Richard L. Jones v. Yelena Nelson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 20, 2021 *
Decided October 20, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 21-1444
RICHARD L. JONES,
Plaintiff-Appellant,
v.
YELENA NELSON,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-C-308
Lynn Adelman,
Judge.
O R D E R
Richard Jones, a Wisconsin inmate, sued correctional officers at the Columbia
Correctional Institution for deliberate indifference to a bug infestation in his cell in
violation of his Eighth Amendment rights. He alleged that the officers ignored his
* We have agreed to decide the 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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complaints, and so the insects bit him and burrowed into his ears and under his skin,
causing lasting health problems. After dismissing most of Jones’s claims at screening,
the district court entered summary judgment for the remaining defendant, Yelena
Nelson. The court concluded that Jones had not exhausted his administrative remedies
or shown that none were available. See 42 U.S.C. § 1997e(a). We affirm.
According to Jones’s complaint, he was assigned to a cell with a bug infestation
in June 2016. He complained about the bugs to Nelson and other correctional officers,
but Nelson did nothing to assist him and offered a switch into segregation as the only
alternative to the infested cell. Jones submitted a health services request about insect
bites, and in September 2016, he filed a grievance about the infestation in his cell. The
inmate complaint examiner returned it with a rejection letter that instructed him to
attempt to resolve the issue informally before resubmitting the grievance. There is no
record of Jones ever refiling the grievance. Years later, in April 2020, Jones (by then at
Redgranite Correctional Institution) awoke with blood dripping from his ear. He
believes it was caused by insects burrowing under his skin for years and alleges that he
has suffered continuous ringing in his ears and partial hearing loss as a result.
Shortly after he awoke to a bleeding ear, Jones sued a number of guards at
Columbia under 42 U.S.C § 1983 over the infested cell. After the district court whittled
down the complaint at screening, Nelson moved for summary judgment on the ground
that Jones failed to exhaust his administrative remedies at Columbia. She submitted
evidence about the September 2016 grievance that the complaint examiner had returned
so that Jones could attempt to resolve the issue informally, as required under
administrative procedures. See WIS . A DMIN. C ODE DOC § 310.07(1). The examiner’s
letter advised him to “send this Return Letter to Mr. Hicks, Unit Manager re: Insects & J.
Gohde, RN, Health Services Manager re: medical issues, along with [his] Inmate
Complaint or a DOC-643, ‘Inmate Request’ explaining the issue” and to allow those
staff members sufficient time to respond before resubmitting a grievance. According to
the affidavit of the complaint examiner at Columbia who had returned Jones’s
grievance: “I did not receive a response from Jones in reply to the Return Letter, and he
never resubmitted the Inmate Complaint.”
In response, Jones maintained that he had spoken to his unit manager, who
simply advised him to contact maintenance. Further, he argued, the complaint examiner
who rejected his grievance wished to suppress any record of the problem: “[S]he is
intelligent, and she was not going to give me a complaint number for this incident so

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No. 21-1444 Page 3
the state would have an escapement [in] case of a lawsuit.” He did not support his
response with a declaration or affidavit.
The district court entered summary judgment for Nelson, pointing out that Jones
conceded that he never refiled a grievance though he had received specific instructions
on what he needed to do. Further, he did not create a fact issue about the availability of
the grievance process; he provided no evidence that anyone at the prison had prevented
him from attempting an informal resolution or refiling his grievance.
On appeal, we first consider our jurisdiction. Because Jones did not file a timely
notice of appeal, we ordered briefing on the question of whether a letter Jones sent to
the district court, in which he mentioned multiple times that he intended to appeal the
ruling on exhaustion, could serve as a timely notice of appeal. We agree with both
parties that it can. See Smith v. Barry, 502 U.S. 244, 248 (1992); Nartey v. Franciscan Health
Hosp., 2 F.4th 1020, 1024 (7th Cir. 2021). We therefore proceed to the merits.
Jones reiterates his conditions-of-confinement claim against Nelson and argues
that the district court construed a disputed fact against him when it determined that he
failed to exhaust. He asserts that he complained informally and that the complaint
examiner refused to accept his grievances to thwart his lawsuit. We review exhaustion
rulings de novo. Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006).
To exhaust administrative remedies, an inmate “must follow the rules governing
filing and prosecution of a claim.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002); see Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). Here, the regulations of the
Wisconsin Department of Corrections provide those rules. See Jones v. Bock, 549 U.S. 199,
218 (2007).
The district court rightly found that Jones did not exhaust his administrative
remedies. The complaint examiner permissibly rejected Jones’s grievance because he
did not raise his concerns about the infestation with prison staff before submitting his
grievance. WIS . A DMIN. C ODE DOC § 310.07(1). And although the complaint examiner
provided specific instructions on how to comply with procedural requirements and
resubmit his complaint, he did not. See id. §§ 310.10–310.13. Further, in reaching its
conclusion, the district court did not resolve any fact questions. As the court noted,
Jones did not assert that he refiled his grievance, and his unsupported speculation that
the complaint examiner would never accept a grievance to thwart a lawsuit was
insufficient to create a fact issue about the availability of the grievance process. See

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Daughterty v. Page, 906 F.3d 606, 610–11 (7th Cir. 2018) (affirming summary judgment
for prison officials because prisoner failed to produce any nonspeculative evidence that
officials intended to dissuade him from complaining about prison conditions).
AFFIRMED

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