Judges: Per Curiam
Filed: Feb. 11, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 11, 2009* Decided February 11, 2009 Before RICHARD A. POSNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 08-1692 ENOCH WILDER, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 04 CV 874 RICK SUTTON, et al., Dav
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 11, 2009* Decided February 11, 2009 Before RICHARD A. POSNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 08-1692 ENOCH WILDER, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 04 CV 874 RICK SUTTON, et al., Davi..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 11, 2009*
Decided February 11, 2009
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1692
ENOCH WILDER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 04 CV 874
RICK SUTTON, et al., David Herndon,
Defendants‐Appellees. Chief Judge.
O R D E R
Enoch Wilder, a prisoner of Illinois and practitioner of Wicca, filed this lawsuit in
November 2004 after almost two years of unanswered requests for access to specific
religious items. Thirty more months then elapsed before the defendants finally moved for
summary judgment on the ground that Wilder had turned to the courts without first
exhausting his administrative remedies. Because the district court erred in accepting this
contention, we vacate the judgment and remand for further proceedings.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐1692 Page 2
The pertinent facts are mostly undisputed, and where they are we recount them in
the light most favorable to Wilder. Shortly after entering Pickneyville Correctional Center
in January 2003, Wilder notified prison administrators that he wanted to practice Wicca but
was told to direct those requests to Pickneyville’s chaplain, Rick Sutton. Wilder then
submitted numerous “request slips” asking Chaplain Sutton for access to religious items,
including tarot cards, candles, and incense. Wilder says he received no response from
Sutton, though Sutton says he told Wilder he could not have candles or incense in his cell.
Wilder also directed requests to other administrators, but these produced no results.
Finally, in November 2003, Wilder turned to the grievance process.
A uniform procedure governs grievances by state prisoners in Illinois. First the
inmate must try to resolve the issue with a counselor. Thornton v. Snyder, 428 F.3d 690, 694
(7th Cir. 2005); ILL. ADMIN. CODE tit. 20, § 504.810(a). If this informal process does not get
results, the prisoner may file a written grievance (on a particular form) “within sixty days
after the discovery of the incident, occurrence, or problem that gives rise to the grievance.”
ILL. ADMIN. CODE tit. 20, § 504.810(a). A Grievance Officer reviews the formal submission
and makes a recommendation to the institution’s warden. Id. § 504.830(d). An adverse
decision may be challenged by addressing an administrative appeal to the Administrative
Review Board (ARB), which then makes a recommendation to the Director of the
Department of Corrections for final decision. Id. § 504.850(a), (b), (f).
On November 19, 2003, Wilder completed a “Committed Person’s Grievance,” the
form prescribed by the prison system for inmate grievances. That document details
Wilder’s attempts to secure approval “to order my ritual utensils so I can properly worship
my God/dess.” Wilder’s counselor returned the form to him with the explanation that
Chaplain Sutton had said he needed a complete, verified list detailing the items he needed
to practice Wicca. How Wilder’s grievance form got into the hands of his counselor instead
of the Grievance Officer is not explained in the record; there is no evidence that Wilder did
not submit his form in the proper manner for processing. We don’t know why it was
returned; all we know is what the counselor told Wilder.
Wilder, though, followed his counselor’s direction and sought documentation from
his religious leader. The Rev. Paul V. Beyerl of the Rowan Tree Church in Kirkland,
Washington, sent Wilder a list of items broken down between those deemed “very desirable
for the working of our primary religious ceremonies,” others seen as “very important for the
practice and study of our religion,” and a third group which included desirable items that
“may be considered security risks.” Wilder sent this list to Chaplain Sutton, who forwarded
it to the Religious Practice Advisory Board, which advises the Department of Corrections on
religious matters. Nelson v. Miller, No. 03‐254‐CJP, 2008 WL 904735, at *3 n.3 (S.D. Ill. Mar.
31, 2008); ILL. ADMIN. CODE tit. 20, § 425.40; Ill. Dep’t of Corr. Admin. Dir. 04.25.101.
No. 08‐1692 Page 3
Wilder heard nothing more, and despite repeatedly asking Chaplain Sutton about
the status of his request, received no answer. So on February 8, 2004, he completed a second
“Committed Person’s Grievance” seeking the same basic relief. Once again there is no
evidence suggesting that Wilder did not deliver his grievance form for processing in the
manner required, but again the form was promptly returned by the counselor. This time the
counselor explained that Chaplain Sutton was still waiting for advice from the advisory
board and admonished, “You should have sent him this list before you wrote a grievance.”
Since the holdup seemed to be with the advisory board, Wilder packaged copies of
his November 19 and February 8 grievance forms and sent them to that body as evidence
that he tried to resolve the issue internally at Pickneyville. But his package ended up at the
Administrative Review Board, which processed the contents as if Wilder had submitted an
administrative appeal from an adverse decision on a single grievance. The review board,
which did not know that Wilder’s two grievance forms had been returned unprocessed,
rejected his “appeal” on the ground that he neglected to include the Grievance Officer’s
recommendation or the warden’s decision.
Wilder did not become aware of the Administrative Review Board’s ruling until it
reached him in May 2004. Meanwhile, on March 15, Wilder had also taken copies of his
November and February grievance forms directly to the institutional Grievance Officer.
The Grievance Officer processed the copies as an entirely new grievance and recommended
that it be denied because Chaplain Sutton was still awaiting guidance from the Religious
Practices Advisory Board. Pickneyville’s warden accepted the Grievance Officer’s
recommendation two days later. Wilder filed an administrative appeal by forwarding the
Grievance Officer’s recommendation and the warden’s decision to the Administrative
Review Board, which on July 19 rejected Wilder’s appeal on a different ground. According
to the board, the March 15 grievance was untimely because it concerned events dating back
to November 2003 but was not submitted until more than sixty days after those events.
Four months later, Wilder sued. His complaint, which alleges claims under the First
Amendment; the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc
to 2000cc‐5; and state law, names as defendants Chaplain Sutton, three administrators at
Pickneyville, the head of the Religious Practices Advisory Board, and the chairperson of the
Administrative Review Board. Acting on a magistrate judge’s recommendation, the district
court granted summary judgment for the defendants on the ground that Wilder had not
exhausted his administrative remedies before filing suit. The court reasoned that “Wilder’s
grievances were premature and that he did not properly follow the required procedures.”
The district court, however, did not attempt to reconcile this conclusion with the view of the
Administrative Review Board, which said that Wilder’s mistake was acting too late, not too
early.
No. 08‐1692 Page 4
On appeal the defendants bypass the district court’s analysis and seek to defend the
view of the Administrative Review Board that Wilder did not submit a timely grievance
challenging the denial of items necessary to practice his religion. Wilder, in turn, insists that
the evidence establishes that he fully exhausted the administrative remedies available to
him. Our review is de novo. Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006).
An inmate may not bring suit concerning prison conditions “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). But failure to
exhaust is an affirmative defense, and it was up to the defendants to establish that Wilder
had available remedies that were not exhausted. See Jones v. Bock, 549 U.S. 199, 212 (2007);
Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir.) cert. denied, 129 S. Ct. 417 (2008). Our cases
identify two considerations in evaluating whether a prisoner’s claim is exhausted: whether
remedies were realistically available to the prisoner, and whether those remedies were
exhausted. A proper understanding of the first of these considerations shows why the
position taken by the defendants is untenable.
Inmates are not required to exhaust all administrative remedies—only those that are
available. Woodford v. Ngo, 548 U.S. 81, 102 (2006); Kaba, 458 F.3d at 684. The “availability”
of a remedy is not a matter of what appears on paper, but, rather, whether the paper
process was in reality open for the prisoner to pursue. Kaba, 458 F.3d at 684. In Kaba we
explained several ways that an administrative process might not be available to a prisoner.
458 F.3d at 684. For example, if grievances must be filed on a particular form, but the forms
are not provided, then there is no “available” remedy, despite its hypothetical possibility.
Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004). Similarly, threatening a prisoner with
violence for attempting to use an administrative process makes that process unavailable.
Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004). Or if a prisoner is told to wait to file a
grievance, and that wait makes the claim untimely, then that too will have made the
process unavailable. Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002). Finally, we have held
that not responding to a prisoner’s grievance, Lewis v. Washington, 300 F.3d 829, 833 (7th
Cir. 2002), or engaging in affirmative misconduct, Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006), will also make the process unavailable. Our approach, then, has been to focus on
whether the plaintiff did all he could to avail himself of the administrative process. If he
followed the prescribed steps and could do nothing more, then available remedies were
exhausted. Id. at 811.
The defendants argue that Wilder failed to exhaust because, they insist, he never
submitted a “formal” grievance within sixty days of the events he complains about. In
November 2003, the argument goes, Wilder complained “informally” to his counselor
about his lack of access to Wiccan utensils but did not tender a “formal” grievance until
March 2004. But nothing in the record supports this contention. The defendants point to
No. 08‐1692 Page 5
nothing—not a regulation, not an administrative directive, not even an affidavit from a
prison administrator—to suggest that some grievances are “informal” (and thus apparently
can be ignored) while others are “formal” (and require a response). As Wilder explains
(without contradiction from the defendants), he had no control over whether the grievances
he submitted on the prescribed forms in November 2003 and again in February 2004 would
be processed as “formal” or, as his were, returned as “informal.” The Illinois
Administrative Code defines the requirements for a grievance: it must be written on a
prescribed form, and it must provide sufficient detail regarding the inmate’s problem. ILL.
ADMIN. CODE tit. 20, § 504.810. The forms Wilder submitted in November and February
satisfied both conditions, and the defendants have never contended—and certainly did not
produce any evidence—that Wilder did not tender these forms according to the required
procedure. The only conclusion to be drawn from this record is that prison administrators
refused to act on what, by all appearances, are grievances that should have been processed
by the Grievance Officer but were not.
We thus reject the assertion that Wilder did not submit a grievance until March
2004; that was his third, not his first. And so what the undisputed evidence establishes is
that personnel at Pickneyville received but failed to act on one grievance in November 2003
and a second in February 2004, and that inaction—whatever the explanation—means that
Wilder had no “available” remedy to exhaust. See Aquilar‐Avellaveda v. Terrell, 478 F.3d
1223, 1225 (10th Cir. 2007); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005); Brown v.
Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.
2001); Lewis, 300 F.3d at 833.
Wilder cannot be faulted for not knowing how best to respond to the prison
authorities’ inaction. Dole, 438 F.3d at 811. Despite Wilder’s three grievances, the
defendants argue that the Department of Corrections was deprived of the opportunity to
resolve his issue because Wilder filed suit without first exhausting a fourth grievance
concerning the absence of a response from the Religious Practices Advisory Board. The
defendants repeatedly contend that they had no authority to address Wilder’s requests for
religious accommodation because, they insist, it is the advisory board that decides the fate
of requests for “non‐traditional” religious items. But that contention is not supported by
any evidence in the record, and the ostensible authority the defendants do cite for this
proposition directly contradicts their conclusion: this religious advisory board makes
recommendations to the Department of Corrections—it does not dictate to department
officials. See ILL. ADMIN. CODE tit. 20, § 425.40(b);1 Ill. Dep’t of Corr. Admin. Dir. 04.25.01,
1
“The [Religious Practices Advisory] Board shall, among other matters:
(continued...)
No. 08‐1692 Page 6
§ E.2 And the defendants make no attempt to explain what different steps Wilder should
have taken to address his concerns about the advisory board. This is unsurprising because
the Illinois Administrative Code specifically provides that matters concerning religious
accommodation should be addressed through the regular grievance process. ILL. ADMIN.
CODE tit. 20, § 425.120. In the absence of more specific requirements in the grievance
procedure, the exhaustion requirement is modest: prisoners must only put responsible
persons on notice about the conditions about which they are complaining. Strong v. David,
297 F.3d 646, 650 (7th Cir. 2002). Wilder notified the responsible prison officials, in each of
his grievances, that he desired access to religious effects, and it was not Wilder’s obligation
to be concerned with the internal decision‐making processes thwarting that request.
Ultimately it was the warden’s duty to decide what religious items Wilder could gain
access to, and all of Wilder’s grievances were directed appropriately to that end.
As we’ve said, the prison’s refusal to act on the grievances Wilder submitted in
November 2003 and February 2004 rendered the administrative process unavailable, so
§ 1997e(a) is no bar to Wilder’s lawsuit. But another point bears mention. The defendants
all along have asserted that the first two grievances did not count, and that only the March
2004 grievance was “formal.” And that grievance, the defendants say, was too late because
it was a copy of what Wilder wrote the previous November and thus concerned events that
1
(...continued)
1) Provide guidance to the Department regarding religious activities.
2) Review and make recommendations regarding designated:
A) Religious grievances filed by committed persons;
B) Requests from committed persons for religious diets,
non‐traditional religious symbols, headgear, clothing, and other
religious items;
C) Requests from committed persons for religious activities not
currently offered at the correctional facility and for religious activities
permitted under Section 425.60(f);
D) Requests from committed persons for relief from a work
assignment or institutional program for specific religious reasons; and
E) Issues involving the training, screening, and reimbursement of
religious volunteers.”
2
“The Director shall appoint a Religious Practice Advisory Board to provide
guidance to the Department regarding religious activities, to recommend changes in
policies relating to religion, and to review and make recommendations to the Director
regarding religious issues in accordance with Department Rule 425.”
No. 08‐1692 Page 7
were more than sixty days old. This untimeliness contention is frivolous. Wilder’s
grievance, whether dated in November or February or March, related to a basic
concern—his unanswered requests to worship with Wiccan utensils—and that concern is
not a particular “incident” but a continuing wrong. See Lindell v. McCallum, 352 F.3d 1107,
1109 (7th Cir. 2003) (describing prison’s alleged violation of RLUIPA as a continuing
violation). Wilder does not assert that he was prevented from worshiping on a particular
day in November 2003; his grievances recount his long‐running effort to obtain permission
to acquire items he deemed essential to practice his religion. Moreover, he missed several
Sabbats between the filing of his first grievance in November and the Grievance Officer’s
response to his third grievance in March. (There are eight Sabbats in the Wiccan calendar,
approximately six weeks apart. Gladson v. Iowa Dep’t of Corr., No. 07‐3528, 2009 WL 36813,
at *1 (8th Cir. Jan. 8, 2009); David Rittgers, These Dishonored Dead: Veteran Memorials and
Religious Preferences, 5 FIRST AMENDMENT L. REV. 400, 404 (2007)). Each missed opportunity
to worship gives rise to a separate complaint, and so whether Wilder filed a grievance in
November, February, or March, he was within sixty days of an incident underlying his
complaint.
The judgment is VACATED, and the case is REMANDED for further procedings.