Michael Fencel v. Ryan Cross

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 25, 2021*
Decided August 31, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20‐2428
MICHAEL FENCEL,
Plaintiff‐Appellant,
v.
RYAN CROSS,
Defendant‐Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 19‐cv‐316‐SMY
Staci M. Yandle,
Judge.
O R D E R
Michael Fencel sued staff at the Menard Correctional Center (where he was
formerly imprisoned) under 42 U.S.C. § 1983 for failing to protect him from his
cellmate. Having dismissed the claims against most defendants, the district judge later
entered summary judgment for the correctional officer who remained, concluding that
* 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NONPRECEDENTIAL DISPOSITION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. 20‐2428 Page 2
Fencel did not exhaust his administrative remedies. We agree with that ruling and
affirm.
The facts pertaining to the exhaustion issue are undisputed, and we recount the
underlying facts, some of which the defendants denied in their answer, in the light most
favorable to Fencel. See Reid v. Balota, 962 F.3d 325, 327 (7th Cir. 2020). In early
November 2017, Fencel slipped a note to Ryan Cross, a correctional officer, requesting
to change cells because his cellmate was asking him personal and sexual questions.
Fencel did not receive a response from Cross, but his cellmate somehow learned of the
note. As retaliation the cellmate beat and raped him. Later, Fencel alleges, the cellmate
raped him another three times. Three weeks later Fencel sent a letter to the prison’s
warden pleading for help because his cellmate had raped him, which prompted an
immediate investigation.
Fencel then filed an emergency grievance on December 9, 2017. In it he explained
that after he gave the note to Cross, Cross failed to act, and his cellmate assaulted him.
He asked for “permanent one‐man cell status.”
In the meantime the investigation prompted by Fencel’s letter to the warden
proceeded, and Fencel was placed in protective custody. The warden therefore
responded to the December 9 grievance by indicating that it was no longer an
emergency and directing Fencel to “submit th[e] grievance in the normal manner.”
That process requires inmates to first file a complaint with a grievance officer. ILL .
A DMIN. C ODE tit. 20, § 504.810(a). Fencel did not do so.
The rape investigation yielded the conclusion that on at least two occasions,
Fencel had consensual sex with his cellmate. So he received a conduct report. A hearing
officer found him guilty of violating prison rules and recommended six months of
segregation.
Fencel filed another two grievances in early January 2018. In the first, he
challenged the disciplinary finding that he had consensual sex. The next day in a second
grievance, he asked to dismiss the disciplinary ticket because, he alleged, prison staff
knew his cellmate was a predator and negligently placed him in the same cell. In both
grievances he sought “one man status” or a transfer out of Menard. A grievance officer
recommended denying the request to overturn the hearing officer’s finding and
dismissing the second grievance as moot because prison officials had already
investigated the alleged sexual misconduct. The warden concurred, and Fencel
appealed both decisions without success.

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No. 20‐2428 Page 3
Turning next to federal court, Fencel sued prison staff for failing to protect him
from the sexual assault by his cellmate. The district judge screened the complaint,
28 U.S.C. § 1915A, and dismissed it with respect to all defendants except Cross. She
later entered summary judgment for Cross, concluding that Fencel had failed to exhaust
the prison’s administrative remedies. 42 U.S.C. § 1997e(a). Only Fencel’s grievance in
December 2017, the judge explained, alleged wrongdoing by Cross. But Fencel did not
resubmit that grievance, as required by Illinois law, after the warden deemed it a
nonemergency. See ILL . A DMIN. C ODE tit. 20, § 504.840(c). Fencel’s two grievances in
January 2018 did not identify Cross. See id. § 504.810(c). Finally, neither Fencel’s note to
Cross nor his letter to the warden could count as a grievance because Fencel did not use
the correct form or submission procedure. See id. § 504.810(a), (c).
On appeal Fencel insists that his grievances were sufficient to exhaust his
administrative remedies with respect to a failure‐to‐protect claim against Cross. We
review the judge’s contrary ruling de novo. See Reid, 962 F.3d at 329.
Concerning the December 2017 emergency grievance, Fencel first argues that
because he was placed in protective custody (followed by segregation) before the
warden responded, he received the relief that he had requested and did not need to
resubmit his grievance. But if a prison can take some action in response to a grievance—
even if not the specific relief requested—a remedy is available under § 1997e(a). Booth v.
Churner, 532 U.S. 731, 740–41 (2001); Dole v. Chandler, 438 F.3d 804, 808–09 (7th Cir.
2006). Here, even though Fencel requested “one‐man cell status,” the administrative
process could have led to other relief, including disciplining the officers involved or
exposing factual disputes. See, e.g., Pozo v. McCaughtry, 286 F.3d 1022, 1023–24 (7th Cir.
2002).
To properly exhaust administrative remedies under the Prison Litigation Reform
Act, Fencel needed to comply with state law. Jones v. Bock, 549 U.S. 199, 218 (2007). The
Illinois Administrative Code specifies that when a chief administrative officer (here, the
warden) concludes that a grievance does not state an emergency, the officer must notify
the inmate that he “may resubmit the grievance as non‐emergent, in accordance with
the standard grievance process.” § 504.840(c); see also Williams v. Wexford Health Sources,
Inc., 957 F.3d 828, 832 (7th Cir. 2020). Although he was notified, Fencel did not refile.
Fencel responds that resubmitting the December 2017 grievance was not
required because Illinois law states only that an inmate “may” file the grievance
through the normal procedures. § 504.840(c). But the law would not require the
resubmission of a grievance; an inmate is free to abandon his complaint. The point is

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that there was a process available, which he had to use before suing in federal court.
See § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006).
Fencel next contends that he exhausted his claim against Cross through his two
grievances in January 2018, for which he followed the appropriate procedures. But these
grievances did not mention Cross, and the Code requires inmates to explain “the name
of each person who is … involved in the complaint” or if the names are not known, “as
much descriptive information” as possible. § 504.810(c); see Roberts v. Neal, 745 F.3d 232,
235–36 (7th Cir. 2014) (failing to identify the target of a grievance is fatal under Illinois
law). Fencel not only neglected to mention Cross, he also provided no details to identify
him or even a description of the events in which Cross was personally involved. And
Fencel knew Cross’s identity; his emergency grievance, filed just three weeks earlier,
had named Cross and described the incident in which his cellmate assaulted him after
Cross did not respond to his note.
The remaining arguments are mentioned only in Fencel’s reply brief. He asserts
that the judge erred by concluding that his note to Cross and letter to the warden did
not satisfy the grievance process, dismissing the other defendants at screening, and
denying his requests to recruit counsel. Arguments not raised in the opening brief are
waived and so too are underdeveloped arguments. See Wonsey v. City of Chicago,
940 F.3d 394, 398 (7th Cir. 2019). Here, Fencel only vaguely contends that the letter
satisfies the grievance process. That—like his one‐sentence request that we review the
screening order “de novo” and statement that he filed several requests for counsel—
does not entitle him to our review of the merits.
AFFIRMED

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