In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1018
ROBERT WILLIAMS,
Plaintiff-Appellant,
v.
WEXFORD HEALTH SOURCES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 17-cv-1466-JBM — Joe Billy McDade, Judge.
____________________
ARGUED FEBRUARY 26, 2020 — DECIDED APRIL 30, 2020
____________________
Before WOOD, Chief Judge, and ROVNER and BARRETT, Cir-
cuit Judges.
WOOD, Chief Judge. Wexford Health Sources, Inc., has a
contract to provide medical services for Illinois’s prisons. This
case concerns the efforts of one inmate, Robert Williams, to
obtain corrective surgery for cataracts during the time he was
assigned to the Pontiac Correctional Center. In a word, those
efforts were unavailing, because Wexford had a “one good
eye” policy, under which it refused to approve surgery as
2 No. 19-1018
long as the inmate retains some visual acuity in one eye. Wil-
liams filed grievances with the institutional authorities and
followed up with this lawsuit. The district court found that
his efforts to exhaust his prison remedies were incomplete,
and so it dismissed the case. We conclude, however, that Wil-
liams did enough to satisfy the exhaustion requirements of
the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a),
and so we remand for further proceedings.
I
Given the fact that our focus is on procedure, we do not
need to say much about the underlying facts. In 2011, Wil-
liams was diagnosed with a cataract in his left eye. As time
went on, his vision deteriorated until he was completely blind
in that eye. Moreover, he experienced other symptoms, in-
cluding dizziness, acute pain, photophobia, and the feeling
that grit or some other foreign substance was in his eye. As
early as 2011, his doctors recommended cataract extraction
surgery for the left eye. They warned that without this opera-
tion (a common one), they would be unable to detect other
vision-threatening conditions such as glaucoma.
Wexford refused to authorize the surgery, based on its
“one good eye” policy. That was a dubious decision. In fact,
after his 2011 diagnosis of the cataract in his left eye, Williams
developed serious problems with his right eye. After an ex-
amination on February 12, 2016, doctors diagnosed a right-
eye cataract and a possible macular hole and vitreomacular
traction, along with the persistent left-eye cataract. Several
weeks after that visit, which was with an optometrist, Wil-
liams saw a specialist at Illinois Retina; that specialist also rec-
ommended cataract extraction.
No. 19-1018 3
At an examination on August 5, 2016, doctors found no vi-
sion in Williams’s left eye and cataracts in both eyes. Still he
did not qualify for surgery under Wexford’s policy, because
he was not yet blind (or nearly so) in the right eye.
On February 22, 2016, Williams filed his first grievance
about Wexford’s failure to treat his vision. He completed the
“Offender’s Grievance” form provided by the Illinois Depart-
ment of Corrections (IDOC), explaining that he sought com-
pensation for Wexford’s deliberate indifference, and he
checked a box indicating that his was an emergency griev-
ance. Pontiac’s warden received and reviewed this grievance.
He responded by checking a box with the pre-printed state-
ment “No; an emergency is not substantiated. Offender
should submit this grievance in the normal manner.” Wil-
liams asserts that he appealed the warden’s decision to the
Administrative Review Board (ARB). At the district court
level, Wexford did not dispute this fact, but before this court,
it says for the first time that Williams did not file an appeal. In
the district court, Williams represented that he received a re-
sponse from the ARB denying his grievance, but he now
(through recruited counsel) states that he did not receive a re-
sponse to his appeal. We return to these discrepancies later.
Williams filed a second grievance on August 5, 2016. In it,
he again complained that Wexford’s response to his deterio-
rating vision amounted to deliberate indifference. He sought
cataract extraction surgery for his left eye, treatment for his
right eye, and compensation for his pain and suffering. Once
again, he indicated that the grievance involved an emergency,
and once again, the warden disagreed and checked the box
with the statement that the Offender “should submit this
grievance in the normal manner.” This time it was clear that
4 No. 19-1018
Williams lodged an appeal with the ARB. The Board received
the appeal, but it returned the grievance to Williams without
expressing a view on the merits. Instead, it checked boxes on
a form indicating that Williams had not satisfied the require-
ments of the standard procedure, telling him that he was re-
quired to provide responses from his counselor, the Griev-
ance Officer, and the Chief Administrative Officer. It did not
tick the box that was available for simple requests for addi-
tional information.
At that point Williams filed a pro se complaint under 42
U.S.C. § 1983 in the federal district court. In both his original
complaint and his amended complaint, he verified that he had
completed the grievance process. Wexford answered the
amended complaint and moved for summary judgment, con-
testing that assertion. It said nothing about Williams’s Febru-
ary 22 grievance, but it admitted that he had filed the August
5 grievance. It argued that this was not enough to exhaust his
remedies, however, because Williams did not follow up with
the requested additional documentation after the warden
concluded that it was not an emergency. The district court
was persuaded by Wexford’s argument and held that because
Williams “did not file a standard grievance after the two
grievances were denied emergency status,” he had failed to
exhaust.
II
Although there is no general exhaustion requirement for
cases brought under 42 U.S.C. § 1983, a special rule applies to
actions brought by prisoners. See, e.g., Porter v. Nussle, 534
U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). The
PLRA directs that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any
No. 19-1018 5
other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative reme-
dies as are available are exhausted.” 42 U.S.C. § 1997e(a). The
Supreme Court has emphasized that prisoners must take ad-
vantage of all procedures that are actually available. Ross v.
Blake, 136 S. Ct. 1850 (2016). We look to state law to see what
remedies meet that test. See Woodford v. Ngo, 548 U.S. 81
(2006); King v. McCarty, 781 F.3d 889, 894 (7th Cir. 2015).
Illinois offers two paths for inmates who wish to complain
about something. First, it has created a three-stage process for
normal problems. See 20 Ill. Admin. Code § 504.800 et seq. As
we noted in Pyles v. Nwaobasi, 829 F.3d 860 (7th Cir. 2016), step
one calls for the inmate to attempt to resolve the problem
through his or her counselor. Id. at 864. “If that does not re-
solve the problem, the inmate must invoke step two, which
involves the filing of a written grievance with a grievance of-
ficer … within 60 days after discovery of the problem.” Id. If
the grievance officer denies the grievance and the chief ad-
ministrative officer (normally the warden) affirms that deci-
sion, then the inmate must move to step three, which is an
appeal to the IDOC’s director, who relies on the review and
recommendations of the ARB. Id. (In the interest of both real-
ism and ease of exposition, in the remainder of this opinion
we refer to the chief administrative officer as the warden.)
A different procedure is available for emergency griev-
ances. When an inmate believes that he confronts an emer-
gency situation, state law permits him to bypass the counselor
and grievance officer and submit his grievance directly to the
warden. See 20 Ill. Admin. Code § 504.840. An emergency is
defined as an issue presenting “a substantial risk of imminent
personal injury or other serious or irreparable harm to the
6 No. 19-1018
offender.” Id. If the warden finds that the grievance describes
such a problem, he will authorize an expedited process. Rob-
erts v. Neal, 745 F.3d 232, 236 (7th Cir. 2014). If the emergency
petition goes forward, the inmate may appeal the warden’s
decision to the ARB on an expedited basis. See 20 Ill. Admin.
Code § 504.850(f).
At the time Williams filed his two grievances in 2016, the
Illinois Administrative Code did not expressly address what
should happen if the warden concludes that the grievance
does not present an emergency. Could the inmate challenge
that assessment? Was the inmate required to provide addi-
tional information about why the grievance required emer-
gency treatment? Did the inmate need to start over again with
the standard procedure? In 2017, the Code was amended to
fill in this gap. It now provides that “[i]f the Chief Adminis-
trative Officer determines that the grievance should not be
handled on an emergency basis, the offender shall be notified
in writing that he or she may resubmit the grievance as non-
emergent, in accordance with the standard grievance pro-
cess.” 20 Ill. Admin. Code § 504.840 (2017). Thus, had Wil-
liams’s grievances been filed after the amendment took effect,
it would be clear that he was required to resubmit his griev-
ances under the normal procedure and complete the full
three-stage process in order fully to exhaust available reme-
dies. The question we must decide is whether the pre-amend-
ment version of the Code imposed such an obligation.
This issue is presented more sharply with respect to the
August 5 grievance than it is for the February 22, 2016, griev-
ance. The problem with the February grievance is, in a word,
waiver. Wexford concedes that Williams filed the February
grievance, and that he marked it as an emergency. Indeed,
No. 19-1018 7
Williams attached the February grievance to his original and
amended complaints. For reasons best known to itself, Wex-
ford ignored it in the district court—an omission that Wil-
liams noted in his summary judgment briefing. In this court,
Wexford is now arguing that Williams failed to appeal the
warden’s decision that the February grievance was not an
emergency to the ARB and thus he cannot rely on it for ex-
haustion purposes. But it is too late for that point. Wexford
has waived any argument it might have wanted to make
about the February grievance. (This is not a case in which ex-
haustion can be disregarded, see 42 U.S.C. § 1997e(c)(2), be-
cause in its initial merit review of the complaint, the district
court declined to dismiss it for failure to state a claim, frivo-
lousness, or related grounds.)
The record is cleaner for the later, August grievance. Wil-
liams again marked it as an emergency; the warden again de-
cided that it was not; and Williams attempted to appeal that
determination to the ARB. As we noted earlier, the regula-
tions in effect in 2016 did not provide for an appeal of such an
order. Nor does the ARB seem to have thought that it was re-
viewing the warden’s decision about the emergency nature of
the grievance. Instead, the ARB responded by informing Wil-
liams that his appeal was missing the materials that would
have been required under the standard procedure: the written
Offender’s grievance, the counselor’s response, and the Griev-
ance Officer and warden’s responses. Importantly, the ARB
did not mark the box saying “[u]nable to determine nature of
grievance or correspondence; submit additional specific infor-
mation. …” What it did instead was to create a new proce-
dural requirement for Williams—namely, to go back and re-
commence the grievance process under the standard proce-
dure. It did so without explaining how relevant time limits
8 No. 19-1018
might be affected, and it did so without any basis for such a
step in the regulations.
We faced a similar problem in Thornton v. Snyder, 428 F.3d
690 (7th Cir. 2005). Inmate Thornton, who had been placed in
a segregation cell, filed an emergency grievance about the
conditions there. In response, he received a letter stating that
his grievance did not qualify as an emergency; later he was
moved to another cell. Without refiling his grievance under
the standard procedures, Thornton brought a lawsuit seeking
damages for the time he spent confined in the segregation
unit. Responding to the argument that he had failed to ex-
haust his remedies, we had this to say:
There is nothing in the current regulatory text, how-
ever, that requires an inmate to file a new grievance af-
ter learning only that it will not be considered on an
emergency basis. In any event, even if the non-emer-
gency determination was a decision that should have
been appealed, corrections officials moved Thornton
out of [the cell] within three weeks of his … grievance,
before the thirty-day time for an inmate to appeal a
warden’s determination had expired.
Id. at 694. We concluded that Thornton had done enough to
exhaust his administrative remedies even without resubmis-
sion.
Williams pointed out in his briefs and at oral argument
that we have followed Thornton in a number of non-preceden-
tial decisions, including Muhammad v. McAdory, 214 F. App’x
610 (7th Cir. 2007), Glick v. Walker, 385 F. App’x 579 (7th Cir.
2010), Bentz v. Ghosh, 718 F. App’x 413 (7th Cir. 2017), and Co-
bian v. McLaughlin, 717 F. App’x 605 (7th Cir. 2017). All of
No. 19-1018 9
these cases held that under the version of section 504.840 that
existed before the 2017 amendment, an Illinois inmate who
filed an emergency grievance did not need formally to resub-
mit his complaint as an ordinary grievance if the warden con-
cludes that it did not present an emergency. One can easily
imagine why that might be so: it would be easy enough for
the warden to transfer the presumptively non-emergency
grievance back to the counselor and allow the full standard
procedure to unfold, without placing that burden on the in-
mate and endangering the timeliness of his filing. But those
possibilities are not explored in these non-precedential dispo-
sitions, and (as is typical for such orders) they are more sum-
maries than fully reasoned explanations. We prefer for pre-
sent purposes to stick to more authoritative sources.
When we do so, we find several reasons to conclude that
Williams did enough under the 2016 version of the Code to
exhaust his remedies. First, before the 2017 amendment, no-
where in the Code did it say that an inmate who invoked the
emergency process in a non-frivolous way had to start all over
again with the standard procedure whenever the warden con-
cluded that no emergency existed. Although a prisoner must
take all the steps the prison offers, see Ngo, 548 U.S. at 90 (cit-
ing Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)),
and do so properly, id., this does not mean that the inmate
must go beyond the established system and guess at some
other way of attracting the attention of the prison authorities.
Second, this is a procedural matter of great importance, both
for the state and for the PLRA. Grievance procedures must be
transparent. This helps everyone: the institution is better able
to investigate and resolve grievances if they are presented un-
der a well-understood system, and inmates are better able to
comply with institutional expectations if the rules are clear.
10 No. 19-1018
The Supreme Court underscored this point in Ross, where it
held that “an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.” 136 S. Ct.
at 1859. If the warden or the ARB can make up new exhaus-
tion rules for each individual inmate, predictability would be
lost.
We observed in Thornton that the regulatory text did not
“require[] an inmate to file a new grievance after learning only
that it will not be considered on an emergency basis.” 428 F.3d
at 694. Even if we regard this statement as dicta, on the ground
that we added that Thornton himself did not have enough
time to file an appeal of the non-emergency determination, it
is an accurate description of the Illinois regime at the time.
Moreover, Williams did have time and did try to file an appeal
of the non-emergency determination of his grievances, and he
failed. We thus conclude that Williams exhausted the reme-
dies that were available to him, as Ross required him to do.
Other circuits have considered failure-to-appeal scenarios,
but their decisions are distinguishable. For example, in Bar-
gher v. White, 928 F.3d 439 (5th Cir. 2019), the Fifth Circuit
evaluated a case brought by Inmate Bargher, who was com-
plaining about a vicious assault from another inmate and the
Louisiana prison’s failure to protect him from a known dan-
ger. Bargher filed a grievance about the incident with the war-
den, as required by Louisiana law, but when he did not hear
from the warden within the 40-day period established by law,
he filed his lawsuit. The court pointed out, however, that the
grievance system provided that the inmate should proceed to
the second step and file an appeal with the Secretary of the
Louisiana Department of Public Safety and Corrections if the
40-day period ended with no response. Because Bargher did
No. 19-1018 11
not do so, the court concluded, he failed to take advantage of
all remedies the prison made available. The particulars of the
Louisiana system drove this finding. Williams’s case is differ-
ent in at least two respects: first, there was nothing that Illinois
law offered him that he did not use; and second, Illinois law
itself is different from the regulations Louisiana has elected to
adopt.
A case from the Third Circuit, Shifflett v. Korszniak, 934
F.3d 356 (3d Cir. 2019), further illustrates how important the
differences among state procedures can be. This was a case in
which the inmate, Shifflett, was attempting to bring a claim
for deliberate indifference to a serious medical need. The dis-
trict court found a failure to exhaust, but the Third Circuit saw
matters otherwise. Shifflett had filed four grievances, but all
of them were denied. He appealed all four denials, but he did
not receive a timely answer on the merits to any of them. Un-
der the applicable law, the prison was supposed to respond
to an appeal within 15 working days after it was filed, but it
did not do so. The court ruled that as of the due date for the
response, Shifflett had done all he could, and he was thus en-
titled to bring his lawsuit. Id. at 366. Once again, both the facts
in Williams’s case and the law are different. Williams’s prob-
lem was not the lack of any response. It was the lack of a mech-
anism under Illinois law to appeal the determination that his
case did not present an emergency, along with the lack of any
obligation under the pre-2017 version of the regulations for
him to take the initiative and re-file the grievance as an ordi-
nary case.
III
This case is not going to have a particularly great impact
on the way in which Illinois runs its prisons, thanks to the
12 No. 19-1018
2017 amendments to the regulations. But it does make a dif-
ference to Williams. As Ross holds, he was obliged to follow
whatever administrative remedies were available to him, but
that is where his obligation ended. The competent authorities,
including the warden and the ARB, did not have the right to
move the goal posts while Williams was in the middle of his
case and suddenly announce that special new requirements
applied to him.
And let us be clear: Williams’s assertion that his grievance
was an emergency was not frivolous, even though a reasona-
ble person may have disagreed with that characterization. A
frivolous assertion of emergency would present an entirely
different problem. So would a case in which the ARB simply
asked for additional information related to the grievance, as
it might have done (but did not) here. That largely answers
Wexford’s stated concerns—that all inmates would simply
avoid the standard procedure by claiming an emergency, or
that the warden or ARB would be unable to collect pertinent
information. In addition, to the extent that IDOC wanted to
avoid problems that are less easily resolved, its remedy was
exactly what it did: amend the regulations.
We therefore REVERSE the judgment of the district court
and remand for further proceedings consistent with this opin-
ion.
No. 19-1018 13
BARRETT, Circuit Judge, concurring in the judgment.
Administrative exhaustion under the Prison Litigation
Reform Act (PLRA) is an affirmative defense, so the defendant
bears the burden of showing that the plaintiff failed to
exhaust. Jones v. Bock, 549 U.S. 199, 212 (2007); Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006). At oral argument, Wexford
stated that if the Administrative Review Board had denied
Williams’s appeal of his emergency grievance determination
without comment, then Williams would have exhausted all of
his available administrative remedies. That is enough to
resolve this appeal, and I would reverse the district court’s
judgment on that ground.
I write separately because in my view, the majority’s
reasoning conflicts with the Supreme Court’s interpretation
of the PLRA. 1 The majority’s holding turns on the fact that the
2016 Illinois Administrative Code did not expressly say that
an inmate should file a standard grievance if the prison
decided that his emergency grievance did not warrant fast-
track treatment. In the absence of such an explicit instruction,
the majority holds, Williams’s filing of the emergency
grievance was enough to satisfy the PLRA’s exhaustion
requirement. It was reasonable for Williams to believe that he
didn’t have to do anything more.
1 This is so even though Wexford opted not to press the point. It’s
unclear why Wexford dropped the defense, and it’s possible that
Wexford’s choice rested on a misunderstanding of what it means for a
remedy to be “available” under the PLRA. Even so, my analysis wouldn’t
change. Wexford’s choice to drop an affirmative defense is controlling, but
its interpretation of the PLRA is not. See Krieger v. United States, 842 F.3d
490, 499 (7th Cir. 2016) (“Of course we are not bound to accept [a party’s]
concession when the point at issue is a question of law.”).
14 No. 19-1018
But in Ross v. Blake, the Supreme Court held that so long
as additional remedies are “available” to a prisoner, “the
PLRA’s text suggests no limits on an inmate’s obligation to
exhaust.” 136 S. Ct. 1850, 1856 (2016). A straightforward
reading of the Illinois regulations suggests that Williams had
an additional avenue available to him: the standard grievance
procedure. And that’s true even though § 504.840 did not
explicitly require him to resubmit his grievance through the
standard procedure. The “availability” of the remedy doesn’t
turn on whether the regulations directed Williams to use it—
the alternative was available so long as it remained at
Williams’s disposal. See Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Williams does not dispute that the normal grievance
procedure was “available” to him in this sense. See Ross, 136
S. Ct. at 1859 (stressing that “an inmate is required to exhaust
those, but only those, grievance procedures that are ‘capable
of use’ to obtain ‘some relief for the action complained of’”
(citation omitted)). For example, he does not contend that the
normal grievance procedure “operate[d] as a simple dead
end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. Nor does he
claim that the prescribed process was “so opaque that it [was],
practically speaking, incapable of use.” Id.; see also id.
(explaining that “when a remedy is … essentially
‘unknowable’—so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable” (citation
omitted)). Nor does he say that prison administrators
misrepresented what was required of him, thereby
“thwart[ing]” his efforts to file a grievance. Id. at 1860
(explaining that a remedy is unavailable when administrators
“devise procedural systems” designed “to trip[] up all but the
most skillful prisoners” (citation and internal quotation
No. 19-1018 15
marks omitted)). Instead, his contention, which the majority
accepts, is that the silence in the prison regulations made it
reasonable for him to think that he didn’t have to use the
standard grievance procedure.
The problem is that the Court rejected this very argument
in Ross v. Blake. There, the inmate contended that he had not
pursued a remedy through the usual process because he
thought the investigative process in which he had
participated “served as a substitute for that otherwise
standard process.” Id. at 1855. The Court held that such a
mistake, even if reasonable, did not render the standard
process exhausted. Id. at 1858. Indeed, the Court could not
have been more explicit that the PLRA contains no exception
for “cases in which a prisoner makes a reasonable mistake
about the meaning of a prison’s grievance procedures.” Id.
It’s true that Thornton v. Snyder contains dicta to the
contrary. 428 F.3d 690, 694 (7th Cir. 2005). (Like the majority,
I put our nonprecedential decisions aside.) The majority’s
reliance on Thornton is misplaced, though, and not only
because the relevant language is dicta. Thornton preceded
Ross v. Blake by more than a decade. Whatever we may have
said about the issue before Ross v. Blake was decided, the
Court has now given us different marching orders. And, of
course, as an inferior court, we are bound to follow them.
The majority observes that recent amendments to the
Illinois Code blunt the significance of this opinion. But that is
only true as to Illinois—we have no information about
Wisconsin and Indiana law, so the case may well matter for
the other states within our jurisdiction. Regardless, if the case
truly lacks long-term impact, it would have been better for us
to resolve it on the basis of Wexford’s concession. Because I
16 No. 19-1018
think the majority’s resolution conflicts with Ross v. Blake, I
concur in the judgment only.