10-2745 Hurst v. Hantke

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Civil Rights
PLRA; exhaustion

A state prison’s administrative remedy must actually be available to prisoners, in order for them to be required to use it before filing suit under the PLRA.

“But when the plaintiff sued, and the defendants moved for summary judgment, it behooved him to present evidence to support his contention that he had indeed exhausted his available administrative remedies by filing a grievance as soon as it was reasonably possible for him to do so. Obriecht v. Raemisch, 517 F.3d 489, 492-93 (7th Cir. 2008). Although warned by the district court that he had to meet the motion for summary judgment with evidence, the plaintiff presented none. And so he lost. But we think it worth emphasizing that he did not lose because Illinois law requires a grievant to attach evidence to a claim of good cause for an untimely grievance— it does not—or because physical incapacitation is not good cause within the meaning of the term in the Illinois code—it is good cause. It better be, because we agree with Days v. Johnson and the decisions following it (none is to the contrary)—Dillon v. Rogers, supra, 596 F.3d at 267; Johnson v. Ford, 261 Fed. App’x 752 (5th Cir. 2008); Garrett v. Partin, 248 Fed. App’x 585 (5th Cir. 2007); Tate v. Howes, 2010 WL 2231812, at *2 (W.D. Mich. June 2, 2010); Braswell v. Corrections Corp. of America, 2009 WL 2447614, at *8 (M.D. Tenn. Aug. 10, 2009); Williams v. Hurley, 2007 WL 1202723 (S.D. Ohio Apr. 23, 2007)—that a remedy is not ‘available’ within the meaning of the Prison Litigation Reform Act to a person physically unable to pursue it.”

Affirmed.

10-2745 Hurst v. Hantke

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Posner, J.

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