Judges: Per Curiam
Filed: Apr. 11, 2019
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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 April 10, 2019* Decided April 11, 2019 Before AMY C. BARRETT, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-2832 JOHN E. SMITH, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 3:17-cv-01237-JPG-DGW CRAIG ASSELMEIER, J.
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 April 10, 2019* Decided April 11, 2019 Before AMY C. BARRETT, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-2832 JOHN E. SMITH, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 3:17-cv-01237-JPG-DGW CRAIG ASSELMEIER, J. P..
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NONPRECEDENTIAL DISPOSITION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 April 10, 2019*
Decided April 11, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18‐2832
JOHN E. SMITH, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 3:17‐cv‐01237‐JPG‐DGW
CRAIG ASSELMEIER, J. Phil Gilbert,
Defendant‐Appellee. Judge.
O R D E R
John Smith, an Illinois inmate, sued Dr. Craig Asselmeier, a dentist at Menard
Correctional Center in Chester, Illinois, under 42 U.S.C. § 1983 for violating the Eighth
Amendment by deliberately disregarding his medical needs. The district court granted
Dr. Asselmeier’s motion for summary judgment because Smith failed to exhaust his
administrative remedies. Because that process was available to Smith and he ignored it,
we affirm.
* Dr. Asselmeier has moved the court for oral argument, but we deny the motion
and 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. 18‐2832 Page 2
Dissatisfied with his dental care in August 2017, Smith filed an “emergency”
grievance with the warden at Menard the following month. The warden promptly
advised Smith that the grievance did not describe an emergency and told him that he
“should submit th[e] grievance in the normal manner.” That process required Smith to
contact a grievance counselor. Smith did not do so. Instead, he appealed to the
Administrative Review Board, which also directed him to follow the normal grievance
procedure and to provide the responses from his grievance officer and the warden.
Rather than follow the normal grievance process, Smith turned to federal court.
Dr. Asselmeier later moved for summary judgment, arguing that Smith had not
exhausted his administrative remedies, as required by the Prison Litigation Reform Act,
see 42 U.S.C § 1997e; Woodford v. Ngo, 548 U.S. 81, 85 (2006). Dr. Asselmeier observed
that the state had amended title 20 of the Illinois Administrative Code, effective April 1,
2017, to add subsection (c) to section 504.840:
If the Chief Administrative Officer determines that the grievance should
not be handled on an emergency basis, the offender shall be notified in
writing that he or she may resubmit the grievance as non‐emergent, in
accordance with the standard grievance process.
ILL. ADMIN. CODE tit. 20, § 504.840(c). (As “the highest ranking official” at Menard, the
warden is its “Chief Administrative Officer.” See id. § 504.12.) Dr. Asselmeier argued
that this amendment renders inapplicable our decision in Thornton v. Snyder, 428 F.3d
690, 694 (7th Cir. 2005). There, we had stated that “nothing in the current regulatory
text … requires an inmate to file a new grievance after learning only that it will not be
considered on an emergency basis.” The district court agreed with Dr. Asselmeier,
entered summary judgment, and dismissed the case without prejudice.
As an initial matter, Dr. Asselmeier argues that we do not have jurisdiction over
this appeal because the district court dismissed the case without prejudice. Although a
non‐prejudicial dismissal is generally not appealable, we have jurisdiction if the district
court did not anticipate any curative amendments to the complaint and the dismissal
“ends the suit so far as the district court is concerned.” Kowalski v. Boliker, 893 F.3d 987,
994 (7th Cir. 2018) (quoting Taylor‐Holmes v. Office of Cook Cty. Pub. Guardian, 503 F.3d
607, 610 (7th Cir. 2007)). That occurred here: the district court said that it was finished
with the suit when it dismissed the case and directed the clerk to enter judgment and
terminate the case. Thus, our jurisdiction is secure. See Ramirez v. Young, 906 F.3d 530,
533 (7th Cir. 2018); Kowalski, 893 F.3d at 994.
No. 18‐2832 Page 3
On the merits, we review de novo a dismissal for failure to exhaust. Pyles v.
Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016). Smith argues that the language of the new
subsection (c) does not require a conclusion that he did not exhaust his administrative
remedies. He contends that section 504.840(c) is permissive, not mandatory, because it
says that, if the warden decides that a grievance is not an emergency, an inmate “may
resubmit the grievance” through the normal procedure. ILL. ADMIN. CODE tit. 20,
§ 504.840 (emphasis added). But as the district court correctly explained, the exhaustion
question is not whether the Code requires inmates to resubmit the grievance, but
whether the Code makes resubmission available. See 42 U.S.C. § 1997e; Woodford, 548 U.S.
at 85. The entire grievance process is permissive unless the inmate intends to pursue
relief in a court. See Pyles, 829 F.3d at 864. Because the Code provided a process through
which Smith could submit a non‐emergency grievance, he had an available remedy that
he needed to exhaust before filing this suit. See id.
Smith offers two replies, neither persuasive. First, he argues that his suit should
not be dismissed because he did not know that he was required to go through the
normal grievance process before filing this suit. But the record indisputably refutes that
contention. The warden and Administrative Review Board both responded to his
“emergency” grievance by telling him to use the normal process. We have long required
that inmates properly exhaust all available steps that have been made known to them,
and the prison made the normal process known to Smith. See Pyles, 829 F.3d at 864; Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). Second, Smith contends that he could
not file a normal grievance after receiving the Board’s decision because he received it
more than 60 days after his dental visit in August and therefore could no longer comply
with the 60‐day filing deadline. See ILL. ADMIN. CODE, tit. 20, § 504.810(a). But well
before those 60 days had elapsed, the warden’s response informed him that the normal
procedure was available to him. In any case, even if Smith had received a response only
from the Board, the normal process allowed him to submit a grievance after the 60‐day
deadline and argue that “good cause” excused his tardiness. See id. But he may not
avoid the exhaustion requirement by simply ignoring available process. See Woodford,
548 U.S. at 87, 93–94, 103.
AFFIRMED