In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2745

JOSEPH R. HURST,

Plaintiff-Appellant,

v.

TRAVIS HANTKE, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 09 C 50288—Frederick J. Kapala, Judge.

SUBMITTED JANUARY 20, 2011—DECIDED FEBRUARY 10, 2011

Before POSNER, EVANS, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. The plaintiff, an inmate in

an Illinois state prison, brought suit under 42 U.S.C.

§ 1983 claiming that the prison’s medical staff had been

deliberately indifferent to his need for medical care

for a stroke, and by that deliberate indifference had

inflicted cruel and unusual punishment on him, in violation of his federal constitutional rights. The district

court granted summary judgment for the defendants on

the ground that the plaintiff had failed to exhaust his
2 No. 10-2745

internal prison remedies, as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a).

He had filed a grievance, but not until eight and a half

months after his alleged stroke, and the grievance was

denied because, under Illinois law, to be timely a

grievance must be filed within 60 days of the event

giving rise to it. 20 Ill. Admin. Code § 504.810(a). He

appealed the denial, claiming that he’d been left “almost

totally incapacitated” by his stroke “until just recently.”

Although “good cause” will excuse an untimely filing, id.,

the prison’s administrative review board rejected the

excuse on the ground that “no justification [had been]

provided for additional consideration.” No further explanation was given. The district court ruled that the

plaintiff had failed to exhaust his administrative

remedies because he had presented no evidence to

support his claim of incapacitation either to the prison

authorities, or to the district court in response to the

defendants’ motion for summary judgment.

The two rulings have to be separated. The Illinois

Administrative Code does not require a prisoner to

attach evidence to a claim of good cause, any more than

the Federal Rules of Civil Procedure require a plaintiff

to attach evidence to his complaint. Nor did the

prison authorities tell the plaintiff that he had to attach

evidence to his claim of good cause. They just said “no

justification,” leaving him to guess what one has to do

to justify good cause for an untimely filing, beyond explaining what the good cause consists of. It is true that

an untimely filing can be considered only if the grievant
No. 10-2745 3

“can demonstrate that a grievance was not timely filed

for good cause,” 20 Ill. Admin. Code § 504.810(a) (emphasis added), but that is just to say, as far as we can tell,

that if the prison insists on evidence to substantiate

the claim, the prisoner must supply evidence. The prison

never gave the plaintiff an opportunity to do so.

Apparently Illinois prison authorities do not routinely

insist on evidence when they instruct an inmate to demonstrate good cause for having filed an untimely

grievance, for in another case we have noted that an

Illinois prison’s administrative review board would

have found good cause for an untimely grievance had

the inmate provided, at the board’s request, merely an

explanation for the delay. Cannon v. Washington, 418 F.3d

714, 718 (7th Cir. 2005); see also Dole v. Chandler, 438

F.3d 804, 807 (7th Cir. 2006).

The Illinois code requires that the grievance contain

“factual details regarding each aspect of” it, 20 Ill. Admin.

Code § 504.810(b), but doesn’t require that of a claim of

good cause for an untimely filing; and even if it did, a

requirement of detailed pleading (“fact pleading”) is not

the same thing as a requirement of attaching evidence to

a pleading—an extremely unusual requirement. Imagine

dismissing a complaint on the ground that although

it stated a claim, the plaintiff had failed to submit with

the complaint evidence establishing the accuracy of the

factual allegations in the complaint. Yet that was the

prison’s ground for rejecting our plaintiff’s claim of

good cause to file an untimely grievance.

A prisoner is required to exhaust only “available”

administrative remedies, 42 U.S.C. § 1997e(a); Woodford
4 No. 10-2745

v. Ngo, 548 U.S. 81, 102 (2006), and a remedy is not available if essential elements of the procedure for obtaining

it are concealed. Dole v. Chandler, supra, 438 F.3d at 810;

Bryant v. Rich, 530 F.3d 1368, 1373 n. 6 (11th Cir. 2008).

Apparently the plaintiff’s prison has created a secret

supplement to the state’s administrative code, requiring

that claims of good cause for an untimely filing be accompanied by evidence.

In its brief in this court the state refuses even to acknowledge that physical incapacitation is good cause

for an untimely filing. The implication is that even if

the plaintiff had been in a coma for 60 days after the

allegedly willful failure to treat his stroke promptly, he

would have forfeited his administrative remedies, thus

blocking his access to the federal courts. It is hard to

believe that this is a correct interpretation of the Illinois

code’s failure to state that physical incapacity can be

good cause for an untimely filing. (Compare the

grievance procedure for federal prisoners, which provides that “an extended period of time during which

the inmate was physically incapable of preparing a

Request or Appeal” is a “valid reason for delay” in filing

a grievance. 28 C.F.R. § 542.14(b); McCoy v. Gilbert, 270

F.3d 503, 510-11 (7th Cir. 2001).) In any event, an administrative remedy that would be forfeited for failure to

comply with a deadline that in the circumstances could

not possibly be complied with would not be “available”

within the meaning of 18 U.S.C. § 1997e(a), as held in

Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir. 2003) (per

curiam). (An unrelated ruling in Days, involving burden of

proving exhaustion, was rejected in Jones v. Bock, 549
No. 10-2745 5

U.S. 199, 216 (2007). See, e.g., Dillon v. Rogers, 596 F.3d

260, 267 (5th Cir. 2010).)

But when the plaintiff sued, and the defendants moved

for summary judgment, it behooved him to present

evidence to support his contention that he had indeed

exhausted his available administrative remedies by

filing a grievance as soon as it was reasonably possible

for him to do so. Obriecht v. Raemisch, 517 F.3d 489, 492-93

(7th Cir. 2008). Although warned by the district court

that he had to meet the motion for summary judgment

with evidence, the plaintiff presented none. And so he

lost. But we think it worth emphasizing that he did not

lose because Illinois law requires a grievant to attach

evidence to a claim of good cause for an untimely grievance—it does not—or because physical incapacitation is

not good cause within the meaning of the term in the

Illinois code—it is good cause. It better be, because we

agree with Days v. Johnson and the decisions following it

(none is to the contrary)—Dillon v. Rogers, supra, 596

F.3d at 267; Johnson v. Ford, 261 Fed. App’x 752 (5th Cir.

2008); Garrett v. Partin, 248 Fed. App’x 585 (5th Cir. 2007);

Tate v. Howes, 2010 WL 2231812, at *2 (W.D. Mich. June 2,

2010); Braswell v. Corrections Corp. of America, 2009 WL

2447614, at *8 (M.D. Tenn. Aug. 10, 2009); Williams v.

Hurley, 2007 WL 1202723 (S.D. Ohio Apr. 23, 2007)—that a

remedy is not “available” within the meaning of the

Prison Litigation Reform Act to a person physically

unable to pursue it.

AFFIRMED.

2-10-11