Seventh Circuit Also Rules Internal Investigation Does Not Toll Exhaustion
by Jacob Barrett
A June 16, 2021, ruling by the U.S. Court of Appeals for the Seventh Circuit highlights the importance for prisoners who file grievances to make sure they are not so narrowly drawn as to preclude filing a court suit under 42 U.S.C. § 1983 if relief is not provided.
The facts of the case are troubling. While Marque Bowers was being held in the Cook County Jail in Chicago, he was brutally attacked by fellow prisoners on December 31, 2012. As the Court noted, the assault “left Bowers in the jail infirmary with serious injuries, and the record shows that he uses a jail-provided wheelchair to this day.”
To make matters worse, the jail had more disabled prisoners than it had cells compliant with the Americans with Disabilities Act (ADA), so Bowers lived almost entirely in “cells without accessible showers or toilets,” the Court acknowledged.
A few days after the attack, on January 3, 2013, Bowers submitted a grievance, alleging that a guard on duty failed to respond to his “repeated cries for help” and asking for charges to be filed against the attackers he identified. The jail responded that it would contact Bowers to press charges against the prisoners he identified.
Bowers was not satisfied with that response, so he filed another appeal, which was denied on February 26, 2013. That same day, he filed a second grievance. The jail, however, required that prisoners file grievances within 15 days of the event, so it processed Bowers’ second appeal as a “non-grievance,” assuring him that the Office of Professional Review (OPR) was investigating his allegations against the guard.
OPR eventually cleared the guard of misconduct. After that, Bowers filed suit under § 1983 in U.S. District Court for the Northern District of Illinois on February 22, 2016, alleging that defendants failed to protect him, instituted a policy that caused the attack, and also discriminated against him because of his resulting disability.
The district court dismissed Bowers’ failure-to-protect claim, saying he had not exhausted his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (PLRA) because his prison grievances did not assert the same claims as his complaint.
The court also looked at his Monell claim, based on Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), which permits §1983 actions against bodies of local government if a constitutional injury is caused by an official policy, a widespread and well settled practice or custom, or an official with final policy-making authority. Here the ruling also went against the prisoner, with the court finding he filed his claim after the two-year statute of limitations had expired.
Having dismissed most of Bowers’ claims, the court allowed the remaining claims under ADA and the Rehabilitation Act to proceed to trial, where Bowers lost when a jury returned a verdict in favor of the defendants in September 2017.
Bowers then appealed to the Seventh Circuit. In a ruling issued on June 16, 2021, the Court affirmed the district court’s dismissal of his failure-to-protect claims for failure to exhaust his administrative remedies as required by PLRA.
Specifically, while Bowers alleged in his complaint that he “made repeated complaints to defendants he had received threats of physical violence from other detainees and requested to be moved to a different housing unit,” and that they “had the power to transfer, or to request a transfer, or move [him] to a more secure environment and thereby protect [him] from an unnecessary risk of physical harm,” he failed to make those allegations through the grievance process.
Thus, the Court said that the lower court had correctly observed a “disconnect” between his grievance—that a guard ignored him during the assault—and his federal claim that numerous prison employees knew of the risk and did nothing to protect him.
“Contending [the guard] failed to come to his aid during the attack is not the same as alleging that the [the defendants] predicted but ignored the risk,” the Court concluded.
The Court also affirmed the lower court’s finding that Bowers’ Monell claim was filed after the two-year deadline passed. He had 15 days to file any grievance related to the attack, and 14 days after he received a response to file an administrative appeal. He proceeded through that process and learned that the jail denied his appeal in February 2013. So the two-year clock began ticking, giving Bowers until February 2015 to file his federal complaint, which he didn’t file until February 2016.
Bowers argued the statute of limitations should have been tolled from the later conclusion of the OPR investigation. But the Court held that “[t]he presence of an internal-affairs investigation does not lead to any remedies for the prisoner.” The Court explained that “[a]n internal-affairs investigation may lead to disciplinary proceedings targeting the wayward employee but ordinarily does not offer a remedy” to the prisoner on the receiving end of the employee’s misconduct. “Where a process does not lead to a remedy for the prisoner under the PLRA, there is nothing for the prisoner to exhaust and the statute of limitations does not toll,” the Court concluded.
At trial, Bowers had maintained that defendants intentionally discriminated against him because of his disability when they failed to house him in an ADA-compliant cell following the attack. But the jury returned a verdict in favor of the Sheriff on this claim, and the Court noted that “Bowers had to prove that he is a qualified individual with a disability, and that he was denied access to a service, program or activity because of his disability.” He contended that because he was wheelchair-bound, he was impaired, or that, “at the very least, the jail regarded him as being impaired by providing him a wheelchair.”
While the Court did not “doubt that a physical condition resulting in wheelchair use [would] generally be one that reflects a substantial limitation,” it said that the jury was presented sufficient evidence to find that Bowers lied about needing a wheelchair. In fact, Bowers had admitted to moving his leg in a video taken immediately after the attack, and he refused to submit to MRI and EMG testing.
“His refusal to undergo the tests may have raised suspicion with at least some members of the jury,” the district court concluded, so the Seventh Circuit agreed that a reasonable jury could find that Bowers was not a qualified individual with a disability. Thus, the district court’s affirmation of the jury verdict in favor of defendants was also affirmed. See: Bowers v. Dart, 1 F. 4th 513 (7th Cir. 2021).
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Related legal case
Bowers v. Dart
|Cite||1 F. 4th 513 (7th Cir. 2021)|
|Level||Court of Appeals|
|Appeals Court Edition||F.4th|