In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-3039

MARK A. WEISS,

Plaintiff-Appellant,

v.

WAYNE BARRIBEAU, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 15 C 1165 — Charles N. Clevert, Jr., Judge.

____________________

SUBMITTED MARCH 27, 2017 — DECIDED APRIL 7, 2017

____________________

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. Mark Weiss, a Wisconsin inmate, 

claims in this suit under 42 U.S.C. § 1983 that Department of 

Corrections employees failed to prevent a February 26, 2014,

assault by his cellmate that resulted in a broken ankle for 

Weiss, and that they left his broken ankle untreated for 
2 No. 16-3039

months in violation of the Eighth Amendment to the Constitution, which of course forbids cruel and unusual punishments. The district court granted summary judgment for the 

defendants on the ground that Weiss had failed to exhaust 

his administrative remedies before suing, as required by the 

Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

Yet the defendants did not contest Weiss’s factual allegations, which included an allegation that before the assault by 

his cellmate he had repeatedly asked to be moved to a different cell because, as he had told the guards, his cellmate 

was threatening him. The guards did nothing and when after the fight Weiss complained that his ankle felt broken and 

requested an x-ray, the medical staff refused, deeming the 

injury (without evidence) to be merely a sprain. Although 

Weiss was obviously in great pain, even his request for an ice 

pack was refused. And he was disciplined for fighting and 

on March 18 appeared before the prison’s Program Review 

Committee, which ordered him transferred from the prison 

(the Racine Correctional Institution) to a mental-health 

treatment center, and he was transferred a week, or perhaps 

as much as three weeks, later. The treatment center’s staff 

obtained a court order authorizing the administration of

psychotropic medicine to him. The medicine produced serious side effects, such as causing him to, as he put it, engage 

in “bizarre behaviors” and “make bad decisions.”

Not until six months after the injury was the ankle xrayed. The x-ray revealed the break and at last Weiss, who

had been in constant pain since the injury, received treatment. 

Back on March 10, when he still was incarcerated in the 

Racine Correctional Institution, he had submitted a timely 
No. 16-3039 3

complaint about his treatment to the prison’s complaint examiner—who returned his complaint the next day with written instructions to seek a resolution of his grievance with his 

unit manager, adding that Weiss could resubmit the complaint within 14 days if unable to resolve the issue informally. But it was during those two weeks that Weiss had appeared before the Program Review Committee, and he was 

transferred to the mental-health facility after the March 25 

deadline to resubmit the complaint had come and gone 

without his resubmitting it. A psychologist employed by the 

state later reported that the transfer had been prompted by 

“active symptoms of a major Mental Illness, Bipolar Disorder” on the part of Weiss.

While still confined in the mental-health center, Weiss on 

August 18 submitted a second administrative complaint 

about the fight and its aftermath, this one noting that the 

broken bone in his ankle had finally been diagnosed by x-ray 

the previous week and at last treated. The complaint was rejected as untimely, but the complaint examiner failed to explain how the complaint could be late given that until his 

ankle had been x-rayed Weiss had been told it wasn’t broken. Nor did the examiner explain why it was too late for 

Weiss to file a grievance about an untreated injury that had 

caused continuous pain ever since the fight in which the injury had been inflicted. In Cesal v. Moats, No. 15-2562, 2017 

WL 1046113, at *5–6 (7th Cir. Mar. 20, 2017), we held that a

cause of action accrues on the date of the last incidence of an 

ongoing harm, and in Heard v. Sheahan, 253 F.3d 316, 318 (7th 

Cir. 2001), we remarked that every day that the defendants 

had “prolonged [an inmate’s] agony by not treating his painful condition marked a fresh infliction of punishment.”
4 No. 16-3039

The complaint examiner’s correspondence notes that 

Weiss could appeal the rejection of his complaint within 10 

days, see Wis. Admin. Code § DOC 310.11(6), but the correspondence was addressed to Weiss at Racine, where he no 

longer was, rather than at the mental health center, and the 

defendants failed to establish that the correspondence had 

been delivered to him. Furthermore, during the time allotted 

to Weiss for exhausting his administrative remedies, he was 

being treated for mental illness at the insistence of the administrators of the mental health center. In his response to 

the defendants’ motion for summary judgment, he pointed 

out that during that period he had been “heavily medicated” 

with “mind altering psychotropic drugs” and suffering from 

“mental health issues to where I was hav[ing] big problems 

with psychotropic medications that impaired my ability to 

write, or get the proper information on the grievance forms.” 

He added that his ability to exhaust his remedies was further

hampered by “the pain and suffering” caused by “the wrong 

psychotropic medicines,” and by his involuntary commitment and forced treatment at the mental-health center. Weiss 

later filed a motion requesting an evidentiary hearing, see 

Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), pointing out

that his transfer from Racine to the mental-health center had 

prevented him from exhausting his administrative remedies 

because none of the required forms was available at the center and the procedures were too numerous and ambiguous 

for him to comply with.

Yet the district court granted summary judgment for the 

defendants, accepting their contention that Weiss had failed 

to exhaust his administrative remedies because he had not

resubmitted his March 10 administrative complaint or filed

an appeal from the rejection of his second such complaint, 
No. 16-3039 5

which he had submitted on August 18. The court denied 

Weiss’s motion for a hearing, deeming the motion not “appropriately before the court” because Weiss had filed it after 

responding to the defendants’ motion for summary judgment without seeking leave to supplement that response. 

The dismissal was premature. As Weiss points out, the 

district court ignored the fact that he’d “d[one] the best he 

could do under the circumstances,” given his transfer to the 

mental-health center and, once he was there, being forced to 

take psychotropic drugs that muddled his thinking. 

Obviously prisoners can’t be required to exhaust remedies that are unavailable to them, Hernandez v. Dart, 814 F.3d 

836, 842 (7th Cir. 2016), which they are if the prisoner can’t

obtain or complete the forms required to invoke them. Id.; 

see also King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015); Alison M. Mikkor, “Correcting for Bias and Blind Spots in 

PLRA Exhaustion Law,” 21 George Mason Law Review 573, 616 

(2014). That was Weiss’s situation. And Wisconsin law

acknowledges that some inmates, including the “impaired, 

handicapped, or illiterate,” may need assistance to be able to 

file grievances, and orders prison administrators not to “exclude” such inmates from “full participation” in the procedure. Wis. Admin. Code § DOC 310.09(7). The district court 

knew that Weiss was grappling with a serious mental illness 

during the time that he was supposed to have been exhausting his administrative remedies, but the defendants failed to 

explain to the court how he could have pursued his remedies while suffering a mental breakdown requiring hospitalization, especially given the lack of evidence that Weiss received the correspondence rejecting his August 18 administrative complaint, correspondence that would have told him 
6 No. 16-3039

what his next step to obtain relief should be. Even if he did 

receive that response, however, Weiss was still being treated 

at the mental-health center when it was sent. Given the questionable state of his mental stability at the time, we cannot 

have any confidence that administrative remedies actually 

were available to him.

The suit was dismissed prematurely. The judgment of the 

district court is reversed and the case remanded for further 

proceedings consistent with this opinion.