# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 22, 2018 *

Decided June 25, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 17

‐ 3438

KEVIN LEE BROOKING,

Plaintiff

‐ Appellant

,

v

.

MICHAEL BRANHAM, et al.,

Defendants

‐ Appellees

. Appeal from the United States

District Court for the Southern District

of Indiana, Evansville Division.

No. 3:17

‐ cv

‐ 00013

‐ RLY

‐ MPB

Richard L. Young,

J udge

.

O R D E R

Kevin Brooking appeals the entry of summary judgment in his inmate

‐ rights

suit. The district court ruled that Brooking had not opposed the defendants’ motion for

summary judgment. Before it ruled, Brooking had asked for more time to contest the

motion because he had not received a copy of it. The court did not exercise its discretion

to consider Brooking’s request for more time, and because Brooking has a potentially

valid response to the defendants’ motion, we vacate the judgment and remand.

* We have agreed to decide this 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. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3438 Page 2

Kevin Brooking was arrested in March 2015 and taken to the Lawrence County

jail. Brooking contends that he warned jail officials that he had a conflict with an inmate

in the jail’s general population, but no official separated them. The next morning, that

inmate beat Brooking, breaking his shoulder blade and lower leg. A few hours after the

attack, he was taken to the hospital and released from custody once his mother posted

bond. He did not (and, he argues, could not) file a grievance about the attack before his

release. The next month Brooking returned to the same jail on new charges. Jail officials

assert that the jail’s grievance procedures impose no time limits on filings. They further

assert that Brooking did not file a grievance about the attack any time after his return.

As relevant on appeal, Brooking sued jail officials for violating the Constitution

by not preventing the assault, and the defendants answered by asserting that he had not

exhausted his administrative remedies. The district judge ordered the defendants to

select one of three options by August 21, 2017: (1) file a motion in support of their

exhaustion defense, (2) notify the court that the exhaustion issue could not be resolved

by motion, or (3) tell the court that they had abandoned the defense. One day after the

deadline, the defendants moved for summary judgment based on Brooking’s failure to

exhaust. (They did not ask for permission to file late.) That same day, they attempted to

serve Brooking by mail, sending the motion to Brooking at his listed home address. The

mailing included the notice to pro se litigants required by Timms v. Frank

, 953 F.2d 281,

285 (7th Cir. 1992). The notice explained Brooking’s obligation to respond to the motion,

a response deadline of September 22, and the right to request more time to respond.

Brooking did not receive the motion or notice because he had been returned to

jail. The court’s clerk received from Brooking on September 29 a “Notice of Address

Change & Request for Continuance of Any Deadlines.” Brooking explained that he was

again in the Lawrence County jail and had been there since August 24 (two days after

the defendants mailed their motion and notice to his home). He had not yet received

from his only living relative (his disabled mother) his papers from this case. And he had

“just received the address to notify the court” of his new location because the jail “has

no law library or directories.” He asked for an extension of any pending deadlines.

The district court did not address Brooking’s request. Instead, on the next

business day, October 2, the court entered summary judgment for the defendants. It

ruled that Brooking did not oppose the defendants’ motion, so the court accepted as

true their statement of material facts. Relying on their assertion that the jail’s grievance

procedure imposes no deadlines and that Brooking never filed a grievance about theNo. 17

‐ 3438 Page 3

attack, the judge concluded that Brooking had not exhausted his administrative

remedies.

On appeal, Brooking argues that the district court did not allow him a reasonable

opportunity to oppose the motion for summary judgment. He repeats that he never

received the motion or notice of deadlines before the court’s ruling; that because the jail

does not have any court directories, he could not immediately notify the court of his

new address; and that he did so as soon as he received the court’s address. If given the

chance to oppose the exhaustion defense, Brooking would argue that he exhausted all

available administrative remedies: the jail did not inform him about the grievance

process before his attack; at the hospital he was released from custody, leaving him

unable to file a grievance; and when he was later jailed again, corrections officials told

him that it was too late to file a grievance about the assault.

The district court should have considered Brooking’s request that, because he

acted diligently to contact the court with his new address and had not received any

court papers, he deserved more time to meet pending deadlines. When a court

considers a motion (as the district court did with the motion for summary judgment), it

has discretion to grant a request to file a late response to that motion if the requester

shows “excusable neglect” for missing a deadline. F ED

. R. C IV

. P. 6(b)(1)(B). Even if the

court did not see Brooking’s request until after it entered summary judgment, it still

possessed discretionary power to reconsider that judgment in light of the request.

See F ED

. R. C IV

. P. 59(e). But the district court never exercised its discretion to consider

Brooking’s request. It never evaluated whether Brooking’s assertions in his request

were true and, if true, whether they justified a discretionary grant of more time to

respond. A judge’s failure to exercise discretion is an abuse of discretion. See Childress v.

Walker

, 787 F.3d 433, 443 (7th Cir. 2015).

Although we could affirm if the district judge’s inaction was harmless, it was not.

Brooking has a potential response to the exhaustion defense: he contends that he had no

available administrative remedies because he had left custody once released from the

hospital and jail officials thwarted his later efforts to file a grievance. We therefore must

remand. The district court is free to decide on remand whether it accepts as true

Brooking’s assertion that he did not receive the motion for summary judgment and

could not contact the court sooner, and whether that assertion warrants a discretionary

grant of added time to respond. See May v. Mahone

, 876 F.3d 896, 899 (7th Cir. 2017).

We thus VACATE the judgment and REMAND for further proceedings.