In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐2493
JOSE HERNANDEZ,
Plaintiff‐Appellant,
v.
THOMAS J. DART, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 1236 — James B. Zagel, Judge.
ARGUED JANUARY 13, 2016 — DECIDED FEBRUARY 26, 2016
Before WOOD, Chief Judge, and BAUER and HAMILTON,
Circuit Judges.
BAUER, Circuit Judge. Plaintiff‐appellant, Jose Hernandez,
a disabled prisoner, sued Defendants‐appellees, Sheriff
Thomas J. Dart and Cook County (collectively “Defendants”),
under 42 U.S.C. § 1983 for excessive force and deliberate
indifference to his medical needs. These two claims stemmed
from his treatment while he was a pre‐trial detainee in the
custody of the Cook County Department of Corrections
2 No. 15‐2493
(“CCDOC”). The district court granted summary judgment in
favor of Defendants, holding that Hernandez failed to exhaust
his administrative remedies, as the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a), requires. We hold that
Hernandez did indeed exhaust his remedies and remand the
case so that its merits may be heard.
I. BACKGROUND
An April 22, 2012, car accident essentially rendered
Hernandez a quadriplegic. He has no use of his legs and
limited use of his arms; importantly, he cannot write. The
passenger in Hernandez’s car died as a result of the crash.
Hernandez was driving under the influence of drugs and
alcohol at the time of the accident, and was convicted in May
2014 of aggravated driving under the influence involving an
accident causing death. Law enforcement did not take him into
custody for his role in the accident until March 9, 2013. On that
day, Hernandez was hospitalized at Thorek Memorial Hospital
for treatment of pressure wounds that had developed during
his stay at a nursing home.
Under Cook County Sheriff’s Office policy, correctional
officers must shackle one hand and one foot of a hospitalized
pre‐trial detainee to his or her hospital bed. Additionally, two
armed correctional officers must guard the detainee at all
times. When Hernandez came into custody at Thorek on
March 9, he was duly shackled and guarded. This continued
when the CCDOC briefly transferred Hernandez to Cook
County Jail on March 14. He was specifically sent to the facility
of Cermak Health Services (“Cermak”), the on‐site health
care provider at Cook County Jail. That same day, Cermak
No. 15‐2493 3
personnel decided to transfer Hernandez to Stroger Hospital,
where he remained from March 14, 2013, to April 18, 2013; the
shackling continued. Hernandez claims that the shackling
stunted his recovery: the doctors had instructed him to move
every two hours to help his sores heal, but he was unable to do
so while shackled to the bed. Hernandez orally complained
about the shackling to correctional and hospital personnel, but
the condition remained.
There is a CCDOC Inmate Information Handbook (the
“Handbook”) that enumerates the CCDOC’s grievance
process. CCDOC relief workers visited Hernandez periodically
while he was hospitalized, but never gave him the Handbook
or told him about the grievance process. He states that he
learned about the process from other Cook County Jail inmates
after his discharge from Stroger on April 18.
According to CCDOC policy, an inmate must file a written
grievance within fifteen days of the alleged incident. Written
grievance forms are available in all living units throughout the
jail, and an inmate can obtain a form from a CCDOC relief
worker or other jail personnel upon request. Once the inmate
has received the response to his grievance from the relevant
party (for example, the CCDOC or Cermak), the inmate has
fourteen days to appeal the decision.
Hernandez never filed a written grievance regarding his
shackling at Thorek, Cermak, and Stroger. After discharge
from Stroger on April 18, he entered the jail general
population. While at the jail, he complained about the medical
care that he was receiving. Unable to write, he had fellow
inmates assist him in writing and filing various grievances.
4 No. 15‐2493
One of these written grievances is relevant to this appeal.
On August 3, 2013, Hernandez filed a grievance stating that
Cermak nursing staff refused to help him move between his
geriatric, or “jerry,” chair in his room and his bed. His
grievance states that the incident in question occurred on
August 2, 2013. Inability to move between the chair and the
bed would cause pressure sores to worsen, and Hernandez
could not move without assistance. The Nurse Manager for
Cermak responded to Hernandez’s grievance, saying that
Cermak staff had assisted Hernandez “in getting ready
(washed up, dressed, and transfer[red] [between the jerry chair
and the bed]).” Hernandez received this response on
September 11, 2013, and appealed on September 17, 2013.
On February 19, 2014, Hernandez filed this suit in federal
district court. Hernandez amended his complaint multiple
times, and presently asserts two claims: (1) excessive force
arising from his shackling while at Thorek, Cermak, and
Stroger; (2) deliberate indifference to his medical needs for
failing to help him move between his jerry chair and his bed on
August 2, 2013.
On December 30, 2014, Defendants moved for summary
judgment only on the issue of exhaustion. Pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), the district court ordered
an evidentiary hearing to determine if Hernandez had
exhausted his administrative remedies. The hearing was on
June 18, 2014. At the conclusion of the hearing, the district
court stated that Hernandez’s oral complaints about the
shackling constituted a proper grievance, but ultimately held
that Hernandez had not exhausted his administrative
remedies. The district court granted summary judgment for
No. 15‐2493 5
Defendants, orally dismissing the case without prejudice. The
corresponding docket entry, dated July 2, 2014, states that
Hernandez had “failed to exhaust administrative remedies,”
that his claim was dismissed without prejudice, and that the
case was “terminated.”
II. DISCUSSION
We disagree with the district court’s grant of summary
judgment in favor of Defendants for failure to exhaust, and
hold that the district court should hear both of Hernandez’s
claims on the merits. First, regarding the excessive force claim,
the grievance process was unavailable to Hernandez during
the relevant period. This lifts the PLRA exhaustion
requirement entirely and provides immediate entry into
federal court. Second, regarding the deliberate indifference
claim, Hernandez followed the CCDOC grievance process, and
therefore properly exhausted his administrative remedies
under the PLRA. Both claims are properly in federal court.
A. Standard of Review
We review dismissals for failure to exhaust administrative
remedies de novo. E.g., Reynolds v. Tangherlini, 737 F.3d 1093,
1098–99 (7th Cir. 2013) (citations omitted). “Failure to exhaust
is an affirmative defense,” and Defendants have the burden of
proof. King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015) (citing
Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005), and Massey
v. Helman, 196 F.3d 727, 735 (7th Cir. 1999)). Further, at the
summary judgment phase, we construe the facts in the light
most favorable to the non‐moving party—here, Hernandez.
Rahn v. Bd. of Trustees of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir.
2015) (citation omitted); Kaba v. Stepp, 458 F.3d 678, 681 (7th
6 No. 15‐2493
Cir. 2006) (citation omitted). Here, Defendants have failed to
produce evidence that Hernandez did not exhaust his
administrative remedies.
B. District Court’s Dismissal Was Final
As a threshold matter, Defendants argue that because the
district court dismissed Hernandez’s claims without prejudice,
its order was not final and we have no jurisdiction over the
appeal. See 28 U.S.C. § 1291 (federal courts of appeal have
jurisdiction over appeals “from all final decisions of the district
courts of the United States”). Defendants are correct in a
general sense, because “[n]ormally, a dismissal without
prejudice is not a final order for purposes of appellate
jurisdiction under 28 U.S.C. § 1291.” Kaba, 458 F.3d at 680
(citing Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003)).
But this general rule does not apply in this case. Instead, we
deem the district court’s dismissal without prejudice to be final
for the purposes of § 1291 jurisdiction. There are two grounds
for finality. First, it would be impossible at this point for
Hernandez to exhaust his administrative remedies and
thereafter amend his complaint. See Hoskins, 320 F.3d at 763
(noting that “if an amendment would be unavailing, then the
case is dead in the district court and may proceed to the next
tier”). The inability to amend is particularly meaningful in
dismissals for failure to exhaust, where timeliness under
respective agency procedure is so critical. See Kaba, 458 F.3d at
680 (where it is no longer possible for prisoner plaintiff “at [so]
late [a] date” to exhaust and “no amendment could resolve the
problem,” dismissal without prejudice for failure to exhaust “is
effectively a final order”). The incidents of which Hernandez
No. 15‐2493 7
complained in this case occurred in 2013 and required a
written grievance within fifteen days. Those respective
deadlines have long since passed, such that an amendment
would be unavailing and would not resolve the problem.
Second, there are multiple indicia that the district court was
finished with the case. See Taylor‐Holmes v. Office of Cook Cnty.
Pub. Guardian, 503 F.3d 607, 609–10 (7th Cir. 2007) (quoting
Chase Manhattan Mortg. Corp. v. Moore, 446 F.3d 725, 726 (7th
Cir. 2006)) (other citations omitted) (where there are indicia
that the district court is “‘finished with the case,’” a dismissal
without prejudice will “end[] the suit so far as the district court
is concerned”). The true test for determining finality under 28
U.S.C. § 1291 “is not the adequacy of the judgment[,] but
whether the district court has finished with the case.” Moore,
446 F.3d at 726; see also Luevano v. Wal‐Mart Stores, Inc., 722
F.3d 1014, 1021 (7th Cir. 2013) (dismissal not final where
district court allowed “multiple amendments to the original
complaint, making it clear that it was not finished with the
case” (citation omitted)). Where a district court is not “merely
telling the plaintiff ‘to patch up the complaint, or take some
other easily accomplished step,’” we can impute finality to the
court’s dismissal and hear the appeal. Taylor‐Holmes, 503 F.3d
at 610 (quoting Strong v. David, 297 F.3d 646, 648 (7th Cir.
2002)).
Here, at the Pavey hearing, after saying that it was
dismissing the case, the district court repeatedly told
Hernandez to “take [the case] upstairs”—that is, to appeal the
8 No. 15‐2493
case to this court.1 In the corresponding docket entry, the
district court states, “Civil case terminated.” These actions
indicate that the district court was finished with the case, and
that if Hernandez wanted to pursue his claim further, he
needed to do so through the appellate process.
Thus, the district court’s dismissal without prejudice was
“effectively a final order.” Kaba, 458 F.3d at 680. We have
jurisdiction over the appeal.
C. Exhaustion of Grievances
Regarding exhaustion specifically, Hernandez properly
navigated the requirements of § 1997e(a) of the PLRA. A
prisoner cannot bring a cause of action under federal law
regarding prison conditions “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a);
see also Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006) (holding that
“complet[ing] the administrative review process” is “a
precondition to [a prisoner] bringing suit in federal court”).
Federal courts strictly enforce this requirement, and a prisoner
fulfills this duty by adhering to “the specific procedures and
deadlines established by the prison’s policy.” King, 781 F.3d at
893 (citing Woodford, 548 U.S. at 93); see also Maddox v. Love, 655
F.3d 709, 720–21 (7th Cir. 2011) (quoting Jones v. Bock, 549 U.S.
199, 219 (2007) (noting that “‘the applicable procedural rules’
that a prisoner must properly exhaust are defined not by the
PLRA, but by the prison grievance process itself”)). Therefore,
Hernandez needed to comply with the CCDOC grievance
1
The Seventh Circuit is located on the top two floors of the same building
where the district court in this case is located.
No. 15‐2493 9
process: he had to have filed any grievance within 15 days of
the alleged incident, and he had to have appealed within 14
days of receipt of any administrative response to the grievance.
Because Hernandez’s grievances involve different time frames
and address different conduct by CCDOC personnel, they are
not alike in kind, and we analyze each separately. See Kaba, 458
F.3d at 685 (noting that because “all grievances are not alike, …
a more discriminating analysis is necessary” that itemizes and
analyzes each grievance separately).
1. Excessive Force Claim
Hernandez’s excessive force claim is not subject to the
PLRA exhaustion requirement because no administrative
remedies were “available” to him during the relevant
exhaustion period. See 42 U.S.C. § 1997e(a); Woodford, 548 U.S.
at 93. “If administrative remedies are not ‘available’ to an
inmate, then an inmate cannot be required to exhaust.” Kaba,
458 F.3d at 684; see also King, 781 F.3d at 896 (“Prisoners are
required to exhaust grievance procedures they have been told
about, but not procedures they have not been told about.”).
Administrative remedies are primarily “unavailable” to
prisoners where “affirmative misconduct” prevents prisoners
from pursuing administrative remedies. Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006) (remedies unavailable where
prison officials “do not respond to a properly filed grievance”);
see also Thomas v. Reese, 787 F.3d 845, 847–48 (7th Cir. 2015)
(remedies unavailable where correctional officer tells prisoner
that prisoner cannot file grievance when in fact prisoner can do
so); Kaba, 458 F.3d at 680, 686 (remedies unavailable where
prisoner presents evidence that prison personnel have “denied
[prisoner] grievance forms, threatened him, and solicited other
10 No. 15‐2493
inmates to attack him in retaliation for filing grievances”); Dale
v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (remedies
unavailable where prison personnel prevent prisoner access to
grievance forms).
But “unavailability” extends beyond “affirmative
misconduct” to omissions by prison personnel, particularly
failing to inform the prisoner of the grievance process. See King,
781 F.3d at 895–96 (remedies unavailable where prisoner
transferred between two correctional facilities had no access to
grievance process and where later allotted time for filing
grievance was impracticable); White v. Bukowski, 800 F.3d 392,
397 (7th Cir. 2015) (remedies unavailable where prisoner was
“[u]ninformed about any deadline for filing a grievance”). It is
not incumbent on the prisoner ”to divine the availability” of
grievance procedures. King, 781 F.3d at 896. Rather, prison
officials must inform the prisoner about the grievance process.
See Kaba 458 F.3d at 684; King, 781 F.3d at 896. The prison
cannot shroud the prisoner in a veil of ignorance and then hide
behind a failure to exhaust defense to avoid liability. See King,
781 F.3d at 893 (“Prison authorities cannot immunize
themselves from suit by establishing procedures that in
practice are not available.” (citation omitted)).
Here, Defendants failed to inform Hernandez of the
grievance process while he was hospitalized. This removes the
exhaustion requirement for his excessive force claim. Hernan‐
dez alleges that he was shackled to his hospital bed during his
stays at Thorek, Cermak, and Stroger from March 9, 2013, to
April 18, 2013. He states that no one gave him the Handbook
during this period, and that no one told him about the CCDOC
grievance process. The shackling ended when he was
No. 15‐2493 11
discharged from the hospital on April 18. 2013. This means that
Hernandez had until May 3, 2013, to file his grievance. But
there is no evidence that he knew about the grievance process
during this time period, and Defendants have not produced
any evidence to the contrary. Because Defendants have failed
to carry their burden, we hold that the grievance process was
unavailable to Hernandez during the relevant period. The
PLRA’s exhaustion requirement does not apply.
A final note. The district court found that Hernandez’s oral
complaint about the shackling constituted a valid grievance.
This conclusion about the efficacy of an oral grievance was, in
the end, academic. The determinative issue is whether the
CCDOC informed or failed to inform Hernandez of the
grievance process. See King, 781 F.3d at 896. If the prison had
informed him of the process, he would have needed to exhaust
in the manner specified—that is, he must have filed in writing.
But CCDOC personnel did not inform him of the grievance
process. Accordingly, the grievance process was unavailable,
lifting the exhaustion requirement under the PLRA. Kaba, 458
F.3d at 684. The effect of the oral complaint is of no moment.
In conclusion, Hernandez’s excessive force claim is
properly in federal court, and the district court erred by
granting Defendants’ motion for summary judgment.
2. Deliberate Indifference Claim
Hernandez’s deliberate indifference claim regarding the
refusal to help him move between his jerry chair and his bed
is also properly in federal court, simply because he exhausted
the available administrative remedies. Unlike the excessive
force claim, Hernandez was aware of the grievance process
12 No. 15‐2493
when the alleged incident with prison personnel occurred on
August 2, 2013. Thus, administrative remedies were
“available” to him, and he was required to exhaust these
remedies under the PLRA. See 42 U.S.C. § 1997e(a); Woodford,
548 U.S. at 93. Specifically, he had to file his original grievance
within fifteen days of the alleged incident, and had to file a
subsequent appeal within fourteen days of receipt of the
administrative response to the grievance.
Hernandez complied with this procedure. He filed his
grievance on August 3, 2013. In the grievance, he alleged that
the incident in question occurred on August 2, 2013. His filing
was well within the 15‐day period outlined in the CCDOC
grievance process. Further, he received the Cermak response
to his complaint on September 11, 2013, and filed his appeal
on September 17, 2013. This was also well within the allotted
period. Defendants have not produced evidence that
contradicts these facts and have not carried their burden of
demonstrating failure to exhaust. Hernandez exhausted his
administrative remedies and the district court erred in granting
summary judgment for Defendants on the deliberate
indifference claim.
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND the case for further
proceedings.