Opinion
24-1391
12-05-2024
KEVIN E. SMITH, Plaintiff-Appellant, v. BELINDA FOSTER, et al., Defendants-Appellees.
NONPRECEDENTIAL DISPOSITION
Submitted December 2, 2024 [*]
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:22-cv-00404-JRS-CSW James R. Sweeney II, Judge.
BEFORE FRANK H. EASTERBROOK, CIRCUIT JUDGE AMY J. ST. EVE, CIRCUIT JUDGE NANCY L. MALDONADO, CIRCUIT JUDGE
ORDER
The prison Litigation Reform Act requires that prisoners who seek to sue correctional officials first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). Kevin Smith, an Indiana prisoner, swears (and the defendants dispute) that he filed a grievance alleging that the defendants violated his Eighth Amendment rights. He also swears that the prison blocked his attempt at an administrative appeal. Without holding a hearing, the district court entered summary judgment for the defendants, finding that Smith failed to exhaust available administrative remedies. Because the court should have held a hearing to determine what administrative remedies were available to Smith and if he exhausted them, we vacate and remand.
Invoking 42 U.S.C. § 1983, Smith sued Belinda Foster and three other officers, identified only by their last names, Martin, Bennett, and Hyatt. As relevant on appeal, Smith alleges that in mid-2019, while he was recovering from surgery, they maliciously interfered with his medical care and sadistically harassed him with loud noises to trigger his known anxiety and post-traumatic stress disorder.
All defendants except Foster moved for summary judgment on the ground that Smith failed to exhaust administrative remedies. The grievance process has three steps: a formal grievance (on Form 45471) to the grievance specialist; an appeal to the warden or designee; and an appeal to the grievance manager. The defendants swear that Smith never filed a formal grievance (step one). They submitted what they say are Smith's grievances from mid-2019, which address only Foster. But Smith swears that he also timely "filed a Formal Grievance due to the continued and deliberate actions of officers Martin and Bennett." He also furnished a handwritten (and difficult-to-read) document on which he says he copied the contents of that grievance. Smith attests that the prison "never responded" to his formal grievance and never gave him a receipt for his submission. When he received no response, he wrote to the warden for an appeal form. He received no response to his request for an appeal form.
The district court entered summary judgment for the three defendants. It acknowledged that Smith swore that he filed a formal grievance. But it reasoned that Smith's handwritten copy of the contents of his grievance proved otherwise because his copy was on plain paper, not Form 45471, and Smith addressed the copy to "Superintendent Brown," not the prison's grievance specialist. These two deviations satisfied the court that Smith had not exhausted administrative remedies. Then, finding no just reason for delay, the court entered final judgment for these three defendants, allowing this appeal to proceed. See FED. R. CIV. P. 54(b).
On appeal, Smith argues that, given his sworn statement that the prison never responded to the grievance he filed or gave him an appeal form, the record contains a dispute over whether he exhausted his available remedies against Martin and Bennett. When a dispute turns on the credibility of a sworn statement, a live hearing is required to determine the truth. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
Smith furnished evidence warranting a hearing on the defense of exhaustion regarding Martin and Bennett. Because he swore that he timely submitted a formal grievance about them, fulfilling step one of the administrative process, he adequately contested the defendants' counter-assertion that he never properly filed it. See Jackson v. Esser, 105 F.4th 948, 957 (7th Cir. 2024); Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014). He has also adduced evidence that the next two steps were unavailable to him: his sworn statement that the prison refused to respond to his grievance or to his request for an appeal form. "An administrative scheme can be 'unavailable' to a prisoner when a prison fails to respond to a prisoner's grievance and, in so doing, prevents that prisoner from exhausting administrative remedies." Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020). See also Ross v. Blake, 578 U.S. 632, 643 (2016).
We disagree with the district court's reasons for rejecting Smith's argument that he exhausted step one of the grievance process. First, although Smith's handwritten copy of his grievance was on plain paper rather than Form 45471, his sworn statement that he filed a "formal grievance" (that is, Form 45471) about Martin and Bennett need not be disbelieved. A court "cannot disbelieve statements in affidavits without holding a hearing." Ingram v. Watson, 67 F.4th 866, 871 (7th Cir. 2023) (vacating summary judgment and requiring a Pavey hearing). Smith's handwritten copy may simply reflect his best effort to reproduce the contents of what he submitted on Form 45471.
Second, the district court improperly reasoned that, because Smith wrote "To: Superintendent Brown," rather than "grievance specialist" on his copy, Smith did not properly address his "formal grievance" to the grievance specialist. The record contains evidence that the district court ignored-Smith's other grievances from mid-2019. These show that Form 45471 is pre-addressed to the "grievance specialist." Because Smith swears that he submitted a "formal grievance" (i.e., Form 45471) about Martin and Bennett in mid-2019, and these forms are pre-addressed to the "grievance specialist," the district court needs to hold a hearing to assess Smith's testimony that he properly submitted this grievance. See id. We note, though, that district courts may subject perjurious testimony from any party to sanctions and refer the matter to the United States Attorney to consider possible criminal prosecution. See Fulks v. Watson, 88 F.4th 1202, 1208 (7th Cir. 2023).
The defendants rest their defense on their contested view that Smith did not exhaust step one; they do not challenge Smith's evidence that he was blocked from pursuing the other two steps. Because the evidence on step one is contested regarding Martin and Bennett, it must be addressed at a live evidentiary hearing.
We therefore VACATE the judgment regarding Martin and Bennett only and REMAND for further proceedings; in all other respects the judgment is AFFIRMED.
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(C).