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Seventh Circuit Reinstates Suit of Epileptic Illinois Prisoner Who Suffered Seizure and Fell From Top Bunk

by Ed Lyon

On October 26, 2021, the U.S. Court of Appeals for the Seventh Circuit reversed the decision of a federal district court in Illinois to dismiss a suit brought by an epileptic prisoner forced to sleep in an upper bunk from which he fell when having a seizure and sustained injuries.

The prisoner, Damon Turnage, arrived at the Cook County Jail in Chicago on April 9, 2016, advising officials at intake that he suffered epilepsy and needed a lower bunk to reduce the possibility of severe injury should he fall from it while having a seizure. He was issued a bottom-bunk permit, but he was then assigned to a cell shared with another prisoner who also held a bottom-bunk permit. Because he was the latecomer, Turnage was forced to accept a top-bunk assignment.

On May 5, 2016, he had a seizure and fell from his bunk, suffering a head injury that sent him to a hospital emergency room. He filed a grievance two days later over the top-bunk assignment, which was denied, and he did not appeal. He filed another grievance on August 8, 2016, and when that was also denied, he filed an appeal on September 10, 2016.

By that point he had been moved to another cell where he faced the same situation: His cellmate also held a bottom-bunk permit, and Turnage was again the latecomer forced into the top bunk. Just over three weeks later, on September 21, 2016, he fell from his bunk once more, presumably during a seizure. He sustained several injuries, including a broken ankle. He filed another grievance five days later on September 26, 2016. When that was also denied he filed another appeal.

After that was denied, he filed suit in federal district court for the Northern District of Illinois, aided by Chicago attorney Thomas G. Morrissey and another lawyer with his eponymous firm, Patrick W. Morrissey, alleging deliberate indifference to a serious risk of harm in violation of 42 U.S.C. § 1983, as well as violations of the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq., and the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq.

But District Court Judge Charles R. Norgle granted summary judgment to the defendants on November 2, 2020, deciding that Turnage had failed to exhaust his remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.

Judge Norgle said the first grievance filed and denied in May 2016 was not exhausted because Turnage failed to appeal it. The second complaint over that fall which was then filed in August 2016 fell outside the jail’s 15-day grievance-filing window. Moreover, the third grievance was also filed too late, Judge Norgle said, because Turnage’s earlier fall meant that he should have made a complaint within 15 days of his assignment to the upper bunk in his new cell.

Turnage appealed to the Seventh Circuit, which reviewed the lower court’s analysis and determined that “[i]n the district court’s view, failure to file a grievance about the risk of injury permanently blocks any complaint about actual injury when the risk comes to pass.” The Court, however, disagreed, noting that though “[p]erhaps it would be possible for a prison system to write its rules that way … Cook County Jail did not do so.”

Under jail rules, a grievance could be filed after any “incident, problem, or event,” the Court noted. So while Turnage encountered a “problem” when he was assigned the top bunk in his new cell, he later had an “incident” or “event” when he fell from it. “These were separate occasions for grievances,” the Court concluded, “and we do not see anything in the rules that makes omission of the first possible grievance … a bar to filing a later grievance.”

Because the jail accepted the grievance complaining of the second injury within 15 days of its occurrence, rejected it on the merits and rejected that decision’s appeal, Turnage’s administrative remedies were properly exhausted pursuant to Maddox v. Love, 665 F.3d 709 (7th Cir. 2011) and Ross v. Blake, 578 U.S. 632, 136 S. Ct. 1850 (2016).

Thus the decision was vacated and the case remanded to the district court, where it remains pending, and PLN will report developments as they become available. See: Turnage v. Dart, 16 F.4th 551 (7th Cir. 2021). 

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Related legal case

Turnage v. Dart