NONPRECEDENTIAL DISPOSITION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 26, 2021*
Decided July 8, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-2185
MARCUS M. HENRY, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v. No. 2:19-cv-911-WED
KAREN DESHLER1 and ASHLEY William E. Duffin,
HUEMPFNER, RN Magistrate Judge.
Defendants-Appellees.
ORDER
Marcus Henry, a prisoner at the Green Bay Correctional Institution in Wisconsin,
filed a federal lawsuit after a correctional officer gave him another inmate’s medication,
and a nurse decided not to send him to a hospital. At screening, the district court
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
1 Jean Lutsey recently passed away, and Henry proceeds against her estate
represented by Karen Deshler. See FED. R. APP. P. 43(a)(1).
No. 20-2185 Page 2
determined that Henry stated claims only against the nurse and the prison’s healthcare
administrator. Those two defendants then moved for summary judgment, arguing that
Henry had failed to exhaust his administrative remedies because his grievance about
the incident did not name them. The district court agreed and entered summary
judgment for the remaining defendants. We disagree with the district court’s
exhaustion analysis, but we nonetheless affirm because Henry did not suffer an
actionable harm.
We begin by recounting the facts of the underlying incident as described by the
defendants in the district court. Because Henry did not respond to the defendants’
proposed findings of fact as required by local rule, see E.D. Wis. Civ. R. 56(b)(2)(B), the
district court adopted them as undisputed, as do we. See Allen-Noll v. Madison Area Tech.
Coll., 969 F.3d 343, 348–49 (7th Cir. 2020). In February 2017, a correctional officer,
identified in the complaint as “C.O. Sprague,” dispensed to Henry a dose of another
inmate’s psychotropic medication without first showing Henry the “medication card.”
Before realizing the error, Henry consumed the pills. He then alerted Sprague to the
mistake, and, at Henry’s behest, Sprague called a nurse, Ashley Huempfner. Henry told
Huempfner that he felt “sick and weird” but, after Huempfner checked his vital signs,
she decided not to send him to a hospital. Henry received no further medical treatment.
Based on this incident, Henry filed a federal civil rights lawsuit. See 42 U.S.C.
§ 1983. In his complaint, Henry alleged that Sprague’s mistake put him at grave risk
and Huempfner should have sent him to a hospital for monitoring because she did not
know how the incorrectly distributed medication could have reacted with his (correctly
distributed and consumed) blood-pressure medication. Henry further asserted that the
mix-up occurred because Jean Lutsey, the prison’s healthcare administrator, permitted
officers to dispense medications without adequate training about prison policies.
At screening under 28 U.S.C. § 1915A, the magistrate judge, presiding by consent
under 28 U.S.C. § 636(c), concluded that Sprague’s “isolated mistake, coupled with his
prompt call to the nurse to evaluate Henry, does not state a claim for deliberate
indifference” because, at most, “it shows negligence and an attempt to promptly
provide medical care to resolve the issue.” The court concluded that Henry stated a
claim that Huempfner failed to provide adequate medical care and that Lutsey failed to
train correctional officers to distribute medications properly.
Lutsey and Huempfner then moved for summary judgment, arguing that Henry
failed to exhaust his administrative remedies before suing them. Under then-current
Wisconsin law, inmate grievances were required to “[c]ontain only one issue” and to
No. 20-2185 Page 3
“clearly identify the issue.” Wis. Admin. Code DOC § 310.09(1)(e) (2017) (amended
2018). Henry had filed a grievance asserting that, on three occasions, including
February 1, Sprague gave him another inmate’s medication and then (contrary to the
facts alleged in his complaint) refused to call health services. This, Lutsey and
Huempfner argued, did not exhaust Henry’s remedies for his claims against them
because it did not mention their alleged wrongdoings.
The court entered judgment for Lutsey and Huempfner. Henry’s grievance
“would not have alerted the prison to investigate the quality of medical care he received
following receiving the wrong medication,” the court concluded, “because Henry
alleged, at that time, that he didn’t receive any medical care,” so the grievance did not
exhaust Henry’s claim against Huempfner. Nor would the grievance have given the
prison reason to investigate Lutsey; Henry “did not mention Lutsey specifically nor did
he mention ‘correctional officers,’ ‘custom or policy,’ or ‘medication distribution’
anywhere” in his grievance or appeal, the court emphasized. The court dismissed the
fact that Lutsey and Huempfner were interviewed during the prison’s investigation of
Henry’s grievance; because “Henry’s complaint never alleged that Huempfner and
Lutsey did anything wrong,” the prison had no reason “to believe that Henry intended
to assert a claim against” them.
Henry appeals the screening order and entry of summary judgment. We review
both decisions de novo. See Perry v. Sims, 990 F.3d 505, 511 (7th Cir. 2021); Schillinger v.
Kiley, 954 F.3d 990, 994 (7th Cir. 2020).
We begin with Henry’s challenge to the summary judgment decision. Under the
Prison Litigation Reform Act, a prisoner may not bring a suit in federal court to
challenge prison conditions “until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). This requirement applies to each claim. See Schillinger,
954 F.3d at 996. The Act does not specify how a prisoner must exhaust his
administrative remedies; those requirements are found in state law. See Jones v. Bock,
549 U.S. 199, 218 (2007). Under the state law in effect at the time, Henry had to “clearly
identify the issue” in a properly filed grievance. See Wis. Admin. Code DOC
§ 310.09(1)(e) (2002). We recently observed that this regulation provided “little guidance
regarding the required contents of a prison administrative complaint.” Schillinger,
954 F.3d at 995. Thus, an inmate complied with it if his grievance “provides notice to the
prison of ‘the nature of the wrong for which redress is sought.’” Id. (quoting Strong
v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
No. 20-2185 Page 4
Under this standard, Henry’s grievance was adequate even as to his claims
against Lutsey and Huempfner. His grievance identified the nature of the wrong—that
he received another inmate’s medication—and the redress sought—essentially that the
medication-distribution policy be followed and medication be distributed properly in
the future. He was not required to identify Lutsey and Huempfner by name in his
grievance, nor was he required to specify any potential claims against them. Id.; see also
Jones, 549 U.S. at 219 (explaining that providing notice to those who might later be sued
is not one of the leading purposes of the exhaustion requirement). It belies reason to
suggest that prison administrators were not aware of Lutsey and Huempfner’s
involvement in the incident described in Henry’s grievance. Both women were
interviewed as part of the prison’s investigation of the grievance. See Maddox v. Love,
655 F.3d 709, 722 (7th Cir. 2011) (explaining that it was unreasonable to suggest that
grievance left prison administrators “unaware of who was responsible” when named
defendants were directly involved in the grievance investigation).
We need not remand to the district court to consider Henry’s claims against
Lutsey and Huempfner on the merits, however, nor will we disturb the district court’s
dismissal of Sprague, because Henry’s claims are doomed by his failure to allege any
injury caused by any defendant. Henry alleged that he suffered only one harm from the
complained of incident: His life was put at risk by consuming the wrong medication.
But unless a prisoner is challenging a failure to protect him from a serious risk of future
harm, see, e.g., Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir. 2001) (citing Helling v.
McKinney, 509 U.S. 25, 35 (1993)), a claim of deliberate indifference cannot be based on a
risk that never came to pass, see Lord v. Beahm, 952 F.3d 902, 905 (7th Cir. 2020). None of
the symptoms Henry identified—that he felt “sick and weird”—were more serious or
lasting than the minor cuts at issue in Lord. Id. Moreover, in Lord, once the officer
noticed several droplets of blood on the window of the inmate’s cell, he responded
quickly by securing a razor blade and calling medical personnel, who cleaned the cuts
and applied a gauze bandage. Id. Similarly here, once Henry alerted Sprague to his
mistake, Sprague promptly called Huempfner to conduct a medical evaluation; no signs
of medical distress were perceived, and no medical treatment was required. Because
Henry never alleged that he suffered anything more than the risk of potential injury, his
claims fail. Id.; see also Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (“Section 1983 is a
tort [and a] tort to be actionable requires injury.”).
The district court dismissed Henry’s case without prejudice based on the
mistaken view on the failure to exhaust administrative remedies. Because defendants
did not cross-appeal, we cannot make the judgment more favorable to defendants,
No. 20-2185 Page 5
converting it to a dismissal with prejudice. E.g., Greenlaw v. United States, 554 U.S. 205
(2007); United States v. American Railway Express Co., 265 U.S. 425, 435 (1924); 1000
Friends of Wisconsin, Inc. v. United States Dep’t of Transportation, 860 F.3d 480, 483 (7th
Cir. 2017). If Henry were to refile, however, the proper outcome should be sufficiently
clear based on the lack of injury. Accordingly, the judgment of dismissal without
prejudice is
AFFIRMED.