Carroll v. Yates, 01-2931.
| Citation | 362 F.3d 984 |
| Decision Date | 02 April 2004 |
| Docket Number | No. 01-2931.,01-2931. |
| Parties | Ronnie W. CARROLL, Plaintiff-Appellant, v. Dale R. YATES, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Kara K. Gibney (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Plaintiff-Appellant.
Brian F. Barov (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellees.
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
More than six years ago Ronnie Carroll, an Illinois state prisoner, brought suit in federal district court under 42 U.S.C. § 1983 against prison guards who, he charged, had inflicted cruel and unusual punishment on him in violation of his Eighth Amendment rights. The district court dismissed the suit on the ground that Carroll had failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). He had in fact pursued his prison grievance procedures up to the top level, the prison's Administrative Review Board, 20 Ill. Admin. Code § 504.850, which denied his appeal as "moot" (without reaching the merits) because it had been advised by a guard that Carroll had "refused to appear before the Administrative Review Board on the above date," the date on which the board had met to consider his appeal.
Carroll then filed this lawsuit, appending to his complaint the board's decision, including the notation that we just quoted. In moving to dismiss the suit, the defendants (the state, we'll call them) argued that by failing to appear in person before the board, Carroll had failed to exhaust his administrative remedies. He responded with an affidavit which stated that he had been unaware that the board had wanted him to appear in person before it. He said that out of the last 75 (! — the last 75) grievances that he had filed, the board had turned down 74 without asking him to appear. Nevertheless the district court granted the motion to dismiss, stating that Carroll had not presented "the Court with any credible evidence (or with any evidence at all) that he was unaware of the ARB hearing" and in any event had not denied receiving "a copy of the ARB panel's meeting minutes, in which the panel stated that Carroll refused to appear and in which the panel stated that it considered his grievance moot." The first quoted passage is mistaken; Carroll did present evidence, namely his affidavit, which was better evidence than the hearsay evidence of the guard who reportedly told the board that Carroll had "refused" to attend its meeting. The second passage is irrelevant because the denial of Carroll's grievance on the ground of mootness was as definitive as if the grievance had been denied on the merits; the fact that the denial was communicated to him did not detract from its finality.
The state acknowledges that there is no statutory or other rule requiring a grievant to appear in person before the board on pain of being deemed to have failed to have exhausted his remedies. If there were such a rule, violation of it would indeed be a failure to exhaust administrative remedies. Riccardo v. Rausch, 359 F.3d 510, 512-13 (7th Cir.2004); Dixon v. Page, 291 F.3d 485, 489 (7th Cir.2002); Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.2002); contra, Thomas v. Woolum, 337 F.3d 720, 732-33 (6th Cir.2003). (This would be obvious if the violation were deliberate.) But such a rule would be absurd; it would hamstring the board, which, as Carroll's own experience attests, usually turns down appeals without interviewing the grievant. Would the board really have liked having Carroll appear before it in person 75 times?
The power granted the board to "call witnesses or examine records at its discretion," 20 Ill. Admin. Code § 504.850(d), authorizes it to require the grievant's appearance, and if he refuses he will have failed to have exhausted his remedies, Ford v. Johnson, 362 F.3d 395, 397, 2004 WL 574995, at *1 (7th Cir.2004), because exhaustion presupposes cooperation with any authorized requirements imposed by the administrative bodies whose procedures must be exhausted. Hill v. Potter, 352 F.3d 1142, 1146 (7th Cir.2003); Rann v. Chao, 346 F.3d 192, 196-97 (D.C.Cir. 2003); Martinez v. Department of U.S. Army, 317 F.3d 511 (5th Cir.2003); Jasch v. Potter, 302 F.3d...
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