Joshua Tishner v. Centurion of Indiana, LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 14, 2024*
Decided August 14, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-2805
JOSHUA TISHNER,
Plaintiff-Appellant,
v.
CENTURION OF INDIANA, LLC,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:22-cv-00107-JRS-TAB
James R. Sweeney II,
Judge.
O R D E R
Joshua Tishner, a prisoner at Indiana’s Pendleton Correctional Facility, sued
Centurion of Indiana, the medical-services provider for the Indiana Department of
Correction (“Department”). The district court determined that Tishner did not exhaust
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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the available administrative remedies before filing suit, and so the court entered
summary judgment for Centurion. We affirm.
We recount the facts in the light most favorable to and draw all reasonable
inferences in favor of Tishner, the non-moving party. Moore v. W. Ill. Corr. Ctr., 89 F.4th
582, 590 (7th Cir. 2023). In his lawsuit under 42 U.S.C. § 1983, Tishner alleged that
Centurion instructs its employees not to obtain prisoners’ medical records from non-
prison providers and to ignore any such records that prisoners supply. The district
court allowed Tishner to proceed on a claim under Monell v. Department of Social
Services, 436 U.S. 658 (1978), that Centurion has a policy or practice of directing its
employees not to obtain or heed outside medical records, resulting in deliberate
indifference to prisoners’ medical needs in violation of the Eighth Amendment.
Centurion moved for summary judgment on the ground that Tishner had not
exhausted Pendleton’s available administrative remedies. In support, Centurion offered
the affidavit of Christina Conyers, the grievance specialist at the prison. Conyers
attested that Pendleton, following Department policy, hears complaints about prison
conditions through a three-step Offender Grievance Process: (1) a written grievance on
a specific form; (2) an appeal to the warden or warden’s designee; and (3) an appeal to
the Department grievance manager. She described the process through which prison
staff document prisoners’ grievances. And she attested that Tishner had not filed a
grievance about medical staff refusing to obtain or ignoring medical records, even
though he had filed grievances about other issues. Centurion also submitted the
Department’s written policy on the Offender Grievance Process and Pendleton’s
grievance log; both corroborated Conyers’s testimony.
In response, Tishner moved for an evidentiary hearing, asserting that he had
exhausted his administrative remedies. He pointed to several exhibits as support: a
letter to prison nurses complaining that his doctor refused to get his medical records;
requests for healthcare; forms entitled “Request For Interview” but relabeled “informal
grievance,” complaining about the healthcare he was receiving; letters from the
Department ombudsman responding to his complaints; and a grievance appeal about
books he had ordered but never received. The district court responded that it would
decide whether to hold a hearing after the motion for summary judgment was fully
briefed, and it told Tishner that if he wanted the court to consider his assertions as
evidence, he needed to verify them under penalty of perjury.
Tishner then filed his own motion for summary judgment, arguing that he had
exhausted Pendleton’s grievance process and asserting that Conyers and other

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Pendleton staff had thrown away and refused to log grievances he tried to file. In
support, he filed a “designation of evidence” citing the “exhibits that [have] been
submitted,” such as “letters, medical health care forms, grievances, appeals, informal
grievances on request forms, and request forms.” He did not verify any of his assertions
under penalty of perjury or submit a separate sworn declaration or affidavit.†
The court granted Centurion’s summary-judgment motion and denied
Tishner’s. The court explained that Conyers’s testimony and the grievance log showed
that Tishner did not file a grievance relevant to the lawsuit. And Tishner had not
offered admissible evidence to the contrary because (1) he had not verified his
assertions under penalty of perjury, despite the court’s earlier instruction; and (2) his
designation of evidence violated the court’s local rules by failing to cite specifically the
documents on which he relied. Further, the exhibits to his motion for a hearing did not
create a genuine dispute of material fact because the only grievance filed on the proper
form was irrelevant to the lawsuit against Centurion. When Tishner moved for
reconsideration and this time verified his assertion that his grievances went missing, the
court explained that it was too late to submit more evidence and denied the motion.
On appeal, Tishner first argues that the district court improperly disregarded the
documents he cited to prove exhaustion. But in doing so the court did not abuse its
discretion (the standard of review, McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783,
787 n.2 (7th Cir. 2019)). District courts may strictly enforce their local summary-
judgment rules, and even pro se litigants like Tishner must follow them. Id. at 787 & n.2.
As the court here explained, parties must support factual assertions with citations to
admissible evidence and include page or paragraph numbers. S.D. I ND. L.R. 56-1(e). If
the non-moving party fails to do so, the court will not search the record, id. 56-1(h), and
will accept as true the factual assertions that the moving party has properly supported,
id. 56-1(f)(1). Here, Tishner merely gestured at documents he previously filed; he did
not cite them with specificity. The court therefore reasonably enforced the local rules.
Even if we were to consider the requests, letters, and other documents Tishner
filed, none of these exhibits shows proper exhaustion. “Proper” exhaustion under
42 U.S.C. § 1997e(a) requires a prisoner to complete each step in the prison’s
† Tishner also argued that the court should disregard Conyers’s affidavit because, he
said, she was not Pendleton’s grievance specialist. The district court determined that
evidence showed that Conyers was, at a minimum, filling in as grievance specialist at
the relevant time. Tishner abandons this issue on appeal.

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administrative process and to follow its procedural rules. Woodford v. Ngo, 548 U.S. 81,
84, 90–91 (2006). Centurion had the burden to prove a failure to exhaust, see Crouch v.
Brown, 27 F.4th 1315, 1320 (7th Cir. 2022), and met it with evidence that Tishner did not
file a grievance relevant to his lawsuit on the proper form (let alone pursue the two
required appeals). Only one document on which Tishner relies is a grievance submitted
on the proper form, but in that one, he complains about missing books, not medical
records. And the other documents are letters, health-care requests, and requests for
interviews, none of which, Conyers attested, satisfy the first step of the grievance
process. Therefore, Tishner did not raise a genuine dispute about whether he exhausted.
Alternatively, Tishner insists that Conyers and other prison employees threw
away or ignored his grievances. Construing the argument liberally, Tishner invokes the
rule that prisoners must exhaust only those administrative remedies that are available,
and an administrative process is not available if prison staff block prisoners from using
it. See Crouch, 27 F.4th at 1320. But here, Centurion showed that a grievance process was
available to Tishner by offering (1) Conyers’s testimony that Pendleton prisoners could
complain about prison conditions through the grievance process and that Tisher could
and did file grievances about other matters, (2) the Department policy, and (3) the
grievance log. So, Tishner needed to respond with evidence supporting his contention
that the grievance process was unavailable because prison staffers destroyed or
disregarded a grievance he filed against Centurion. But he offered only unsworn
assertions, despite having been told that such assertions do not constitute evidence.
AFFIRMED

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