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Seventh Circuit: District Court Erred in Dismissing Prisoner’s § 1983 Suit for Failure to Exhaust

by Lonnie Burton

The Court of Appeals for the Seventh Circuit has reversed a district court’s order dismissing a Wisconsin state prisoner’s 42 U.S.C. § 1983 lawsuit on the grounds that he failed to exhaust his administrative remedies. The appellate court held the lower court had erred when it failed to consider extenuating circumstances which rendered the administrative remedies “unavailable.”

Mark Weiss filed his complaint in 2016 alleging that Wisconsin prison officials failed to prevent an assault by his cellmate that resulted in a broken ankle. The lawsuit further alleged that the Wisconsin Department of Corrections (WDOC) left his broken ankle untreated for over six months, in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.

The defendants moved to dismiss the suit, arguing Weiss had failed to exhaust his administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a). The state alleged that Weiss did not fully exhaust the prison system’s grievance procedure as he did not file a timely appeal of his initial grievance. The district court agreed, granted summary judgment to the defendants and dismissed the suit. Weiss appealed, arguing that the court had failed to consider his uncontested factual allegations in which he contended he was prevented from complying with the exhaustion requirements.

The Seventh Circuit held on April 7, 2017 that Weiss was correct and reinstated his lawsuit. “The district court ignored the fact that [Weiss had done] the best he could do under the circumstances,” the appellate court wrote, “given his transfer to the mental-health unit and, once he was there, being forced to take psychotropic drugs that muddled his thinking.”

According to court records, Weiss alerted guards that his cellmate had threatened him on more than one occasion but they ignored his warnings. He was later assaulted by his cellmate, resulting in a broken ankle. Prison staff said it was only a sprain and refused to provide treatment – not even a bag of ice. Weiss was infracted for fighting then transferred to another prison’s mental health unit and heavily medicated against his will. Before he was transferred, Weiss submitted a grievance over the assault and lack of medical treatment, but the response was never forwarded to him at his new prison, thus he never had a chance to file an appeal.

Six months after the injury, Weiss’ ankle was finally X-rayed and it was discovered that it was in fact broken. Weiss then submitted another grievance about the lack of treatment, but prison officials dismissed it as “untimely.” When Weiss filed his complaint, the district court blindly accepted the state’s assertion that Weiss failed to exhaust his administrative remedies without considering the circumstances which prevented him from completing the grievance process. That was error, the Seventh Circuit held.

“Prisoners can’t be required to exhaust remedies unavailable to them,” the appellate court wrote. Administrative remedies are unavailable if “the prisoner can’t obtain or complete the forms required to invoke them.” The district court knew that Weiss was grappling with serious mental health issues and was heavily medicated during the time he was supposed to have exhausted his administrative remedies, the Court of Appeals said. That, coupled with the fact there was evidence that due to Weiss’ transfer he never received a response to his initial grievance, led the Court to state, “we cannot have any confidence that administrative remedies were actually available to him.”

Lastly, the appellate court found that Weiss’ second grievance filed after the X-rays revealed a broken ankle was not untimely because a “cause of action accrues on the date of the last incidence of an ongoing harm.” Weiss’ second grievance was not time barred because the WDOC’s negligence that “prolonged [Weiss’] agony by not treating his painful condition marked a fresh infliction of punishment.”

Considering all of these circumstances, the Seventh Circuit held that Weiss’ suit had been improperly dismissed and remanded the case for further proceedings, where it remains pending. See: Weiss v. Barribeau, 853 F.3d 873 (7th Cir. 2017). 


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Related legal case

Weiss v. Barribeau