Carroll, Ronnie W. v. IL Dept Corrections ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2931
RONNIE W. CARROLL,
Plaintiff-Appellant,
v.
DALE R. YATES, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 C 940—J. Phil Gilbert, Judge.
____________
ARGUED JANUARY 12, 2004—DECIDED APRIL 2, 2004
____________
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
POSNER, Circuit Judge. More than six years ago Ronnie
Carroll, an Illinois state prisoner, brought suit in federal
district court under 42 U.S.C. § 1983 against prison guards
who, he charged, had inflicted cruel and unusual punish-
ment on him in violation of his Eighth Amendment rights.
The district court dismissed the suit on the ground that
Carroll had failed to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e(a). He had in fact pursued his prison grievance
procedures up to the top level, the prison’s Administrative
2 No. 01-2931
Review Board, 20 Ill. Admin. Code § 504.850, which denied
his appeal as “moot” (without reaching the merits) because
it had been advised by a guard that Carroll had “refused to
appear before the Administrative Review Board on the
above date,” the date on which the board had met to con-
sider his appeal.
Carroll then filed this lawsuit, appending to his complaint
the board’s decision, including the notation that we just
quoted. In moving to dismiss the suit, the defendants (the
state, we’ll call them) argued that by failing to appear in
person before the board, Carroll had failed to exhaust his
administrative remedies. He responded with an affidavit
which stated that he had been unaware that the board had
wanted him to appear in person before it. He said that out
of the last 75 (!—the last 75) grievances that he had filed, the
board had turned down 74 without asking him to appear.
Nevertheless the district court granted the motion to
dismiss, stating that Carroll had not presented “the Court
with any credible evidence (or with any evidence at all) that
he was unaware of the ARB hearing” and in any event had
not denied receiving “a copy of the ARB panel’s meeting
minutes, in which the panel stated that Carroll refused to
appear and in which the panel stated that it considered his
grievance moot.” The first quoted passage is mistaken;
Carroll did present evidence, namely his affidavit, which
was better evidence than the hearsay evidence of the guard
who reportedly told the board that Carroll had “refused” to
attend its meeting. The second passage is irrelevant because
the denial of Carroll’s grievance on the ground of mootness
was as definitive as if the grievance had been denied on the
merits; the fact that the denial was communicated to him
did not detract from its finality.
The state acknowledges that there is no statutory or other
rule requiring a grievant to appear in person before the
No. 01-2931 3
board on pain of being deemed to have failed to have ex-
hausted his remedies. If there were such a rule, violation of
it would indeed be a failure to exhaust administrative rem-
edies. Riccardo v. Rausch, 359 F.3d 510, 512-13 (7th Cir. 2004);
Dixon v. Page, 291 F.3d 485, 489 (7th Cir. 2002); Pozo v.
McCaughtry, 286 F.3d 1022 (7th Cir. 2002); contra, Thomas v.
Woolum, 337 F.3d 720, 732-33 (6th Cir. 2003). (This would be
obvious if the violation were deliberate.) But such a rule
would be absurd; it would hamstring the board, which, as
Carroll’s own experience attests, usually turns down ap-
peals without interviewing the grievant. Would the board
really have liked having Carroll appear before it in person
75 times?
The power granted the board to “call witnesses or exam-
ine records at its discretion,” 20 Ill. Admin. Code
§ 504.850(d), authorizes it to require the grievant’s appear-
ance, and if he refuses he will have failed to have exhausted
his remedies, Ford v. Johnson, No. 01-3709, 2004 WL 574995,
at *1 (7th Cir. Mar. 24, 2004), because exhaustion presup-
poses cooperation with any authorized requirements
imposed by the administrative bodies whose procedures
must be exhausted. Hill v. Potter, 352 F.3d 1142, 1146 (7th
Cir. 2003); Rann v. Chao, 346 F.3d 192, 196-97 (D.C. Cir.
2003); Martinez v. Department of U.S. Army, 317 F.3d 511 (5th
Cir. 2003); Jasch v. Potter, 302 F.3d 1092, 1094 (9th Cir. 2002).
Except for Ford, these are not prisoner exhaustion cases; but
the principle is the same. You cannot refuse to comply with
the procedures for exhaustion yet claim to have exhausted.
But we do not know whether Carroll was ordered to appear.
On this record, the best evidence is that he was not, for the
guard didn’t submit an affidavit to contradict Carroll’s
affidavit.
The state makes the fantastic argument that by appending
the board’s decision, with its recitation that Carroll had
4 No. 01-2931
“refused” to appear before the board, to his complaint,
Carroll vouched for the truth of the recitation and therefore
pleaded himself out of court. According to the state, all facts
contained in any attachments to a complaint “are [au-
tomatically] deemed facts alleged as part of [the] com-
plaint.” And so the “fact” that Carroll had refused to attend
the board’s meeting was a fact “stated in his complaint,”
and he could not amend his complaint in his brief; he could
not contradict “his complaint’s allegation that he refused to
appear” before the board.
He had appended the board’s decision not in order to
vouch for the truth of the statements in it, but to show that
he had exhausted his administrative remedies. Although a
“copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes,” Fed. R. Civ. P.
10(c), dismissal on the basis of facts in that instrument is
proper only if the plaintiff relies upon it “to form the basis
for a claim or part of a claim,” Thompson v. Illinois Dept. of
Professional Regulation, 300 F.3d 750, 754 (7th Cir. 2002),
which of course, he was not doing here. The logic of the
state’s argument is that an appellant, required by the
appellate rules to append to his brief the decision of the
district court or administrative agency that he is appealing,
Fed. R. App. P. 30(a)(1)(C); 7th Cir. R. 30(a), by doing so
kills the appeal because appending amounts to vouching for
the truth of the propositions in the appended decision.
The argument if accepted would do wonders for our
workload, but is beyond nonsensical and unworthy of the
office of the Attorney General of Illinois. As is the statement
in its brief that Carroll presented no evidence of his version
of the facts, when actually he submitted an affidavit and the
state did not. These are unprofessional lapses. The state is
ordered to show cause within 14 days why it should not be
sanctioned for the frivolous argumentation in its brief.
No. 01-2931 5
As for the judgment, it is reversed, and the case re-
manded.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-2-04