In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3813

DAVID BRENGETTCY,

Plaintiff-Appellant,

v.

WILLIAM HORTON, JOHN DALEY,

OFFICER FARROW, JOHN DOES I-X, and

THE COUNTY OF COOK, ILLINOIS,

Defendant-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 197—Amy J. St. Eve, Judge.

____________

ARGUED DECEMBER 10, 2004—DECIDED SEPTEMBER 8, 2005

____________

Before RIPPLE, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge. While he was awaiting trial at

the Cook County Department of Corrections (CCDOC),

David Brengettcy became embroiled in a physical altercation with Officer William Horton that resulted in

Brengettcy’s spending two days in the hospital. Later, a

jury convicted him of aggravated battery on a peace

officer in violation of 720 ILCS 5/12-4(b)(6), for which he

received a sentence of three years’ imprisonment. Meanwhile, Brengettcy claims that he filed a grievance against

Officer Horton and the other officers involved in the

incident with the CCDOC on August 23, 2000, the day he
2 No. 03-3813

was released from the hospital. The grievance asserted that

Horton attacked him, hitting him while he was handcuffed;

after that, someone kicked him down a nearby staircase.

After failing to receive a response to his initial grievance,

Brengettcy filed several others in November and December 2000. In January 2001, Brengettcy brought a civil rights

suit under 42 U.S.C. § 1983 in federal court against the

defendants, alleging violations of his federal constitutional

rights and state law. Judge Bucklo initially presided over

his case. The defendants filed two motions to dismiss, one

based on Heck v. Humphrey, 512 U.S. 477 (1994), and the

second on Brengettcy’s alleged failure to exhaust his

administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). After Judge

Bucklo denied both motions, Brengettcy’s case was transferred for administrative reasons to Judge St. Eve. Defendants presented their Heck and exhaustion arguments to

her in the form of a motion for summary judgment; ruling

only on the exhaustion point, she entered judgment in their

favor. We conclude that this action was premature and that

the defendants’ other arguments in support of the judgment

are unavailing, and thus we remand to the district court for

further proceedings.

I

Our account of the facts takes them in the light most

favorable to Brengettcy. Rooney v. Koch Air, LLC, 410 F.3d

376, 380 (7th Cir. 2005). On August 21, 2000, Brengettcy

attended a Bible study meeting held in the mess hall on the

first floor of the CCDOC. After the meeting concluded, he

left the mess hall and started to walk up the stairs to the

second floor. When he reached the second floor landing, he

realized that he had forgotten to mail a letter. He went back

down the stairs to the first floor, mailed his letter, encountered a correctional officer without incident, and returned
No. 03-3813 3

to the second floor.

Observing Brengettcy’s return to the second floor, Officer

Horton asked him why he had gone back downstairs.

Brengettcy described what happened next as follows:

After the first time when he said, mother fucker, who

told you to go downstairs, I told him I went to go

mail my letter, officer, and I set the bible down on his

desk. He continued talking with verbal assaults with

mother fuckers in it. I silenced myself. I didn’t say

nothing. I just looked him in the eye. He struck me. I

fell back. I didn’t—I looked at Halbert, Officer Halbert.

He didn’t say anything. So he proceeded to striking [sic]

me.

Brengettcy testified that he broke Horton’s attack by

backing up toward the other officers and then punching

Horton several times. The other officers called for assistance and within two minutes, reinforcements were on

the scene. Brengettcy claims that he was then repeatedly beaten and kicked by the officers. He tried to defend

himself by assuming the fetal position and covering his

head until he was handcuffed. After he was handcuffed, the

officers continued to beat him and he was taken to

the stairwell where someone kicked him down the

stairs. The next thing he recalls is regaining consciousness that evening in the hospital. His medical reports

indicate that he was experiencing pain in his throat,

shoulder, wrist, back, leg, and that he received sutures in

his bottom lip and chipped his front teeth.

Brengettcy was released from the Cook County Hospital on August 22, 2000. In his verified complaints, he

alleged that he filed a grievance with the CCDOC the

following day, on August 23, 2000, which was within fifteen

days of the incident as required by CCDOC’s grievance

policy. He did not receive a reply within 30 days as specified

in the CCDOC’s grievance policy nor did he get a notifica-
4 No. 03-3813

tion that his grievance would take longer than 30 days to

resolve. In October, Brengettcy inquired about the status of

his grievance with Officer McCullen, who told him that

sometimes the grievances get torn up. On November 27,

2000, he filed another grievance. Again, the CCDOC failed

to respond to his grievance with either a decision or a

notification that it would take longer than 30 days to

resolve.

On January 9, 2001, the clerk’s office for the Northern

District of Illinois received Brengettcy’s pro se verified

complaint alleging that Officer Horton had violated his civil

rights by using excessive force during the incident. The

clerk’s office filed his complaint on March 13, 2001.

On May 3, 2001, the defendants moved to dismiss

Brengettcy’s complaint on the grounds that Heck barred his

civil rights claims. On June 19, 2001, Brengettcy filed a pro

se amended verified complaint adding defendant John

Daley and alleging the same underlying facts. Judge Bucklo

denied the defendants’ motion to dismiss in an order dated

July 24, 2001, explaining that:

Brengettcy’s conviction necessarily implies that he

struck Horton, that he knew Horton was a peace officer,

and that his striking Horton was not legally justified. It

by no means necessarily implies that Horton’s use of

force against Brengettcy was lawful. In this action,

Brengettcy cannot dispute the legitimacy of the state’s

sentencing him to three years in prison for striking

Horton, but he can dispute the legitimacy of the alleged

extrajudicial “punishment” inflicted by Horton and the

other deputies.

After the court’s decision, it appointed counsel for

Brengettcy, and counsel filed a second amended complaint

on February 21, 2002, adding defendants Officer Farrow (to

whom we refer below as Pharaoh Halbert, his real name),

John Does I-X, and Cook County, and withdrawing Defen-
No. 03-3813 5

dant Sheahan. The defendants filed a second motion to

dismiss arguing that Brengettcy failed to exhaust his

administrative remedies. Brengettcy responded with a

memorandum, to which he attached copies of his grievance

forms dated November 27, November 31, December 5, and

December 7.

On July 10, 2002, Judge Bucklo denied the defendants’

second motion to dismiss. She reasoned that “[p]laintiff’s

grievance was filed in the year 2000. Defendants do

not dispute that plaintiff never received a response . . .

A plaintiff is not requir[ed] to wait an unreasonable length

of time—during which evidence, witnesses, and memories

may be lost—for a decision before he can go forward

with his federal suit.” She did not explain whether she

was relying on Brengettcy’s alleged August 23, 2000, filing, or a later filing. On September 6, 2002, Brengettcy’s

case was transferred to Judge St. Eve.

On August 13, 2003, defendant Horton moved for summary judgment for essentially the same two reasons that

Judge Bucklo had considered: failure to exhaust and the

Heck bar. In addition, Horton raised a collateral estoppel

defense, claiming that the excessive force issue essential to

Brengettcy’s claim had been resolved adversely to him in

the state criminal proceeding. Horton claimed that

Brengettcy had admitted “that the only grievance form that

he filed pertaining to the underlying incident is the grievance dated November 27, 2000.” Horton also alleged that

Brengettcy did not file an appeal, but he never mentioned

that the CCDOC had not responded to Brengettcy’s grievances, nor did he note that Brengettcy had inquired about

the status of his grievance in the fall of 2000 (taking the

facts favorably to Brengettcy, at a time before the November 27 grievance).

Unfortunately, Brengettcy’s counsel did not respond to

Horton’s motion for summary judgment in the manner
6 No. 03-3813

required by Local Rule 56.1(b)(3), which requires the nonmoving party to file “a response to each numbered paragraph in the moving party’s statement . . .” and “a statement, consisting of short numbered paragraphs, of any

additional facts that require the denial of summary judgment . . . .” N.D. Ill. L.R. 56.1(b)(3)(A) & (B). Instead,

counsel filed a motion styled “Plaintiff’s Response to Defendants’ Motion for Summary Judgment.” Because

this motion did not comply with the Local Rules, the district

court adopted Horton’s statement of facts. In doing so, the

court concluded that:

Plaintiff filed a single grievance on November 27, 2000,

three months after the date of the incident. Cook

County Department of Corrections procedure requires

inmates to file grievances with fifteen days of the

underlying incident. The facts also show that Plaintiff

did not file an appeal in connection within his untimelyfiled grievance, and that Plaintiff was not prevented

by Defendant from filing an appeal . . . . Because he has

not raised an issue of material fact in connection with

the exhaustion of administrative remedies, Plaintiff is

barred by 42 U.S.C. § 1997e(a) from pursuing this

lawsuit.

In this appeal, Brengettcy’s new counsel argues that the

portion of the deposition testimony on which Horton

relied does not support the conclusion the district court

(following the defendant’s argument) drew. That portion

instead is the place where Brengettcy admitted that he had

not filed an appeal relating to the November 27 grievance.

The excerpt, which we reproduce here, contains no admission that the sole grievance he filed was submitted on

November 27, 2000.

Q: So if I go through and pulled that they made a

decision and tendered it to you during the period of

time, you’re telling me you never appealed? Is that

what your testimony is? Did you or did you not file

an appeal?
No. 03-3813 7

1 The following exchange is what was missing:

Q: And you say you filled this [November 27 grievance form]

out and you submitted it?

A: Yes. I submitted more than just this one, more than just

one because they don’t—they look in the box and they

tear them up. That’s what I heard.

Q: But I’m asking your specific—you filled out this grievance form. Is there another grievance form you filled out?

A: I put in many grievances.

Q: About this incident?

A: And I didn’t hear nothing from them.

Q: Let me finish. You’re saying that you submitted this

(continued...)

A: No.

Q: You did not?

A: No.

Q: The only form you filed, according to your testimony, is this grievance form that you identified

here today, right?

A: Yes.

In addition, appellate counsel argues that Horton failed

to attach the pages of Brengettcy’s deposition testimony

on which he relied to his summary judgment motion.

When he finally did attach the pages, he included only

pages 198-99 and 203-04. Acknowledging that the missing

pages were not officially part of the record, Brengettcy’s

counsel quoted them in his brief for purposes of showing

how drastically they change the inference one should draw

from the section quoted above. The other pages show that

immediately prior to this exchange, Brengettcy repeatedly

testified that he filed other grievances besides the one he

filed on November 27.1
8 No. 03-3813

1 (...continued)

grievance?

A: I have submitted many grievances . . . . 

II

We review a district court’s grant of summary judgment

de novo. Rooney, 410 F.3d at 380. A grant of summary

judgment is proper “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c).

This case is complicated because two different district

court judges ruled on essentially the same issues in the

case, and they reached different results. Generally speaking, a successor judge should not reconsider the decision

of a transferor judge at the same hierarchical level of

the judiciary when a case is transferred. See Williams v.

Commissioner, 1 F.3d 502, 503 (7th Cir. 1993); see also

John A. Glenn, Annotation, Propriety of Federal District

Judge’s Overruling or Reconsidering Decision or Order

Previously Made in Same Case by Another District Judge,

20 A.L.R. FED. 13 (1974, updated Apr. 2005). “[T]he law

of the case doctrine in these circumstances reflects the

rightful expectation of litigants that a change of judges

mid-way through a case will not mean going back to square

one.” Best v. Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997);

see also Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 816 (1988). As we explained in Best, “[a]lthough

the second judge may alter previous rulings if he is convinced they are incorrect, he is not free to do so . . . merely

because he has a different view of the law or facts from the

first judge.” Best, 107 F.3d at 546 (internal citations and

quotation marks omitted).
No. 03-3813 9

In this case, however, Judge St. Eve was not presented

with “precisely the same question in precisely the same

way” as Judge Bucklo: Judge Bucklo considered a motion to

dismiss, while Judge St. Eve had a summary judgment

motion before her. We must therefore decide whether the

new evidence submitted with Horton’s motion for summary

judgment “gave the second court a compelling reason to

reopen the previously decided question.” Id. at 547. “[I]f so,

we would then review the second judge’s decision de novo,

but if not, we would again take the first judge’s decision

as our point of reference.” Id.

Before doing so, we must address the preliminary question whether Brengettcy’s lawyer’s failure to comply with

Local Rule 56.1(b)(3) before the second judge dooms his

appeal. While we “have consistently held that a failure to

respond by the nonmovant as mandated by the local rules

results in an admission,” Smith v. Lamz, 321 F.3d 680, 683

(7th Cir. 2003), noncompliance with a court’s local rules

does not create a jurisdictional bar for the district court or

for us. See Smith v. Frank, 923 F.2d 139, 141 (9th Cir.

1991) (“[L]ocal rules should not be construed as affecting

the jurisdiction of the district court, but instead should

merely regulate the practice within the court.”). It merely

means that the noncomplying party cannot contradict facts

properly set forth in the moving party’s Local Rule 56.1

statement. Our evaluation of the record, to the extent we

need to look at the second judge’s action, therefore proceeds

on the basis of the facts Horton presented. See, e.g., Best,

107 F.3d at 549.

The question is thus whether the new evidence that

Horton submitted with his motion for summary judgment

provided a compelling reason for Judge St. Eve to overturn Judge Bucklo’s decision. The additional evidence

included portions of Brengettcy’s deposition testimony

and Horton’s statement of facts. In addition to those

two items, both judges had before them Brengettcy’s
10 No. 03-3813

verified complaints and the various grievances that he filed.

We put to one side the controversy about what Brengettcy

said in his deposition testimony, because no one called the

district judge’s attention to the missing pages, and we are

deciding at this point whether there was enough before

Judge St. Eve to justify reopening these issues. Even when

a district court is proceeding on the basis of only one party’s

version of the facts, because of the local rules, it remains

true that the underlying facts alleged must be taken in the

light most favorable to the nonmoving party, and all

reasonable inferences must be drawn in his favor. On that

basis, we conclude that Horton’s summary judgment papers

did not present enough new material to justify overturning

Judge Bucklo’s evaluation of the two defenses. Brengettcy’s

original verified complaint and his first amended complaint

both alleged that he filed a grievance on August 23, 2000;

Horton’s statement contradicted that crucial fact. Taking

the inferences in Brengettcy’s favor, the deposition excerpt quoted above refers only to his failure to appeal

the November 27 grievance, not to the existence or nonexistence of any other grievances. The relevant facts had

not changed by the time Horton presented his summary

judgment motion to Judge St. Eve, because he never alleged

that the CCDOC issued a decision or reply to any of

Brengettcy’s grievances. We conclude that there was not a

“compelling reason” to disrupt Judge Bucklo’s ruling

regarding exhaustion.

This in itself does necessarily not mean, of course, that

Judge Bucklo was correct. At this juncture, we must simply

decide, exercising de novo review, whether Brengettcy’s case

should have been dismissed for failure to exhaust. (This

would be the standard of review whether we were considering Judge St. Eve’s decision on the summary judgment

motion or Judge Bucklo’s decision on the motion to dismiss.

Because we have concluded that there was no reason to set

aside the first decision, however, the procedural problems
No. 03-3813 11

with the second decision are of lesser importance.) The

PLRA requires that “[n]o action shall be brought with

respect to prison conditions . . . by a prisoner confined in

any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42

U.S.C. 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 532

(2002); Booth v. Churner, 532 U.S. 731, 741 (2001).

Exhaustion is “an affirmative defense that the defendants

have the burden of pleading and proving.” Dale v. Lappin,

376 F.3d 652, 655 (7th Cir. 2004). In addressing exhaustion

within the context of the PLRA, we have held that §

1997e(a) requires “a prisoner [to] file complaints

and appeals in the place, and at the time, the prison’s

administrative rules require.” Pozo v. McCaughtry, 286 F.3d

1022, 1025 (7th Cir. 2002). Nevertheless, we have also held

that prison officials’ failure to respond to a prisoner’s claim

can render administrative remedies unavailable. See Lewis

v. Washington, 300 F.3d 829, 835 (7th Cir. 2002). In Lewis,

we followed the Eighth and Fifth Circuits in holding that

“administrative remedies [are] exhausted when prison

officials fail to respond to inmate grievances because those

remedies had become ‘unavailable’ . . . . We join [them] on

this issue because we refuse to interpret the PLRA so

narrowly as to . . . permit [prison officials] to exploit the

exhaustion requirement through indefinite delay in responding to grievances.” Id. (internal citations and quotation marks omitted); see also Foulk v. Charrier, 262 F.3d

687, 698 (8th Cir. 2001); Miller v. Norris, 247 F.3d 736, 740

(8th Cir. 2001); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.

1999); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.

1998) (per curiam).

Judge Bucklo concluded that Brengettcy “ha[d] done

all that is reasonable to exhaust his administrative remedies” because the prison officials failed to respond to his

grievance. She knew that Brengettcy had alleged that he

filed a grievance as early as August 23, 2000, in compliance
12 No. 03-3813

with CCDOC’s internal timetables. Her ruling was reasonable given the CCDOC’s grievance policy, which requires a

decision to be made on a prisoner’s grievance within 30 days

of filing; if no decision is possible within that time period,

the prisoner is entitled to a notice that his grievance will

require more than 30 days for resolution. Once a decision

has been made, the policy allows “five (5) working days from

receipt of the decision, to appeal to the Administrator of

Program Services or designee.” But the policy does not

instruct a prisoner on what he is to do when the CCDOC

fails to respond to his grievance and there is no decision to

appeal. Particularly in the light of Brengettcy’s allegations

that he filed a grievance within the time period mandated

by CCDOC’s rules, we conclude that Horton was not

entitled to judgment on the basis of any alleged failure to

exhaust.

Because we have concluded that the record here did

not support Judge St. Eve’s decision to reopen Judge

Bucklo’s conclusion on exhaustion, we do not have to

reach Horton’s argument that Brengettcy waived his

claim that Horton failed to comply with Rule 56 when

Horton did not attach the deposition pages on which he

relied to his summary judgment motion. The entire Rule 56

process gives us concern, however. We note that we

find Horton’s omission perilously close to the boundaries of

zealous advocacy; it bordered on misleading the court. This

is why we reproduced the omitted portion of Brengettcy’s

deposition testimony in footnote 1, supra. Looking at

Brengettcy’s actual testimony, and comparing it with what

the defendants represented to the court, is disturbing.

Judge St. Eve had no reason to suspect that the excerpt

submitted to her was taken so far out of context.

Even if Brengettcy exhausted his administrative remedies, Horton argues in the alternative, his claims are barred

by collateral estoppel or Heck because of his state court

conviction for battery. Horton’s Heck argument is easily
No. 03-3813 13

answered. As Judge Bucklo recognized, Brengettcy is not

barred by Heck because his challenge that Horton used

excessive force after he hit Horton does not undermine

Brengettcy’s conviction or punishment for his own acts of

aggravated battery. See Wilkinson v. Dotson, 125 S.Ct. 1242

(2005).

Neither is Brengettcy’s claim barred by collateral

estoppel. Horton suggests that the question whether he

used excessive force was necessarily decided during

Brengettcy’s state criminal trial. We therefore look to the

preclusion law of Illinois to determine the effect of that

judgment. 28 U.S.C. § 1738. In Illinois, issue preclusion

requires that: “(1) the issue decided in the prior adjudication is identical with the one presented in the suit in

question; (2) there was a final judgment on the merits in

the prior adjudication; and (3) the party against whom the

estoppel is asserted was a party or in privity with a party

to the prior adjudication.” Bajwa v. Metro. Life Ins. Co., 804

N.E.2d 519, 532 (Ill. 2004). The question whether Horton

used excessive force after Brengettcy hit him was not

presented or decided during Brengettcy’s criminal trial.

This means that neither the first nor the second of Illinois’s

requirements are met here: the issues decided in the

criminal case were not identical to those in the present

case, and the criminal case did not produce a

final adjudication on the excessive force point. The state

court’s decision not to give a self-defense instruction

determined only that Brengettcy was not legally justified in

hitting Horton. It implied nothing about the degree of force

Horton was allowed to use in responding to Brengettcy’s

assault.

Finally, we must consider whether the district court

properly dismissed on its own motion the defendants

who did not move for summary judgment—Pharaoh

Halbert, John Daley, John Does I-X, and the County of

Cook (that is, everyone except Horton). Without giving
14 No. 03-3813

Brengettcy notice, an opportunity to show good cause, and

an opportunity to request an extension of time, the court

concluded that he had failed to perfect service in a manner

consistent with FED. R. CIV. P. 4(m). This, we conclude, was

error. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d

338, 340 (7th Cir. 1996); see also Troxell v. Fedders of North

America, Inc., 160 F.3d 381, 382-83 (7th Cir. 1998). On

remand, Brentgettcy’s suit against the remaining named

defendants must be reinstated and he must be given an

opportunity to show either that there was good cause to

explain his earlier failure to effect service or that he is

otherwise entitled to an extension of time. The situation

with respect to John Does I-X is different; for them, there is

literally no one to serve. They were properly dismissed from

the action, and any effort Brengettcy may wish to make to

add additional named defendants at this point must comply

with all pertinent rules.

III

We REVERSE the district court’s judgment for the defendants and REMAND to the district court for further proceedings consistent with this opinion.
No. 03-3813 15

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-8-05