Judges: Per Curiam
Filed: Nov. 10, 2016
Latest Update: Mar. 03, 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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 November 9, 2016* Decided November 10, 2016 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 15-2678 JOSEPH N. WARD II, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 3:14-cv-00509-MJR-SCW JOHN HOFFMAN, et al. Mic
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 November 9, 2016* Decided November 10, 2016 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 15-2678 JOSEPH N. WARD II, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 3:14-cv-00509-MJR-SCW JOHN HOFFMAN, et al. Mich..
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NONPRECEDENTIAL DISPOSITION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 November 9, 2016*
Decided November 10, 2016
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15‐2678
JOSEPH N. WARD II, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 3:14‐cv‐00509‐MJR‐SCW
JOHN HOFFMAN, et al. Michael J. Reagan,
Defendants‐Appellees. Chief Judge.
O R D E R
Joseph Ward, an Illinois prisoner, brought this suit under 42 U.S.C. § 1983,
asserting that John Hoffman, a prison supervisor, used excessive force by choking him
until he lost consciousness while two onlooking guards failed to intervene. The district
court granted summary judgment for the officers, concluding that Ward failed to
exhaust his administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). We affirm.
* We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 15‐2678 Page 2
On June 10, 2012, a heated argument between Ward and his cellmate at the
Menard Correctional Center prompted Lieutenant Hoffman and two officers, Timothy
Morris and Adam Tope, to respond and order both prisoners into handcuffs. At this
point, Ward’s report of the event diverges from Hoffman’s, but in reviewing the
materials at summary judgment we consider the facts in the light most favorable to
Ward, the non‐moving party. Huang v. Contʹl Cas. Co., 754 F.3d 447, 450 (7th Cir. 2014).
According to Ward, he complied with the handcuff order but then grew short of breath
and reached for his asthma inhaler. He was ordered by Hoffman to stop moving and to
walk to the front of his cell. Hoffman then entered the cell, pepper‐sprayed Ward, and
“manhandled” him until he lost consciousness. Ward was taken to the prison’s
healthcare unit, then to an outside hospital. There he was examined by physicians, who
recorded that his injury likely was caused by a chokehold.
Three days later Ward awoke in the healthcare unit at Pontiac Correctional
Center, where he spent eight days under observation before being taken to a disciplinary
hearing held by an adjustment committee. The hearing was based on a disciplinary
report prepared by Hoffman, who accused Ward of disobeying his order and swinging
at him, prompting his use of pepper spray. The committee found Ward guilty of
disobeying an order and assaulting a staff member and recommended that Ward lose
one year of good‐conduct credit.
Ward prepared three inmate grievances about the incident and subsequent
proceedings. In late June Ward filed his first grievance, complaining about procedures
relating to the disciplinary hearing, specifically the lack of notice, which, he believed,
prevented him from preparing a defense that would have included testimony from
another inmate who witnessed the incident. Relying on a hearing officer’s
recommendation, the facility’s chief administrative officer denied this grievance. In late
August, Ward filed a second grievance, which alleged for the first time that Hoffman
used excessive force during the cell extraction. The following month Ward filed a third
grievance that substantially repeated the allegations in the second grievance. None of
these three grievances named Morris or Tope, though Ward said in the second grievance
that he had trouble remembering the event and sought criminal investigations of “any
other staff who were witnesses.” Because Ward’s second and third grievances
complained about events at a facility other than the one where they were filed, these
grievances were forwarded to the Administrative Review Board, ILL. ADMIN. CODE
tit. 20, § 504.870. The Board considered all three grievances together, rejecting the first
because there was no evidence of procedural violations, and refusing to consider the
other two because more than 60 days had lapsed since the incident.
No. 15‐2678 Page 3
Ward then brought this suit under § 1983, asserting that Hoffman used excessive
force against him and that Morris and Tope failed to intervene. Ward asked the district
court three times to recruit counsel to represent him, see 28 U.S.C. § 1915(e)(1). The court
denied the first request because Ward did not demonstrate that he had contacted any
attorneys, and then it denied the remaining requests altogether because Ward appeared
competent to litigate the case, which had yet to proceed to discovery, because he had
“adequately expressed the factual and legal bases for his claims.”
The defendants moved for summary judgment based on Ward’s failure to
exhaust his administrative remedies, and Ward asked the court to delay its ruling until
the defendants had produced requested documents and interrogatories. The court
denied Ward’s request because the summary‐judgment motion addressed only
exhaustion of administrative remedies, and the documents he sought about excessive
force were therefore irrelevant.
The district court granted the defendants’ motion for summary judgment based
on Ward’s failure to exhaust administrative remedies. In Ward’s first grievance, the
district court noted, he complained only about the procedures used by the adjustment
committee, and did not mention excessive force or the defendants. As for the second and
third grievances, these did allege that Hoffman used excessive force, but Ward had not
filed them until more than 60 days after the incident, making them untimely under
Illinois law. The court also acknowledged that the second grievance did not mention
Tope or Morris.1
On appeal Ward ignores the district court’s exhaustion analysis and generally
addresses only the substance of his excessive‐force claim. But all of his claims are
procedurally barred if, as the district court found, he failed to properly exhaust
administrative remedies. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007);
Hernandez v. Dart, 814 F.3d 836, 841 (7th Cir. 2016). The PLRA requires a prisoner to file
grievances in compliance with the state’s grievance procedures. Woodford v. Ngo, 548 U.S.
81, 94 (2006); Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013); Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). Illinois law specifies that a prisoner’s grievances must
“contain factual details regarding each aspect of the offenderʹs complaint, including
what happened, when, where, and the name of each person who is the subject of . . . the
complaint.” ILL. ADMIN. CODE tit. 20, § 504.810(b). This information is necessary to
provide prison officials a fair opportunity to address the complaint. Maddox v. Love,
1 Ward also neglected in his third grievance to name Tope or Morris.
No. 15‐2678 Page 4
655 F.3d 709, 722 (7th Cir. 2011). Additionally, a grievance is untimely if it is not filed
within 60 days of the problem giving rise to the grievance, see ILL. ADMIN. CODE tit. 20,
§ 504.810(a), subject to exceptions not present in this case. The district court here
correctly concluded that Ward failed to properly exhaust his administrative remedies.
Although Ward filed three grievances, none satisfied Illinois’s exhaustion requirements.
His first did not mention excessive force or the defendants, and thus could not have put
administrators on notice of his claims, as required in Illinois, see Turley, 729 F.3d at 650,
and Ward filed his second and third grievances after Illinois’s 60‐day deadline without
proposing good cause for his untimeliness.
Next Ward contends that the district court erred by denying his request for extra
time to obtain discovery before responding to the summary‐judgment motion. It is true
that Federal Rule of Civil Procedure 56(d) permits a district court to defer consideration
of summary‐judgment motion to allow the nonmovant to supplement his response with
discovery. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627–28 (7th Cir. 2014). But
the non‐movant must explain in an affidavit or declaration why he cannot adequately
respond to the summary‐judgment motion without further discovery, Kallal v. CIBA
Vision Corp., 779 F.3d 443, 446 (7th Cir. 2015), and Ward did not provide any such
justification. And as the district court correctly observed, the requested discovery
materials pertained only to the merits of the case, and not the exhaustion issue that
undergirded the court’s summary judgment ruling. See Cent. States, Pension Fund v. Waste
Mgmt. of Mich., Inc., 674 F.3d 630, 637 (7th Cir. 2012).
Finally, Ward challenges the denial of his requests for counsel, maintaining that
he was indigent and lacked legal training. When deciding whether to recruit counsel,
district courts must ask: (1) has the plaintiff made reasonable efforts to retain counsel,
and if so, (2) does the plaintiff appear competent to litigate the case, given its difficulty?
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014); Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir.
2007) (en banc). We will overturn a decision denying recruitment only if an error in this
analysis prejudiced the plaintiff. Pruitt, 503 F.3d at 659. The district court properly
denied Ward’s requests, pointing out that his prior filings reflected his competence to
litigate the case. And in any event, given his failure to exhaust administrative remedies,
Ward cannot show that the assistance of a lawyer could have affected the outcome of
this case.
AFFIRMED.