# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 14, 2019 *

Decided January 14, 2019

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 17

‐ 1728

DAVID R. BENTZ,

Plaintiff

‐ Appellant

,

v

.

WILLIAM QUALLS, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 14

‐ cv

‐ 0562

‐ MJR

‐ SCW

Michael J. Reagan,

Chief Judge

.

O R D E R

David Bentz, an inmate at Menard Correctional Center, sued prison officials

under the Eighth Amendment for using excessive force against him, failing to protect

him, and being deliberately indifferent to his medical needs. See 42 U.S.C. § 1983. After

extensive proceedings, the district court entered summary judgment for the defendants

based on Bentz’s failure to exhaust administrative remedies. On appeal Bentz argues,

and the state defendants concede, that the district court erred by not resolving a

* 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 NONPRECEDENTIAL DISPOSITION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

‐ 1728 Page 2

disputed fact question relating to exhaustion. We agree that this was error and,

accordingly, vacate the judgment and remand the case for further proceedings.

We review the entry of summary judgment de novo and construe all facts in the

light most favorable to Bentz, the nonmoving party. See Daugherty v. Page

, 906 F.3d 606,

609 (7th Cir. 2018). Bentz alleged that he was assaulted by correctional officers on May

11, 2014, suffered a jaw injury, and was denied medical attention. Over the next week,

he filed two grievances complaining about the officers’ conduct. First, on May 12, Bentz

submitted an emergency grievance, but the next day a correctional officer told Bentz

that he had discarded it. The prison officials dispute the existence of this grievance.

Bentz filed a second grievance four days later. (That same day, he filed the underlying

complaint in district court.) The warden deemed Bentz’s second grievance to be a non

‐

emergency and referred it to a grievance officer. The records show that the grievance

was returned to Bentz, though Bentz denies having received it.

In his federal complaint, Bentz asserted claims of deliberate indifference based

on his injuries and lack of treatment. Besides monetary damages, he sought injunctive

relief to receive medical care for his jaw. Discovery ensued, and the district judge

denied Bentz’s repeated requests for an injunction—Bentz, the judge explained, had

been receiving treatment for his jaw: he had seen a nurse who prescribed him pain

medication and referred him to a doctor; he then saw the doctor, who ordered x

‐ rays

(that showed no abnormalities) and prescribed additional pain medication.

The defendants then moved for summary judgment, arguing that Bentz had

failed to exhaust administrative remedies. No evidence, they maintained, supported his

allegation that he filed a grievance on May 12, 2014. And even if he had done so,

sufficient time had not passed when he filed this suit (four days later) to argue that

administrative remedies were “unavailable” to him. See 42 U.S.C. § 1997e(a).

In January 2017, the magistrate judge conducted a Pavey hearing on the

exhaustion issue. See Pavey v. Conley

, 544 F.3d 739, 742 (7th Cir. 2008). At the hearing,

Bentz testified that on May 13, 2014, he was told by one of the defendant officers that

the grievance he turned in the previous day had been thrown into a trashcan. Given

that his discarded grievance would never be reviewed by the warden, Bentz maintained

that he did not need to wait for his May 12 grievance to be returned: the officer’s

affirmative misconduct rendered his administrative remedies unavailable, and thereby

fully exhausted.No. 17

‐ 1728 Page 3

The district court declined to resolve Bentz’s contention regarding the May 12

grievance and rested its analysis, instead, on Bentz’s failure to exhaust administrative

remedies with regard to the grievance that he filed four days later, on May 16. Echoing

the magistrate judge’s recommendation, the district judge determined that the

grievance filed on May 16 did not give the prison a sufficient chance to respond to

Bentz’s problem before he filed this lawsuit that same day. The judge entered summary

judgment, ordered the clerk to close the case, and entered a separate judgment under

Federal Rule of Civil Procedure 58.

On appeal Bentz principally challenges the district court’s conclusion that he

failed to exhaust his administrative remedies. He maintains that he should be treated as

having exhausted his administrative remedies on account of the officer’s affirmative

misconduct in discarding his first grievance.

The state defendants concede that the factual dispute over the May 12 grievance

requires a remand. “If that grievance was filed and then thrown away,” they

acknowledge, “Bentz’s administrative remedies were unavailable because of a prison

official’s affirmative misconduct, and he could proceed with this lawsuit.” Indeed,

administrative remedies are “primarily ‘unavailable’ to prisoners where ‘affirmative

misconduct’ prevents prisoners from pursuing administrative remedies.” Hernandez v.

Dart

, 814, F.3d 836, 842 (7th Cir. 2016) (citation omitted). If Bentz submitted a grievance

that was later willfully discarded by an officer, then his administrative remedies could

be regarded as unavailable (and thereby exhausted). See Dole v. Chandler

, 438 F.3d 804,

808–11 (7th Cir. 2006); Kaba v. Stepp

, 458 F.3d 678, 684–86 (7th Cir. 2006). But the district

court never resolved the matter of the May 12 grievance, having decided the case

instead on Bentz’s failure to exhaust his administrative remedies with regard to the

May 16 grievance. Whether Bentz filed a grievance that was discarded by an officer is a

dispositive matter in this case and must be resolved as a threshold inquiry.

Notwithstanding their concession, the state defendants contend that an

additional Pavey hearing is not necessary because “all of the relevant facts are already in

the record.” But this is a much too cramped view of the evidence. True, the Pavey

transcript contains Bentz’s testimony that his grievance was thrown away, and the

record includes the prison’s grievance logs (which make no mention of Bentz ever

having filed the first grievance), but a prison’s grievance log is not likely to record

instances of misconduct of the sort that Bentz complains of here. On remand, the district

court should take whatever steps it deems necessary to determine whether Bentz’s first

grievance was discarded.No. 17

‐ 1728 Page 4

One final matter: defendant Jeremy Butler, a registered nurse, submitted his own

brief on appeal, arguing that we should affirm the entry of summary judgment in his

favor because Bentz’s grievance failed to “grieve any issue related to medical care” and

so did not adequately put the prison on notice of any complaints with his medical care.

But the question of notice does not precede the unresolved threshold question whether

Bentz was prevented from exhausting his administrate remedies. See Fluker v. Cty. of

Kankakee

, 741 F.3d 787, 792–93 (7th Cir. 2013); Perez v. Wis. Dept. of Corrs.

, 182 F.3d 532,

536 (7th Cir. 1999).

In light of the foregoing, we VACATE the entry of summary judgment and

REMAND the case for further proceedings.