Ebmeyer v. Brock

11 F.4th 537

Kelly D. EBMEYER, Plaintiff-Appellant,

v.Adam BROCK, et al., Defendants-Appellees.

No. 19-2065

United States Court of Appeals, Seventh Circuit.

Argued November 13, 2020

Decided August 25, 2021

Holly Jones, Emily Knox, Esq., Craig Stewart, Attorneys, Jones Day, San Francisco, CA, Erin M. McGinley, Attorney, Jones Day, Chicago, IL, for Plaintiff-Appellant.

Christopher M. R. Turner, Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before Flaum, Rovner, and Brennan, Circuit Judges.

Rovner, Circuit Judge.

Kelly D. Ebmeyer sued several prison officials under 42 U.S.C. § 1983, alleging violations of the Eighth Amendment. The district court ultimately dismissed the suit with prejudice as a sanction for Ebmeyer's litigation conduct related to his attempts to identify one of the prison employee defendants. Because the court failed to make the necessary findings to support this sanction, we vacate and remand for further proceedings. We also affirm the court's grant of summary judgment to other defendants.

I.

Ebmeyer was an inmate at Hill Correctional Center ("Hill") on April 16, 2014 when the Illinois Department of Corrections Special Operations Response Team (known as "Orange Crush") performed a facility-wide shakedown. Ebmeyer filed a lawsuit for actions purportedly taken against him during the shakedown. His complaint alleged that the Orange Crush team subjected him to a humiliating, unconstitutional strip search and excessive force, in violation of his Eighth Amendment rights and 42 U.S.C. § 1983. In addition to describing the manner in which the strip search was conducted, he asserted that an unidentified "John Doe" member of that team placed him in extremely tight handcuffs that caused him injuries; Sergeant Jeffrey Oelberg struck him with a baton, squeezed his testicles, and forced him to stand handcuffed and facing a wall in a stress position for more than three hours; and prison officials Joseph Yurkovich and Kevwe Akpore promulgated policies that encouraged the challenged unconstitutional conduct.¹ He sought declaratory relief, compensatory and punitive damages, medical and psychological care, costs, and an injunction prohibiting the Orange Crush team from engaging in such conduct against him in the future.

The district court ultimately granted summary judgment in favor of Yurkovich, Akpore, and Oelberg, finding that Ebmeyer had failed to exhaust his administrative remedies on his claims against these defendants. On Ebmeyer's remaining claim against the John Doe defendant related to the handcuffing injuries, the court initially allowed the claim to proceed and kept Akpore in the case in order to assist Ebmeyer in identifying the John Doe defendant. After Ebmeyer identified the unnamed defendant as Adam Brock, the court became aware that Ebmeyer had known from the beginning of the suit that the John Doe defendant's first name was "Adam," and the court issued an Order to Show Cause why it should not dismiss the case with prejudice for Ebmeyer's failure to disclose this identification information sooner. The court rejected Ebmeyer's ensuing explanation and dismissed the suit with prejudice. Ebmeyer appeals.

II.

On appeal, Ebmeyer first asserts that the court erred in granting summary judgment to three defendants on exhaustion grounds because they failed to meet their burden of proving failure to exhaust, and because the court should have conducted a fact-finding hearing on the matter before ruling. Second, he contends that the court erred in dismissing his case with prejudice as a sanction because the court failed to make appropriate factual findings supporting this extreme sanction, and because his conduct as a pro se litigant did not warrant such a sanction.²

A.

Under the Prison Litigation Reform Act of 1996 ("PLRA"), a prisoner may not file a section 1983 suit with respect to prison conditions "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirements apply to all of the claims raised by Ebmeyer, including his claims for excessive force. Porter v. Nussle , 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) ("the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). This means that "if a prison has an internal administrative grievance system through which a prisoner can seek to correct a problem, then the prisoner must utilize that administrative system before filing a claim." Massey v. Helman , 196 F.3d 727, 733 (7th Cir. 1999).

Hill Correctional Center followed the grievance procedures set forth in the Illinois Administrative Code. See 20 Ill. Admin. Code § 504.810. The Code provides that prisoners "may file a written grievance on a grievance form that shall be made available in all living units. Grievances shall be addressed to his or her institutional counselor[.] ... A grievance must be filed with the counselor or Grievance Officer in accordance with the procedures in this Subpart, within 60 days after the discovery of the incident, occurrence or problem that gives rise to the grievance." 20 Ill. Admin. Code § 504.810(a).

After the April 16, 2014 incident, Ebmeyer filed three grievances: (1) an April 16, 2014 grievance complaining that a bag of coffee was missing from his cell after the shakedown; (2) an April 18, 2014 grievance asserting that a towel was missing from his cell; and (3) a May 18, 2014 grievance complaining that Orange Crush placed him in extremely tight handcuffs during the shakedown despite his pleas to have them loosened, causing him pain, numbness, and abnormal touch sensations on his left wrist and thumb where he had previously had surgery. He also complained that he had been wrongfully charged $5 for a medical visit related to his wrist injuries from this incident. Notably, he did not file a grievance complaining about any conduct by Oelberg, Akpore or Yurkovich. The counselor who reviewed the grievances denied the property complaints, and found that the $5 charge for non-emergent care was appropriate.³ Ebmeyer appealed all three denials to the grievance officer, and all were denied again. He then appealed the tight handcuffs claim to the Director of the Illinois Department of Corrections, who denied it as well. Ebmeyer then filed this suit in federal court.

When Oelberg, Akpore and Yurkovich sought summary judgment for failure to exhaust administrative remedies, Ebmeyer, who was proceeding pro se in the district court, responded that the grievance system was not "available" for his problem because he could "not get relief from the grievance system after being victimized." R. 31, at 3. He further explained that he "couldn't receive a remedy to not be abused by filing a grievance after it happened." In his attached affidavit, he asserted:

According to the inmate manual, the first step in resolving a grievance is to communicate with an officer. ... When Plaintiff tried resolving the grievance through the first course of action listed in our inmate manual by asking Sgt. Oelberg of the Orange Crush if this was necessary to have his baton between my legs, he struck me with the baton then squeezed my testicles. At this point, Plaintiff felt it was in his best interest to not further try to resolve the grievance with the controlling officer on duty. ... I filed three grievances afterwards. I filed a verbal grievance and was beaten.

R. 31, at 6–7. On appeal, Ebmeyer characterizes this as uncontested testimony regarding the unavailability of the grievance process. He contends that he was not required to exhaust the grievance process because it was unavailable to him, citing Schultz v. Pugh , 728 F.3d 619, 620 (7th Cir. 2013), for the proposition that the grievance process is not available to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy by filing a grievance. In the very least, he argues, the court should have held a hearing under Pavey v. Conley , 544 F.3d 739, 742 (7th Cir. 2008), to resolve disputes of fact regarding whether the grievance process was available to him.⁴

Ebmeyer correctly states that an inmate need only exhaust those remedies that are "available" under the prison's procedures. Hernandez v. Dart , 814 F.3d 836, 842 (7th Cir. 2016) (excessive force claim not subject to the PLRA exhaustion requirement when no administrative remedies were "available" to the prisoner during the relevant exhaustion period). We review dismissals for failure to exhaust administrative remedies de novo . Hernandez , 814 F.3d at 840. "Administrative remedies are primarily ‘unavailable’ to prisoners where ‘affirmative misconduct’ prevents prisoners from pursuing administrative remedies." Hernandez , 814 F.3d at 842 (quoting Dole v. Chandler , 438 F.3d 804, 809 (7th Cir. 2006) ). For example, remedies are considered unavailable when a correctional officer tells the prisoner that he cannot file a grievance when in fact the prisoner can do so. Thomas v. Reese , 787 F.3d 845, 847–48 (7th Cir. 2015). Remedies are also unavailable where the prisoner presents evidence that prison personnel denied him grievance forms, threatened him, and solicited other inmates to attack him in retaliation for filing grievances. Kaba v. Stepp , 458 F.3d 678, 680, 686 (7th Cir. 2006). See also Dale v. Lappin , 376 F.3d 652, 656 (7th Cir. 2004) (remedies unavailable where prison personnel refused prisoner access to required grievance forms).

Ebmeyer's claim fails on the facts here. When an inmate claims that the grievance process is unavailable because he fears reprisal, he must demonstrate that a person of "ordinary firmness" would have been deterred from filing a grievance in the circumstances alleged. Schultz , 728 F.3d at 621 ; Kaba , 458 F.3d at 684–85. This is an objective standard. No Pavey hearing...