmate Handbook does not have any information on appealing denied or
ignored requests. Id. at 20. According to Department-of-Corrections staff, requests
(as distinct from grievances) cannot be appealed at all. Hrg. Tr. at 63:2-20, 89:17-25.
If an inmate is dissatisfied with the response to a request or if no response is
received, he must refile the request as a grievance and obtain an identifier known
as a control number. Id. He may then pursue the grievance appeals process. Id. The
grievance form itself instructs inmates that they “may re-submit the grievance issue

3

after 15 days to obtain a ‘Control Number’ if there is no response to the request or
the response is deemed unsatisfactory.” See, e.g., R. 75-2, Jan. 24, 2014 Grievance;
Hrg. Tr. at 89:17-25. According to the defense, the “control number” transforms the
request into a grievance. R. 78, Defs.’ Post-Hrg. Resp. Br. at 9. The inmate must
then wait for a response to his grievance, and, if he is unhappy with that response,
he may appeal using the ordinary grievance appeals process. Hrg. Tr. at 96:4-25.
Harper claims that he was not informed of the refiling policy. Id. at 36:1037:3. He says that his correctional rehabilitation worker, Susie Harris-Richardson,
told him that once a request is denied, “it’s over with.” Id. at 31:12-14. HarrisRichardson denies telling Harper that a denied request was a “dead issue” and
insists that she would have helped Harper refile his request as a grievance if he had
asked. Id. at 124:11-18, 150:22-151:3.
Harper submitted two grievance forms concerning the issues central to this
case. In the first, dated January 24, 2014, Harper complained that, since his return
from Stroger Hospital on December 23, 2013, he had been housed in a cell that was
not ADA accessible. Jan. 24, 2014 Grievance. He gave the grievance to HarrisRichardson on January 31, 2014. Id. Harris-Richardson marked the grievance as a
request. Id. She testified that she did this because the “date that the incident
occurred” was December 23, 2013 (when he returned from Stroger Hospital), and so
the grievance was (in her view) untimely. Hrg. Tr. at 120:2-11. John Mueller,
supervisor of Inmate Services, endorsed Harris-Richardson’s approach, stating that
an untimely grievance can be processed as a request. Id. at 62:13-63:1 (“[T]he

4

[untimely] complaint is still addressed, either through instruction back to the
inmate of what needs to be done, or a response directly to the inmate with regards
to the allegation as a nongrievance request.”). There is no evidence that Harper ever
received a response to what was deemed his first request. Id. at 78:11-22. Harper
did not refile the request as a grievance. Id. at 12:10-19, 65:20-22.
Harper’s second grievance form, submitted on February 7, 2014, was typed by
his attorneys. Id. at 33:5-15; R. 75-2, Feb. 7, 2014 Grievance at 1. In the typewritten
grievance, Harper complained that he had “been deprived an accessible living unit
for a wheelchair bound person.” Feb. 7, 2014 Grievance at 2. Specifically, the
shower did not have grab bars, and the shower chair was so dirty that Harper
“fear[ed] for [his] life given [his] exposed wounds.” Id. Harper also complained that
“the grievance process at the Jail is inadequate [because] [t]he social worker
assigned to [unit] 3N infrequently visits the living unit and does not make herself
available to address the serious concerns of inmates.” Id. Harris-Richardson
collected the grievance form that same day. Id. at 1. Harris-Richardson and Mueller
determined that it should be processed as a request because it was “more of a
general complaint of various issues that the inmate has.” Hrg. Tr. at 69:5-19,
133:24-134:1. Mueller then responded to the request, telling Harper that he had to
separate out each issue and provide a specific date and location for each incident
about which he was complaining. Id. at 69:15-19; Feb. 7, 2014 Grievance at 3.
Mueller crossed out the portion of the grievance form labelled “Inmate’s Request for

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an Appeal.” Feb. 7, 2014 Grievance at 3. Harper did not refile the denied request as
a grievance. Id. at 12:10-19, 36:20-37:3.
II. Legal Standard
Failure to exhaust administrative remedies as required by the PLRA is an
affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). Like most every other
affirmative defense, the burden of proof is on the defendants to show that the
prisoner failed to exhaust. Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011). When
there are disputed questions of fact surrounding exhaustion, the district court must
“conduct[ ] a hearing on exhaustion” and make factual findings as to whether the
prisoner has satisfied the exhaustion requirement of the PLRA.3 Pavey, 544 F.3d at
741-42 (“Not every factual issue that arises in the course of a litigation is triable to
a jury as a matter of right.”); see also Wagoner v. Lemmon, 778 F.3d 586, 591-92
(7th Cir. 2015) (distinguishing the exhaustion inquiry from summary judgment). If
the

district

court

concludes

that

the

prisoner

has

exhausted

available

administrative remedies, then the case may move onto the merits. Pavey, 544 F.3d
at 742 (noting that the jury, should the case reach trial, will not be “bound by (or
even informed of) any of the findings made by the district judge” in the exhaustion
inquiry). If the district court concludes that the prisoner has not exhausted his
remedies, then the court will either permit the prisoner to go back and exhaust or, if
failure to exhaust was the prisoner’s fault, it will dismiss the case. Id.

3Ordinarily,

discovery on the merits of the case should be stayed until the
exhaustion issue is decided, see Pavey, 544 F.3d at 742, as is the case here, see R. 44, Nov.
18, 2014 Minute Entry (staying merits discovery pending the resolution of the exhaustion
issue).

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III. Analysis
Under the PLRA, an inmate must properly exhaust administrative remedies
by following the applicable procedural rules for grievances. Woodford v. Ngo, 548
U.S. 81, 90 (2006). “To exhaust remedies, a prisoner must file complaints and
appeals in the place, and at the time, the prison’s administrative rules require.”
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). That is, he must “take all
steps prescribed by the prison’s grievance system.” Ford v. Johnson, 362 F.3d 395,
397 (7th Cir. 2004). A prisoner is only required, however, to exhaust the
administrative remedies that are “available” to him. 42 U.S.C. § 1997e(a). “Prison
authorities cannot immunize themselves from suit by establishing procedures that
in practice are not available because they are impossible to comply with or simply
do not exist.” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). To that end,
prisoners are only “required to exhaust grievance procedures they have been told
about, … not procedures they have not been told about,”4 id. at 896, meaning that

4Contrary

to Harper’s position, this does not mean that the availability of
administrative procedures is a subjective inquiry—that is, dependent on the knowledge of
the prisoner in question. “A prisoner’s lack of awareness of a grievance procedure … does
not excuse compliance.” Twitty v. McCoskey, 226 F. App’x 594, 596 (7th Cir. 2007). The
PLRA “says nothing about a prisoner’s subjective beliefs, logical or otherwise, about
administrative remedies that might be available to him.” Id. (quoting Chelette v. Harris,
229 F.3d 684, 688 (8th Cir. 2000)); see also Hudson v. Corizon Med. Servs., 557 F. App’x
574, 574-75 (7th Cir. 2014) (holding that a procedure is unavailable if it “was concealed by
prison officials or otherwise unknowable to [the prisoner].”).
Even if the exhaustion inquiry were a subjective one, the Court finds that Harper
was given the Inmate Handbook upon his arrival at Cermak Infirmary. Even though
Harper testified that he did not receive the handbook, he did admit that he signed the
statement acknowledging that he had in fact received it. Hrg. Tr. at 21:16-22:25, 23:3-5,
45:13-15. Harper’s credibility on receipt of the handbook when he signed the admission card
is undermined because Harper testified that he was ill when he was admitted and that he
does not even remember signing the documents at all. Id. at 45:10-12; First Am. Compl. ¶ 6;
see also Compassionate Consideration Letter at 1 (detailing Harper’s many medical issues).

7

only reasonably publicized procedures must be exhausted. This means that the jail’s
stated policy is the key; inmates “are not required to divine the availability of other
procedures.” Id. (“If authorities could change their grievance rules once litigation
began or simply keep prisoners in the dark about the real rules, they could always
defeat prisoner suits by announcing impossible procedural hurdles beforehand and
then, when they are sued, explaining that they would have waived the
requirements for the plaintiff.”); see also Hurst v. Hantke, 634 F.3d 409, 411 (7th
Cir. 2011) (“[A] remedy is not available if essential elements of the procedure for
obtaining it are concealed.”).
There is no dispute that Harper filed his January 24th and February 7th
grievances on the grievance form provided by the jail. Harris-Richardson and
Mueller decided that those complaints should be processed as “requests.” Hrg. Tr. at
62:13-63:1, 69:5-19, 120:2-11, 133:24-134:1. That determination was made solely by
jail staff; it was not within Harper’s control. Harper only received one response to
his requests, Hrg. Tr. at 78:11-22; Feb. 7, 2014 Grievance at 3, and in that response,
the appeals section had been crossed out, Feb. 7, 2014 Grievance at 3. And although
the Inmate Handbook details the appeals procedures for grievances, it is completely
silent about appealing denied or ignored requests. Inmate Handbook at 20-22. In

Harper also testified that he had no memory of signing various other documents, despite
identifying his signature on those documents. Hrg. Tr. at 41:2-43:4; see also id. at 35:9-12
(“I was having problems writing and understanding things because the infection was
playing with my brain. I had lost memory to a lot of things.”). Given Harper’s memory
problems and the admitted authenticity of his signature on the jail history card, it is more
likely than not that he did, in fact, receive the Inmate Handbook upon his arrival at the
Cermak Infirmary. So even under a subjective standard, Harper can be charged with
knowledge of the provisions of the Inmate Handbook.

8

fact, jail staff testified that requests may not be appealed at all. Hrg. Tr. at 63:2-20,
89:17-25. So, based on the information in the Inmate Handbook, Harper had
“take[n] all steps prescribed by the prison’s grievance system.” Ford, 362 F.3d at
397; see also Munoz v. Dawalibi, 2015 WL 719373, at *6 (N.D. Ill. Feb. 18, 2015)
(holding that a prisoner exhausted administrative remedies when his grievances
were processed as requests and he did not refile to get a control number).
Defendants argue that, despite the absence of instruction in the Inmate
Handbook, the jail’s exhaustion procedures require an inmate to resubmit a denied
or ignored request as a grievance and get a control number. Defs.’ Post-Hrg. Resp.
Br. at 9-10. Once the request is resubmitted as a grievance, the defense says, the
inmate must follow the grievance exhaustion procedures. Id. The defense bases this
argument primarily on the language on the grievance form, which states that
“[w]hen a grievance issue is processed as a NON-GRIEVANCE (REQUEST), an
inmate may re-submit the grievance issue after 15 days to obtain a ‘Control
Number’ if there has been no response to the request or the response is deemed
unsatisfactory.” Jan. 24, 2014 Grievance at 1. Although this language does suggest
that the jail has some kind of policy requiring (though “requiring” might be
overstating the policy, because the form uses the word “may”) inmates to refile
requests as grievances to exhaust, the testimony of Corrections staff suggests that
this policy is not available in practice.
For one, the testimony of jail personnel reveals that an inmate who refiles a
request based on the language of the grievance form might not get a control number

9

at all. The control number is what supposedly transforms the request into a
grievance and opens up the grievance appeals process to what had been an
unappealable request. Defs.’ Post-Hrg. Resp. Br. at 9. Mueller, the supervisor of
Inmate Services, testified that grievances that a correctional rehabilitation worker
believes are untimely are typically marked as requests. Hrg. Tr. at 62:19-63:1,
101:18-22 (“Q. [I]f the complaint is submitted past the 15 days is it still processed in
a way? [ ] A. … either through instruction back to the inmate of what needs to be
done, or a response directly to the inmate with regards to the allegation as a
nongrievance request.”). If an untimely grievance is marked as a request and the
inmate is dissatisfied with the response, Mueller testified that the inmate must
refile that request as a grievance. Id. at 63:11-20. The inmate can do that by
rewriting the same complaint onto a new grievance form. Id. at 143:25-144:9. But if
the initial complaint was untimely, resulting in the complaint being marked a
request, refiling the exact same complaint would also be untimely. And both
Mueller and Harris-Richardson stated that a refiled request that was (still)
untimely would not necessarily get a control number. Id. at 138:20-142:2; R. 57-1,
Mueller Dep. at 70:21-71:20; see also Hrg. Tr. at 99:23-101:1 (impeaching Mueller
with his deposition testimony).
During his in-court testimony, Mueller said that the untimeliness of a refiled
request would not prevent the rehab worker from issuing a control number. Hrg. Tr.
at 99:6-20. In his deposition, however, Mueller stated that the now-doubly-untimely
grievance would not be given a control number:

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Q. You would agree that Mr. Harper could not appeal the response to
[a request], correct?5
A. That’s correct. Within 15 days of him either receiving a response or
being unsatisfied with the response he did get, he could have re-filed it
and a control number would’ve been issued.
Q. And you would’ve automatically provided a control number to Mr.
Harper?
A. Ms. Richardson.
Q. Ms. Richardson would have automatically given a control number if
Mr. Harper submitted the same document?
A. That’s what they’re trained. If she deems it—and again, it all
depends on her inquiry into whether it was a timely process or not.
…
Q. Assuming Mr. Harper filed the exact same document 15 days after
Ms. Richardson collected, would you have expected Ms. Richardson to
mark it as a grievance?
A. If Ms. Richardson deemed it in the process and deemed it as being
non timely, the answer is no.
Mueller Dep. at 70:21-71:20. Harris-Richardson was more confident that a control
number would be issued in most cases, but she still refused to say that a control
number would automatically be issued to a refiled request:
THE COURT: [If] the inmate wants to resubmit [his request] to you as
a grievance, … would you automatically give that grievance a control
number?
THE WITNESS: Yes. We can give that—we have the option to give
that grievance a control number, and more than likely it would be
given a control number, yes.

5In

this line of questioning, Mueller was discussing a complaint filed by Harper that
is not at issue in this case. See Mueller Dep. at 64:5-7 (directing Mueller to the document
marked HARPER DART33); R. 42-1, Jan. 23, 2014 Grievance at 2 (labelled HARPER
DART33). Much like the complaints at issue in this case, however, the January 23, 2014
complaint was marked as a request. Jan. 23, 2014 Grievance at 2.

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THE COURT: Okay. You say an option, or more than likely. Are you
required to give it a control number now that the inmate has
resubmitted it to you after waiting the 15 days?
THE WITNESS: Yes, we—yes, we are more or less required to give it a
control number.
THE COURT: Okay. I just want to make—
THE WITNESS: I’m being—not complex upon it, but it’s depend[ent]
upon what the issue is. And so in this case he would’ve been given a
control number, more than likely.
Hrg. Tr. at 138:20-139:24. When asked what factors she would consider in deciding
whether to award the refiled request a control number, Harris-Richardson said that
she would try to determine if the inmate had an excuse for his failure to make a
timely grievance. Id. at 139:25-140:13. Even if there were no excuse for the failure
to file a timely grievance, Harris-Richardson said that she “would probably still give
[Harper] a control number,” because she would take into account the “nature of the
grievance.” Id. at 140:14-142:2.
Based on this testimony, it becomes apparent that an inmate could become
trapped in a never-ending cycle of unappealable requests. An inmate files a
complaint, like Harper did, about an ongoing problem with the accessibility of his
cell. That complaint has a date in it—in Harper’s case, the date on which he
returned to Cermak Infirmary from Stroger Hospital. Jan. 24, 2014 Grievance at 1.
Although the inmate continues to live in an inaccessible cell at the time the
complaint is filed, the rehab worker determines that, based on the date included in
the text of the complaint, the complaint is untimely. It is marked as a request.
When the inmate seeks to refile the request as a grievance, the rehab worker

12

determines that it is, of course, still untimely, and marks the refiled complaint as a
request again. This could repeat indefinitely.
Also troubling is the apparent confusion among jail personnel as to when a
request may be refiled as a grievance. The language of the grievance form says that
“[w]hen a grievance issue is processed as [a request],” an inmate who is unsatisfied
with the response or lack of response “may re-submit the grievance issue after 15
days.” Jan. 24, 2014 Grievance at 1 (emphasis added). The plain meaning of this
language is that an inmate must wait at least fifteen days after some trigger
(receiving an unsatisfactory response or receiving no response after, presumably,
fifteen days) to refile his request as a grievance. Mueller, however, testified that the
inmate “can re-file the grievance within 15 days.” Hrg. Tr. at 89:17-25 (emphasis
added). Harris-Richardson added to the confusion, stating both that the inmate can
resubmit immediately and that the inmate must wait fifteen days:
THE COURT: But are you saying that even though it says after 15
days, it’s okay for the inmate to just tell you right then and there, I
want to resubmit this?
THE WITNESS: Yes. Because they will ask, if they’re unsatisfactory
with it—with the—with their response, they will ask, or they will
declare that I’m going to resubmit this grievance.
…
THE COURT: Right. But they can—are you saying they do not have to
wait 15 days?
THE WITNESS: Oh, no, sir. I see your point. I apologize. So, yes, sir.
Yes. I see. They have 15 days to obtain the control number. Yes, sir.
THE COURT: So they do have to wait 15 days?

13

THE WITNESS: Days, yes, sir. I apologize. I was just strictly talking
about them having the opportunity of resubmitting the grievance, a
portion of it.
Id. at 147:25-148:22 (emphasis added). Attempting to clarify, Harris-Richardson
seemingly created different rules for requests that received responses and requests
that did not. If the inmate has not received a response to his request, he must wait
fifteen days before resubmitting the same complaint to get a control number.6 Id. at
158:17-20. If the inmate has received a response to his request, he can refile right
away; there is no need to wait until another fifteen days has passed. Id. at 150:5-24.
And although he can immediately resubmit, an inmate who receives a response to
his request has a fifteen-day window in which to decide whether to resubmit or not.
Id.; see also Defs.’ Post-Hrg. Resp. Br. at 10 (stating that a detainee who is
dissatisfied with the response to his request “can immediately resubmit it [upon
receiving the response], or within 15 days, to obtain a control number to make it a
grievance”). Under that regime, if an inmate were to stick to the language of the
grievance form and wait to refile until after fifteen days had passed, his refiled
complaint would be untimely:
THE COURT: But let me—so let me just ask, if he waited 16 days,
okay, after giving—being given the response that we deem this is a
nongrievance request. All right? Say we’re giving this back to you, it’s
a nongrievance request—
THE WITNESS: Yes.
THE COURT: And here’s our response—
6It

could be challenging for an inmate to comply with this rule, because he will not
know that his grievance has been processed as a request until he gets the response. Hrg.
Tr. at 154:22-25 (“Q. So the first time a detainee knows whether the document is processed
by the jail as a request or a grievance in when Part B is given back to the inmate? A. That
is correct.”); see also id. at 71:9-12 (describing “Part B” as the response form).

14

THE WITNESS: Yes.
THE COURT: —and he waits 16 days from that date. Is that a timely
grievance?
THE WITNESS: We still would have to accept it and process it.
THE COURT: Okay. But you would think it’s—you would deem it to be
untimely.
THE WITNESS: Oh. If it was after the 15 days, yes, it—but we would
still have to process it nonetheless.
Hrg. Tr. at 151:11-152:1; see also id. at 155:24-156:2 (“Q. Well, when you take about
processing it, you’re not talking about making it a grievance, you’re talking about
processing it as either a grievance or a request, correct? A. Right. Depending on the
nature of the grievance, right.”).
An administrative remedy is not available if it is “hopelessly unclear whether
any administrative remedy remained open for the prisoner[ ].” Westefer v. Snyder,
422 F.3d 570, 580 (7th Cir. 2005) (internal alteration and citation omitted) (finding
that the defendants did not meet their burden on an exhaustion defense in part
because they failed to “point to any regulation or department policy that clearly
identifies how a prisoner challenges [the alleged misconduct]”). The Inmate
Handbook is silent about appealing requests, and jail staff says unequivocally that
requests cannot be appealed. The language on the grievance form does, in theory,
create an avenue by which an inmate can appeal a request, but the confusing and
contradictory testimony of jail personnel suggests that this language is not
reasonably implemented in practice or realistically available to inmates, at least
based on the testimony presented at the hearing and in this case. See King, 781
F.3d at 893 (“Prison authorities cannot immunize themselves from suit by
15

establishing procedures that in practice are not available.”). It is ultimately
Defendants’ burden to establish that Harper failed to exhaust administrative
remedies that were available to him. Maddox, 655 F.3d at 720. Defendants have not
proven that the procedures that they believe Harper failed to exhaust were
available to him.
IV. Conclusion
For the reasons discussed above, the Court concludes that Defendants have
not carried their burden of proving that Harper failed to exhaust his administrative
remedies prior to filing suit. Harper’s claims will not be dismissed on exhaustion
grounds.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: June 24, 2015

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