*

After an examination of 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).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted March 12, 2008*

Decided March 13, 2008

Before

WILLIAM J. BAUER, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 07‐1490

MICHAEL WHITENER,

Plaintiff‐Appellant,

v.

EDWIN BUSS, et. al,

Defendants‐Appellees.

Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

No. 3:06cv291 RM

Robert L. Miller, Jr.,

Chief Judge.

O R D E R

Indiana inmate Michael Whitener brought suit under 42 U.S.C. § 1983 claiming that

the superintendent of the Indiana State Prison and three prison officers violated his Eighth

Amendment rights by confining him in a prison cell with a defective ceiling that eventually

fell and injured him.  The district court granted the defendants’ motion for summary

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐1490 Page 2

judgment, reasoning that Whitener had failed to exhaust his available administrative

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

Whitener appeals, and we affirm the judgment.

It is undisputed that in July 2005 the superintendent ordered Whitener placed in

solitary confinement.  While in solitary Whitener complained several times that his cell was

structurally unsound.  When the plaster ceiling collapsed and injured Whitener, he was

moved to another cell.  More than a week later, he filed a prison grievance alleging that he

was injured because unnamed officers he told about the ceiling had done nothing.

Whitener’s grievance was rejected as untimely.

In his federal complaint Whitener identified three officers (all defendants) who

allegedly knew about the ceiling.  The defendants countered at summary judgment that

their investigation had established that plaster and debris did fall from the ceiling but only

because Whitener was chipping away at it.  More importantly, though, the defendants

submitted uncontroverted evidence that prison regulations require grievances to be

submitted within 48 hours of an incident (not including weekends and holidays), and that

Whitener missed that deadline by a week.   Whitener responded that he did his best to

submit a timely grievance; he contended that prison officials made it impossible for him to

comply with the 48‐hour deadline because, following his transfer, he was unable to

determine the names of the officers he told about the ceiling so that he could name them in

his grievance.  Whitener argued that he faced a “Catch‐22ʺ because he could not comply

both with the time limit for filing a grievance and a different requirement that he name the

officers involved.  The defendants submitted evidence, however, that Whitener could have

requested that the 48‐hour limit be waived, but he did not.  

We review a grant of summary judgment de novo.  Sides v. City of Champaign, 496

F.3d 820, 826 (7th Cir. 2007).  Whitener first argues that exhaustion under the PLRA should

not be subject to prison procedural requirements, but it is well established that inmates

must comply with prison rules and procedures governing grievances, including time

limitations.  See Woodford v. Ngo, 126 S.Ct. 2378, 2386 (2006); Pozo v. McCaughtry, 286 F.3d

1022, 1025 (7th Cir. 2002).  

Whitener also argues that his transfer to another cell after his injury prevented him

from complying with the 48‐hour deadline because in that brief time it was impossible for

him to learn the names of the officers involved in the incident.  Whitener presented no

evidence that a timely grievance would not have been considered if it did not name the

officers, but the defendants have not disputed that names were required, so we presume

that they were.  Still, there is no evidence that his relocation kept Whitener from meeting the

time limit even if he didn’t already know the names of the officers he allegedly told about
No. 07‐1490 Page 3

the ceiling.  Indeed, Whitener submitted no evidence that he tried to learn the names during

the 48‐hour period.  In any event, Whitener could have requested that prison officials waive

the time limitation, but did not.  This is not a case where prison officials made their

grievance procedures effectively “unavailable” by preventing the inmate from complying.

See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Doyle v. Chandler, 438 F.3d 804, 809 (7th

Cir. 2006).   Rather, Whitener is simply trying to justify the untimely submission of his

grievance after the fact.  

We agree with the district court that Whitener’s failure to exhaust his administrative

remedies is undisputed.  Exhaustion was required before Whitener could proceed with his

federal lawsuit, so the district court was correct to dismiss it.  See Burrell v. Powers, 431 F.3d

282, 285 (7th Cir.  2005).

AFFIRMED.