Kaba v. Stepp

• Decision Date: 16 August 2006
• Docket Number: No. 03-3531.,03-3531.
• Citation: 458 F.3d 678
• Parties: Karamo B. KABA, Plaintiff-Appellant, v. E.A. STEPP, Mickal E. Laird, Dave Benson, and Joseph Yonkman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

458 F.3d 678

Karamo B. KABA, Plaintiff-Appellant, v. E.A. STEPP, Mickal E. Laird, Dave Benson, and Joseph Yonkman, Defendants-Appellees.

No. 03-3531.

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2005.

Decided August 16, 2006.

David W. Fuller (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Plaintiff-Appellant.

David S. Baker, Peter Maharry (argued), Fisher, Patterson & Smith, Overland Park, KS, for Defendant-Appellee, E.A. Stepp.

Frederick J. Hess (argued), Lewis, Rice & Fingersh, Belleville, IL, for Defendant-Appellee, M. Laird.

Carl Gallagher, McAnny, Van Cleave & Phillips, Kansas City, KS, for Defendant-Appellee, Captain Benson.

A. Courtney Cox, Hart & Hart, Benton, IL, for Defendants-Appellees, Joseph Yonkman.

Before ROVNER, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge.

Karamo Kaba served time as an inmate in the federal prison in Marion, Illinois. He contends that during his incarceration his case manager, Mickal E. Laird, denied him grievance forms, threatened him, and solicited other inmates to attack him in retaliation for filing grievances, and that the other named officials knew about and did nothing to stop Laird's activities until after Kaba was actually beaten in his cell on February 23, 2001. He contends these actions violated the Eighth Amendment.

The district court granted summary judgment for the prison officials, finding that Kaba failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Because we find there are disputed issues of fact about whether administrative remedies were "available" to Kaba, we reverse and remand for proceedings consistent with this opinion.

I

As a preliminary matter, although no party addressed this issue, we note that the district court after granting summary judgment dismissed Kaba's case without prejudice. Normally, a dismissal without prejudice is not a final order for purposes of appellate jurisdiction under 28 U.S.C. § 1291. See Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir.2003). "We have even gone so far as to state that dismissals without prejudice are `canonically non-final.' " Glaus v. Anderson, 408 F.3d 382, 385 (7th Cir.2005) (quoting Am. States Ins. Co. v. Capital Assoc. of Jackson County, Inc., 392 F.3d 939, 940 (7th Cir.2004)). But "if an amendment would be unavailing, then the case is dead in the district court and may proceed to the next tier." Hoskins, 320 F.3d at 763. See Glaus, 408 F.3d at 386 ("There is an exception if there is no amendment a plaintiff could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations.") (quotation altered); Dixon v. Page, 291 F.3d 485, 488 (7th Cir.2002) (holding that where an inmate has been released, the prison grievance system is no longer available for exhaustion and the defect in the complaint cannot be cured, and therefore the dismissal is final); Dolis v. Chambers, 454 F.3d 721, 2006 WL 2042536, at *1 (7th Cir. July 24, 2006).

In this case, as in Dixon, Kaba was released from prison, and therefore the dismissal without prejudice for failure to exhaust is effectively a final order because no amendment could resolve the problem. (Even though exhaustion would no longer be a problem if he were to re-file, because that rule applies only to prisoners, he would in all likelihood face the same kind of statute of limitations problems that the inmate in Dixon confronted.) Even if Kaba were still incarcerated, it would be impossible for him to exhaust at this late date. The prison grievance system has a specific set of procedures and deadlines, and any deadline for filing and/or appealing a grievance for events that occurred in 2000 and 2001 is long passed. See Woodford v. Ngo, ___ U.S. ___, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Therefore, the dismissal is in effect final and this court may consider Kaba's appeal.

Kaba filed his initial and amended pro se complaints citing both Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. § 1983 (plainly not applicable here) against four officials at the federal prison in Marion, Illinois, in both their individual and official capacities. The magistrate judge dismissed the official capacity claims because he found that the substance of the complaint was a Bivens action alleging Eighth Amendment claims and did not include any claim cognizable under the Federal Tort Claims Act (FTCA). The prison officials filed a motion to dismiss, which the district court converted to a motion for summary judgment and granted. The district court also refused to permit Kaba to amend his complaint to reassert his FTCA claim against the United States, which would be the proper defendant for tort claims involving acts of the named officials within the scope of their employment. See 28 U.S.C. § 2679(d).

As we review the district court's grant of summary judgment, it is important to remember that exhaustion is an affirmative defense, and consequently the burden of proof is on the prison officials. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). Furthermore, review of a district court's exhaustion finding is de novo. Id. As with any review of a case upon summary judgment, we draw all reasonable inferences in the light most favorable to the non-moving party. See Jenkins v. Yager, 444 F.3d 916, 921 (7th Cir. 2006). Furthermore, as a pro se litigant, Kaba is entitled to have his complaint be liberally construed. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir.2006).

Finally, though we have warned against this practice repeatedly in our opinions, the respondents in this case fall into the trap of trying to discredit Kaba's affidavits as "self-serving." As we have said before, "[m]ost affidavits are self-serving, as is most testimony, and this does not permit a district judge to denigrate a plaintiff's evidence when deciding whether a material dispute requires trial." Wilson v. McRae's, Inc., 413 F.3d 692, 694 (7th Cir.2005). See Dalton v. Battaglia, 402 F.3d 729, 735 (7th Cir.2005) ("We have repeatedly stated that the record may include a so-called `self-serving' affidavit provided that it is based on personal knowledge."); Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir.2003). Sworn affidavits, particularly those that are detailed, specific, and based on personal knowledge are "competent evidence to rebut [a] motion for summary judgment." Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004) (per curiam).

II

With the standard of review in mind, we turn to the particulars of Kaba's case. Kaba was incarcerated in the federal prison in Marion, Illinois, from November 2000 through March 2001, when he was transferred. The Marion facility, like all federal prisons, has a multi-step administrative grievance process for inmate complaints. First, an inmate must attempt to resolve his complaint informally, although that step may be waived at the warden's discretion if the "inmate demonstrates an acceptable reason for bypassing such informal resolution." 28 C.F.R. § 542.13(a), (b). If the informal route fails, the inmate has 20 days from the complained-of event to file a written Administrative Remedy Request on the appropriate form to the warden. 28 C.F.R. § 542.14(a). Where the inmate can demonstrate a "valid reason for delay," an extension of time may be warranted. 28 C.F.R. § 542.14(b). To file the grievance, the inmate must first obtain the appropriate grievance form from the institution staff, "ordinarily, the correctional counselor." 28 C.F.R. § 542.14(c)(1). "If the inmate reasonably believes the issue is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution, the inmate may submit the Request directly to the appropriate Regional Director." 28 C.F.R. § 542.14(d)(1). Finally, if not satisfied with the resolution of the grievance, the inmate may file a written appeal to the Bureau of Prisons' Regional Director and, if still not satisfied, then to its General Counsel. 28 C.F.R. § 542.15(a). Each of these steps has a prescribed deadline and a particular grievance form outlined in the Code of Federal Regulations, but we need not get into these details because Kaba concedes that he did not pursue the "prison grievance procedures up to the top level." Carroll v. Yates, 362 F.3d 984, 984 (7th Cir.2004). At issue before us is why.

Kaba contends that these administrative remedies were not "available" to him because his life was threatened. Kaba's evidence includes three sworn affidavits proffering his own testimony, a prison-administered lie detector test that indicates that he was truthful in the first affidavit, the affidavit of another inmate, and the documentation by a doctor of Kaba's reported fears about being transferred back to Marion. Together this evidence details a series of events—including the withholding of grievance forms, direct threats, and an inmate assault—from about November 2000 to February 2001 that Kaba contends made it impossible for him to file grievances about the administrative remedy system itself and the complained-of retaliatory actions by Laird and the other officials. Kaba's affidavits are specific and detailed and, to the extent that they are based on his personal knowledge, they are admissible as evidence, just as the prison officials' own affidavits are.

Taking this evidence in the light most favorable to Kaba, it shows that Laird threatened Kaba repeatedly. The first time Kaba asked Laird for a grievance form, Laird not only refused to give him the form but also seized his tennis shoes; when Kaba asked an associate warden about his shoes they were returned. When Laird learned of the conversation with the associate warden, he visited Kaba's cell and told him, "I told you if you go to the Warden or Associate Warden, I will see to it that you will...