NONPRECEDENTIAL DISPOSITION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 March 22, 2013*
Decided March 25, 2013
Before
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐3262
ANTHONY CONLEY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 10‐2013
KEITH ANGLIN, et al., Harold A. Baker,
Defendants‐Appellees. Judge.
O R D E R
Anthony Conley is incarcerated at the Danville Correctional Center in Illinois. In this
suit under 42 U.S.C. § 1983, he claims that Danville administrators and medical staff were
deliberately indifferent to his serious medical needs. The district court granted summary
judgment for the defendants on the ground that Mr. Conley’s failure to exhaust his
administrative remedies is undisputed. See 42 U.S.C. §1997e(a). That ruling is problematic,
*
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. 11‐3262 Page 2
but any error is harmless because Mr. Conley’s amended complaint fails to state a plausible
claim of deliberate indifference.
Named as defendants are Keith Anglin, the warden at Danville; Mary Miller, the
Health Care Administrator; Bashirahmed Ameji, a contract physician who no longer works
at the prison; and Christina Miles, a nurse who was never served with process. (Mr. Conley
’s amended complaint also identifies as defendants an assistant warden and the former
director of nursing at Danville, but his allegations against them are too trivial for
discussion.) Mr. Conley, who is diabetic and asthmatic, alleges that he went to the infirmary
to give a routine blood sample but Ms. Miles botched the procedure, causing an infection
and blood clot that led to several heart attacks. Afterward, Mr. Conley continues, Dr. Ameji
covered for Ms. Miles by falsifying his medical record to reflect normal EKG readings. And
though his arm was swollen from the infection and he was complaining of chest pains, says
Mr. Conley, the defendants would not send him to the hospital until he authorized a
$2 co‐payment. And later, Mr. Conley concludes, Ms. Miller failed to intervene when a
nurse (who is not a defendant) delayed his receipt of orthopedic shoes prescribed because of
his diabetes and also caused him to go a month without medication prescribed for high
cholesterol. About Warden Anglin, Mr. Conley says only that he “took [a]ll permits for
special order shoes.”
These events occurred during the period from February 2008 through May 2009. At
summary judgment, in addressing § 1997e(a), the parties focused on grievances that Mr.
Conley submitted in March 2008, July 2008, and June 2009. Dr. Ameji argued that Mr.
Conley had failed to exhaust as to him because his name does not appear in the March 2008
grievance, which is the only one of the three that concerns events involving the doctor.
Moreover, Dr. Ameji contended, Mr. Conley did not timely appeal that grievance and also
expanded its factual allegations improperly after it had been denied. For their part, both Mr.
Anglin and Ms. Miller, the warden and Health Care Administrator, insisted that none of
Mr. Conley’s three grievances concerns his orthopedic shoes. Warden Anglin also noted that
he is not mentioned in the June 2009 grievance about Mr. Conley’s cholesterol medication.
Ms. Miller’s name is prominent in that grievance, but she ignored it. Except as noted, the
evidence adduced at summary judgment about Mr. Conley’s three grievances is
undisputed.
Ms. Miles, the nurse, drew blood from Mr. Conley’s arm in late February 2008 for a
lab test. A few days later he submitted the first of his three grievances. Mr. Conley
complained that Ms. Miles had performed the procedure poorly, causing pain and an
infection. He asked that she be given remedial training in drawing blood from diabetic
inmates and explained that he decided to submit the grievance “in order to cover myself in
case there is something major wrong with my arm.” No reference is made to the heart or to
No. 11‐3262 Page 3
Dr. Ameji. The grievance counselor referred the matter to Danville’s director of nursing,
who reported that Mr. Conley’s infection had been treated even before he filed the
grievance.
On that basis the grievance officer deemed the matter moot, and Warden Anglin
concurred. Warden Anglin denied the grievance on May 1 but apparently withheld that
written decision until May 6, the date Mr. Conley signed it indicating his intent to appeal.
Mr. Conley sent a copy of the rejected grievance to the Administrative Review Board,
though first he padded its factual narrative with additional allegations, including that the
blood draw had caused a clot affecting his heart. Dr. Ameji still is not mentioned. In Mr.
Conley’s affidavit submitted at summary judgment, he attests that he placed his appeal in
the prison mail bag on May 27. The ARB received it on Monday, June 2—32 days after the
date of Warden Anglin’s decision—and denied it as untimely.
About a month later, in July 2008, Mr. Conley submitted the second grievance, this
time asserting that Dr. Ameji would not renew his prescription for an inhaler. Once again
the grievance counselor sent the matter to the director of nursing, who responded that
another inhaler had been prescribed for Mr. Conley. The grievance counselor and Warden
Anglin concluded that this grievance too was moot. The ARB upheld that decision.
Then in June 2009, Mr. Conley submitted the third grievance. He explained that his
cholesterol medication had run out but on May 1 a “low level” nurse (who is not a
defendant) blocked him from seeing the physician’s assistant who could renew that
prescription. That same nurse, Mr. Conley continued, interfered again on May 21 when he
wanted the physician’s assistant to help him obtain his orthopedic shoes. Mr. Conley says
that Ms. Miller was present during these encounters yet did nothing. The grievance
counselor sought input from Ms. Miller, who replied that Mr. Conley’s special shoes had
been ordered and added, inexplicably, that Mr. Conley would see an optometrist as soon as
the doctor scheduled a visit. Ms. Miller said nothing about Mr. Conley’s cholesterol
medication.
As before, the grievance counselor and Warden Anglin declared the matter moot,
despite Ms. Miller’s silence about Mr. Conley’s cholesterol medication. In appealing that
decision to the ARB, Mr. Conley criticized Ms. Miller for mentioning the eye doctor since
eye care is not a subject of his grievance. The ARB upheld the warden’s decision, but only
after conducting its own investigation about the cholesterol medication. The ARB concluded
that Mr. Conley had gone without his medication for 30 days only because he missed the
deadline for his monthly refill and thus had to wait until the next order date.
No. 11‐3262 Page 4
In granting summary judgment for the defendants, the district court accepted
Dr. Ameji’s argument that he must be dismissed because his name does not appear in the
March 2008 grievance. Moreover, the court said, Mr. Conley did not timely appeal the
denial of that grievance. This second reason is also the sole explanation for dismissing Ms.
Miles, the nurse who drew Mr. Conley’s blood, even though the court recognized that Mr.
Conley (who was not proceeding in forma pauperis) did not even serve Ms. Miles with
process. As for Warden Anglin, the district court also accepted his contention that he must
be dismissed because Mr. Conley did not mention him in the June 2009 grievance about the
cholesterol medication. Moreover, the court reasoned, the warden could not be liable for
deferring to medical personnel. Similarly, the district court accepted Warden Anglin’s
contention, which Ms. Miller joined, that Mr. Conley had not submitted a grievance
concerning the denial of orthopedic shoes at Danville. Finally, as to Ms. Miller, the district
court seemed to appreciate that Mr. Conley, in his June 2009 grievance, did link her to the
alleged denial of his cholesterol medication, but the court concluded that Mr. Conley had
failed to exhaust his administrative remedies even as to Ms. Miller.
On appeal Mr. Conley argues that the district court erred in granting summary
judgment on the ground of failure to exhaust administrative remedies. Prisoners must
exhaust administrative remedies before filing suit concerning prison conditions, 42 U.S.C.
§ 1997e(a), which means complying with a prisonʹs rules for processing grievances, Jones v.
Bock, 549 U.S. 199, 218 (2007); Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011). But proving
compliance is not the inmate’s burden; a defendant asserting a failure to exhaust has the
burden of establishing this affirmative defense. Dole v. Chandler, 438 F.3d 804, 809, 813 (7th
Cir. 2006); Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006); Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).
As we see the record, there are several problems with the district court’s analysis. For
one, Mr. Conley did name Ms. Miller in his June 2009 grievance and said that she stood by
and allowed the “low level” nurse to thwart his access to the physician’s assistant who
could refill his cholesterol medication. Likewise, the court’s statement that Mr. Conley never
submitted a grievance about being denied his orthopedic shoes at Danville is mistaken; Mr.
Conley makes that very claim in his June 2009 grievance, again mentioning Ms. Miller by
name. Moreover, in this case the court overstated the significance of the names Mr. Conley
included or omitted from his grievances. ’ By statute Illinois ostensibly mandates that
grievances include the name or a description of the persons involved in the complaint,
see ILL. ADMIN. CODE tit. 20, § 504.810; Maddox, 655 F.3d at 721, but the Department of
Corrections has been slow to make that requirement explicit on the forms it gives inmates.
We have held that when a prisoner uses a grievance form asking only for a “Brief Summary
of Grievance,” like the forms that Danville administrators gave Mr. Conley, then the
omission of names or identifying information does not necessarily mean that the prisoner
No. 11‐3262 Page 5
failed to exhaust his administrative remedies so long as he otherwise followed the grievance
process. Maddox, 655 F.3d at 721–22. The grievances here, like the grievance in Maddox, gave
prison administrators a fair opportunity to address Mr. Conley’s complaints, with the
possible exception of his allegation of wrongdoing by Dr. Ameji. See id. at 722.
Morever, the defendants did not establish that Mr. Conley failed to timely appeal the
denial of his March 2008 grievance. An untimely administrative appeal may lead to
dismissal for failure to exhaust. See Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
Under Illinois rules, the offender must “appeal in writing to the Director within 30 days
after the date of the decision.” ILL. ADMIN. CODE tit. 20, § 504.850. Here, Mr. Conley attests
that he submitted his administrative appeal by placing it in the mail at Danville on May 27,
2008, within the 30‐day period ending on Saturday, May 31. The ARB stamped the
document as “received” on Monday, June 2, but the defendants submitted no evidence to
establish that mail received by the ARB on a Saturday would be opened and stamped
“received” before Monday. And though the defendants would like us to presume that
§ 504.850 and the ARB’s own procedures do not recognize the “mailbox rule,” they offered
no support (and still don’t) for the proposition.
A similar answer applies to the defendants’ argument that Mr. Conley failed to
properly exhaust his administrative remedies by adding more factual allegations to the
copies of the grievances he sent to the ARB. Mr. Conley was not exactly coy; he called the
new allegations a “continuation” and included dates alerting the reader that he was
describing events occurring after he first submitted the grievance. The important point,
though, is that the defendants cite to no case authority or prison regulation banning the
inclusion of additional facts in an administrative appeal. Certainly the ARB never relied
upon this purported procedural defect in rejecting Mr. Conley’s appeals, precluding the
defendants from doing so now. See Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004).
Yet despite these concerns about the basis given by the district judge for dismissing
Mr. Conley’s lawsuit, we may affirm the judgment on other grounds. See Sonnleitner v. York,
304 F.3d 704, 717 n.8 (7th Cir. 2002). Mr. Conley’s complaint fails to state a plausible claim of
deliberate indifference against any of these defendants. As for Ms. Miles, the nurse, even if
her handling of a single blood draw could support a claim of deliberate indifference, Mr.
Conley never served her with process. He argues that Ms. Miles effectively was “served”
when the Department of Corrections identified her during discovery (Mr. Conley had sued
her as “Nurse Tina”), but it was Mr. Conley’s responsibility to properly serve Ms. Miles
even if she had actual notice that the suit was pending. See FED. R. CIV. P. 4(c)(1); Homer v.
Jones‐Bey, 415 F.3d 748, 758 (7th Cir. 2005).
No. 11‐3262 Page 6
Mr. Conley has also failed to state a claim for deliberate indifference against
Dr. Ameji. Mr. Conley does not allege that he was denied medical care because of
Dr. Ameji’s alleged falsification of medical records or because the doctor refused to
transport him to a hospital until he paid a co‐payment. Nor does Mr. Conley allege that he
lacked the funds to pay, and, in fact, the district court denied him leave to proceed
in forma pauperis because his trust account had a “substantial” balance. It is not deliberate
indifference for prison medical professionals to insist that a prisoner pay the required co‐
payment before receiving care when he has the ability to pay. Poole v. Isaacs, 703 F.3d 1024,
1027 (7th Cir. 2012).
Finally, with respect to Warden Anglin and Ms. Miller, the complaint includes no
allegations sufficiently linking them to the blood draw and its aftermath, or to Mr. Conley’s
difficulty in obtaining his medication and shoes. Non‐medical administrators generally are
entitled to defer to the judgment of health professionals, see Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010); Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009); Hayes v. Snyder, 546
F.3d 516, 527–28 (7th Cir. 2008); Johnson v. Doughty, 433 F.3d 1001, 1010–11 (7th Cir. 2006);
Greeno v. Daley, 414 F.3d 645, 655–56 (7th Cir.2005), and Mr. Conley does not contend that
Warden Anglin or Ms. Miller were involved other than in processing his grievances. He
does say that Warden Anglin handles orders for special shoes, but it was the “low level”
nurse, not Warden Anglin, who allegedly stopped Mr. Conley from receiving his shoes. Mr.
Conley also alleges that Ms. Miller “stood by” when that nurse stopped him from seeing the
physician’s assistant to ask for more medication and his shoes, but that allegation is too thin
to plausibly implicate Ms. Miller. Mr. Conley does not allege that Ms. Miller participated in
his discussion with the nurse, or approved her actions, or even that Ms. Miller was in close
enough proximity to hear what he was asking. Her silence is not enough from which to
infer personal involvement.
Accordingly, the judgment of the district court is AFFIRMED.