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Seventh Circuit Reiterates That Threats and Withholding Grievance Forms Render Administrative Remedies Unavailable to Prisoner

by Mark Wilson

On January 24, 2022, the U.S. Court of Appeals for the Seventh Circuit vacated the dismissal of a federal prisoner’s suit and remanded the case to the district court, after finding that prison officials failed to carry their burden of proof that administrative remedies were actually available to him.

Under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, state and federal prisoners must exhaust all available administrative remedies before bringing federal suit. But non-exhaustion is an affirmative defense for those accused, and prison officials bear the burden of proving it.

The facts underlying this case began in December 2019, while federal prisoner Eric Gooch was confined at the U.S. Penitentiary in Terre Haute, Indiana. Guards Lt. S. Young and J. Wilson allegedly informed another prisoner—falsely—that Gooch had stolen from him, directing the second prisoner, Steven Gantt, to “take action on this matter.”

On December 8, 2019, Gantt attacked Gooch with a weapon. When Gooch attempted to defend himself, Wilson intervened, ordering Gooch to lie on the floor, where the other prisoner then attacked him again.

Afterward, Gooch’s counselor refused to give him a grievance form, saying Gooch had “better watch out snitching on staff.” Over the next two days, multiple guards taunted Gooch, calling him “a rat” and telling him to “go ahead and write staff up” and adding, “the next time you’re gonna die.”

On the third day after the attack, Gooch filed suit pro se in federal court for the Southern District of Indiana, accusing the guards of violating his Eighth Amendment guarantee of freedom from cruel and unusual punishment by encouraging the attack on him.

Because Defendants were federal officials and not employees of a state or local government, Gooch did not proceed under 42 U.S.C. § 1983, instead filing an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which in the Seventh Circuit “allows suits against federal employees for violation of constitutional rights.” See: Khan v. United States, 808 F.3d 1169 (7th Cir. 2015).

The first thing the district court did, in February 2020, was dismiss Gooch’s claims against the guards in their official capacities, since in that role they enjoy the federal government’s sovereign immunity, and Bivens allows claims against defendants acting in their individual capacities only. See: Gooch v. Young, 2020 U.S. Dist. LEXIS 32659 (S.D. Ind.).

The guards then moved for summary judgment under PLRA, arguing that Gooch failed to exhaust his administrative remedies. Gooch responded that those remedies were effectively unavailable to him, citing his counselor’s refusal to give him a grievance form.

The guards countered that the federal Bureau of Prisons (BOP) has a remedy for that—grieving directly to a BOP Regional Director—which Gooch didn’t do. The prisoner then pointed to the threats he received from other guards, saying they put him in fear for his life if he pursued the BOP grievance process. The guards said he was exaggerating, pointing to the short time Gooch gave the process by waiting just three days after the attack to file suit.

The district court agreed with the guards. In March 2020, it granted summary judgment to Defendants. Aided by Washington, D.C. attorneys David Mattern of King & Spalding LLP and Devi M. Rao of the Roderick and Solange MacArthur Justice Center, Gooch appealed.

Taking up the case, the Seventh Circuit noted that Defendants had “adduced no other evidence and did not take discovery on exhaustion or the availability of the forms to Gooch.”

“Nor,” the Court continued, “did they ask for an evidentiary hearing on exhaustion under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).

The argument that Gooch could have filed a grievance directly with the BOP Regional Director is “hard to square with BOP regulations,” the Court continued, since those specifically state that the process must start with a grievance on the proper form, which was allegedly withheld from Gooch.

Citing its own ruling in Hill v. Snyder, 817 F.3d 1037 (7th Cir. 2016), the Court said that “exhaustion is not required when the prison officials responsible for providing grievance forms refuse to give a prisoner the forms necessary to file an administrative grievance.”

Also, recalling Dale v. Lappin, 376 F.3d 652 (7th Cir. 2004), the Court said it had “rejected the defendants’ assertion that inmates need not use the form to submit a grievance because the prison’s policy plainly stated that the form was required,” meaning that administrative “remedies were not available to the inmate.”

“Under Hill and Dale, the prison’s refusal to provide the form suffices to show that Gooch did not have administrative remedies available,” the Court concluded.

Turning to the threats Gooch alleged from other guards, the Court said, “a remedy is not considered ‘available’ to an inmate who is prevented by threats or intimidation by prison officials from submitting a grievance,” citing Shultz v. Pugh, 728 F.3d 619 (7th Cir. 2013).

In short, it was Defendants’ burden to disprove Gooch’s assertions that the counselor withheld the necessary form and that other guards thwarted the grievance process after that, the Court said. They failed to do so, so they “were not entitled to summary judgment because they did not demonstrate that administrative remedies were available to Gooch, and Gooch provided evidence to the contrary.”

Thus the district court’s judgment was vacated and the case remanded for further proceedings. See: Gooch v. Young, 24 F.4th 624 (7th Cir. 2022).

The case has now returned to the district court, where Defendants replied on May 25, 2022, to an order to show cause why summary judgment should not be granted to Plaintiff. PLN will report that decision when it is reached. See: Gooch v. Young, USDC (S.D. Ind.), Case No. 2:19-cv-00607. 

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Related legal case

Gooch v. Young