Seventh Circuit: Attorney’s Submission of Illinois Prisoner’s Grievance Exhausts Administrative Remedies
by David M. Reutter
The U.S. Court of Appeals for the Seventh Circuit on January 11, 2023, affirmed a district court ruling that when an Illinois prisoner’s attorney submitted his grievances to the appropriate administrative office on time, his administrative remedies were exhausted, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.
While held by the state Department of Corrections (DOC) at Hill Correctional Center, Randall J. Behning was allegedly attacked by guards after requesting daily medication that had been delayed. He accused two guards of assaulting him while others looked on. Behning further claimed he received inadequate medical care from Nurse Paula Young when taken to the prison emergency room. He also alleged denial of due process in prison disciplinary proceedings, when he was found guilty of assaulting the guard instead.
As a result of that finding, Behning was transferred to Pontiac Correctional Center and placed in solitary confinement. He attempted to file grievances there concerning the altercation, his claims of inadequate medical care and alleged procedural defects in his disciplinary hearing. Because he was at a prison other than the one where the incidents occurred, he was required by policy to submit his grievances to the DOC Administrative Review Board within 60 days.
That set a February 5, 2019, deadline for Behning. He claimed he sent a grievance to the Board on December 18, 2018. He also sent a copy to his attorney, who forwarded it to the Board on January 22, 2019. But the Board returned the attorney’s submission, stating that only prisoners are permitted to submit grievances. Behning filed another grievance on February 20, 2019, but the Board rejected it as untimely.
Behning then filed a complaint pro se pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights through use of excessive force and provision of inadequate medical care, as well as due process violations in the disciplinary hearing. The U.S. District Court for the Central District of Illinois granted Defendants’ motion for summary judgment, agreeing with them that Behning failed to exhaust administrative remedies as required under PLRA. Behning appealed.
He argued that his non-medical grievances filed by his attorney were improperly rejected because DOC policy does not specifically prohibit an attorney from filing grievances for his client. The Seventh Circuit quoted the policy at issue, 20 Ill. Admin. Code § 504.870(a): “Offenders shall submit grievances directly to the Administrative Review Board.” But what does directly mean? The issue Behning presented was one of first impression.
In contrast to 28 C.F.R. § 542.16, the federal regulation governing grievances in the Bureau of Prisons, DOC policy does not specifically prohibit grievance submissions by third parties, the Court found. So when the policy said directly, it was understood “to mean not personally but directly with the appropriate office – here the Review Board,” the Court added. Since this is what Behning did, he did not attempt to skirt grievance procedures.
Therefore Behning had exhausted his administrative remedies as to the non-medical issues. He brought no meaningful challenge on appeal as to dismissal of Nurse Young. So the district court’s order was affirmed as to her, vacated as to the remaining defendants, and the case was remanded for further proceedings. See: Behning v. Johnson, 56 F.4th 1137 (7th Cir. 2023).