Steshawn Brisco v. ANTHONY WILLS, Warden of Menard Correctional Center, in his official capacity

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 18, 2023*
Decided September 22, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1616
STESHAWN BRISCO,
Plaintiff-Appellant,
v.
ANTHONY WILLS, Warden of Menard
Correctional Center, in his official
capacity, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:20-cv-00366-GCS
Gilbert C. Sison,
Magistrate Judge.
O R D E R
Steshawn Brisco, an Illinois prisoner, sued prison officials for violating his Eighth
Amendment rights, but the district court ruled after a hearing that he failed to exhaust
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1616 Page 2
administrative remedies, and it entered summary judgment against him. Because the
court’s factual findings on exhaustion are not clearly erroneous, we affirm.
Brisco alleges that in early May 2018, while housed at Menard Correctional
Center in Chester, Illinois, he reported that he had suicidal thoughts. An officer
responded that Brisco was faking and gave him a staple, which he used to cut himself.
Another officer noticed the self-harm, grabbed the staple, but ignored Brisco’s request
for medical help. The next day, a mental health professional evaluated Brisco and
ordered treatment for his wound, but Brisco says he received none.
Brisco took preliminary steps toward grieving this incident. First, he submitted
on May 9, 2018, an “emergency” grievance to the warden. A week later the warden
returned it to Brisco, explaining that it did not present an emergency and instructing
him to resubmit it through the standard three-step grievance procedure. See 20 I LL.
A DMIN . C ODE § 504.800, et seq. Under that process, a prisoner must (1) attempt to resolve
the problem through a counselor; (2) if dissatisfied, file within 60 days of the incident a
formal grievance with a grievance officer, who then recommends a decision to the
warden; (3) if still dissatisfied, appeal within 30 days to the Director of the Illinois
Department of Corrections through the Administrative Review Board. 20 I LL. A DMIN .
C ODE §§ 504.810(a), 504.850(a), (d)–(e). Brisco wrote (in a letter to the Board mailed a
year later) that after he learned in May that his grievance was not an emergency, he sent
it to his counselor, received no written response, and then filed two standard grievances
within 60 days of the incident (in May and June) that went unanswered. The Board
responded that Brisco’s letter was “[m]isdirected” to it. More than a year after the
incident, Brisco submitted a standard grievance about the events. His counselor denied
the grievance as untimely because more than 60 days had passed since the incident.
Brisco sued the warden and others under 42 U.S.C. § 1983, accusing them of
encouraging self-harm and denying him needed care in May 2018. The defendants
moved for summary judgment, and the parties disputed whether Brisco exhausted his
administrative remedies. See 42 U.S.C. § 1997e(a). To resolve this dispute, a magistrate
judge held an evidentiary hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).1
The defendants testified that, based on a search of their records, Brisco did not submit
through the standard grievance process his “emergency” grievance, as the warden had
directed. Nor did Brisco file any fresh grievances within 60 days of the May incident.
Brisco countered that he redirected his mislabeled “emergency” grievance to his
counselor and filed two more grievances within 60 days of the incident, but that his
1 The magistrate judge acted with the consent of the parties pursuant to 28 U.S.C.
§ 636(c).

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No. 22-1616 Page 3
counselor said that she or others destroyed them. (The counselor denied that she or
other staff destroyed grievances.) Brisco also offered testimony from two fellow
prisoners who had submitted affidavits. The first, his cellmate, testified that he saw
Brisco file a grievance in June 2018 and that staff destroyed grievances. But among other
contradictions, he testified that Brisco both did, and did not, help him write his affidavit
and that he saw Brisco write only one, and more than one, grievance about the incident.
Brisco says that another prisoner would have also testified that staff destroyed
grievances, but the court ruled that this proposed testimony would be cumulative and
did not allow it.
The judge granted the defendants’ motions for summary judgment. He credited
the evidence from the defendants that, based on the search of their records, they had
received no grievances from Brisco within 60 days of the incident and did not destroy
grievances. The judge discredited the contrary testimony from Brisco and his cellmate
because their affidavits bore suspiciously similar handwriting (implying that the
testimony was concocted) and the cellmate’s testimony was internally inconsistent.
On appeal, Brisco maintains that he exhausted his administrative remedies.
See 42 U.S.C § 1997e(a). He does not dispute that he must exhaust all available
administrative remedies before he sues. To do so, he 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). During a Pavey hearing, the judge
resolves disputed factual questions, see Pavey v. Conley, 544 F.3d at 742, and we review
for clear error the magistrate judge’s factual findings that underlie the ruling that Brisco
did not exhaust available remedies. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018).
The judge did not clearly err in finding that Brisco failed to exhaust. Brisco
concedes that he learned in May that his grievance was not an emergency. Under the
grievance rules, Brisco had to use the standard grievance process. See 20 I LL. A DMIN .
C ODE § 504.840(c). But the record contains ample evidence—testimony from the
defendants upon their review of the prison’s grievance records—that Brisco did not: He
did not submit to his counselor the non-emergency grievance, as the warden had
instructed, nor did he file any other grievances within 60 days of the incident. True,
Brisco testified that he forwarded the non-emergency grievance to his counselor. But
apart from the fatal problem that the magistrate judge’s contrary finding (based on the
defendants’ evidence) was not clearly erroneous, the record contains no documentation
that Brisco followed up with the other two required steps—a timely grievance to a
grievance officer and a timely appeal to the Director. Finally, the magistrate judge
reasonably ruled that Brisco’s grievance filed more than a year after the incident did not

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No. 22-1616 Page 4
comply with the 60-day deadline. Thus, Brisco did not exhaust. See Woodford v. Ngo,
548 U.S. 81, 102 (2006).
Brisco responds that prison staff tore up his grievances and therefore he properly
exhausted. But the magistrate judge’s rationale for discrediting this response was not
clearly erroneous. To begin, a judge’s credibility assessment will rarely be overturned
on appeal. See Ortiz v. Martinez, 789 F.3d 722, 729 (7th Cir. 2015). And this is not one of
those rare cases, because the magistrate judge had adequate reasons to discredit Brisco’s
story. Brisco’s testimony tracked the affidavits of his two fellow prisoners, and the
magistrate judge reasonably found those affidavits were suspicious because they
appeared to be written by the same person and therefore did not seem genuine.
Furthermore, Brisco’s cellmate’s testimony—that Brisco filed a timely grievance and
that staff destroyed grievances—had several discrediting inconsistencies that Brisco
does not on appeal even try to reconcile.
Finally, Brisco argues that the judge should have allowed the other fellow
prisoner to testify. A court has broad discretion to exclude needlessly cumulative
testimony. See F ED. R. EVID. 403; see also Thompson v. City of Chicago, 722 F.3d 963, 971
(7th Cir. 2013). The judge reasonably exercised that discretion because the affiant’s
proposed testimony repeated matters that others had already testified to (the alleged
destruction of grievances) and that the court had adequately rejected: First, the
defendants’ witnesses had sufficiently contradicted the testimony alleging destruction.
Second, the proposed testimony tracked the suspicious, similar-looking affidavit from
Brisco’s cellmate. Finally, the story about destroyed grievances, when recounted by the
cellmate, contained numerous inconsistencies. Thus, the judge reasonably declined to
hear this proposed testimony.
AFFIRMED

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