NONPRECEDENTIAL DISPOSITION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 May 4, 2017*
Decided May 5, 2017
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16‐1246
JOSEPH HOBAN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 12‐CV‐1038
TERRI ANDERSON, et al., James E. Shadid,
Defendants‐Appellees. Chief Judge.
O R D E R
Joseph Hoban, an Illinois prisoner, sued prison officials under 42 U.S.C. § 1983
on three claims: first, they subjected him to unlawful conditions of confinement while
he was in segregation; second, they ignored his medical needs, also when he was in
segregation; and third, they failed to protect him from a serious threat to his safety after
* We have agreed to decide the 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).
No. 16‐1246 Page 2
he left segregation. The district court granted summary judgment to the defendants. It
ruled that some claims were time‐barred, others were administratively unexhausted,
and on another claim, he presented insufficient evidence from which a jury reasonably
could find liability. We affirm the judgment in all respects.
Before Hoban arrived at Pontiac Correctional Center in September 2010, he had
been injured and threatened by members of the Latin Kings gang at other prisons. At
Pontiac he briefly received protective custody. About nine months after he arrived
there, though, Hoban was found guilty of assaulting another inmate named Echols,
who Hoban believed was a member of the Latin Kings. Hoban was punished with
disciplinary segregation for six months, which took him out of protective custody.
During his first twelve days in segregation, Hoban experienced problems. He
reports that his cell had feces and blood on the walls and mattress, was “stiflingly” hot,
and had no running water, necessitating that he drink water from the toilet. As a result
of these conditions, he says, he “broke out with some rashes” and experienced nausea,
vomiting, and dehydration. Hoban suffers from bipolar disorder and depression;
although he received medications for these conditions, he did not receive several of his
other medications—antacids, painkillers, and medicated shampoo.
Hoban responded with his first of two grievances in this case. In this grievance
he complained about his conditions of confinement, his inability to receive his
medicines, and his conviction for assaulting Echols. After twelve days in this cell,
Hoban was transferred to a different segregation cell, where, he said, “[e]verything
worked and it was very clean.” About three weeks later, Pontiac’s warden, Randy
Pfister, denied the grievance. Hoban appealed, but the Administrative Review Board
rejected the appeal. (With this decision on September 13, 2011, Hoban exhausted his
conditions‐of‐confinement and medical‐indifference claims.)
While Hoban was still in segregation, he filed a second grievance. In it he sought
to return to protective custody upon his release from segregation. The request was
supported by his counselor, but the prison lieutenant who reviewed the grievance,
Edward Vilt, recommended to Pfister that it be denied. Vilt reasoned that Hoban’s
“paranoia” created “a security concern for the other inmates housed in the [protective
custody unit]” and his fight with Echols was “not indicative of an inmate in need of
protection.” Pfister accepted the recommendation and denied Hoban protective
custody. Hoban appealed this decision to the Administrative Review Board.
No. 16‐1246 Page 3
Hoban did not wait for the review process for his second grievance to conclude
before filing his original complaint in this suit, which principally raised failure‐to‐
protect claims. He alleged that, by denying him protective custody, Pfister and other
named prison administrators were deliberately indifferent to his safety. The district
court screened the complaint under 28 U.S.C. § 1915A(b)(1) and dismissed it. Hoban
appealed, and we vacated the judgment because he had pleaded plausible claims,
overlooked by the district court, against unnamed correctional officers. See Hoban v.
Godinez, No. 12‐1763, 2012 WL 5395186, at *2–3 (7th Cir. Nov. 6, 2012). We also ruled
that, since he alleged that Latin King members attacked him after he gave a named
defendant (Terri Anderson) a list of their names, his claim against her could go forward.
See id. at *3–4.
Hoban meanwhile finished pursuing at the prison the exhaustion of his second
grievance, which had raised his failure‐to‐protect assertions. At his hearing before the
Administrative Review Board, he gave the Board’s chairperson, Sherry Benton, a list of
names of Latin King inmates who, he said, “tried to murder” him and photos of his
“bloody” body after he had been attacked by Latin King members at Cook County Jail.
Benton nonetheless recommended to Anderson that she uphold the denial of Hoban’s
grievance requesting protective custody. As Benton explained, Hoban had no declared
enemies on file; no other prisoners had declared him an enemy; Pfister had not found
“sufficient verifiable information to warrant Protective Custody placement”; and Hoban
was found guilty of attacking Echols, a Latin Kings member. Anderson accepted the
recommendation and repeated these reasons for denying Hoban protective custody on
February 8, 2012.
After his second grievance was denied, Hoban returned to the general
population. He shared a cell with Michael Pinon, a Hells Angel member and self‐
proclaimed hit man for the Latin Kings. Before Pinon became Hoban’s cellmate, Hoban
warned the gallery officer not to put them in the same cell, but she disregarded the
warning. According to Hoban, during the first night in their cell, Pinon “lunged” at
him, starting a fight that resulted in “[s]ome scratches” to Hoban, but “nothing serious.”
The next morning Hoban reported the fight to a prison guard and was moved to a
different cell.
Hoban amended his complaint on December 11, 2013. He restated failure‐to‐
protect claims against Anderson and Pfister and added a failure‐to‐protect claim against
Vilt. Vilt, recall, had recommended, before Hoban filed his original complaint, against
No. 16‐1246 Page 4
putting him in protective custody. Hoban also sued Vilt for exhibiting deliberate
indifference to his medical needs while he was in disciplinary segregation. In addition
Hoban brought a failure‐to protect claim against Benton, who had recommended
against protective custody after Hoban filed his original complaint. Finally Hoban
added new claims against Pfister and Vilt, who, Hoban said, rebuffed his complaints
about the disciplinary segregation cell’s “inhumane conditions.”
The district court granted the summary judgment motion in favor of all
defendants. Regarding the conditions‐of‐confinement and medical‐indifference claims
from the amended complaint, the court ruled them untimely under the applicable two‐
year statute of limitations. The court also ruled that Hoban did not exhaust his
administrative remedies on his failure‐to‐protect claims against the defendants, other
than Benton, because he had filed his original complaint against them before the
Administrative Review Board had completed its grievance proceedings. And the court
ruled that Hoban did not establish a triable question on the merits against Benton.
On appeal Hoban first raises two arguments about the timeliness of the
conditions‐of‐confinement and medical‐indifference claims that he maintains on appeal.
These claims first appeared in his complaint filed on December 11, 2013. According to
him, the accrual date for these claims should have been in February 2012 (when his
second grievance was exhausted). He is wrong. The district court correctly used
September 13, 2011, the date that he exhausted his first grievance. That is the grievance
that raises his complaints about the conditions of his cell in segregation and his inability
to receive some of his medicines. The exhaustion of those claims ended the tolling of the
statute of limitations that occurred during the administrative grievance process and
triggered the two‐year time limit to sue. See Gomez v. Randle, 680 F.3d 859, 864
(7th Cir. 2012). By contrast his second grievance focused on his request for protective
custody. Because Hoban filed these newly stated claims on December 11, 2013, and the
filing deadline for these claims was September 13, 2013, the district court correctly
found the claims time‐barred.
Second, Hoban contends that the district court erred by not granting him
equitable tolling for his conditions‐of‐confinement and medical‐indifference claims. He
asserts that his recruited lawyer “abandon[ed]” him for about eight months after these
claims accrued. But his attorney’s alleged neglect does not warrant tolling the statute of
limitations because complying with the filing deadline was not attributable to an
“extraordinary circumstance” outside of Hoban’s “control.” Menominee Indian Tribe of
No. 16‐1246 Page 5
Wis. v. United States, 136 S. Ct. 750, 756 (2016). Tolling the statute of limitations based on
his attorney’s alleged negligence would render the limitation meaningless. See Williams
v. Sims, 390 F.3d 958, 963 (7th Cir. 2004).
Hoban next challenges the grant of summary judgment to Benton on his claim
that she was deliberately indifferent to the threat from Latin King members. He points
to his affidavit stating that he gave her a list of Latin King inmates who “tried to
murder” him and showed her pictures of his “bloody” body after attacks by the gang at
Cook County Jail. Based on this evidence, he asserts that a jury reasonably could find
that Benton knew that he faced a substantial risk of serious harm. He is incorrect
because he declared in his affidavit that the Latin King inmates on his list were not at
Pontiac Correctional Center (where he is incarcerated); they are all housed at Stateville
and Menard Correctional Centers. Hoban’s list of hostile inmates at other prisons is too
vague of a threat to his safety at Pontiac for a reasonable factfinder to conclude that
Benton had “actual knowledge of impending harm” to him. Dale v. Poston, 548 F.3d 563,
569 (7th Cir. 2008) (internal quotation marks omitted). See also Davis v. Scott, 94 F.3d 444,
446–47 (8th Cir. 1996) (jury could not reasonably conclude that prison officials exhibited
deliberate indifference by returning prisoner to “the general population” when “the
inmates on [his] enemies list were no longer incarcerated” at the prison).
Hoban finally argues that he exhausted his administrative remedies for his
failure‐to‐protect claims against other defendants, relying on Barnes v. Briley,
420 F.3d 673 (7th Cir. 2005). He understands Barnes to say that, even if a prisoner does
not exhaust claims in his original complaint, the court may properly consider them in
an amended complaint as long as the amended complaint contains an exhausted claim.
The district court correctly concluded that 42 U.S.C. § 1997e(a) barred Hoban’s
failure‐to‐protect claims against Anderson and Pfister because those claims were not
administratively exhausted when he first brought them in his original complaint.
Hoban misreads Barnes, which held only that when filing an amended complaint, a
prisoner may bring a claim newly discovered after filing the original complaint and
administratively exhausted by the time of the amended complaint’s filing. See Barnes,
420 F.3d at 678. All of the facts regarding Hoban’s claim that Pfister failed to provide
him with protective custody were known to him when he filed his original complaint.
Moreover Hoban did not exhaust his claims against Pfister and Anderson before filing
his original complaint. Because he is “time‐barred by the prison’s grievance policy from
No. 16‐1246 Page 6
further pursuing administrative remedies for these events, he could do nothing to cure
the failure to exhaust.” Hill v. Snyder, 817 F.3d 1037, 1040 (7th Cir. 2016).
That brings us to the problem that the district court granted summary judgment
to Vilt on exhaustion grounds for the failure‐to‐protect claim even though he did not
ask for that relief. Ordinarily, before a district court enters summary judgment against a
plaintiff, the plaintiff is entitled to a chance to present his evidence and arguments for
why a trial is needed. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Hotel 71 Mezz
Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 603 (7th Cir. 2015). But the fatal flaw in
Hoban’s failure‐to‐protect claim against Vilt is the same as applies to the failure‐to‐
protect claim against Pfister: Hoban knew of these claims when he first sued for not
receiving protective custody, but he had not yet exhausted his administrative remedies.
Hoban gives us no reason on appeal to believe that he did not know of his failure‐to‐
protect claim against Vilt before filing his original complaint or that the exhaustion
analysis for Vilt is any different from the unexhausted claim against Pfister. Therefore
the district court did not commit reversible error in granting summary judgment for
Vilt.
AFFIRMED.