### In the 

# United States Court of A p peals For the Seventh Circuit

____________________ No. 16

- 3039
M ARK A. W EISS , Plaintiff

- Appellant ,

v.

W AYNE B ARRIBEAU , et al

. , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the E astern District of Wisconsin

. No. 15 C 1165

— C harles N. Clevert, Jr.
, Judge

.

____________________
S UBMITTED M ARCH 27, 2017

— D ECIDED A PRIL 7, 2017

____________________

Before P OSNER , S YKES , and H AMILTON , Circuit Judges

. P OSNER , Circuit Judge. Mark Weiss, a Wisconsin inmate, claims in this suit u n der 42 U.S.C. § 1983 that Department of Corrections emplo y ees 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 un treated for2 No. 16

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months in violation of the Eighth Amendment to the Constitution, which of course fo r bids cruel and unusual punishments . The district court granted summary judgment for the defendants on the ground that Weiss had failed to exhaust his administrative rem edies before suing, as required by the Prison Lit i gation Reform Act, 42 U.S.C. § 1997e(a).
Yet the defendants did not contest Weiss’s factual alleg ations , which included an allegation that before the assault by his cellmate he had repeatedly asked to be mo ved to a di fferent cell because, as he had told the guards , his cellmate was threatening him. The guards did nothing and when a fter the fight Weiss complained that his ankle felt broken and requested an x

- ray, the medical staff refused, deeming the i n

jury (without evidence) to be merely a sprain. Although Weiss was o b viously 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 h e was transferred a week , or perhaps as much as three weeks, later

. T he treatment center’s staff obtained a court order authorizing the administrat ion of psychotropic medicine to him . The medicine produced ser ious side effects, such as causing him to , as he put it, engage in “ bizarre b e hav ior s” and “make bad decisions.”
Not until six months after the injury was the ankle x

rayed. The x

- ray revealed t he break and at last Weiss , who had been in constant pain since the injury , re c eived trea tment

. Back on March 10, when he still was incarcerated in the Racine Correctional Institution, he had submitted a timelyNo. 16

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complaint about his treatment to the prison’ s complaint e xaminer

— who returned his complaint the next day with wri tten i n structions to seek a resolution of his grievance with his unit manager , adding that Weiss could resubmit the co mplaint within 14 days if unable to resolve the issue info r mally. But it was during those two weeks that Weiss had a ppeared before the Pr o gram Review Committee, and he was transferred to the mental

- health facility after the March 25 dea d line to resubmit the complaint had come and gone without his r e submitting it. A psycholo gist employed by the state later reported that the transfer had been prompted by “active symptoms of a major Mental Illness, Bi polar Diso rder ” on the part of Weiss.

W hile still confined in the men tal

- health center, Weiss on August 18 submitted a second adm inistrative co m plaint 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 r ejected as untimely, but the complaint examiner failed to e xplain how the complaint could be late given th at until his ankle had been x

- rayed Weiss had been told it wasn’t br oken. Nor did the exa m iner 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 i njury had been i n flicted

. In Cesal v. Moats, No. 15

- 2562, 2017 WL 1046113, at *5

– 6 (7th Cir. Mar. 20, 2017) , we held that a cause of ac tion accrues on the date of the last incidence of an ong o ing 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 pai nful condition marked a fresh infli c tion of pun ishment.”4 No. 16

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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 corr espondence was addressed to Weiss at Racine, where he no longer was, rather than at the mental health center , and the defe n dants failed to establish that the correspondence had been delivered to him . Furthermore, during the time allotted
to Weiss for exhaust ing his administrative reme dies , he was being treated for mental illness at the insistence of the a dministrators 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 pro blems with psychotropic med i cations that impaired my ability to write, or get the proper info r mation on the grievance forms.” H e added that his ability to exhaust his remedies was further hampered by “the pain and suffering” caused by “the wrong psychotrop ic medicines , ” and by his involuntary commi tment and forced treatment at the mental

- health ce n ter . Weiss later filed a motion requesting an evidentiary hea r ing, see Pavey v. Conley , 544 F.3d 739, 742 (7th Cir. 2008), pointing out that his transfer from Rac ine to the mental

- health center had prevented him from exhausting his admi n istrative remedies because no ne of the required forms was available at the ce nter and the procedures were too numerous and a m biguous for him to comply with

. Yet the district court g ranted summary judgment for the defendants , accepting their contention that Weiss had failed to exhaust his administrative remedies because he had not

r e submit ted his March 10 administrative complaint or file d an appeal from the rejection of his second suc h complaint ,No. 16

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which he had submitted on August 18. The court denied Weiss’s motion for a hearing, deeming the motion not “a ppropriately before the court” because Weiss had filed it after responding to the defendants’ motion for summary jud gment without seek ing leave to supplement that r e sponse. The dismissal was premature. A s Weiss points out, the district court ignored the fact that he’d “d [one] the best he could do under the circumstances,” gi v en his transfer to the mental

- health center and , once he was t here , being forced to take psychotropic drugs that muddled his thin k ing

. Obviously prisoners can’t be required to exhaust rem edies that are un available to them, Hernandez v. Dart , 814 F.3d 836, 842 (7th Cir. 2016) , which they are if the pri s on er can’t obt ain or complete the forms required to i n voke them

. Id

. ; see also King v. McCarty , 781 F.3d 889, 893 (7th Cir. 2015 ); A lison 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

a c knowledges that some inmates, including the “impaired, handicapped, or i l literate,” may need assistance to be able to file grievances, and orders prison administrators not to “e xclude” such inmates from “full participation” in the proc edure . 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 exhaus ti ng his administrative rem e dies, but the de fendants failed to expla in to the court how he could have pursued his rem edies while suffering a mental breakdown requiring hosp i talization , especially given the lack of evidence that Weiss received the correspondence rejecting his August 18 admi n istrative complaint, corresponden ce that would have told him6 No. 16

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what his next step to obtain relief should be

. Even if he did

r e ceive that response, however, Weiss was still being treated at the mental

- health center when it was sent. Given the que stionable state of his mental stability at th e time, we cannot have any confidence that administrative remedies a c tually were available to him.
The suit was dismissed prematurely. T he judgment of the district court is reversed and the case remanded for further proceedings consistent with this opi n ion

.