Curtis v. Timberlake

• Decision Date: 06 October 2005
• Docket Number: No. 05-1239.,05-1239.
• Parties: James CURTIS, Plaintiff-Appellant, v. Percy TIMBERLAKE and Charles Jefferson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 709

436 F.3d 709

James CURTIS, Plaintiff-Appellant, v. Percy TIMBERLAKE and Charles Jefferson, Defendants-Appellees.

No. 05-1239.

United States Court of Appeals, Seventh Circuit.

Submitted September 22, 2005.^*

Decided October 6, 2005.

Published January 27, 2006.^**

Appeal from the United States District Court for the Northern District of Illinois, Arlander Keys, United States Magistrate Judge.

James Curtis (submitted), Joliet, IL, pro se.

Daniel J. Fahlgren, Office of the Cook County State's Attorney, Chicago, IL, for Defendants-Appellees.

Before COFFEY, ROVNER, and WOOD, Circuit Judges.

PER CURIAM.

James Curtis brought suit under 42 U.S.C. § 1983 claiming as relevant here that guards Percy Timberlake and Charles Jefferson violated his right to due process by assaulting him without provocation while he was a pretrial detainee at the Cook County jail in Chicago. A magistrate judge, presiding by consent, granted summary judgment for the guards, reasoning that Curtis filed his complaint without first exhausting his administrative remedies as required by 42 U.S.C. § 1997e(a). We vacate and remand.

Curtis alleged in his complaint that Timberlake and Jefferson mistakenly concluded that he tried to take extra T-shirts from the jail's clothing desk, and so they hit him several times and threw him against a wall. Curtis added that he gave a grievance to a jail social worker the next day but never received a response to the grievance or to any of the inquiries he made over the next several months. The two guards filed separate answers denying that they beat Curtis, and both responded at the time that they did not know whether Curtis filed a grievance.

Several months later Timberlake and Jefferson moved for summary judgment on the sole basis that Curtis failed to exhaust his administrative remedies as required by § 1997e(a). The defendants pointed to Curtis's deposition testimony that he hand-delivered his grievance to Sister Rosemary Dowd, the social worker assigned to his housing unit at the time of the alleged assault, rather than depositing it in a lockbox provided for that purpose. In their motion the defendants cited section III.B.2 of the Detainee Grievance Procedures providing that grievances "will be placed in the designated locked box" for collection by the social worker. The defendants also submitted Sister Dowd's affidavit testimony that she could not find a record of this particular grievance and did not recall receiving it. She added, however, that she had "received several request slips and grievances" from Curtis "on previous occasions," and that if Curtis had given her a grievance after this incident, she would have followed her standard practice of noting it in a master tracking log, assigning a control number, and returning a copy with the control number to Curtis. Moreover, Sister Dowd did not deny that she would accept hand-delivered grievances from inmates rather than insisting on use of the lockbox. In his verified response, Curtis insisted that he wrote a grievance and gave it to Sister Dowd in a sealed envelope, and that the procedure for use of the lockbox "did not limit social workers from accepting grievances by hand." The magistrate judge, although assuming that the question of whether Curtis in fact gave a grievance to Sister Dowd was disputed, reasoned that summary judgment for the guards was nonetheless warranted because Curtis admittedly failed to use the designated lockbox. The court did not address Curtis's contention that use of the lockbox had become optional, reasoning that his own evidence contradicted his position.

On appeal Curtis makes two arguments. First he contends that the magistrate judge erred in granting summary judgment because the guards failed to assert lack of exhaustion in their answers and therefore waived this affirmative defense. We disagree. Noncompliance with § 1997e(a) is an affirmative defense, Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir.2005); Massey v. Helman, 196 F.3d 727, 734-35 (7th Cir.1999), and Curtis is correct that Fed.R. Civ. P. 8(c) requires affirmative defenses to be raised in the pleadings. Nonetheless, we have held that a delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed as a result. Williams v. Lampe, 399 F.3d 867, 870-71 (7th Cir.2005) (per curiam); Carter v. United States, 333 F.3d 791, 796 (7th Cir.2003). Curtis was not prejudiced; he was aware of the exhaustion issue even when he filed his complaint, and he confronted the defense in responding to the motion for summary judgment. Accordingly, there was no abuse of discretion in permitting the defense to be raised at summary judgment.

Curtis also contends that whether he exhausted his administrative remedies is a question that turns on disputed issues of material fact. According to Curtis, the evidence at summary judgment supports a finding that the written procedures providing for use of a lockbox are not exclusive, and that handing grievances to a social worker is also an accepted means of submitting a grievance. The defendants do not directly confront this contention; rather, they simply insist that at summary judgment Curtis admitted that he failed to submit his grievance in the prescribed "place and manner" because he did not use the lockbox. According to the defendants, "Curtis merely alleged that Sister Dowd often accepted improper grievances."

We review the application of § 1997e(a) de novo. Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir.2005). In Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002), we held that "[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Accord Brengettcy, 423 F.3d 674, 682; Cannon v. Washington, 418 F.3d 714, 718 (7th Cir.2005). We have also emphasized, however, that failure to exhaust is an affirmative defense that a defendant must establish by competent evidence. Brengettcy, 423 F.3d 674, 682; Dale v....