« Ind Decisions - Supreme Court issues one today | Main | Ind. Courts - "Conflict of Interest Complaint Targets Spencer Co. Prosecutor" »

Wednesday, October 15, 2014

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal - J.Posner: "[W]e have in this case ... a muddle created by the people running the jail"

In Randy Swisher v. Porter County Sheriff's Department (ND Ind., Nuechterlein), a 5-page opinion, Judge Posner writes:

The plaintiff brought this suit un-der 42 U.S.C. § 1983 complaining that while a pretrial de-tainee in a jail in Porter County, Indiana, he was denied medical care for a bullet wound to his abdomen, and other essential medical care, during his nine-month sojourn at the jail. He named as defendants the local sheriff plus jail per-sonnel, including the warden and other officers and the jail’s physician and head nurse. The district court, while fully crediting the plaintiff’s testimony at an evidentiary hearing, dismissed his suit for failure to exhaust administrative rem-edies. 42 U.S.C. § 1997e(a).

There was no record in the jail’s grievance log of the plaintiff’s having filed a grievance. But at the hearing he tes-tified that he’d never received, or been given access to, a copy of the jail’s grievance procedure, though he knew from other inmates of the jail that there was such a procedure and knowing this asked a guard for a grievance form but wasn’t given it.

Indiana requires every correctional facility to have a grievance procedure. Indiana Code § 11-11-1-2. * * *

[T]he magistrate judge credited the plaintiff’s testimony in its entirety. Yet surpris-ingly he ruled that the plaintiff had not exhausted his administrative remedies, because while knowing there was a grievance procedure he never submitted a written grievance. He had given up too soon, the magistrate judge reasoned, by failing to take additional action when his verbal requests for attention to his medical problems had no effect. The magistrate judge thought it enough to require dismissal of the suit that the plaintiff “was not prevented from obtaining a form,” was not “told that no grievance system existed,” and was not told that “he could not ever file a written grievance.”

A dose of common sense would have led the magistrate judge to a different conclusion. If you are an inmate and you speak to senior jail officers up to and including the Warden of the jail and are told not to file a grievance because the officers understand your problem and will resolve it without need for you to invoke the formal grievance procedure and they don’t tell you how to invoke that procedure, you are entitled to assume that you don’t have to file a written grievance. Anyway no one was willing to give the plaintiff a grievance form or even explain the grievance procedure to him, so he couldn’t have filed a written grievance even if he had thought it necessary. And can one imagine the plaintiff’s telling the warden: “you tell me I don’t need to file a grievance but I know better”? * * *

[W]e have in this case, as in Roberts v. Neal, 745 F.3d 232 (7th Cir. 2014), a muddle created by the people running the jail. When a jail official invites noncompliance with a procedure the prisoner is not required to follow the procedure. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005). When jail personnel mislead inmates about how to invoke the procedure the inmates can’t be blamed for failing to invoke it. [Cites omitted]

The judgment in favor of the defendants is reversed and the case remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on October 15, 2014 02:11 PM
Posted to Ind. (7th Cir.) Decisions