# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 22, 2018 *

Decided July 26, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 17

‐ 1586

TARENCE BANKS,

Plaintiff

‐ Appellant

,

v

.

LESLIE PATTON, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 14

‐ cv

‐ 381

‐ PP

Pamela Pepper,

J udge

.

O R D E R

Tarence Banks sued jail officials for alleged violations of the Rehabilitation Act

and the Americans with Disabilities Act, among other things, during his stay as a

pretrial detainee at the Racine County Jail. The district court entered summary

judgment for the defendants on several claims because Banks had failed to exhaust his

administrative remedies. The court decided the remaining claims on the merits. We

affirm the merits decision but vacate and remand for further consideration of

administrative exhaustion.

* 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 NONPRECEDENTIAL DISPOSITION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

‐ 1586 Page 2

Background

Banks arrived at the Racine County Jail in November 2013. An injury that Banks

had incurred the month before led to the amputation of his left arm. He had large

incisions down his arm, legs, and back from a bone graft performed in an attempt to

save his injured arm. He also came to jail with an infection. When he arrived, Banks told

jail staff that he would need a handicapped

‐ accessible cell.

The intake cell, where Banks spent his first five days, was not handicapped

‐

accessible; in particular, there were neither grab bars on the walls nor rails on the bed.

Banks struggled to use the bed or toilet without difficulty. He sometimes urinated on

himself because he could not make it from the bed to the toilet in time. After Banks was

moved to a medical

‐ segregation cell, where he stayed for two months, he depended on

his cellmate to help him get out of bed, onto the toilet, and to tend to his hygiene—as

before, there were no accessibility features in the cell.

Banks asked to be transferred from medical segregation into the general

population, saying he was “good to go.” The jail moved Banks to a maximum

‐ security

pod within the general population in January 2014. This cell was not

handicapped

‐ accessible either; no cells for inmates with Banks’s security classification

have grab rails due to safety and security concerns, including the risk of suicide.

Banks’s medical woes did not prevent him from getting into trouble. During his

confinement, he received several disciplinary actions for his behavior. For example,

Banks exposed himself multiple times to nurses and violated jail rules like using

obscene language with a corrections officer, refusing orders, threatening a corrections

officer, and engaging in play fighting. He spent 25 days in February 2014 in disciplinary

segregation, again in a cell that was not tailored for an individual with disabilities.

Banks filed many grievances during his stay at the jail about not being in a

handicapped

‐ accessible cell. He no longer had the help of his previous cellmate and he

was still having problems with his arm and leg. He submitted a grievance asking for a

wheelchair, but it was not deemed a medical necessity. Yet despite the absence of hand

rails, Banks did not complain of problems with his bed or toilet once he was moved to

the general population, and his mobility problems improved. His requests to move then

focused on being closer to the handicapped shower in the intake area, to which he

received access every three days. Banks also filed many grievances about inadequateNo. 17

‐ 1586 Page 3

medical care for his postsurgical wounds and his pain, and he repeatedly requested a

prosthetic arm.

The jail handbook explains that if informal resolution of a problem is not

possible, then an inmate may submit a written grievance on the inmate request form.

Inmates are told not to submit multiple requests for the same concern and that “it may

take several days for a formal written response.” Grievance appeals must be submitted

“in writing within 15 days to the jail administrator using the inmate request form.”

Banks sued several of the jail’s corrections officers and medical providers in

April 2014. He claimed a bevy of constitutional violations including failure to

accommodate his disability in violation of Section 504 of the Rehabilitation Act and

Title II of the ADA. The jail employees and the medical providers each moved for

summary judgment. In their respective motions, each asserted that Banks did not

exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). In particular,

they contended that although Banks had filed over 60 grievances during the 5 months

between the start of his incarceration (November 2013) and the date that he filed his

federal complaint (April 2014), he never appealed any of the initial denials. The

defendants also sought judgment on the merits.

Because both the jail employees and the medical providers had argued in their

summary

‐judgment motions that Banks had failed to exhaust his administrative

remedies, the district judge decided to hold an evidentiary hearing on the exhaustion

issue, see Pavey v. Conley

, 544 F.3d 739, 742 (7th Cir. 2008), before deciding the motions.

The judge recruited an attorney to represent Banks at the hearing only. The record does

not contain a transcript—the hearing was transcribed, see 28 U.S.C. § 753(b), but neither

party provided one to us. Although we have the option to direct the preparation of a

transcript, we did not order one here to conserve resources; the district judge

summarized the evidence in detail in the memorandum opinion granting the jail

officials’ motion for summary judgment. At the hearing, Banks testified that he had not

appealed many of his grievances but explained that there were two reasons. First, he

had not received responses to the majority of his grievances, and he could not appeal

decisions that had never been provided to him. Second, he was unaware of the proper

appeal process because the handbook pages explaining grievance procedures were in

the dayroom where he was unable to access them. When he arrived, he could not get

out of bed without assistance and was segregated for months. Moreover, the inmate

request forms that he used contained no directions about how to appeal.No. 17

‐ 1586 Page 4

During the hearing the defendants pointed out that even if Banks could not see

the handbook at first, he had been housed at the jail 45 times since 1997 and the

handbook was posted on the dayroom wall each time. Moreover, Banks’s mobility

limitations resolved before he filed his federal complaint. The defendants also argued

that Banks had filed multiple complaints on the same topic and that while the

defendants may not have responded to every grievance, they responded to every topic.

Only “legitimate” grievances get a response, they said although the handbook says all

grievances get a written response within days. When the judge asked how a grievance

could be distinguished from an appeal since they used the same form, the defendants

responded that on the form the inmate should reference the decision he was appealing.

The district court observed that this requirement was not in the jail handbook.

The district judge then analyzed the hearing evidence in her memorandum

opinion. First, she limited the universe of grievances that she would consider. She noted

that the jail’s “informal and disorganized filing system” made it difficult to “track

which complaints the RCJ staff responded to, which they ignored, and which, if any, the

plaintiff appealed.” She faulted the defendants for providing just a “sample” of the

grievances and responses as evidence for their defense and for not performing “the

tedious task of organizing all of the complaints by claim and showing whether, when,

and how the RCJ [d]efendants responded.” Therefore, she took Banks at his word that

only Captain Wearing, the jail administrator, ever responded to any grievance, and that

Banks received many responses only after filing suit. To resolve the exhaustion issue,

therefore, she considered only responses that were signed by Captain Wearing and

dated. Applying this protocol, the judge then dismissed a handful of Banks’s claims

without prejudice because Banks had failed to exhaust his administrative remedies.

The district judge addressed the rest of Banks’s claims on the merits, including

the failure to place him in a handicapped

‐ accessible cell. She concluded that Banks’s

temporary need for a handicapped

‐ accessible cell was attributable to injuries, not a

disability, and further that there was no “reasonable accommodation” to be had for him

while housed in the maximum

‐ security pod. On appeal, Banks challenges only this

aspect of the merits decision in addition to the findings that he failed to exhaust his

claim of deliberate indifference to his serious medical needs.No. 17

‐ 1586 Page 5

Analysis

I. Exhaustion of Administrative Remedies

Banks argues that dismissal for failure to exhaust his remedies with respect to his

medical

‐ care claims was in error. The jail defendants, he argues, prevented him from

exhausting because they did not explain the appeal procedure to him, failed to produce

or lost his grievances, and did not respond to his grievances.

Ordinarily we review the denial of a summary

‐judgment motion de novo. But,

after a Pavey hearing, we review findings of fact for clear error and the district court’s

conclusions of law de novo. Wilborn v. Ealey

, 881 F.3d 998, 1004 (7th Cir. 2018). At the

outset we note that because a dismissal without prejudice is not final, it is not ordinarily

appealable. Hill v. Snyder

, 817 F.3d 1037, 1039–40 (7th Cir. 2016). But Banks cannot

further pursue administrative remedies for the actions surrounding his claims because

he is now time

‐ barred by the jail’s grievance policy. Id. He cannot do anything to cure

the alleged failure to exhaust now and thus the dismissal is final for purposes of

appellate review. Id.

It was the defendants’ burden to prove that Banks had not exhausted his

administrative remedies. King v. McCarty

, 781 F.3d 889, 893 (7th Cir. 2015). Although the

district court acknowledged that much of the defendants’ “sample” of evidence was

unreliable, and limited the evidence as a result, she did not hold the defendants to their

burden. Specifically, the judge drew an inference against Banks with respect to whether

he ever appealed a grievance related to his medical care.

The medical providers did not present evidence at the Pavey hearing, but in their

summary

‐ judgment motion they explained that only two grievances related to the

treatment of Banks’s arm, filed on February 6 and 7, 2014. The district judge examined

the evidence and concluded that Banks also had filed grievances about the treatment of

his arm on December 12 and 16 of the previous year. The judge could find no response

to the December grievances but waved off the jail’s failure because Lieutenant Friend

testified that “complaints about medical issues are generally forwarded to the medical

staff.” As to the February grievances, the judge said, “these complaints were directed at

a different RCJ Defendant [i.e., Wearing] and they did not reference his prior

complaints or the lack of response to those complaints.” The judge agreed that Captain

Wearing had responded, on February 12, to the earlier February grievances. Because the

medical defendants asserted that Banks had never appealed Wearing’s February 12No. 17

‐ 1586 Page 6

response and Banks “did not rebut this assertion with evidence,” the judge concluded

that Banks did not exhaust his administrative remedies before suing about his poor

medical treatment.

But the judge’s finding that the February grievances were not appealed is based

on factual inferences not justified by the record, and so she committed clear error. First,

the judge treated the grievances that received no response as unexhausted. To

successfully exhaust “prisoners need not file multiple, successive grievances raising the

same issue,” as the court concluded that Banks did here. Turley v. Rednour

, 729 F.3d 645,

650 (7th Cir. 2013). Inmates must exhaust available administrative remedies, 42 U.S.C.

§ 1997e(a), and a remedy can be unavailable if jail officials do not respond to the

grievance. Pyles v. Nwaobasi

, 829 F.3d 860, 864 (7th Cir. 2016). Again, it is the defendants

who bear the burden of proving that Banks failed to exhaust. Id. Banks filed two

grievances in December and the defendants provided no evidence that they responded

or forwarded them to the medical department (although it is unclear why that would

obviate the need to respond, anyway). The jail officials’ nonresponse should have

established that Banks exhausted his administrative remedies.

Further, the district judge clearly erred in concluding that Banks did not appeal

the February grievance denials. The judge’s conclusion is supported by the record only

if she inferred, against Banks, that they were original grievances and not appeals. True,

in his February grievances, Banks did not reference the lack of response to his prior

grievances. But the judge noted that the jail handbook does not contain that

requirement, and neither the judge nor the defendants say how Banks could have

learned of it. Although the judge did not credit Banks’s testimony that he was unable to

access the handbook, which she was entitled to do, the handbook did not contain the

“rule” at issue so even seeing the handbook could not have changed Banks’s actions.

Jails “cannot shroud the prisoner in a veil of ignorance and then hide behind a failure to

exhaust defense to avoid liability.” Hernandez v. Dart

, 814 F.3d 836, 842 (7th Cir. 2016).

The jail handbook says it may take several days to get a formal written response—days,

not months. So the February grievances, restating the same issues as the ignored

December grievances, could just as easily have been treated as appeals. The district

judge made no findings about the exhaustion of his medical claims regarding the

treatment of his other postsurgical wounds, infection, and rash, only the “sample” of

grievances about his arm because that is all the defendants produced. Therefore the

other medical claims remain an open question. Given the ambiguous rules, and the

allocation of the burden of proof to the defendants, the judge committed clear error inNo. 17

‐ 1586 Page 7

the fact

‐ finding from which she drew the conclusion that Banks did not exhaust his

remedies. Accordingly, we vacate the judgment for the medical defendants.

II. Disability Discrimination

Banks next argues that he was denied the benefits of services and programs as

required by the Americans with Disabilities Act and the Rehabilitation Act because he

was housed in cells that did not comply with the structural requirements of the statutes.

Naming the jail defendants in their official capacities allows him to pursue this claim

against the jail. The relief under either statute is the same; the analysis is too, because

the only additional element that the Rehabilitation Act includes is an institution’s

receipt of federal funds, something the jail officials admit. See Jaros v. Ill. Dept. of Corr.

,

684 F.3d 667, 671 (7th Cir. 2012). But we refer only to the Rehabilitation Act going

forward in order to avoid a “thorny question of sovereign immunity” that persists with

respect to the ADA. Id. at 672. In order to succeed under the Rehabilitation Act, Banks

must show: “(1) he is a qualified person (2) with a disability and (3) the [jail] denied him

access to a program or activity because of his disability.” Id. “Refusing to make

reasonable accommodations is tantamount to denying access.” Id. ; see A.H. by

Holzmueller v. Ill. High Sch. Ass ʹ n

, 881 F.3d 587, 592 (7th Cir. 2018) (discussing extension

of “reasonable accommodation” concept to Title II of ADA and Section 504 of

Rehabilitation Act).

First, there is little question that Banks, an amputee, is an individual with a

disability. See 42 U.S.C. § 12102(1). For purposes of this appeal, the defendants do not

seem to dispute that conclusion, although they make the stray assertion that injuries

and illnesses are not disabilities.

Second, we can assume that Banks claims the denial of access to a qualifying

“program or activity.” Incarceration itself is not a program or activity, but the meals

and showers made available to inmates are, Jaros

, 684 F.3d at 672, and the defendants

agree that some courts also have found access to toilets a program or activity. Banks’s

chief complaint is not being placed in a handicapped

‐ accessible cell; the attendant

difficulties involved access to the toilet and the bed.

The reasonable accommodation that Banks allegedly was denied was a

handicapped

‐ accessible cell. Yet Banks wrongly argues that the jail had to move him to

a handicapped

‐ accessible cell in the low security E

‐ wing. The jail had no obligation to

change his security classification, as this would require a “fundamental alteration in theNo. 17

‐ 1586 Page 8

nature of the program.” See Valencia v. City of Springfield

, 883 F.3d 959, 968 (7th Cir.

2018). 1 Banks has not demonstrated that he was unreasonably denied any other

accommodation, either. Indeed, as the district court found, it is far from clear that Banks

required any accommodation once he was “good to go,” as he said, to the general

population. He no longer complained about being unable to use the toilet or the bed;

rather, he complained about having to travel to the intake area to shower. The record,

therefore, does not establish the denial of a reasonable accommodation.

In any event, even if Banks still needed an accessible cell, we could not conclude

that the jail withheld it “by reason of” Banks’s disability, and not for a generally

applicable reason. See Wis. Cmty. Serv., Inc. v. City of Milwaukee

, 465 F.3d 737, 748

(7th Cir. 2006). The jail showed that grab bars and handrails present safety risks,

including the risk of using them to commit suicide, (something to which the maximum

‐ security population already is more susceptible). See Crawford v. Ind. Dept. of Corr.

,

115 F.3d 481, 487 (7th Cir. 1997) (abrogated on other grounds); Love v. Westville Corr.

Ctr.

, 103 F.3d 558, 561 (7th Cir. 1996). And despite his amputation, Banks continued to

pose a disciplinary challenge throughout the relevant time period, elevating the security

concerns. The cane that jail officials confiscated from Banks could function as a deadly

weapon, and a doctor opined that Banks did not require a wheelchair, despite his

request. Security concerns and medical opinions, specific to the offender, are neutral

reasons for declining accommodations. Therefore, Banks fails to show that the denial of

any accommodation was “by reason of” his disability.

Therefore, we AFFIRM the entry of summary judgment for the jail defendants on

the disability

‐ discrimination claim, but we VACATE the judgment of dismissal for the

medical defendants based on failure to exhaust and REMAND to the district court for

further proceedings consistent with this order.

1 But the jail wrongly assumes that because the only handicapped

‐ accessible

cells are in the minimum

‐ security dormitory, it has no duty to provide them to

maximum

‐ security inmates like Banks. It argues that placing an inmate in a cell with a

toilet and bed is enough, even if the inmate cannot use either easily. That is a dubious

proposition because meaningful access is required. See Alexander v. Choate

, 469 U.S. 287,

301 (1985). The current absence of a handicapped

‐ accessible cell in the maximum

‐ security pod is not an excuse for refusing to provide one, or some reasonable

alternative, if it is needed. See Jaros

, 684 F.3d at 672.