In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3167
DAMON TURNAGE,
Plaintiff-Appellant,
v.
THOMAS J. DART, SHERIFF OF COOK COUNTY; and COOK
COUNTY, ILLINOIS,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-11672 — Charles R. Norgle, Judge.
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ARGUED OCTOBER 5, 2021 — DECIDED OCTOBER 26, 2021
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Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. Damon Turnage contends that
on September 21, 2016, he fell from an upper bunk at Cook
County Jail and suffered a broken ankle plus other injuries.
He seeks damages under §202 of the Americans with Disabil-
ities Act, 42 U.S.C. §12132, and §504 of the Rehabilitation Act,
29 U.S.C. §794(a), on the ground that the Jail knew that he is
subject to occasional seizures but failed to enforce his lower-
2 No. 20-3167
bunk permit (which had been issued to reduce the risk of fall-
ing during a seizure).
Federal law requires prisoners to pursue administrative
remedies, see 42 U.S.C. §1997e(a), and this means taking avail-
able steps prescribed by the institution. See, e.g., Ross v. Blake,
136 S. Ct. 1850 (2016). Cook County Jail requires prisoners to
file grievances within 15 days of an “incident, problem, or
event” and to appeal any adverse decision. Turnage filed a
grievance on September 27, six days after his fall, and filed an
immediate appeal after that grievance was denied. The dis-
trict court nonetheless dismissed his suit under §1997e(a), ob-
serving that Turnage could have filed a grievance even ear-
lier—within 15 days of August 30, 2016, when he was placed
in a two-person cell and forced to take an upper bunk because
the other inmate also had a lower-bunk permit (or claimed to
have one). In the district court’s view, failure to file a griev-
ance about the risk of injury permanently blocks any com-
plaint about actual injury when the risk comes to pass.
Perhaps it would be possible for a prison system to write
its rules that way, but Cook County Jail did not do so. It per-
mits a grievance following any “incident, problem, or event”.
Turnage encountered a “problem” on August 30, when he was
placed in an upper bunk. Then he experienced an “incident”
and an “event” on September 21, when he fell out. These were
separate occasions for grievances, and we do not see anything
in the rules that makes omission of the first possible grievance
a bar to filing a later grievance.
Turnage is using the ADA and the Rehabilitation Act to
pursue, in federal court, what is effectively a state-law tort
claim. And there is no tort without injury. Rozenfeld v. Medical
Protective Co., 73 F.3d 154, 156 (7th Cir. 1996). These statutes
No. 20-3167 3
may be available to protest exposure to unjustified risks, but
a prisoner or other litigant is free to wait until the risk comes
to pass. Forget about §1997e(a) for a moment and suppose
that Turnage had filed a common-law tort suit on September
10, 2018, more than two years after his placement into an up-
per bunk but less than two years after his fall and injury. (Two
years is a normal limit for tort suits.) A court would deem that
suit timely, because injury, coupled with knowledge of its
cause, marks the claim’s accrual. See United States v. Kubrick,
444 U.S. 111 (1979). For the same reason, a grievance that is
timely with respect to an injury satisfies §1997e(a) when the
suit seeks damages for that injury.
Defendants do not cite, and we could not find, any deci-
sion holding that, when two events could be the subject of in-
tra-prison grievances, a grievance filed after the second event
always is untimely. That rule would be incompatible with
normal principles of tort law. We need not decide whether it
could be adopted by clear language in prison rules. It is
enough to say that the Jail did not specify such a rule.
Nor did officials at the Jail think that such a rule exists
there. They did not reject Turnage’s grievance on the ground
that it had been filed too late. Instead they addressed and re-
jected it on the merits, as did the Jail’s appellate tier. Maddox
v. Love, 655 F.3d 709, 721–22 (7th Cir. 2011), shows that a griev-
ance rejected on the merits must be deemed properly filed for
the purpose of §1997e(a).
Turnage has exhausted the administrative remedies avail-
able to him. The judgment is vacated, and the case is re-
manded for proceedings consistent with this opinion.