French Mason v. Zack Bullock

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2023 *
Decided March 9, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1792
FRENCH MASON,
Plaintiff-Appellant,
v.
ZACK BULLOCK, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:21-CV-20-JD-MGG
Jon E. DeGuilio,
Chief Judge.
O R D E R
French Mason, who also calls himself French Chester Mason-Bey, was
hospitalized after having a seizure and being shocked with a stun gun and pepper-
* 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NONPRECEDENTIAL DISPOSITION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. A PP. P. 32.1

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No. 22-1792 Page 2
sprayed by prison guards. He sued them under 42 U.S.C. § 1983 for violating his rights
under the Eighth Amendment, but the district court ruled that he failed to exhaust his
administrative remedies and therefore entered summary judgment for the guards. He
contends on appeal that he exhausted his administrative remedies to the extent they
were available during the relevant ten days. We affirm.
We construe the facts in the light most favorable to Mason. See Perry v. Sims, 990
F.3d 505, 511 (7th Cir. 2021). Mason, who was then incarcerated at Miami Correctional
Facility in Bunker Hill, Indiana, had a seizure on March 28, 2020. Prison guards, who
would later report that they had observed him behaving violently, pepper-sprayed and
used a stun gun on him. Mason was eventually transported to the emergency room, and
he remained at the hospital until he was discharged to the prison infirmary on April 4,
2020. He was then in quarantine there for two weeks, until April 18, 2020.
Under the policy of the Indiana Department of Correction, Mason had ten
business days from the date of the incident—until April 10, 2020—to submit a
grievance. See Offender Grievance Process, Ind. Dep’t of Corr. Pol’y & Admin.
Procedures 00-02-301, § X (effective Apr. 1, 2020). The policy also provides that, if
extenuating circumstances delay the timely submission of a grievance form, an inmate
“must document and submit the reason for the delay on a separate piece of paper with
signature and date, and include with the appropriate appeal form or make a request for
the specific form to the Offender Grievance Specialist for review.” Id. at § XIII. The
grievance policy was revised around the time of Mason’s incident, but the rules about
timely submitting grievances and requesting extensions remained unchanged from the
prior version. See Offender Grievance Process, Ind. Dep’t of Corr. Pol’y & Admin.
Procedures 00-02-301, § XIV (effective Oct. 1, 2017); Ind. Code § 11-11-1-1. A grievance
specialist who submitted a declaration supporting the guards’ summary judgment
motion attested that grievance forms were available in the infirmary.
On April 30, 2020, a different grievance specialist received two grievances from
Mason, dated April 20 and April 21, 2020. The officer denied those grievances as
untimely and returned them to Mason, who appealed. On each form, he wrote that a
staff member had told him he should receive an extension of time. He did not sign or
date these notes. He filed a third grievance about the incident on April 28, 2020, in
which he again noted that he was informed he should be able to get an extension. This
grievance was returned with the response that the staff member Mason had spoken
with did “not dictate the Grievance Process” and that the grievance was late.
Mason then sued the guards who had injured him for excessive force, and other
officials for allegedly authorizing, failing to prevent, or hiding the use of excessive

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No. 22-1792 Page 3
force. At screening under 28 U.S.C. § 1915A, the district court allowed Mason to
proceed against only the eight guards involved in the incident on March 28, 2020.
These defendants moved for summary judgment on the ground that Mason did
not exhaust his administrative remedies before filing suit. See 42 U.S.C. § 1997e(a).
Mason conceded that he did not submit a grievance about the March 28 incident within
ten days but stated that he could not have done so because of his eight-day
hospitalization and subsequent quarantine in the prison infirmary. He also declared
that he repeatedly asked for, but did not receive, grievance forms in the infirmary and
could not access the new grievance policy because the law library was closed. (He
admitted, however, that he had been aware of the prior policy—with identical timing
provisions—since he arrived at the facility in 2018.) Moreover, he noted that the
grievance specialist never told him that he had to request an extension of time on a
dated and signed piece of paper separate from a grievance form. He believed his notes
on the forms were requests for extensions of time.
The district court entered summary judgment for the defendants. The court
agreed that Mason did not submit a timely grievance about defendants’ use of force.
And, although he had the means to do so, he did not properly request an extension of
time: the notes he wrote on his return-of-grievance forms and the explanation in his
April 28 grievance were procedurally defective ways to seek an extension.
On appeal, Mason argues that the grievance process was not “available” to him,
see 42 U.S.C § 1997e(a), because he was refused a copy of the grievance policy, he could
not access a copy in the law library, and staff members ignored his timely requests for
grievance forms. He also asserts, for the first time, that he exhausted his administrative
remedies because he requested a time extension on a separate, signed and dated, sheet
of paper as required and received no response. Finally, he argues that he was entitled to
an evidentiary hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
Our review of the summary judgment ruling is de novo, see Perry, 990 F.3d at 511.
To exhaust administrative remedies, an inmate must comply strictly with his prison’s
rules for filing grievances and appeals. See Jones v. Bock, 549 U.S. 199, 204 (2007); Lockett
v. Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019). Mason did not comply with the timing
requirements nor the procedure for requesting an extension of time, so his grievances
and notes were not effective to exhaust his administrative remedies. See Woodford v.
Ngo, 548 U.S. 81, 102 (2006).
Mason also fails to demonstrate that the grievance process was not available to
him. See Wallace v. Baldwin, 55 F.4th 535, 542–43 (7th Cir. 2022). The requirements for

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timely filing grievances and requesting extensions of time did not change between 2018,
when Mason admits that he became aware of the grievance policies, and his March 2020
incident. Mason had the option to request a time-limit extension when he submitted his
first two late grievances. But he did not say anything about his lateness then. After
those grievances were deemed untimely, he used notes on the forms to say that he was
promised an extension, but he still did not submit the separate signed-and-dated
request to be excused from the 10-day time limit.
Moreover, Mason forfeited his argument that he submitted a proper request for
an extension because he raises it for the first time on appeal. Scheidler v. Indiana, 914 F.3d
535, 540 (7th Cir. 2019). No evidence in the summary judgment record supports his
contention, and we cannot consider the new evidence he submits on appeal. Henderson
v. Wilkie, 966 F.3d 530, 539 (7th Cir. 2020).
Finally, because the parties’ written submissions did not suggest any fact
dispute, the district court was not required to hold a Pavey hearing. See Wagoner v.
Lemmon, 778 F.3d 586, 588 (7th Cir. 2015).
AFFIRMED

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