Bowers v. Dart, 20-1516

• Decision Date: 16 June 2021
• Docket Number: No. 20-1516,20-1516
• Citation: 1 F.4th 513
• Parties: Marque BOWERS, Plaintiff-Appellant, v. Thomas J. DART, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

1 F.4th 513

Marque BOWERS, Plaintiff-Appellant,

v.Thomas J. DART, et al., Defendants-Appellees.

No. 20-1516

United States Court of Appeals, Seventh Circuit.

Argued January 22, 2021

Decided June 16, 2021

Patrick W. Morrissey, Attorney, Thomas G. Morrissey, Ltd, Chicago, IL, for Plaintiff-Appellant.

Michael P. Gorman, Attorney, Office of the Cook County State's Attorney, Rachael Wilson, Attorney, Office of the Cook County State's Attorney, Torts and Civil Rights Litigation, Chicago, IL, for Defendants-Appellees.

Before Ripple, Kanne, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Cook County inmate Marque Bowers filed this federal civil rights lawsuit after other inmates attacked him in 2012. Bowers alleged that Cook County, the Cook County Sheriff, and other Cook County Jail employees failed to protect him, instituted an observation policy that caused the attack, and later discriminated against him because of a resulting disability. The district court dismissed most of Bowers's claims before trial and, after a jury returned a verdict in the Sheriff's favor on the remaining claims, denied Bowers's post-trial motions. Bowers now appeals from each of the district court's determinations. We affirm.

I

On December 31, 2012, a group of inmates at the Cook County Jail attacked Marque Bowers in the housing block hallway. The assault left Bowers in the jail infirmary with serious injuries, and the record shows that he uses a jail-provided wheelchair to this day. The jail is short on ADA-compliant cells, however, and, save for one month, Bowers has lived in cells without accessible showers or toilets.

A few days after the attack, on January 3, 2013, Bowers submitted a grievance complaining that his "repeated cries for help [went] unresponded to by the [correctional officer] on duty" and urging the jail to "press charges on all of the people who were identified for assaulting" him on New Year's Eve. The jail responded that it would contact Bowers to press charges against the inmates he identified as attackers. Not satisfied by this response, Bowers appealed to the Director of Program Services, but the Director denied the administrative appeal. Bowers learned of the denial on February 26, 2013.

So Bowers tried again. That same day, he filed a second grievance. The jail requires that inmates file any grievance within 15 days of the triggering event, however, so it processed Bowers's February 26 submission as a "non-grievance." The jail nonetheless reassured Bowers that the Office of Professional Review remained in the process of investigating his allegation that the officer on duty at the time of the December 31 attack ignored him. That Office later cleared the correctional officer of any misconduct related to the attack.

Fast forward to February 22, 2016, the day Bowers filed his complaint in federal court. In his complaint, Bowers raised claims under 42 U.S.C. § 1983 alleging that three jail employees—Officer Rottar, Social Worker Puckett, and Lieutenant Tucker—had advance notice of the risk that he would be attacked yet failed to protect him from harm.

Bowers also raised a municipal liability claim under Monell v. Department of Social Services of New York . See 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (permitting § 1983 actions against bodies of local government if a constitutional injury is caused by an official policy, a widespread and well-settled practice or custom, or an official with final policy-making authority). He alleged that the Cook County Sheriff's Department's observation policy—known as "vertical cross-watching"—enabled the attack. Under that policy, officers assigned to one floor of the housing block cover other floors while the officers assigned to those floors are on break. To Bowers's mind, this policy left him vulnerable and delayed the officer's response.

Finally, Bowers alleged that the Sheriff's failure to provide ADA-compliant facilities after the attack constituted disability discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act.

The litigation did not go well for Bowers. The district court dismissed his failure-to-protect claims as unexhausted and his Monell claim as untimely. And although Bowers's ADA and Rehabilitation Act claims proceeded to trial, the jury returned a verdict in favor of the Sheriff, and the district court denied Bowers's post-trial motions. Bowers now appeals each of the district court's three adverse rulings.

II

We begin with the district court's conclusion that Bowers, before filing suit in federal court, did not exhaust his failure-to-protect claims as required by the Prison Litigation Reform Act of 1995. See 42 U.S.C. § 1997e(a). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock , 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

The Cook County Department of Corrections has established a procedure directing any aggrieved inmate to file an internal grievance within 15 days of the triggering event. Bowers followed that procedure here. He filed a grievance just a few days after the attack, complaining that the officer on duty did not respond to his pleas for help. But the district court identified a problem for Bowers: the allegation in his grievance—that the correctional officer ignored him during the attack—is substantively distinct from the allegation in his federal complaint—that numerous prison employees knew of the risk and did nothing to protect Bowers from the impending harm before it occurred. This disconnect between the grievance and complaint, the district court determined, meant that Bowers had failed to exhaust his administrative remedies.

The district court got this right. Bowers alleged in his complaint that he "made repeated complaints to defendants Rottar, Puckett, and Tucker that he had received threats of physical violence from other detainees and requested to be moved to a different housing unit," and that they "had the power to transfer, or to request a transfer, or move plaintiff to a more secure environment and thereby protect plaintiff from an unnecessary risk of physical harm." But Bowers presented none of these allegations to the jail through the grievance process, and federal courts lack discretion to consider a claim that has not traveled the required administrative path. See Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ("[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion."). Contending that Officer Rottar failed to come to his aid during the attack is not the same as alleging that the jail employees predicted but ignored the risk.

Although the district court determined that Bowers did not exhaust his failure-to-protect claim, it concluded that Bowers had exhausted his Monell claim. As the court recognized, Bowers complained in his grievance that the correctional officer did not respond in the heat of the attack, and his theory is that the Department's vertical cross-watching policy prevented a timely response in that moment. So, although Bowers's failure-to-protect claim could not withstand the PLRA exhaustion requirement, his Monell claim survived dismissal and proceeded to discovery and ultimately summary judgment.

III

That brings us to the district court's conclusion at summary judgment that Bowers filed his Monell claim after the statute of limitations had expired. Because § 1983 does not contain an express limitations period, federal courts adopt the law of the forum state. See Johnson v. Rivera , 272 F.3d 519, 521 (7th Cir. 2001). Bowers's Monell claim is thus subject to Illinois's two-year limitations period. See id. Illinois law also provides that the limitations period tolls while an inmate exhausts administrative remedies pursuant to the PLRA. See id. at 522.

We see the timeline just as the district court did. The alleged attack occurred on December 31, 2012. Bowers had 15 days to file any grievance related to the attack, and, after he received a response, 14 days to file an administrative appeal. He proceeded through that process and learned that the jail denied his appeal on February 26, 2013. At that point, no remedies remained for Bowers to exhaust: he could not file a new grievance because more than 15 days passed since the attack, and there is no procedural step beyond denial of an appeal. So the two-year clock began ticking, giving Bowers until February 26, 2015 to file his federal complaint. Because he did not do so until nearly one year later, on February 22, 2016, we agree that Bowers's § 1983 claim is untimely.

Bowers presses a different view. The statute of limitations, he contends, should have been tolled while the Cook County Office of Professional Review investigated the correctional officer's conduct related to the attack. That investigation did not conclude until June 2015, giving Bowers, as he sees the timeline, until June 2017 to file his complaint.

Here too Bowers falls short. The presence of an internal-affairs investigation does not lead to any remedies for the prisoner. As we explained in Pavey v. Conley , the PLRA "is concerned with the ‘remedies’ that have been made available to prisoners. An internal-affairs investigation may lead to disciplinary proceedings targeting the wayward employee but ordinarily does not offer a remedy to the prisoner who was on the receiving end of the employee's malfeasance." 663 F.3d 899, 905 (7th Cir. 2011). Where a process does not lead to a remedy for the prisoner under the PLRA, there is nothing for the inmate to exhaust and the statute of limitations does not toll. We see no error in the district court's dismissal of Bowers's Monell claim as untimely.

IV

We arrive at the district court's determinations following Bowers's trial on his ADA and Rehabilitation Act discrimination claims against the Cook County Sheriff. Recall the relevant allegations:...