Cannon, William v. Washington, Odie ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3295
WILLIAM CANNON, JR.,
Plaintiff-Appellant,
v.
ODIE WASHINGTON, Director,
RONALD HAWS, RODNEY L. TALLY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 98 C 447—David R. Herndon, Judge.
____________
SUBMITTED JULY 21, 2005*—DECIDED AUGUST 10, 2005
____________
Before BAUER, CUDAHY, and SYKES, Circuit Judges.
PER CURIAM. This protracted litigation arises out of three
incidents that allegedly occurred in 1996 and 1998 in which
Illinois inmate William Cannon, Jr., claims that prison
*
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
2 No. 03-3295
guards severely beat him. Cannon originally filed suit in
1998 and amended his complaint in 2001, alleging in total
that more than 50 defendants violated his rights under the
Eighth and Fourteenth Amendments and a number of state
laws. See 42 U.S.C. § 1983. The district court granted a
default judgment against one defendant and awarded
Cannon $1,000 in damages. The court also dismissed or
granted summary judgment on all claims against the other
defendants because, as relevant here, it found that Cannon
failed to properly exhaust his administrative remedies as
required by the Prison Litigation Reform Act (“PLRA”) prior
to filing suit. See 42 U.S.C. § 1997e(a). Cannon appeals and
we affirm in part and vacate and remand in part.
Illinois officials transferred Cannon to the Centralia
Correctional Center on June 12, 1996. Upon his arrival
Centralia officials ordered Cannon to remove his clothes for
a strip search and an anal cavity search. Cannon refused to
submit to the rectal search, so several guards came to his
cell and forcibly performed the procedure. Afterwards,
Cannon claims he was taken to a segregation cell, beaten,
and forcibly subjected to another rectal search. Cannon says
that the next day he was taken into the shower by a group
of officers and again ordered to strip naked and submit to
an anal cavity search. Cannon refused, arguing that he had
already been searched, and was again beaten and forcibly
searched.
Later that day, June 13, Cannon was transferred to the
Shawnee Correctional Center. Shawnee officials again
ordered Cannon to submit to a rectal search. When he
refused, Cannon claims he was taken into a shower room,
beaten until he was semiconscious, and again forcibly
searched. The next day, June 14, Cannon was again taken
to the shower room and ordered to submit to yet another
anal cavity search. When he again refused, Cannon claims
six guards forcibly searched him. After the search Cannon
was immediately transferred to the Menard Correctional
Center.
No. 03-3295 3
Prison officials filed disciplinary reports against Cannon
for the incidents of June 12-13 for disobeying orders, in-
solence, and assaulting an officer. A disciplinary board at
Menard later found Cannon guilty of insolence and dis-
obeying orders but not guilty of assault. He was sanctioned
with a two-month demotion in credit-earning class and a
transfer to a maximum security unit.
Cannon wrote an eight-page grievance complaining about
the conduct of the officers at Centralia and Shawnee.
Because he was housed at the time at Menard and his
grievance concerned events at other institutions, he mailed
the grievance to the Department of Corrections’ (“DOC”)
Administrative Review Board (“ARB”) in Springfield, as
required by state regulations. See 20 ILL. ADMIN. CODE
§ 504.870(a)(3). He placed his grievance in the prison mail
system on December 13, 1996; it was returned, however, on
December 14 for insufficient postage. Cannon immediately
re-sent it with proper postage. At the time the DOC re-
quired inmate grievances to be filed within six months of
the incident (the time period has since been shortened to 60
days). See 20 ILL. ADMIN. CODE § 504.810(a) (1996). The
ARB received the grievance on December 23 and denied it
as untimely; the Board, however, told Cannon that it might
reconsider if he submitted a copy of his original grievance
along with a new grievance explaining the delay. Instead,
Cannon wrote to the Director of the DOC, seeking reconsid-
eration of his untimely grievance. Cannon stated that his
grievance was delayed because Menard officials confiscated
his personal papers on November 12 and did not return
them until December 3. He said these papers contained the
names of the guards who beat him and also contained other
important facts he needed to draft his grievance. The ARB
denied Cannon’s request because he did not follow its in-
structions for resubmitting the grievance.
Two years later, in May 1998, Cannon allegedly was
attacked at Menard by several guards who were unhappy
4 No. 03-3295
that he was preparing to file this lawsuit. Cannon says the
guards beat him, confiscated his legal materials, and placed
him in a new cell with a mentally unstable inmate who at-
tacked him. In June 1998 Cannon filed suit based solely on
the rectal searches and beatings in June 1996 at Centralia
and Shawnee. He filed a grievance concerning the Menard
attacks in November 1998, but it was denied on the merits.
In March 2001 Cannon amended his complaint in the
district court to add several claims and defendants based on
the May 1998 events at Menard.
As relevant here, the district court determined that
Cannon did not exhaust his administrative remedies as to
the June 1996 incidents because his grievance was un-
timely. As to the May 1998 incident, the court held that he
did not exhaust his administrative remedies before filing
suit. The court reasoned that Cannon could not amend his
complaint to add new claims relating to the later incident
that had not been exhausted at the time he filed his original
complaint. The court also declined to exercise supplemental
jurisdiction over Cannon’s state law claims. Cannon
appeals.
Cannon first argues that he properly exhausted his
administrative remedies with respect to the June 1996 inci-
dents. He claims that the ARB should have deemed his
grievance filed not on the date the Board received it, but
instead on the date he first deposited it in the prison mail
system. Cannon says that he lost all control over the griev-
ance’s delivery once he placed it in the prison mail system
and that he should not be held responsible for delays in
delivery. See Houston v. Lack, 487 U.S. 266, 273-74 (1988)
(prisoner’s notice of appeal from denial of petition for
habeas corpus deemed filed when deposited in prison mail
system because “pro se prisoners have no control over de-
lays between the prison authorities’ receipt of the notice
and its filing”).
No. 03-3295 5
To the extent Cannon relies on the mailbox rule, most of
the claims asserted in his grievance would still be untimely.
The incidents described in Cannon’s grievance occurred on
June 12 and June 13, 1996; he signed his grievance on
December 13—exactly six months after the second incident
but six months and one day after the first. Thus, the
grievance was untimely as to the events of June 12. It was
also untimely as to the events of June 13 because Cannon’s
grievance was returned to him for insufficient postage and
he did not properly mail it until December 14, which was
unquestionably one day too late. See United States v. Craig,
368 F.3d 738, 740 (7th Cir. 2004) (noting that mailbox rule
in FED. R. APP. P. 4(c)(1) requires prisoner to submit
affidavit stating he affixed sufficient postage).
Cannon also argues that his grievance was timely with
respect to a claim that the guards at Centralia falsely
charged him with assault in an effort to justify their attack
on him. Cannon received notice of the disciplinary charge
on June 14 and mailed his grievance exactly six months
later. He asserts that he could not have filed a grievance
until he was acquitted of that charge, which happened on
July 18. But Illinois at the time required an inmate to
submit a grievance within six months of “the discovery of
the incident, occurrence, or problem that gives rise to the
grievance.” 20 ILL. ADMIN. CODE § 504.810(a) (1996).
Because Cannon discovered that an allegedly false disci-
plinary charge had been filed against him on June 14, he
was required to file a grievance by December 14. The same
is true of the alleged forced search at Shawnee on June 14.
Cannon argues that he did file his grievance on December
14 because that is when he mailed it. The ARB deemed it
untimely, either because it construed the claim to be in-
tertwined with the June 12-13 incidents or, alternatively,
because it did not receive the grievance until December 23.
Regardless, the ARB accepts late grievances if the prisoner
demonstrates “good cause” for the delay. Riccardo v.
6 No. 03-3295
Rausch, 375 F.3d 521, 524 (7th Cir. 2004); Dixon v. Page,
291 F.3d 485, 489 (7th Cir. 2002); 20 ILL. ADMIN. CODE
§ 504.810(a). The ARB invited Cannon to seek reconsidera-
tion of his untimely grievance so long as he explained the
delay on an official form and attached a copy of the original
grievance. Instead, Cannon wrote a letter to the DOC
Director asking him to excuse the delay. This response
ignored both of the ARB’s instructions concerning the form
of his response. By failing to take advantage of the proce-
dure offered by the ARB for reconsidering the grievance,
Cannon failed to exhaust his administrative remedies with
respect to the false discipline claim. See Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (prisoner
must file complaints and appeals “in the place, and at the
time, the prison’s administrative rules require”).
Cannon also argues that he could not have filed his griev-
ance regarding the incidents at Centralia and Shawnee
earlier than he did because guards at Menard confiscated
all of his legal papers on November 12, 1996, and did not
return them until December 3. He claims that these papers
contained the names of the officers involved and important
details about the incidents. But Illinois has not specified
any particular level of detail required for inmate griev-
ances, and we have held that a grievance is sufficient so
long as it “object[s] intelligently to some asserted shortcom-
ing.” Riccardo, 375 F.3d at 524; see also Strong v. David,
297 F.3d 646, 650 (7th Cir. 2002). The confiscated materials
may have allowed Cannon to craft a more detailed griev-
ance, but they were not necessary in order for him to alert
the ARB to the general nature of his concerns arising out of
the June 12-13 incidents. The confiscation of his materials
did not excuse his noncompliance with the six-month
deadline.
Cannon’s last argument with respect to the June 12-13
incidents is that no administrative remedies were available
No. 03-3295 7
to him because he sought monetary damages and Illinois’
grievance system lacks any provision to award monetary
damages. This argument has been rejected repeatedly, and
we need not address it further. See Booth v. Churner, 532
U.S. 731, 735 (2001); Perez v. Wis. Dep’t of Corr., 182 F.3d
532, 537 (7th Cir. 1999).
Cannon next argues that the district court erred by
dismissing his claims arising out of the alleged May 1998
attack at Menard on the ground that he did not exhaust his
administrative remedies. We first note our awareness of
conflicting decisions issued by our sister circuits as to
whether the PLRA permits a prisoner to proceed on ex-
hausted claims when his complaint also raises unexhausted
claims. The Second Circuit has held that a district court
may consider those claims a prisoner has exhausted even
though it must dismiss those claims that are not exhausted.
See Ortiz v. McBride, 380 F.3d 649, 655-63 (2d Cir. 2004).
Three other circuits have adopted a “total exhaustion” rule
that requires a district court to dismiss a prisoner’s suit in
its entirety if it raises any unexhausted claim. See Bey v.
Johnson, 407 F.3d 801, 805-09 (6th Cir. 2005); Ross v.
County of Bernalillo, 365 F.3d 1181, 1188-90 (10th Cir.
2004); Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir.
2003). The defendants here have not advanced a “total
exhaustion” argument, and we thus do not consider the
issue.
The district court dismissed the claims relating to the
1998 incident at Menard because Cannon failed to exhaust
his administrative remedies on those claims before filing his
original complaint. The court correctly noted that a prisoner
may not file a lawsuit before exhausting his administrative
remedies, even if he exhausts those remedies while the
litigation is pending. See Perez, 182 F.3d at 535. As we have
previously observed, this exhaustion requirement is
designed to alert prison officials to perceived problems and
to enable them to take corrective action without first
8 No. 03-3295
incurring the hassle and expense of litigation. See Riccardo,
375 F.3d at 524; Ford v. Johnson, 362 F.3d 395, 398 (7th
Cir. 2004); McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir.
2002). Permitting a prisoner to sue first and then ask the
prison to address issues that are now the subject of pending
litigation defeats the purpose of the PLRA’s exhaustion
requirement.
But Cannon’s 1998 grievance concerning the alleged
attack at Menard gave prison officials precisely the type
of opportunity to address his complaints that the PLRA
contemplates. The sole objective of § 1997e(a) is to permit
the prison’s administrative process to run its course before
litigation begins. See Ford, 362 F.3d at 399. Cannon’s
November 1998 grievance apprised prison officials of the al-
leged attack at Menard, and he did not hale those defen-
dants into court until he had pursued all of the administra-
tive remedies available to him. That he raised these claims
by amending his complaint in an already pending case
rather than initiating an entirely new proceeding is irrele-
vant to the objectives of § 1997e(a).
We do not mean to imply that the district court was
required to accept Cannon’s amended complaint adding the
allegations about the alleged 1998 attack. Cannon sought
leave to file an amended complaint in March 2001, almost
three years after he filed his original complaint and long
after the defendants filed their answer. Once a responsive
pleading is filed, a plaintiff may not amend his complaint
without leave of the court or consent of the adverse party or
parties. Dubicz v. Commonwealth Edison Co., 377 F.3d 787,
792 (7th Cir. 2004); FED. R. APP. P. 15(a). A district court
should freely grant a plaintiff leave to amend but may deny
leave for a number of reasons, including that the amend-
ment was unduly delayed, made in bad faith, or would
cause undue prejudice to a defendant. Dubicz, 377 F.3d at
792. Cannon’s new claims were raised three years after the
alleged events that gave rise to them and were directed
No. 03-3295 9
primarily against defendants who were not parties to his
original lawsuit. Perhaps the district court could have
denied Cannon leave to add the claims arising out of the
Menard incident as unduly delayed or as a bad faith
attempt to avoid paying a new filing fee by adding unre-
lated claims to his original lawsuit instead of initiating a
new action. But the district court accepted the amended
complaint, and it erred by holding that Cannon did not
exhaust his administrative remedies with respect to the
1998 incident.
Lastly, Cannon argues that the district court erred when
it vacated what he says were default judgments against
three defendants: Curtis Rueter, Michael Turner, and
Judson Childs. But Cannon misapprehends the record; the
court never entered default judgments against these three
defendants. His confusion may be related to an improperly
titled “Motion to Vacate Default Judgment” that the
Attorney General filed on behalf of each defendant in re-
sponse to Cannon’s motion for default judgments. But the
district court denied Cannon’s motion as to these three
defendants and permitted each defendant to move for
summary judgment.
In sum, the district court’s dismissal of Cannon’s claims
arising out of the May 1998 incident at Menard is VACATED,
and this matter is REMANDED for further proceedings. In all
other respects the judgment of the district court is AF-
FIRMED.
10 No. 03-3295
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-10-05