NONPRECEDENTIAL DISPOSITION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 20, 2013*
Decided June 21, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12‐1740
SAMMY J. MOORE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 11‐364‐GPM
ADRIAN FEINERMAN, G. Patrick Murphy,
Defendant‐Appellee. Judge.
O R D E R
Sammy Moore, an Illinois prisoner, appeals the dismissal of his lawsuit under 42
U.S.C. § 1983, claiming that Dr. Adrian Feinerman, a physician at Menard Correctional
Center, violated the Eighth Amendment by refusing to treat his painful migraines. The
district court dismissed his suit after conducting an evidentiary hearing and concluding that
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐1740 Page 2
Moore failed to exhaust his administrative remedies. Because we conclude that the court’s
factual findings were not clearly erroneous, we affirm.
Moore alleges that in 2008 he suffered from painful migraines. He visited
Dr. Feinerman twice, in May and July of that year, but the doctor refused to help him, he
contends. Rather, Moore continues, the doctor ordered x‐rays that the doctor knew “would
not reveal what was the cause of Plaintiff’s migraines or stop the pain caused by the
migraines.” By way of an affidavit, Moore attests that, after consulting with an inmate
counselor, he mailed to a grievance officer three grievances complaining of the lack of
treatment, in May, June, and August. He says that he received no response to his
grievances, so deeming himself unable to appeal, he later mailed copies of the grievances
directly to the Administrative Review Board, the final reviewing authority for inmate
grievances.
Dr. Feinerman moved for summary judgment, arguing that Moore had failed to
exhaust his available administrative remedies as required by the Prison Litigation Reform
Act. See 42 U.S.C. § 1997e(a). In support of his motion, Dr. Feinerman submitted an affidavit
from Gina Allen, the chairperson of the Administrative Review Board, who described the
remedies at Menard. An inmate must first attempt to resolve a complaint informally with an
inmate counselor, then submit the complaint to a grievance officer, and finally, if
dissatisfied, appeal an adverse decision to the Board, see ILL. ADMIN. CODE tit. 20, §§
504.810(a), 504.850(a). Allen attests that she searched the Board’s files, and cross‐checked
that search with the Inmate Grievance Tracking System. She found no record of Moore
submitting any “grievances and/or correspondence” to the Board between January and
September of 2008 concerning Dr. Feinerman.
In addition to the evidence that Moore had not submitted a grievance to the Board,
Dr. Feinerman also presented evidence that, as of June 16, Moore had not submitted any
grievances to a grievance officer. In deposition testimony that Moore gave on June 16 in a
separate suit, he was asked whether he was taking any medications for his migraines. He
responded that he had recently seen Dr. Feinerman (who had taken x‐rays) and was
“supposed to be going back” for another appointment. He then said “I’m waiting on them.
If they don’t call in the next week, I will be writing a grievance about that there because I
should have seen—been seen by somebody by now.” (emphasis added.)
In light of the fact dispute over exhaustion, the district court held an evidentiary
hearing required by Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Moore was the only
live witness, and consistent with his affidavit, he testified that he mailed three grievances to
the grievance office (two by June 10). He testified that because he received no response, he
No. 12‐1740 Page 3
could not appeal to the Board. The court also considered, without any objection from
Moore, Allen’s affidavit and Moore’s deposition testimony.
After the hearing the district court concluded that Moore had failed to exhaust his
available administrative remedies. The court credited Allen’s statement that Moore never
appealed a grievance decision to the Board. The court did not find Mooreʹs response (that,
because he received no reply to his grievances, he could not appeal to the Board) credible
because, among other things, his deposition testimony contradicted his Pavey testimony that he
filed two grievances by early June: “[T]he overall impression left by the deposition testimony
was that Mr. Moore had not filed any medical‐related grievance at Menard before June 16,
2008.”
On appeal Moore contends that the district court erred by concluding that he had not
exhausted his administrative remedies. He did all that was required of him, Moore argues,
because he submitted grievances to a grievance officer, and he cannot be faulted for not
appealing to the Board when he received no responses to his grievances. Thus, he
concludes, the defendant failed to carry his burden of proving exhaustion. See Jones v. Bock,
549 U.S. 199, 216 (2007); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). We review the
district courtʹs factual findings for clear error. See FED. R. CIV. P. 52(a)(6); Pavey, 663 F.3d at
904.
We take a “strict compliance approach to exhaustion,” Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006), but an inmate needs to exhaust only available administrative remedies,
see Dole, 438 F.3d at 809; Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004). If Moore is correct
that the prison failed to respond to his grievances, an appeal to the Board was an
unavailable remedy and need not have been exhausted. See Dole, 438 F.3d at 809; Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002).
The district court relied on adequate evidence to support its finding that, by not
appealing his grievance to the Board, Moore did not exhaust. See United States v. Rice, 673
F.3d 537, 540–41 (7th Cir. 2012) (“the task on appeal is not to see whether there is any
evidence that might undercut the district courtʹs finding; it is to see whether there is any
evidence in the record to support the finding”); Kanter v. Commʹr of Internal Revenue, 590
F.3d 410, 417 (7th Cir. 2009) (reversal is inappropriate where district court’s account of
evidence is “plausible in light of the record viewed in its entirety”) (internal quotation and
citation omitted). The court permissibly credited Allen’s statement that Moore appealed no
grievance decision to the Board during the relevant period. Moore did not object to the
court’s consideration of Allen’s affidavit at the Pavey hearing, so Moore has forfeited any
objection to the admissibility of the affidavit. See United States v. Wright, 651 F.3d 764, 773
(7th Cir. 2011).
No. 12‐1740 Page 4
The district court also properly rejected Moore’s assertion that, having received no
response to his grievances, he did not have to appeal to the Board. Although a defendant
generally bears the burden of proving an affirmative defense, like exhaustion, a plaintiff
typically bears the burden of establishing an exception to it, as Moore seeks here. See Ray v.
Clements, 700 F.3d 993, 1019–20 (7th Cir. 2012) (ruling that a habeas petitioner must prove
grounds for equitably tolling a statue of limitations); Stark v. Dynascan Corp., 902 F.2d 549,
551 (7th Cir. 1990) (same for employment‐discrimination plaintiffs). The district court
properly rejected Moore’s contention that an appeal to the Board was unavailable because it
found unworthy of belief Moore’s assertion that the prison never responded to his
grievances. That assertion depended on his general credibility about the grievances, and the
court permissibly disbelieved Moore’s Pavey testimony about them because he contradicted
himself. His Pavey testimony was that he mailed two grievances before June 16, but during
his deposition he stated instead that he had not filed any grievances before June 16. Because
the court’s credibility determination was not “completely without foundation,” we will not
disturb it. See United States v. Norris, 640 F.3d 295, 297 n. 1 (7th Cir. 2011) (internal quotation
marks and citation omitted). Accordingly, the finding that Moore did not exhaust the
available remedy of appealing to the Board was based on sufficient evidence and not clearly
erroneous.
AFFIRMED.