Jonathan Chambers v. Kul Sood ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3503
JONATHAN CHAMBERS,
Plaintiff-Appellant,
v.
KUL B. SOOD,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 2545 — John J. Tharp, Jr., Judge.
____________________
ARGUED SEPTEMBER 25, 2019 — DECIDED APRIL 28, 2020
____________________
Before FLAUM, SYKES, and SCUDDER, Circuit Judges.
SYKES, Circuit Judge. Jonathan Chambers, an Illinois pris-
oner, sued a prison doctor under 42 U.S.C. § 1983 accusing
him of deliberate indifference to his medical needs—
specifically, his need for medication to treat a flare-up of a
painful chronic condition. The doctor had examined him
during the intake process at the Stateville Correctional
Center, which serves as the reception unit for new Illinois
prisoners. Chambers was housed there for a few weeks
2 No. 17-3503
when he was processed into state custody, and he filed a
grievance with the Stateville grievance office protesting the
doctor’s failure to prescribe medication.
But Chambers was transferred to a different prison be-
fore the grievance was investigated, so a grievance officer
returned it to him unreviewed and invited him to take the
matter to the Administrative Review Board (“ARB” or “the
Board”). The ARB normally serves in an appellate capacity
reviewing decisions of grievance officers, but the operative
regulations also specified that grievances pertaining to
problems at an earlier-assigned prison must be filed directly
with the Board. Chambers skipped this step and instead
brought this lawsuit in district court.
The judge dismissed the suit for failure to exhaust ad-
ministrative remedies, and we affirm. Under the Prison
Litigation Reform Act (“PLRA” or “the Act”), prisoners must
pursue their complaints about prison conditions through all
levels of the relevant administrative-review system before
bringing a lawsuit in federal court. Chambers did not do so.
Though he eventually submitted a grievance to the ARB after
he filed suit, that step did not satisfy the PLRA. The Act
requires pre-suit exhaustion; pursuing administrative reme-
dies while litigation is underway does not suffice.
I. Background
On February 27, 2014, Chambers was processed into the
custody of the Illinois Department of Corrections at the
Stateville Northern Reception and Classification Center,
located in the Stateville prison. During his intake medical
examination, Chambers told the nurse that he was suffering
from a herpes outbreak and needed medication. The nurse
No. 17-3503 3
told him that a doctor would see him in the next two or three
days. On March 1 Chambers was examined by Dr. Kul B.
Sood, who reviewed his medical history—including his
history of herpes outbreaks—and instructed him to put in a
“sick call” request for a follow-up appointment. Chambers
did so but received no response. In the meantime he contin-
ued to suffer pain from his herpes flare-up.
On March 9 Chambers submitted a grievance to his in-
mate counselor at Stateville protesting the doctor’s failure to
give him medication for his herpes. He sought $60,000 for
pain and suffering and asked to be “seen by a Doctor as of
today.” The counselor responded to Chambers in writing on
March 13, advising him that she had forwarded the griev-
ance to the healthcare unit and to the Stateville grievance
office and that he would receive a decision from that office
after the healthcare unit responded to the inquiry.
Under the Illinois Administrative Code, a grievance of-
ficer must investigate a grievance and report findings and a
recommendation in writing to the Chief Administrative
Officer within two months “when reasonably feasible under
the circumstances.” ILL. ADMIN. CODE tit. 20, § 504.830(e)
(2014). The Chief Administrative Officer then reviews the
findings and recommendation and notifies the offender of
his decision in writing. Id. That process did not run its
course while Chambers remained at Stateville. On March 21,
just eight days after his counselor forwarded the grievance
to the Stateville grievance office, Chambers was transferred
to the Western Correctional Center.
Accordingly, on April 3 a grievance officer returned the
grievance with a memo explaining that it was not reviewed
prior to his transfer. The memo advised Chambers that “[i]f
4 No. 17-3503
you want to appeal, you may forward this grievance along
with this memo attached to the ARB.”
Chambers did not submit the issue to the ARB. Instead,
on April 7 he filed a pro se complaint in district court assert-
ing a § 1983 claim and seeking damages for the failure to
provide medication for his herpes outbreak while he was at
Stateville. The complaint named multiple defendants:
“Stateville Medical Staff/Healthcare Services, Nurse Tiffany,
Nurse Megan, Unknown Physician #1,” four unknown
nurses, and the Stateville counselor. A week later a district
judge screened and dismissed the complaint, noting that
Chambers had not exhausted his administrative remedies as
required by the PLRA. Although the dismissal was without
prejudice, the judge terminated the case, explaining that
Chambers “must file a new suit that postdates the full
administrative exhaustion procedure.”
On June 2 Chambers filed a grievance with the ARB re-
garding his medical care for the herpes outbreak he suffered
while at Stateville. He attached a copy of his March 9 griev-
ance and asked that the culpable Stateville medical staff be
suspended without pay. The regulations provide that the
ARB must issue a final decision within six months “when
reasonably feasible under the circumstances.” Id.
§ 504.850(e). On November 10 the ARB issued its decision,
explaining that Chambers’s complaint about an urgent need
for medication for his herpes flare-up while he was at
Stateville “cannot be substantiated as medically necessary.”
Meanwhile, on September 22 Chambers filed a proposed
amended complaint in the terminated district-court case
naming an “Unknown Doctor” and “Stateville Medical
Staff” as defendants. On October 23 the judge provisionally
No. 17-3503 5
determined that the amended complaint adequately pleaded
that Chambers had been prevented from exhausting admin-
istrative remedies. But the amended complaint did not
identify a suable defendant, so the judge gave Chambers
30 days to cure the defect. Chambers moved for an extension
of time on November 3 and submitted with the motion a
proposed amended complaint devoid of any substantive
claim. Four days later the judge struck the proposed amend-
ed complaint and set a firm December 1 deadline for
Chambers to file a nondeficient pleading.
Chambers did not comply with the December 1 deadline,
so the judge dismissed the suit and (again) terminated the
case. That prompted a flurry of letters and motions from
Chambers in January and February 2015 trying to revive the
case. On March 25 the judge issued an order giving him one
more chance to file an adequate amended complaint.
Chambers filed a proposed amended complaint on April 3
asserting a claim for deliberate indifference against an
unknown doctor for failure to prescribe medication for the
herpes outbreak he suffered while at Stateville. He asked the
court’s permission to name the warden as a stand-in defend-
ant until the identity of the unknown doctor could be dis-
covered. The judge authorized this procedure and accepted
the amended complaint.
The case moved forward, and the judge eventually re-
cruited pro bono counsel to assist Chambers. Discovery
revealed that the unknown Stateville physician was
Dr. Sood. On February 8, 2016, pro bono counsel sought
leave to dismiss the warden and file a proposed amended
complaint naming Dr. Sood, together with the Stateville
Correctional Center and the Illinois Department of Correc-
6 No. 17-3503
tions, as defendants. The judge granted the motion the next
day, though the latter two defendants were eventually
dismissed by agreement of the parties.
Dr. Sood moved to dismiss for failure to exhaust admin-
istrative remedies. The judge granted the motion, explaining
that Chambers did not complete the grievance process
before bringing suit in federal court, as required by the
PLRA. Although the dismissal was without prejudice, the
judge terminated the case, explaining that “this lawsuit was
filed prematurely.” The judge also permitted pro bono
counsel to withdraw.
Chambers filed a pro se notice of appeal and sought
permission to proceed in forma pauperis. The judge denied
that request, finding that an appellate challenge to the
exhaustion ruling would be frivolous and thus not brought
in good faith. See 28 U.S.C. § 1915(a)(3). Chambers renewed
his application in this court. We authorized him to proceed
in forma pauperis and recruited pro bono counsel to assist
him on appeal. 1
II. Discussion
We review de novo a decision dismissing a prisoner’s suit
for failure to exhaust administrative remedies. Barnes v.
Briley, 420 F.3d 673, 677 (7th Cir. 2005). The PLRA provides
that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
1 David R. Fox and Benjamin C. Mizer of Jones Day accepted the repre-
sentation and have ably discharged their duties. We thank them for their
service to their client and the court.
No. 17-3503 7
other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a).
To satisfy the exhaustion requirement, an inmate must
take each of the steps prescribed by the state’s administrative
rules governing prison grievances. See Lockett v. Bonson,
937 F.3d 1016, 1025 (7th Cir. 2019). The primary justification
for requiring prisoners to exhaust administrative remedies is
to give the prison an opportunity to address the problem
before burdensome litigation is filed. Woodford v. Ngo,
548 U.S. 81, 93–95 (2006); Schillinger v. Kiley, 954 F.3d 990,
995–96 (7th Cir. 2020).
Chambers contends that his March 9, 2014 grievance suf-
ficed for exhaustion purposes. He argues that nothing more
was required of him after the Stateville grievance officer
returned the grievance unreviewed.
This argument misreads the grievance procedures out-
lined in the Illinois Administrative Code. To recap: an inmate
begins the process by submitting a written grievance to his
institutional counselor within 60 days of the incident or
problem in question. ILL. ADMIN. CODE tit. 20, § 504.810(a)
(2014). The counselor then refers the matter to the institu-
tion’s grievance office, and a grievance officer “shall consider
the grievance” and report his findings and recommendation
“in writing to the Chief Administrative Officer within two
months after receipt of the written grievance, when reasona-
bly feasible under the circumstances.” Id. § 504.830(e). The
Chief Administrative Officer then “review[s] the findings
and recommendation and advise[s] the offender of his or her
decision in writing.” Id. Dissatisfied inmates may appeal to
the ARB “within 30 days after the date of the decision.” Id.
§ 504.850(a).
8 No. 17-3503
These are the generally applicable rules. Some grievanc-
es, however, must be submitted directly to the ARB. This
category generally includes grievances regarding matters
arising at an earlier-assigned prison. At the time of these
events, the regulations required inmates to file their griev-
ances directly with the ARB when grieving “issues except
personal property issues that pertain to a facility other than
the facility where the offender is currently assigned.” Id.
§ 504.870(a)(4). 2
Chambers’s March 9 grievance sufficed to initiate the
grievance process at Stateville. But the process could not be
completed there. Chambers was transferred to the Western
Correctional Facility just eight days after his counselor
forwarded his grievance to the Stateville grievance office and
before that office could complete an investigation, much less
propose and implement any remedy. So the grievance officer
returned the grievance with a memo advising Chambers that
it had not been reviewed prior to his transfer and if he
wanted to appeal, he should forward the grievance to the
ARB with a copy of the memo.
Chambers insists that this action by the grievance officer
was procedurally improper, relieving him of the duty to
comply with any further steps in the grievance process. We
disagree. It’s true that the regulations ordinarily call for the
grievance officer to consider a grievance and forward find-
ings and a recommendation to the Chief Administrative
2 This provision was amended in 2017. It now requires inmates to file
grievances directly with the ARB when grieving “issues that pertain to a
facility other than the facility where the offender is currently assigned,
excluding personal property and medical issues.” ILL. ADMIN. CODE
tit. 20, § 504.870(a)(4) (2017).
No. 17-3503 9
Officer, who issues a decision to the inmate, which the
inmate may then appeal. But the usual process was inter-
rupted when Chambers was transferred to another prison.
At that point his problem could no longer be remedied at
Stateville. With Chambers now at another prison, the griev-
ance officer could do no more than refer him to the ARB for
relief. Whether by “appeal” or through a fresh grievance
raising a problem that occurred at an earlier-assigned facili-
ty, Chambers needed to submit the matter to the ARB.
We grant that the grievance officer’s use of the word “ap-
peal” was unusual, but the important point is that the regu-
lations required Chambers to take his complaint about his
medical care at Stateville to the ARB for decision. He did not
do so. Instead, he went to court. That’s a violation of the
PLRA’s exhaustion requirement.
Chambers has a fallback argument, raised for the first
time on appeal. He argues that because he eventually filed a
grievance with the ARB and later amended his complaint,
his suit is saved. Setting aside the question of waiver, this
argument is meritless. By its plain terms, the PLRA requires
prisoners to exhaust administrative remedies before filing
suit; a “sue first, exhaust later” approach is not acceptable.
See Ford v. Johnson, 362 F.3d 395, 398–400 (7th Cir. 2004). A
premature lawsuit must be dismissed without prejudice, and
the prisoner must file a new suit after fully exhausting
administrative remedies. Id. at 401.
Our decisions in Cannon v. Washington and Barnes v.
Briley are not to the contrary. Those cases addressed amend-
ed complaints raising new claims that the plaintiff had
exhausted while litigation was ongoing. Cannon v. Washing-
ton, 418 F.3d 714, 717–19 (7th Cir. 2005) (per curiam); Barnes,
10 No. 17-3503
420 F.3d at 678. Chambers’s claim against Dr. Sood is not
new; it’s the same claim he raised in his original pro se
complaint, albeit against “Unknown Doctor #1.” The judge
was right to dismiss this suit.
AFFIRMED