In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2745
JOSEPH R. H URST,
Plaintiff-Appellant,
v.
T RAVIS H ANTKE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 09 C 50288—Frederick J. Kapala, Judge.
S UBMITTED JANUARY 20, 2011—D ECIDED F EBRUARY 10, 2011
Before P OSNER, E VANS, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, an inmate in
an Illinois state prison, brought suit under 42 U.S.C.
§ 1983 claiming that the prison’s medical staff had been
deliberately indifferent to his need for medical care
for a stroke, and by that deliberate indifference had
inflicted cruel and unusual punishment on him, in viola-
tion of his federal constitutional rights. The district
court granted summary judgment for the defendants on
the ground that the plaintiff had failed to exhaust his
2 No. 10-2745
internal prison remedies, as required by the Prison Liti-
gation Reform Act. See 42 U.S.C. § 1997e(a).
He had filed a grievance, but not until eight and a half
months after his alleged stroke, and the grievance was
denied because, under Illinois law, to be timely a
grievance must be filed within 60 days of the event
giving rise to it. 20 Ill. Admin. Code § 504.810(a). He
appealed the denial, claiming that he’d been left “almost
totally incapacitated” by his stroke “until just recently.”
Although “good cause” will excuse an untimely filing, id.,
the prison’s administrative review board rejected the
excuse on the ground that “no justification [had been]
provided for additional consideration.” No further ex-
planation was given. The district court ruled that the
plaintiff had failed to exhaust his administrative
remedies because he had presented no evidence to
support his claim of incapacitation either to the prison
authorities, or to the district court in response to the
defendants’ motion for summary judgment.
The two rulings have to be separated. The Illinois
Administrative Code does not require a prisoner to
attach evidence to a claim of good cause, any more than
the Federal Rules of Civil Procedure require a plaintiff
to attach evidence to his complaint. Nor did the
prison authorities tell the plaintiff that he had to attach
evidence to his claim of good cause. They just said “no
justification,” leaving him to guess what one has to do
to justify good cause for an untimely filing, beyond ex-
plaining what the good cause consists of. It is true that
an untimely filing can be considered only if the grievant
No. 10-2745 3
“can demonstrate that a grievance was not timely filed
for good cause,” 20 Ill. Admin. Code § 504.810(a) (em-
phasis added), but that is just to say, as far as we can tell,
that if the prison insists on evidence to substantiate
the claim, the prisoner must supply evidence. The prison
never gave the plaintiff an opportunity to do so.
Apparently Illinois prison authorities do not routinely
insist on evidence when they instruct an inmate to dem-
onstrate good cause for having filed an untimely
grievance, for in another case we have noted that an
Illinois prison’s administrative review board would
have found good cause for an untimely grievance had
the inmate provided, at the board’s request, merely an
explanation for the delay. Cannon v. Washington, 418 F.3d
714, 718 (7th Cir. 2005); see also Dole v. Chandler, 438
F.3d 804, 807 (7th Cir. 2006).
The Illinois code requires that the grievance contain
“factual details regarding each aspect of” it, 20 Ill. Admin.
Code § 504.810(b), but doesn’t require that of a claim of
good cause for an untimely filing; and even if it did, a
requirement of detailed pleading (“fact pleading”) is not
the same thing as a requirement of attaching evidence to
a pleading—an extremely unusual requirement. Imagine
dismissing a complaint on the ground that although
it stated a claim, the plaintiff had failed to submit with
the complaint evidence establishing the accuracy of the
factual allegations in the complaint. Yet that was the
prison’s ground for rejecting our plaintiff’s claim of
good cause to file an untimely grievance.
A prisoner is required to exhaust only “available”
administrative remedies, 42 U.S.C. § 1997e(a); Woodford
4 No. 10-2745
v. Ngo, 548 U.S. 81, 102 (2006), and a remedy is not avail-
able if essential elements of the procedure for obtaining
it are concealed. Dole v. Chandler, supra, 438 F.3d at 810;
Bryant v. Rich, 530 F.3d 1368, 1373 n. 6 (11th Cir. 2008).
Apparently the plaintiff’s prison has created a secret
supplement to the state’s administrative code, requiring
that claims of good cause for an untimely filing be ac-
companied by evidence.
In its brief in this court the state refuses even to ac-
knowledge that physical incapacitation is good cause
for an untimely filing. The implication is that even if
the plaintiff had been in a coma for 60 days after the
allegedly willful failure to treat his stroke promptly, he
would have forfeited his administrative remedies, thus
blocking his access to the federal courts. It is hard to
believe that this is a correct interpretation of the Illinois
code’s failure to state that physical incapacity can be
good cause for an untimely filing. (Compare the
grievance procedure for federal prisoners, which pro-
vides that “an extended period of time during which
the inmate was physically incapable of preparing a
Request or Appeal” is a “valid reason for delay” in filing
a grievance. 28 C.F.R. § 542.14(b); McCoy v. Gilbert, 270
F.3d 503, 510-11 (7th Cir. 2001).) In any event, an admin-
istrative remedy that would be forfeited for failure to
comply with a deadline that in the circumstances could
not possibly be complied with would not be “available”
within the meaning of 18 U.S.C. § 1997e(a), as held in
Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir. 2003) (per
curiam). (An unrelated ruling in Days, involving burden of
proving exhaustion, was rejected in Jones v. Bock, 549
No. 10-2745 5
U.S. 199, 216 (2007). See, e.g., Dillon v. Rogers, 596 F.3d
260, 267 (5th Cir. 2010).)
But when the plaintiff sued, and the defendants moved
for summary judgment, it behooved him to present
evidence to support his contention that he had indeed
exhausted his available administrative remedies by
filing a grievance as soon as it was reasonably possible
for him to do so. Obriecht v. Raemisch, 517 F.3d 489, 492-93
(7th Cir. 2008). Although warned by the district court
that he had to meet the motion for summary judgment
with evidence, the plaintiff presented none. And so he
lost. But we think it worth emphasizing that he did not
lose because Illinois law requires a grievant to attach
evidence to a claim of good cause for an untimely griev-
ance—it does not—or because physical incapacitation is
not good cause within the meaning of the term in the
Illinois code—it is good cause. It better be, because we
agree with Days v. Johnson and the decisions following it
(none is to the contrary)—Dillon v. Rogers, supra, 596
F.3d at 267; Johnson v. Ford, 261 Fed. App’x 752 (5th Cir.
2008); Garrett v. Partin, 248 Fed. App’x 585 (5th Cir. 2007);
Tate v. Howes, 2010 WL 2231812, at *2 (W.D. Mich. June 2,
2010); Braswell v. Corrections Corp. of America, 2009 WL
2447614, at *8 (M.D. Tenn. Aug. 10, 2009); Williams v.
Hurley, 2007 WL 1202723 (S.D. Ohio Apr. 23, 2007)—that a
remedy is not “available” within the meaning of the
Prison Litigation Reform Act to a person physically
unable to pursue it.
A FFIRMED.
2-10-11