Ramirez v. Young

906 F.3d 530

Darwin RAMIREZ, Plaintiff-Appellant,

v.Richard YOUNG, et al., Defendants-Appellees.

No. 15-3298

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2018

Decided October 9, 2018

Steven Edwards Art, Attorney, Sarah Grady, Attorney, Michael Kanovitz, Attorney, Loevy & Loevy, Chicago, IL, for Plaintiff-Appellant.

Linda Boachie-Ansah, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees Richard Young, Warden, individually, Tarry Williams, Warden, individually, Jeff Korte, Warden, individually and in his official capacity, Jay Alexander, Correctional Officer, individually.

Craig L. Unrath, Attorney, Heyl, Royster, Voelker & Allen, Peoria, IL, for Defendant-Appellee Cynthia Lynch, Counselor, individually.

Before Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.

Wood, Chief Judge.

Under the Prison Litigation Reform Act of 1995 (PLRA), "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983 ], or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). This appeal concerns the availability of administrative remedies described to a prisoner by prison officials only in a language they knew he could not understand. We hold that this was not enough to render those remedies "available" to the prisoner. We therefore reverse the judgment dismissing Darwin Ramirez’s federal suit for failure to exhaust and remand for further proceedings.

I

Ramirez, who is a Spanish speaker, sued administrators and officers of the Western Illinois Correctional Center under 42 U.S.C. § 1983 for alleged constitutional wrongs. He was in prison at the time he filed his action, and so it was subject to the PLRA’s exhaustion requirement. See 42 U.S.C. § 1997e(a).

Western Illinois indisputably had administrative remedies available for prisoners’ use. Ramirez did not use those procedures in a timely fashion to complain about the issues raised in his federal action, and so the defendants moved for summary judgment based on Ramirez’s failure to exhaust. Ramirez responded that Western Illinois’s existing grievance process was unavailable to him and he was thus excused from the PLRA’s exhaustion requirement. See id. ; Ross v. Blake , ––– U.S. ––––, 136 S.Ct. 1850, 1858–59, 195 L.Ed.2d 117 (2016). The district court held an evidentiary hearing on the availability question as required by Pavey v. Conley , 544 F.3d 739 (7th Cir.2008), after which it dismissed Ramirez’s complaint without prejudice. It concluded that remedies are unavailable under the PLRA only under certain exclusive circumstances: if prison officials fail to respond to properly filed grievances; if prison officials affirmatively prevent exhaustion through misconduct; or if compliance with the grievance process is impossible. None of those applies to Ramirez.

Ramirez has now appealed from the order dismissing his action. Ordinarily, the fact that the district court’s dismissal was without prejudice would bar an appeal on grounds of lack of finality, but that is not the case here. Ramirez is no longer in custody, and so he cannot remedy his failure to exhaust. The dismissal was thus effectively a final order, and we may proceed with the appeal. See Kaba v. Stepp , 458 F.3d 678, 680 (7th Cir.2006).

If, as in this case, a prisoner’s complaint is dismissed after a Pavey hearing for failure to exhaust, we review factual findings for clear error and legal decisions de novo . Wilborn v. Ealey , 881 F.3d 998, 1004 (7th Cir.2018). Failure to exhaust is an affirmative defense for which the defendants carry the burden of proof. Hernandez v. Dart , 814 F.3d 836, 840 (7th Cir.2016). All remaining factual disputes must be construed in Ramirez’s favor at this juncture. Id. To meet their burden, the defendants must show beyond dispute that remedies were available. Id.

The record shows that Ramirez was arrested in 2007 and taken initially to the Cook County jail. While there, he was attacked. He notified a sergeant, who moved Ramirez to protective custody. After eight months at Cook County jail, Ramirez was transferred to Western Illinois, a state prison. After his transfer, Ramirez attended a new-prisoners orientation. This English-only orientation introduces prisoners to Western Illinois’s internal grievance procedures. Ramirez, however, did not understand English, a fact that he disclosed to a prisoner working at the orientation. That prisoner started translating the orientation into Spanish for Ramirez. Yet the administrator conducting the orientation ordered the prisoner to stop doing so. The translator had not explained the grievance process to Ramirez prior to being silenced.

Western Illinois maintained a cumulative counseling summary for Ramirez—a running log of each interaction between him and the prison staff. An entry from the day of orientation noted that Ramirez had "poor English skills" and that Ramirez had received an orientation manual, which contained information about Western Illinois’s grievance mechanisms. The counseling summary reflected that Ramirez received a Spanish-language copy of the manual, but he insists that it was actually in English. Because the district court did not resolve this dispute in the Pavey hearing, we accept Ramirez’s account for present purposes. And we note that Western Illinois was asked during these proceedings to produce a Spanish-language manual that pre-dates 2011, but it was unable to do so. Its failure corroborates Ramirez’s account. When orientation ended, Ramirez signed a form confirming that he had completed orientation and received the manual. That form also was in English.

The prison asserts that it referred people identified during orientation as non-English speakers to someone who would conduct orientation in the prisoner’s preferred language. Julia Vincent, a correctional counselor at Western Illinois, was the facility’s only Spanish-speaking employee; she ordinarily helped with orientation for Spanish speakers. But Ramirez alleges that his case was different. He and Vincent met the day after orientation; they spoke exclusively in Spanish. That meeting covered Ramirez’s immigration status but not the content of Western Illinois’s orientation or the manual. Ramirez finished orientation in the dark about the prison’s grievance process.

The evidence strongly suggests that Western Illinois’s staff knew that Ramirez did not understand English. Each time Ramirez visited a doctor Vincent would translate or, if she was unavailable, Ramirez communicated through body signals. At his meetings with the mental health staff, Ramirez specifically requested a translator. And Ramirez separately met with Vincent more than ten times before filing his federal complaint. Ramirez testified that those meetings were conducted in Spanish, and again, there was no evidence to the contrary at the Pavey hearing.

Vincent had reason to suspect that Ramirez was ignorant of the prison’s grievance process. In 2011, Ramirez’s cellmate threatened him with a shank. Ramirez tried to tell a correctional officer about the incident, but the language barrier prevented him from describing what had occurred. As a result, the officer directed Ramirez to return to his cell. When Ramirez refused to do so, he was placed in segregation. A disciplinary hearing followed. Ramirez explained to Vincent, his translator at the hearing, that he had refused to comply because he feared living with a cellmate who had threatened him with a shank. Despite the troublesome implications of Ramirez’s story, Vincent did not ask why he had not filed a grievance or if he wanted to do so. Nor did she advise him that the prison had a system in place that he might use to pursue a complaint about the threats or the move to segregation.

While imprisoned, Ramirez did pick up tidbits about Western Illinois’s internal operations. For example, with the help of a fellow prisoner he discovered how to seek dental care. But Ramirez never saw another prisoner file a grievance and did not know about the possibility of filing complaints against prison staff. English-language grievance forms were distributed throughout the prison’s common areas, but they were useless to Ramirez: as late as 2015 Ramirez could speak a little English but could not read in the language. Vincent insists that Spanish-language forms also were available, but Ramirez and other prisoners dispute that. Again, this dispute must be resolved in Ramirez’s favor.

No one from Western Illinois ever informed Ramirez in Spanish that there was a grievance process. He first learned of it in the summer of 2013, several months before filing his complaint in this action, after confiding in his cellmate about troubles he was enduring. Ramirez’s cellmate suggested that he file a grievance. Because Ramirez’s response conveyed confusion, the cellmate outlined how grievances function. Since that time, Ramirez has filed a number of grievances with substantial assistance. The record does not reveal whether any of those grievances related to the issues in his federal complaint.

II

A

Administrative remedies are available for purposes of the PLRA’s exhaustion requirement if they are " ‘capable of use’ to obtain ‘some relief for the action complained of.’ " Ross , 136 S.Ct. at 1859 (quoting Booth v. Churner , 532 U.S. 731, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ). Two principles inform whether Western Illinois’s administrative remedies were available to Ramirez. First, remedies are available only if a prisoner has been notified of their existence. Hernandez , 814 F.3d at 842 ; King v. McCarty , 781 F.3d 889, 896 (7th Cir.2015). Prisoners are not expected " ‘to divine the availability’ of grievance procedures." Hernandez , 814 F.3d at 842 (quoting King , 781 F.3d at 896 ). Second, existing remedial processes are available only if communicated in a way reasonably likely to be understood. Roberts v....