Georgio Gaines v. Susan Prentice

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 17, 2022*
Decided June 27, 2022
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-1588
GEORGIO GAINES,
Plaintiff-Appellant,
v.
SUSAN PRENTICE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 1:18-cv-01373-JBM
Joe Billy McDade,
Judge.
O R D E R
Georgio Gaines, an Illinois prisoner, appeals the entry of summary judgment for
failure to exhaust administrative remedies and the dismissal of portions of his
complaint. He initially sued various members of prison staff under the Eighth
Amendment for using excessive force against him, subjecting him to poor conditions of
confinement, and denying him medical care. After the district court dismissed Gaines’s
* 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NONPRECEDENTIAL DISPOSITION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. A PP. P. 32.1

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No. 21-1588 Page 2
conditions-of-confinement and medical claims at screening, it determined that Gaines
had failed to exhaust available remedies on his excessive-force claims. Because the
district court should have conducted an evidentiary hearing on exhaustion and
erroneously dismissed some of Gaines’s claims, we vacate the judgment and remand.
All of Gaines’s claims center on one incident on February 21, 2018. According to
his operative complaint, that night members of the “Special Operations Response
Team” (SORT) sprayed him with mace for no reason before removing him from the
building in handcuffs to wait in the cold without adequate clothing for hours. When he
was taken back inside early the next morning, still handcuffed, officers refused him
access to the restroom, so after several more hours he soiled himself. At that point, he
asserts, officers placed him in a segregation cell contaminated with feces and mold,
where he remained for days without adequate water, cleaning supplies, or medical
treatment for the mace exposure. He further alleged in his original complaint that Major
Susan Prentice and Warden Michael Melvin failed to prevent his injuries.
The district court screened the original complaint under 28 U.S.C. § 1915A and
permitted Gaines to proceed on the excessive-force claims against the SORT officers but
dismissed the claims against Prentice and Melvin for failure to allege their personal
involvement. The court then determined that Gaines’s claims regarding the condition of
his cell and medical care could not be joined in the same suit as the claim of excessive
force.
Gaines later amended his complaint to identify the names of the SORT officers
involved in the excessive-force claim. He also clarified his allegations that Prentice had
been directly involved in overseeing the SORT officers and his placement in the filthy
cell. The district court screened the amended complaint and found Gaines now stated
an excessive-force claim against Prentice. But it again informed Gaines that the
conditions-of-confinement claims belonged in a separate suit. Gaines sought to amend
his complaint again to add excessive-force claims against Melvin and other prison
supervisors for instructing mace use. He also tried to bring back the medical and
conditions-of-confinement claims. But the court denied his motion, ruling that the
medical and conditions-of-confinement claims could be brought only in a separate suit
and that he had failed to state a claim against Melvin.1
1 On appeal, Gaines does not challenge the dismissal of his medical claims or of
any defendant other than Melvin.

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No. 21-1588 Page 3
The remaining defendants then moved for summary judgment, asserting that
Gaines had failed to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a). They
argued that, although Gaines had submitted at least one emergency grievance related to
the February 2018 incident in March, he did not properly resubmit his grievances
through the standard process, as regulations require, after the warden deemed the issue
a non-emergency. See I LL . A DMIN. C ODE tit. 20, §§ 504.830, 504.840(c). Instead of
immediately refiling, Gaines appealed the warden’s determination. The review board
returned the appeal the next month, asking Gaines to show that he had submitted non-
emergency grievances to his counselor—the first step of the standard procedure—as he
had been instructed, but Gaines did not send anything more to the board.
Opposing summary judgment, Gaines provided a sworn declaration attesting
that he had properly submitted three standard, non-emergency grievances to his
counselor in February 2018 and had filed emergency grievances with the warden only
when those three went unanswered. The declaration did not specify the content of the
three grievances, though Gaines’s unsworn brief suggested that they were related to his
claims of “excessive force & denial of medical care.” Gaines further attested in the
declaration that, after the review board’s decision, he resubmitted to his counselor
copies of the same emergency grievances he had sent the warden, but again received no
response.
The district court granted the defendants’ motion and entered judgment,
concluding there was no genuine dispute that Gaines had not exhausted the
administrative remedies available to him. It explained that Gaines had improperly
submitted the March 2018 grievances as emergencies and supplied no evidence that the
unanswered February submissions related to his claims. Additionally, it concluded
there was no evidence that Gaines had resubmitted the emergency grievances through
the standard procedure.
Prior to judgment, Gaines had also repeatedly sought recruited counsel. The
district court denied each motion because Gaines failed to demonstrate that he had
made a good-faith effort to find counsel willing to take his case. See Pruitt v. Mote, 503
F.3d 647, 654 (7th Cir. 2007) (en banc). Only in his fourth and final motion did he offer
evidence that he had received responses from attorneys he contacted: two letters, one
from a law firm declining to represent him and the other from a law-school clinic asking
him to send more information about the case. The court found that this did not satisfy
his burden.

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No. 21-1588 Page 4
On appeal, Gaines first contends that the district court erred in entering
summary judgment. He renews his argument that he followed the proper procedures
by submitting three non-emergency grievances in February 2018 and resubmitting his
emergency grievances as non-emergencies, but that prison staff never responded,
blocking him from exhausting his remedies.
Inmates must exhaust “such administrative remedies as are available” before
turning to the courts. 42 U.S.C. § 1997e(a); Ross v. Blake, 578 U.S. 632, 638 (2016). Failure
to exhaust is an affirmative defense, so defendants bear the burden of proving that there
was an available remedy that went unexhausted. Gooch v. Young, 24 F.4th 624, 627
(7th Cir. 2022). Because the district judge, not a jury, is the factfinder on issues of
exhaustion, if there are disputed factual issues, then they must be resolved with an
evidentiary hearing. See Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008). We review
de novo a district judge’s decision to enter summary judgment and not hold a Pavey
hearing. See Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015).
Gaines’s declaration created a genuine dispute whether administrative remedies
were “available” to him, so the district court was obligated to conduct a Pavey hearing
to resolve the dispute. The defendants provided evidence suggesting that Gaines did
not exhaust his remedies because there is no record that the counselor received any
relevant grievances from him. The district court erroneously stated in its order that
Gaines had admitted to failing to follow the warden’s instructions, but in his sworn
declaration, Gaines attested that he sent the counselor several standard grievances—
including his rejected emergency grievances that the defendants concede were
relevant—and never received a response to any of them. If his declaration is true, which
we must assume at the summary judgment stage, then administrative remedies were
not available to him. See Reid v. Balota, 962 F.3d 325, 331 (7th Cir. 2020); Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006). The district court should have held a Pavey hearing to
determine whether his declaration is, in fact, true and thus whether the defendants
carried their burden of showing that administrative remedies were available to Gaines.
See Roberts v. Neal, 745 F.3d 232, 236 (7th Cir. 2014); Lewis v. Washington, 300 F.3d 829,
835 (7th Cir. 2002). We therefore remand for the court to conduct such a hearing.
Gaines next argues that the district court erred in dismissing his excessive-force
claim against Warden Melvin for failure to allege Melvin’s personal involvement.
Gaines maintains that Melvin was personally involved because he, in the words of the
second amended complaint, “instructed SORT members to assemble and to use
excessive amounts of tear gas/mace.” Because the district court here denied leave to file

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No. 21-1588 Page 5
the second amended complaint on the grounds that Gaines failed to state a claim
against Melvin, we review that denial de novo rather than deferentially. See Sandy Point
Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327, 335 (7th Cir. 2021).
We agree with Gaines that the district court erred. In rejecting the second
amended complaint, the court characterized Gaines as alleging only Melvin’s implied
consent and awareness of the excessive force. Such an allegation would not state a claim
under § 1983. See Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997). But the
district court overlooked Gaines’s allegation that Melvin personally ordered the
unnecessary and excessive use of mace. This allegation must be accepted as true at the
pleading stage and suffices to state a claim of excessive force under the Eighth
Amendment against both the officers who allegedly sprayed the mace without any
justification and Melvin, who allegedly directed them to do so. See Locke v. Haessig, 788
F.3d 662, 669 (7th Cir. 2015) (holding plaintiff must plausibly allege supervisor had the
requisite state of mind to state claim for facilitating, approving, or condoning unlawful
act); Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012) (recognizing force used
maliciously or sadistically to cause harm states claim under Eighth Amendment).
We also agree with Gaines that he should be permitted to join his condition-of-
confinement claims against Prentice and Melvin in this suit. The district court ruled that
those claims must be severed into a separate suit because they are unrelated to his claim
of excessive force. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated
claims against different defendants belong in different suits.”). Gaines maintains that
they were not unrelated, but “all one act.” Even if we accept the court’s premise that the
confinement to a dirty cell was a different incident than the use of force, the court still
erred in severing the claims as it did. Rule 18(a) of the Federal Rules of Civil Procedure
allows a party to “join, as independent or alternative claims, as many claims as it has
against an opposing party.” And as we noted in George, this rule applies equally as well
to prisoners as it does to non-prisoners and makes it so “multiple claims against a single
party are fine.” Id. Because the court allowed Gaines to proceed against Prentice for her
authorization of excessive force—and should have allowed him to proceed against
Melvin—his claims that they ordered his placement in a filthy cell without running
water or cleaning supplies were properly joined in this suit. But we hold only that those
claims were properly joined; we express no opinion on whether Gaines stated claims for
relief against either or both defendants and leave that question for the district court in
the first instance.

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Finally, we turn to Gaines’s argument that the court wrongly denied his motions
for recruited counsel. Here we see no error. Civil litigants are not entitled to the
assistance of court-recruited counsel. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)
(citing Pruitt, 503 F.3d at 649). Before the court will recruit volunteer counsel, a plaintiff
must first make reasonable efforts to obtain counsel and then the court considers
whether the plaintiff is unable to litigate the case pro se. Id. Gaines contends that the
district court erred on the second step, but it properly relied on only the first. Although
Gaines attached to his final motion two responses from attorneys he contacted, he did
not adequately explain why he neglected to respond to the legal clinic that asked him
for more information. The court reasonably concluded that Gaines’s sole explanation
(that the clinic’s review would take too long) did not reflect a reasonable effort to secure
representation. See Thomas v. Wardell, 951 F.3d 854, 858, 860 (7th Cir. 2020) (upholding
denial of counsel because plaintiff did not adequately inform the 14 attorneys he
contacted about the nature of his case). If Gaines meets his threshold burden on
remand, the district court will be permitted (though in no way obligated) to reconsider
recruiting a lawyer.
We VACATE the judgment and REMAND for further proceedings consistent
with this order.

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