Corrie Wallace v. John Baldwin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1883
C ORRIE WALLACE , et al.,
Plaintiffs-Appellants,
v.
J OHN BALDWIN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 18-cv-01513 — Nancy J. Rosenstengel, Chief Judge.
____________________
A RGUED SEPTEMBER 30, 2022 — D ECIDED D ECEMBER 14, 2022
____________________
Before W OOD, ST . EVE , and KIRSCH Circuit Judges.
ST . EVE , Circuit Judge. Corrie Wallace and Rafael Santos, Jr.
(collectively, “Plaintiffs”) are inmates at Menard Correctional
Center (“Menard”) in Chester, Illinois. They brought this law-
suit under 42 U.S.C. § 1983, alleging that Menard’s policy of
housing two inmates in single-person cells violated their
Eighth Amendment rights. Defendants John Baldwin, Rob
Jeffreys, Jacqueline Lashbrook, Alex Jones, Jeffery
Hutchinson, and Kimberly Butler (collectively,

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2 No. 21-1883
“Defendants”), among others not party to this appeal, moved
for summary judgment. They argued that Plaintiffs had failed
to exhaust their administrative remedies under the Prison Lit-
igation Reform Act (“PLRA”), 42 U.S.C. § 1997e. The district
court held an evidentiary hearing, see Pavey v. Conley (“Pavey
I”), 544 F.3d 739, 742 (7th Cir. 2008), found that Santos had
failed to exhaust his administrative remedies before filing
suit, and granted summary judgment for Defendants on that
issue. The court therefore dismissed all of Santos’s claims. The
court further dismissed Wallace’s claims against any defend-
ants who were not working at Menard at the time he filed his
complaint for failure to exhaust.
Because the district court made these decisions without
first considering the threshold question of whether exhaus-
tion was required, as described in the Supreme Court’s deci-
sion in Ross v. Blake, 578 U.S. 632, 643 (2016), we now reverse
and remand for consideration of this issue. We nevertheless
affirm the district court’s factual findings from the Pavey hear-
ing, which were not clearly erroneous.
I. Background
A. Factual Background
Plaintiffs, on behalf of a putative class of inmates, allege
that they are housed like cattle at Menard, where cells meant
for one person are routinely used to house two, in a policy
that Plaintiffs call “double-celling.” They explain that these
tightly packed quarters impact everything from ventilation in
the cells, to inmates’ freedom to exercise, to their ability to
perform legal research.
Menard’s double-celling policy has been the subject of a
slew of litigation for more than forty years. In Lightfoot v.

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No. 21-1883 3
Walker, 486 F. Supp. 504 (S.D. Ill. 1980), a class of Menard in-
mates challenged the then-existing double-celling policy,
which resulted in only “18 to 32 square feet of [cell] space for
each resident.” 486 F. Supp. at 510. The district court explicitly
found that this living space was inadequate. Id. Ultimately,
the district court ordered significant injunctive relief to rem-
edy these living conditions. Id. at 526–29. Whatever the stay-
ing power of that injunctive relief may have been, by 2010, in-
mates began filing double-celling suits against Menard once
again. 1
But this appeal does not consider the merits of these dou-
ble-celling claims. Instead, it deals with the district court’s
grant of summary judgment to Defendants on the preliminary
issue of whether Plaintiffs had exhausted the administrative
remedies available at Menard before filing their suit in federal
court. Both Plaintiffs claim to have filed grievances regarding
their living conditions through Menard’s administrative pro-
cess—Santos in 2017 and Wallace in 2018. They allege they ex-
hausted all available administrative remedies before filing the
1 See, e.g., Hendricks v. Walker, No. CIV. 09-CV-618-DRH, 2010 WL
894061 (S.D. Ill. Mar. 10, 2010); Meskauskas v. Buskohl, No. 15-CV-00431-
MJR, 2015 WL 2407577 (S.D. Ill. May 19, 2015); Turley v. Lashbrook, No. 08-
07-SCW, 2018 WL 7585236 (S.D. Ill. Sept. 26, 2018); Randle v. Baldwin, No.
3:16-CV-1191-NJR, 2020 WL 1550638 (S.D. Ill. Apr. 1, 2020); Maya v. Wex-
ford Health Sources, Inc., No. 17-CV-00546-NJR, 2020 WL 5517465 (S.D. Ill.
Sept. 14, 2020); Thornton v. Jeffreys, No. 20-CV-01100-SMY, 2021 WL 961737
(S.D. Ill. Mar. 15, 2021).

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4 No. 21-1883
instant double-celling lawsuit against Menard on August 17,
2018.2
B. Procedural History
After limited discovery, Defendants filed a motion for
summary judgment based on two statutory provisions: 42
U.S.C. § 1997e(a) and 20 Ill. Admin. Code § 504.810. The for-
mer requires that incarcerated plaintiffs exhaust “such ad-
ministrative remedies as are available” within the prison sys-
tem before filing a lawsuit in federal court. The latter outlines
those prison remedy procedures that apply in Illinois, includ-
ing the requirement that inmates file grievances within sixty
days of their injury. See § 504.810(a). Defendants contended
that Santos never properly filed a grievance about double-cel-
ling and so failed to exhaust his administrative remedies at
Menard before filing this lawsuit. They further argued that
neither Santos nor Wallace exhausted administrative reme-
dies with respect to claims against Butler, Hutchinson, Jones,
and Jeffreys because none of those defendants worked at
Menard in the sixty days before Wallace and Santos claimed
to have submitted their grievances.
The district court held an evidentiary hearing on the ex-
haustion issue on January 28, 2021. Santos testified about
complaints he claimed to have filed in 2017 concerning the
double-celling problems at Menard. He explained that he sub-
mitted his grievance on this issue by placing it between the
2 While the principal allegations have remained the same throughout
the case, several defendants have been added and removed from the com-
plaint over the course of the litigation.

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No. 21-1883 5
bars of his cell at night for the officers to collect.3 But accord-
ing to Santos, he never got a response from the prison. He fur-
ther testified that, because he did not receive a response, he
sent three follow-up letters to the then-Warden of Menard,
Jacqueline Lashbrook. Santos claimed he used the same cell-
bars system to send these letters.
Defendants offered documentary evidence to discredit
Santos’s account. First, they presented a 2017 “Kite Log,” a
document which catalogues any prisoner correspondence to
Menard’s warden, along with a supporting affidavit. The Log
showed only two communications from Santos to the warden
in 2017. Neither related to double-celling. Defendants further
submitted copies of Santos’s counseling records for 2017, 4
which contained no mention of any unanswered grievances.
After giving both parties time for argument, the district
court granted in part and denied in part Defendants’ motion
for summary judgment. First, the judge found that Plaintiffs
were subject to the PLRA’s exhaustion requirement as a mat-
ter of law, but did so without making any factual findings or
legal conclusions regarding whether remedies were “availa-
ble” to Plaintiffs in the first place. Next, the court dismissed
any defendants who did not work at Menard within sixty
days of when Santos and Wallace claimed to have filed their
respective grievances—Butler, Hutchinson, Jones, and Jef-
freys in their individual capacities—under § 504.810(a)’s 60-
3 Santos had successfully submitted grievances by leaving them in the
cell bars, previously, and Defendants confirmed that this was an accepta-
ble method of filing a grievance.
4 With limited exceptions, inmates are required to address their griev-
ances to institutional counselors. 20 Ill. Admin. Code. § 504.810(a).

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6 No. 21-1883
day grievance filing requirement, for the administrative ave-
nues against them could not be exhausted if they were not
present at the time of the alleged problems. And finally, the
district court turned specifically to Santos, finding his testi-
mony incredible in light of the documentary evidence submit-
ted by Defendants. Accordingly, the court found that the gov-
ernment had proven by a preponderance of the evidence that
Santos did not submit the 2017 grievance as he claimed and
had not exhausted his administrative remedies as to double-
celling. The district court entered summary judgment against
him on all claims. Wallace, by contrast, had undisputedly ex-
hausted his remedies by filing a double-celling grievance with
Menard in January 2018, and so the court permitted his re-
maining claims (i.e., those not against Butler, Hutchinson,
Jones, and Jeffreys in their individual capacities) to proceed.
Plaintiffs asked the district court to enter a final order un-
der Federal Rule of Civil Procedure 54(b) on these claims, and
the district court granted the motion. This appeal followed. 5
5 At oral argument, we questioned whether Wallace was properly be-
fore us on appeal, as several of his claims survived. But we have jurisdic-
tion over final orders under Rule 54(b) when a district court “direct[s] en-
try of a final judgment as to one or more, but fewer than all, claims or
parties … if the court expressly determines that there is no just reason for
delay.” The district court’s dismissals for failure to exhaust were effec-
tively final judgments because, although the dismissals were without prej-
udice, under the 60-day grievance rule in Illinois, see § 504.810(a), “it
would be impossible at this point for [Wallace] to exhaust his administra-
tive remedies and thereafter amend his complaint.” Hernandez v. Dart, 814
F.3d 836, 841 (7th Cir. 2016). And after supplemental briefing, we are sat-
isfied that there was “no just reason for delay,” because the “claim[s] re-
solved … dispose[d] of a distinct issue,” that is, whether exhaustion is re-
quired at all under the Supreme Court’s decision in Ross. See Domanus v.

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No. 21-1883 7
II. Analysis
On appeal, Wallace and Santos raise two issues: (1) ex-
haustion was not necessary here because no remedies were
“available” to them within the meaning of the PLRA, see Ross,
578 U.S. at 643; and (2) even if remedies were available to
them, the district court’s credibility determinations at the
Pavey hearing—and ultimate finding that Santos had failed to
exhaust—were clearly erroneous. 6 We now affirm in part and
remand in part.
A. Whether Exhaustion is Necessary
Where, as here, the district court granted summary judg-
ment after a Pavey hearing, we review the court’s conclusions
of law de novo and we review any factual conclusions for
clear error. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018).
Locke Lord LLP, 847 F.3d 469, 477 (7th Cir. 2017). We are therefore certain
of our jurisdiction and proceed to the merits of this appeal.
6 Plaintiffs also contend that Defendants waived the exhaustion de-
fense by failing to include it in their answer to the Second Amended Com-
plaint. But “[a]n affirmative defense that is not raised in a defendant’s first
answer is not necessarily untimely and forfeited.” Burton v. Ghosh, 961
F.3d 960, 965 (7th Cir. 2020). Rather, it is within the sound discretion of a
district court to allow a defendant to amend his answer to a complaint if
the plaintiff will not be prejudiced by the delay. Id. See also Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave [to amend a pleading] when
justice so requires.”). As used here, “unfair prejudice mean[s] that the late
assertion of the defense causes some unfairness independent of the poten-
tial merits of the defense.” Id. at 966. Because Plaintiffs fail to point to any
prejudice they incurred from Defendants’ one-month delay in including
the defense beyond the potential success of the defense, the district court
acted well within its discretion in allowing Defendants to amend their an-
swer.

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8 No. 21-1883
1. “Dead End” Unavailability
We begin with Plaintiffs’ argument that Menard’s griev-
ance process offered no “available remedy” for double-celling
under the PLRA and therefore they did not need to exhaust
their administrative remedies. This textual argument is based
on the Supreme Court’s decision in Ross. 578 U.S. at 643. In
Ross, the Court considered Fourth Circuit precedent creating
a “special circumstances” exception to the PLRA’s exhaustion
requirement. Rejecting such an exception, the Supreme Court
explained, “[c]ourts may not engraft an unwritten … excep-
tion onto the PLRA’s exhaustion requirement. The only limit
to § 1997e(a)’s mandate is the one baked into its text: An in-
mate need exhaust only such administrative remedies as are
‘available.’” Id. at 648.
So when is a remedy “available”? The Ross Court pro-
vided guidance on this point. “[T]he ordinary meaning of the
word ‘available’ is ‘capable of use for the accomplishment of
a purpose,’ and that which ‘is accessible or may be obtained.’
… Accordingly, an inmate is required to exhaust those, but
only those, grievance procedures that are ‘capable of use’ to
obtain ‘some relief for the action complained of.’” Id. at 642.
This is a practical, rather than a procedural, inquiry. Id. at 643.
“[C]ourts in this and other cases must apply [this standard for
‘available remedies’] to the real-world workings of prison
grievance systems.” Id.
The Ross majority went on to describe three categories of
remedies that would be practically “unavailable” such that an
inmate would have no exhaustion requirement. For example,
“an administrative scheme might be so opaque that it be-
comes, practically speaking, incapable of use. In this situation,
some mechanism exists to provide relief, but no ordinary

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No. 21-1883 9
prisoner can discern or navigate it.” Id. at 643–44. Or, the
Court explained, “the same is true when prison administra-
tors thwart inmates from taking advantage of a grievance pro-
cess through machination, misrepresentation, or intimida-
tion.” Id. at 644. Finally, and most relevant here, “an adminis-
trative procedure is unavailable when (despite what regula-
tions or guidance materials may promise) it operates as a sim-
ple dead end—with officers unable or consistently unwilling
to provide any relief to aggrieved inmates.” Id. at 643. By way
of example of such a “dead end” administrative process, the
Ross Court proposed a hypothetical: “Suppose … that a prison
handbook directs inmates to submit their grievances to a par-
ticular administrative office—but in practice that office dis-
claims the capacity to consider those petitions. The procedure
is not then [an ‘available’ remedy] for the pertinent purpose.”
Id. at 643.
Although we have not yet encountered such “dead end”
procedures, this Circuit has applied the first two types of
practical unavailability identified in Ross in recent appeals.
See Gooch v. Young, 24 F.4th 624, 628 (7th Cir. 2022) (threats
from prison guards made grievance procedures “unavaila-
ble”); Reid v. Balota, 962 F.3d 325, 330 (7th Cir. 2020) (mixed
messages from the prison about the outcome of grievances
and the requirements from the inmate were sufficiently con-
fusing to obscure necessary procedures and make relief “un-
available”); Ramirez v. Young, 906 F.3d 530, 535 (7th Cir. 2018)
(holding that grievance procedures were “unavailable” where
they were only provided in English to a Spanish-speaking in-
mate).
While our precedent is lacking any cases in the “dead end”
unavailability category, our applications of Ross show that we

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10 No. 21-1883
have hewn closely to its central warning: a prisoner cannot be
expected to exhaust remedies that were never “available” to
him in the first place. Plaintiffs are therefore correct that
where the relief offered through the prison grievance process
is illusory, then there are no administrative remedies “availa-
ble,” and no exhaustion is required.
This “unavailable” exception is meant to be narrow.
Crouch v. Brown, 27 F.4th 1315, 1320 (7th Cir. 2022) (quoting
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)) (“For dec-
ades, this court ‘has taken a strict compliance approach to ex-
haustion.’”). If a plaintiff raises this “dead end” argument,
district courts should decide, prior to a Pavey hearing,
whether limited discovery is warranted on the availability of
remedies. Not every case—indeed, likely not most cases—will
need an availability analysis under Ross. But if a plaintiff can
offer some evidence that administrative remedies were “una-
vailable” at the time of his injury, then discovery on this issue
should be allowed if appropriate and the district court should
determine the issue as part of its exhaustion analysis. Other
circuits have permitted discovery of (1) evidence that the in-
mate himself had previously filed grievances on this exact is-
sue with no response; see Muhammad v. Wiles, 841 F. Appʹx
681, 685 (5th Cir. 2021); Blevins v. FCI Hazelton Warden, 819 F.
Appʹx 853, 859 (11th Cir. 2020); see also Grafton v. Hesse, 783 F.
Appʹx 29, 31 (2d Cir. 2019); White v. Velie, 709 F. Appʹx 35, 38
(2d Cir. 2017); and (2) evidence that other inmates had previ-
ously filed grievances on this exact issue with no response. See
also Grafton, 783 F. Appʹx at 31; White, 709 F. Appʹx at 38; Kee
v. Raemisch, 793 F. Appʹx 726, 736 (10th Cir. 2019).
Showing a remedy to be a “dead end” is a tall task. See
Green Haven Prison Preparative Meeting of Religious Socʹy of

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No. 21-1883 11
Friends v. New York State Depʹt of Corr. & Cmty. Supervision, 16
F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green Haven
Preparative Meeting v. New York State Depʹt of Corr. & Cmty. Su-
pervision, 212 L. Ed. 2d 763, 142 S. Ct. 2676 (2022) (the proof
required to show that a remedy is available is “low” and re-
quires only “the possibility of some relief”); Donahue v. Wilder,
824 F. Appʹx 261, 266 (5th Cir. 2020) (rejecting the plaintiff’s
unavailability argument where he failed to “provide evidence
that [the prison’s] administrators are ‘unable or consistently
unwilling to provide any relief’”); Kee, 793 F. Appʹx at 736 (an
inmate’s allegations did not warrant an evidentiary hearing
in part because he did not offer any evidence about the
prison’s failure to address the complaints of “other aggrieved
inmates”). Indeed, one circuit has suggested that plaintiffs
may only proceed under the “dead end” exception where,
when the district court reviews the evidence at summary
judgment, it finds that “among the legion of [identical griev-
ances], [the prison] can’t cite a single favorable response to a
legal challenge by” an inmate on this issue. Barradas Jacome v.
Attʹy Gen. United States, 39 F.4th 111, 121 (3d Cir. 2022) (citing
and applying Ross’s “dead end” concept to expedited removal
proceedings in the immigration context). Although we do not
adopt such a stringent requirement at this time, these cases
offer helpful benchmarks for district courts dealing with this
issue in the first instance.
From here, a district court has two paths. If the evidence
reflects that remedies were “available” at the time the inmate
was injured, then the Pavey hearing proceeds if appropriate—
exhaustion is required and failure to do so ends the case. If
instead the court concludes that no remedies were “available”
under Ross, then exhaustion is not required, and the court
should deny summary judgment on those grounds.

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12 No. 21-1883
2. Plaintiffs’ Showing
Here, Plaintiffs offered some evidence that other inmates
have complained of the same issue that they raise—double-
celling at Menard—with no response. See supra, note 1. They
even point to a mechanism by which prison officials can al-
legedly use state law to reject their grievances without any
consideration of their merits. See 20 Ill. Admin. Code
§ 504.830(a)(1), (d). But the district court never considered
these “dead end” arguments. 7 And “[t]he availability of a
remedy is … a fact-specific inquiry,” Lanaghan v. Koch, 902
F.3d 683, 688 (7th Cir. 2018), leaving this court ill-equipped to
make that assessment now. Instead, the district court on re-
mand should allow limited discovery as it sees fit on the re-
sults of double-celling grievances and make a “dead end” as-
sessment in accordance with this opinion. 8
B. Santos’s Credibility
As we noted above, however, where a district court finds
that remedies are “available,” summary judgment on exhaus-
tion grounds may be appropriate. “The exhaustion require-
ment is an affirmative defense, which the defendants bear the
burden of proving.” Pavey v. Conley (“Pavey II”), 663 F.3d 899,
7 To be clear, the question of availability was before the district court.
In their summary judgment briefing, Plaintiffs argued that remedies were
unavailable to them because of Menard’s longstanding refusal to provide
relief on the specific issue of double-celling. Plaintiffs’ counsel reiterated
the same position at the Pavey hearing.
8 Because we agree with Plaintiffs on the need to consider Ross’s avail-
ability exceptions and remand accordingly, we need not consider their ar-
gument regarding vicarious exhaustion, a concept that has never before
been applied to PLRA suits in this Circuit.

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No. 21-1883 13
903 (7th Cir. 2011). “If the defense is adjudicated on the basis
of factual findings after a [Pavey] hearing, … we review the
district court’s factual findings for clear error.” Wilborn, 881
F.3d at 1004 (citing Pavey II, 663 F.3d at 904). Here, the district
court already considered exhaustion as a factual matter. After
the Pavey hearing, the district court held that Santos did not
file a grievance with the prison regarding the double-celling
policy, crediting the Defendants’ evidence over Santos’s testi-
mony.
Plaintiffs argue that Defendants’ evidence was insufficient
to contradict Santos’s claims. But this argument is belied by
the record from the Pavey hearing and the district court’s de-
tailed findings. Defendants offered the Kite Log and the asso-
ciated affidavit. Taken together, these showed that if Santos
had submitted grievances and letters to the Warden as he
claimed, they would have been recorded. In fact, the Kite Log
did reflect two unrelated letters filed by Santos during that
timeframe but had no record of the grievance or follow-up
letters about double-celling that he claimed he filed. The court
reasonably held that this direct contradiction undermined
Santos’s testimony. The counseling records only underscored
this conclusion. Santos testified that he was so upset by the
lack of response to his grievance that he sent the Warden three
follow-ups. It is hard to square this with counseling records
that do not show even a single mention of his complaint or of
the Warden’s failure to answer.
Based on these records, the district court did not clearly
err in finding that Santos was not credible and did not submit
a double-celling grievance. See Daniels v. Prentice, 741 F. Appʹx
342, 344 (7th Cir. 2018) (affirming the district court’s conclu-
sions after it “credited the … evidence [a defendant]

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14 No. 21-1883
submitted [to show failure to exhaust], including records of
… grievance activity, … counseling record[s], and affidavits
explaining the prison’s grievance procedure … .”). And so, to
the extent exhaustion is still relevant to this case after remand,
we affirm the district court’s factual determinations regarding
exhaustion.
III. Conclusion
In closing, we reiterate that where a Plaintiff is able to
point to some evidence that administrative remedies were not
“available” to him under the PLRA, as described by the Su-
preme Court in Ross, the district court must decide whether
remedies were “available” before granting summary judg-
ment on exhaustion grounds. We remand for consideration of
this question as it applies to double-celling at Menard. If,
however, the district court finds that double-celling remedies
were “available,” then the PLRA’s exhaustion requirement
applies to Wallace and Santos. To that end, we affirm the dis-
trict court’s factual determination that Santos did not file a
grievance regarding Menard’s double-celling policy. The
judgment is therefore
A FFIRMED IN P ART , R EVERSED IN P ART , AND R EMANDED.

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