Leander J. Gregg v. Correct Care Solutions, LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 20, 2021 *
Decided April 21, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2008
LEANDER J. GREGG,
Plaintiff-Appellant,
v.
CORRECT CARE SOLUTIONS, LLC,
et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 19-cv-133-bbc
Barbara B. Crabb,
Judge.
O R D E R
LeAnder Gregg, while an inmate at Eau Claire County Jail in Wisconsin, sued
prison officials and nurses for their deliberate indifference in failing to address side
effects he endured after being given another prisoner’s medication. The district court
dismissed the suit under the Prison Litigation Reform Act for failure to exhaust
administrative remedies. 42 U.S.C. § 1997e(a). We affirm.
* 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NONPRECEDENTIAL DISPOSITION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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No. 20-2008 Page 2
As set forth in his complaint, the allegations of which we accept as true, Ramirez
v. Young, 906 F.3d 530, 534 (7th Cir. 2018), Gregg began experiencing stomach pain
minutes after being given medication. He saw a nurse, who admitted that a labeling
error caused Gregg to receive the wrong medication and offered him some food to ease
the symptoms. But a correctional officer denied him the food, as well as his request to
be taken to a hospital.
The district court screened Gregg’s complaint, see 28 U.S.C. § 1915A, and
dismissed it for failure to state a claim. The court explained that the allegations
suggested negligence at the most and did not support a claim under either the Eighth or
Fourteenth Amendment. (Gregg had not specified whether, at the time of the incident,
he was being held as a pretrial detainee.)
On reconsideration, the court permitted Gregg to supplement his complaint. He
added allegations that the prison’s protocols for dispensing medications were flawed
and disregarded the risk that inmates with known allergies—like Gregg, whose
antibiotic allergy was noted in his medical file—could suffer serious reactions from
taking another inmate’s medication.
The defendants moved to dismiss the complaint, arguing that Gregg failed to
exhaust the prison’s administrative remedies, as required under the PLRA. See 42 U.S.C.
§ 1997e(a). The defendants supplemented their motion with records of two grievances
that Gregg filed. The first, filed a day after the incident, is the most relevant for our
purposes. In it Gregg detailed what occurred—though, significantly, he did not specify
any desired remedy. The grievance was forwarded to the treating nurse for an
explanation. The nurse wrote back, reiterating that his inadvertent mislabeling of
medicine cups led Gregg to be given a cup meant for a prisoner with a similar name.
The nurse apologized and advised Gregg that, aside from the nausea he experienced,
there would be no short or long-term side effects. Gregg took no further action at the
time.
Gregg filed his second grievance five months later. He asked that the officer
explain why his requests for food and transfer to a hospital were denied. This grievance
was dismissed as untimely, a decision subsequently upheld on appeal to the sergeant
on duty. Gregg did not appeal the sergeant’s decision.
The court granted the motion to dismiss. Gregg, the court explained, failed to
exhaust administrative remedies when he did not appeal the response he was given to

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No. 20-2008 Page 3
his initial grievance. His prison required that appeals be filed within two days of
receiving a response.
On appeal Gregg mounts no challenge in his opening brief to the district court’s
ruling on exhaustion, an omission that would justify dismissal of his appeal. See FED. R.
A PP. P. 28(a)(8); Cartwright v. Silver Cross Hosp., 962 F.3d 933, 936 (7th Cir. 2020). In his
reply brief he urges for the first time that his failure to complete the grievance process
should be excused because he was too sick to adhere to the deadlines prescribed by the
prison. But arguments raised for the first time in a reply brief are waived, Wonsey v. City
of Chicago, 940 F.3d 394, 398 (7th Cir. 2019), and, in any event, a court may not excuse an
inmate’s failure to exhaust available administrative remedies under the PLRA, even to
take “special circumstances” into account. Ross v. Blake, 136 S. Ct. 1850, 1856, 1858
(2016). By failing to abide by the prison’s requirement that he appeal the denial of his
initial grievance within two days, Gregg failed to exhaust his administrative remedies.
See Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
AFFIRMED

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