Rodolph Lanaghan v. DARRYL KOCH, Correctional Officer

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1399
R ODOLPH L ANAGHAN,
Plaintiff‐Appellant,
v.
D ARRYL KOCH, Correctional Officer, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:15‐cv‐00929‐WCG — William C. Griesbach, Chief Judge.
____________________
A RGUED FEBRUARY 22, 2018 — D ECIDED A UGUST 29, 2018
____________________
Before BAUER , EASTERBROOK , and R OVNER , Circuit Judges.
R OVNER , Circuit Judge. On August 3, 2015, Rodolph Lana‐
ghan filed a suit under 42 U.S.C. § 1983 alleging that the de‐
fendants violated his rights under the Eighth Amendment
and asserting a negligence claim under state law. Specifically,
he asserted that when he was an inmate at the Oshkosh Cor‐
rectional Institution (“Oshkosh”), the defendants were delib‐
erately indifferent to his serious medical needs and were neg‐
ligent in the response to his severe muscle disease,

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2 No. 17‐1399
Dermatomyositis with Polymyositis. The district court con‐
ducted a Pavey hearing to determine whether Lanaghan had
failed to exhaust administrative remedies prior to filing the
federal civil action as required under the Prison Litigation Re‐
form Act (PLRA), including whether prison officials rendered
the complaint process unavailable to Lanaghan by not lend‐
ing assistance to him in preparing the complaint and isolating
him from inmates that could have assisted him in filing the
complaint. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)
(requiring district court to hold an evidentiary hearing where
exhaustion or lack thereof is not apparent). Following the
Pavey hearing, the district court held that Lanaghan had failed
to exhaust available administrative remedies and dismissed
the Eighth Amendment claim and declined to exercise sup‐
plemental jurisdiction over the state law claim. Lanaghan
now appeals that determination to this court.
The PLRA requires a prisoner to exhaust all administra‐
tive remedies available prior to filing a federal lawsuit. Under
Wisconsin law, an inmate is required to file a grievance/com‐
plaint within 14 days of the occurrence giving rise to the com‐
plaint. Wisc. Admin. Code § DOC 310.09. No one disputes
that Lanaghan failed to file his complaint within that time
frame. The only question is whether those administrative
remedies were actually available to him given his severe med‐
ical limitations and the constrictions of prison policies and
their implementation here.
The parties take no issue with the facts underlying this
case, arguing only as to the district court’s legal conclusions
from those facts. We therefore present the facts as set forth in
the district court’s decision.

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No. 17‐1399 3
In early November 2011, Lanaghan began experiencing
physical problems; his scalp was inflamed and itched, his ab‐
dominal muscles and back muscles hurt, and his ears were
red and inflamed. Those symptoms worsened in the two
weeks that followed, by which time “[h]is head was full of
sores that were bleeding, pussing and scabbing down to his
forehead[,] … [h]e had spots and scabs around his eyes, his
ears cauliflowered and were bleeding and pussing, and a
lump formed on the back of his neck.” Dist. Ct. Order of Jan‐
uary 30, 2017 (“Dist. Ct. Order”) at 2. The pain had spread
throughout his body making it difficult for him to sit, stand,
and walk, with the most severe pain located in the muscles of
his abdomen and back.
Lanaghan testified that he reported to Oshkosh’s Health
Services Unit on November 21, 2011, but that he was evalu‐
ated and treated only for the rash and not for his other ail‐
ments. He subsequently submitted more health services re‐
quests, reporting a large, swollen bulge on his back, and re‐
ceived further treatment from the Health Services Unit on No‐
vember 29 and 30 and December 1 and 3. Around that time,
Lanaghan increasingly experienced problems with activities
of daily living and began relying on other inmates to “brush
his teeth, wash his face, comb his hair, help him eat, and even
help him on and off the toilet. Lanaghan testified that he sat
in the dayroom crying because he was in so much pain.” Dist.
Ct. Order at 3.
Lanaghan was rushed to the hospital on December 6 and
diagnosed with Dermatomyositis with Polymyositis, a rare
muscle disease. Though he returned a week later with medi‐
cation and treatment instructions, his conditions worsened
immediately upon his return. As the district court relates:

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4 No. 17‐1399
Audie Draper [another inmate] testified that
Lanaghan’s disease “progressed into something
so unbelievably horrible.” The rash spread
throughout his entire body, and the bleeding
and pussing sores appeared on his ears and
head. His muscles, including his swallow mus‐
cles, began shutting down, causing him to
drown in his own saliva. He was no longer eat‐
ing or sleeping. Lanaghan’s pain was so severe
that he was confined to a wheelchair. He could
not sit up, lay down, or move.
Dist. Ct. Order at 3.
On December 20, Lanaghan attempted to prepare and file
an inmate complaint form regarding the inadequate treat‐
ment for his health condition. With Lanaghan in a wheelchair,
Draper transported Lanaghan to Oshkosh’s dayroom—an
area in which inmates were allowed to freely congregate—in
order to help him draft and file the grievance because Lana‐
ghan could no longer write on his own by that time. When
they arrived, they observed that all of the recreational tables
were occupied by other inmates, but that there were vacant
tables in the study area. They asked Officer Koch for permis‐
sion to use one of those vacant tables with Draper to prepare
Lanaghan’s grievance, but were denied that permission.
Draper then asked Lieutenant Chase to countermand Koch’s
decision, but Chase told them that the study tables could be
used only for studying and denied them access to that table.
The Open Center Handbook for that building which had been
provided to each inmate stated that “tables in end dayrooms
are for studying only with staff permission.” In practice, that
rule appears to have allowed for some discretion. As the

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No. 17‐1399 5
district court noted, according to Lanaghan and Draper some
correctional officers were often lenient with enforcement of
the rule.
Unable to secure a table, Draper returned Lanaghan to his
cell where, according to his testimony, he “spent the next
week trapped inside his own body, believing he was going to
die.” Dist. Ct. Order at 4. On December 28, 2011, he was again
hospitalized, this time for approximately two months. Fol‐
lowing his hospitalization, he spent two weeks at the Dodge
Infirmary for physical therapy.
Although Lanaghan returned to Oshkosh in March 2012,
he did not attempt to file any grievance at that time. He later
decided to file a federal lawsuit, and learned that he had to
file a complaint before proceeding with a lawsuit. He then
filed an inmate complaint on July 2, 2012, which was rejected
as untimely. The institutional complaint examiner, Theresa
Murphy, testified that his physical condition would have been
good cause to extend the time for filing until March 2012, but
it could not support a delay until July which was months after
his return from the hospital. Lanaghan’s request for review of
the rejected grievance was denied on August 2, 2012.
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (em‐
phasis added). State law establishes the administrative reme‐
dies that a state prisoner must exhaust for purposes of the
PLRA. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016). Un‐
der the Wisconsin Administrative Code § DOC 310.09 an in‐
mate must file a complaint within 14 calendar days after the

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6 No. 17‐1399
occurrence giving rise to the complaint, unless good cause ex‐
ists to excuse a delay. That good cause exception to the 14‐day
limit, however, was not included in the handbook provided
to inmates, which provided only that the inmate had to file
the compliant within 14 days.
Before the district court, Lanaghan argued that the griev‐
ance process was unavailable to him because Officer Koch and
Lieutenant Chase prevented him from filing a grievance by
denying him access to a table which was necessary for him to
complete the form and that, in those circumstances, he was
physically unable to draft and file a grievance within the 14‐
day period. The district court conducted an evidentiary hear‐
ing considering whether prison officials rendered the com‐
plaint process unavailable to Lanaghan by not lending assis‐
tance to him in preparing the complaint and isolating him
from inmates that could have assisted him in filing the com‐
plaint. Following that hearing, the district court held that
Lanaghan had failed to exhaust available administrative rem‐
edies. In so finding, the court noted that “a remedy becomes
unavailable to an inmate if ‘prison employees do not respond
to a properly filed grievance or otherwise use affirmative mis‐
conduct to prevent a prisoner from exhausting.’” Dist. Ct. Or‐
der at 7, citing Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006). It held that Chase and Kohl did not use affirmative mis‐
conduct, deny him access to complaint forms, or provide him
with improper information about the grievance procedure,
and that their denial of a study table did not deny him access.
The court opined that Lanaghan could have waited for a day‐
room table to become vacant rather than return to his cell. In
addition, the court held that “[e]ven assuming Lanaghan was
not physically able to draft an inmate complaint before De‐
cember 28, 2011, there was nothing to prevent him from filing

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No. 17‐1399 7
the grievance immediately after he returned.” Dist. Ct. Order
at 8.
Lanaghan now appeals that determination, arguing that
even given the factual findings by the district court following
the hearing, the legal conclusions are improper. Therefore, the
issue before us in this appeal is whether the exhaustion re‐
quirement of the PLRA bars Lanaghan’s federal action. We re‐
view factual findings for clear error, but review de novo the
court’s determination as to whether the claim was procedur‐
ally barred as unexhausted. Wilborn v. Ealey, 881 F.3d 998,
1004 (7th Cir. 2018); Pyles, 829 F.3d at 864. The burden of proof
is on the defendants to establish that administrative remedies
were not exhausted, as it is an affirmative defense. Id.; Dole,
438 F.3d at 809.
The PLRA exhaustion requirement does not “demand the
impossible.” Pyles, 829 F.3d at 864. “Remedies that are genu‐
inely unavailable or nonexistent need not be exhausted.” Id.
The district court recognized that a remedy could become un‐
available if affirmative misconduct by the defendants pre‐
vented Lanaghan from filing a grievance, but a grievance pro‐
cedure can be unavailable even in the absence of affirmative
misconduct. The term “available” is given its ordinary mean‐
ing, and it does not include any requirement of culpability on
the part of the defendant. We have found remedies unavaila‐
ble in a number of instances in which the inmate, through no
fault of his own, could not have accessed the grievance proce‐
dure. See Hurst v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011)
(where an inmate claimed to be incapacitated by a stroke, rec‐
ognizing that a remedy is not available if an inmate is physi‐
cally unable to pursue it); Pyles, 829 F.3d at 866 (case not
barred for failure to exhaust where inmate submitted

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8 No. 17‐1399
grievance form to law library and it failed to return the form
prior to the filing deadline; inmate acted diligently and un‐
timeliness was due to no fault of his own); Swisher v. Porter
County Sheriff’s Dept., 769 F.3d 553, 555 (7th Cir. 2014) (inmate
entitled to assume he did not have to file a written grievance
where told by officials not to do so because the problem was
being resolved and where he was not informed as to how to
invoke formal procedures).
Therefore, the proper focus is not whether the defendants
engaged in affirmative misconduct, but whether Lanaghan
was not able to file the grievance within the time period
through no fault of his own. The availability of a grievance
procedure is not an “either‐or” proposition. Kaba v. Stepp, 458
F.3d 678, 685 (7th Cir. 2006). As we noted in Kaba, “[s]ome‐
times grievances are clearly available; sometimes they are not;
and sometimes there is a middle ground where, for example,
a prisoner may only be able to file grievances on certain top‐
ics.” Id. The availability of a remedy is therefore a fact‐specific
inquiry. For instance, if a prison had a procedure whereby
written grievance forms were provided to all inmates and
they were required to fill them out without any assistance
from others, that procedure might render the grievance rem‐
edy available for the majority of inmates, but the same proce‐
dure could render it unavailable for a subset of inmates such
as those who are illiterate or blind, for whom either assistance
or a form in braille would be necessary to allow them to file a
grievance.
This case presents a similar scenario. Even if Koch and
Chase were acting in good faith in following the rules regard‐
ing study tables, Lanaghan’s particular circumstances in con‐
junction with that decision rendered the grievance remedy

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No. 17‐1399 9
unavailable to him. The undisputed facts establish that Lana‐
ghan faced severe physical limitations during the 14‐day pe‐
riod at issue here. With the help of Draper, he was transported
in his wheelchair to the dayroom to fill out the grievance form.
He could not fill out the form himself because he was unable
to use his hands sufficiently to fill in the form. But at the day‐
room, none of the tables were available to him, and Koch and
Chase denied him access to the study tables for that purpose,
thus denying the only means available to fill out the form at
that time.
The district court stated that Lanaghan could have waited
for a table, but the court pointed to no facts to support that
conclusion. In fact, Chase testified that inmates were not al‐
lowed to congregate in the dayroom without using a table or
chair. He also acknowledged that other than the occupied ta‐
bles, the other chairs were in the TV room, but inmates were
not allowed to write in that room and were not even allowed
to have anything in their possession while sitting in those
seats, and thus could not have writing implements with them.
Therefore, no evidence indicated that Lanaghan could have
merely waited in the dayroom to fill out a grievance form.
And the defendants, who have the burden to prove that rem‐
edies were available, have pointed to no such evidence. More‐
over, inmates were not allowed to have visitors in their cell,
thus eliminating that as an optional meeting place in which to
fill out the grievance form. But regardless of whether inmates
could wait for a table to open, there was no testimony and no
finding by the district court that Lanaghan was physically ca‐
pable of remaining there for any length of time, or of waiting
in his cell and later returning to the dayroom. The description
of his physical condition and the two‐month hospitalization a
week later indicate that he had little physical stamina at the

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10 No. 17‐1399
time. The facts found by the district court do not support a
conclusion that he could have waited for a table in the day‐
room and filled out the form that day, and no one argues that
he had another potential opportunity to complete the griev‐
ance form prior to his hospitalization.
We have held that “a remedy is not ‘available’ within the
meaning of the Prison Litigation Reform Act to a person phys‐
ically unable to pursue it.” Hurst, 634 F.3d at 412. Accord‐
ingly, the factual findings in this case do not establish that a
remedy was available to Lanaghan that he failed to pursue.
The district court nevertheless concluded that even assum‐
ing that Lanaghan was physically incapable of filing the griev‐
ance within the 14‐day period, nothing prevented him from
filing the grievance immediately after he returned to Oshkosh
in March 2012—a time at which it might have been considered
because his physical incapacity could have constituted good
cause for the delay. That holding, however, holds Lanaghan
responsible for failing to follow a procedure of which he was
not aware and which was not presented in the handbook
which described the grievance process.
The handbook provided to inmates and which they were
encouraged to consult stated only that grievances must be
filed within 14 days. The 14‐day provision was unqualified
and without exception. Therefore, it not only failed to inform
Lanaghan that he could file a grievance beyond that period if
he could show good cause, but by identifying the unqualified
14‐day limitation, it negated the possibility of a filing beyond
that time period. A secret grievance procedure is no proce‐
dure at all, at least absent some evidence that the inmate was
aware of that procedure.

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No. 17‐1399 11
We reached a similar conclusion in a number of cases. For
instance, in Hurst, an inmate claimed that his physical inca‐
pacitation as a result of a stroke was good cause for his un‐
timely filing of a grievance, but his claim was rejected because
he failed to attach evidence of that incapacitation. 634 F.3d at
411. No such evidentiary requirement was present in the Illi‐
nois Administrative Code, and we rejected the requirement
that such evidence must be attached, which amounted to a
“secret supplement to the state’s administrative code.” Id. We
held that “a remedy is not available if the essential elements
of the procedure for obtaining it are concealed.” Id.; see also
White v. Bukowski, 800 F.3d 392, 397 (7th Cir. 2015) (recogniz‐
ing that “[p]risoners are required to exhaust grievance proce‐
dures they have been told about, but not procedures they
have not been told about”); Dole, 438 F.3d at 811 (holding that
the inmate had done all that was reasonable to exhaust be‐
cause the regulations were not clear as to how to proceed once
a timely grievance was lost).
The defendants, who have the burden to prove an availa‐
ble remedy, did not present evidence that Lanaghan was
aware in March 2012 that he could file beyond the 14‐day pe‐
riod if he could show good cause. All of Lanaghan’s prior
grievances had been filed within the 14‐day requirement, and
he testified that he believed that the time to file a complaint
had expired. He also testified that he later filed in July only
after becoming aware that he had to file a complaint prior to
filing a lawsuit. And, as discussed, the handbook provided
that outlined the grievance procedure did not alert him to it.
The district court did not make any finding that Lanaghan
was aware of the good cause exception that would extend the
deadline.

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12 No. 17‐1399
The defendants, however, argue that the first section of the
handbook indicated that the complaint process is governed
by Chapter 310 of the Administrative Code, and that inmates
could review the Administrative Code in the library. If the
handbook outlining the grievance procedure had indicated
that grievances must be filed within 14 days unless certain ex‐
ceptions were met, then that cite to the Administrative Code
might have some utility. But the evidence in this case is that
the 14‐day limitation was not qualified, and in that situation
the mere reference to the Code did not apprise Lanaghan of
the availability of the grievance procedure beyond the 14
days. The defendants have not met their burden of establish‐
ing that a remedy was available to Lanaghan that he failed to
exhaust.
Accordingly, the decision of the district court is
VACATED and the case REMANDED for further proceedings
consistent with this opinion.

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