Randall J. Behning v. Kevin Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1840
R ANDALL J. BEHNING,
Plaintiff-Appellant,
v.
K EVIN JOHNSON , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:19-cv-04225-MMM — Michael M. Mihm, Judge.
____________________
S UBMITTED JANUARY 5, 2023* — DECIDED J ANUARY 11, 2023
____________________
Before S YKES , Chief Judge, and H AMILTON and JACKSON -
A KIWUMI , Circuit Judges.
PER C URIAM . Randall Behning, an Illinois prisoner, appeals
from the district court’s grant of summary judgment to
* 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. App. P.
34(a)(2)(C).

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2 No. 21-1840
defendants on his claims that prison guards violated his con-
stitutional rights while responding to his altercation with a
prison guard. The district court granted summary judgment
based on Behning’s failure to exhaust available administrative
remedies as required by the Prison Litigation Reform Act.
42 U.S.C. § 1997e. We conclude that Behning, through his at-
torney, submitted most of his grievances to the appropriate
administrative office and on time. We therefore vacate the
judgment with regard to his claims concerning those griev-
ances. In all other respects, we affirm.
According to Behning’s complaint, which we treat as true
at this stage of the case, guards at the Hill Correction Center
attacked him after he requested his daily medication, which
had been delayed. Behning alleges that two officers struck
him repeatedly while other officers looked on. Behning was
taken to the emergency room and later received what he al-
leged to be inadequate care by prison medical staff. Behning
says that a few days later, another officer demanded that he
sign a disciplinary ticket without reading it. He was brought
before a disciplinary board for a hearing on charges that he
assaulted an officer, but he alleges he was denied the oppor-
tunity to question witnesses or present evidence. He was
found guilty and transferred first to Pontiac Correctional Cen-
ter for 90 days of solitary confinement and then to Menard
Correctional Center.
While he was in solitary confinement at Pontiac, Behning
tried to file a grievance over the incidents at Hill—the
altercation, inadequate medical care, and procedural defects
in his disciplinary hearing. Because he sought to grieve an
incident that occurred in a facility other than where he was
held, regulations required him to submit a grievance form to

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No. 21-1840 3
a statewide review board, the Illinois Department of
Corrections’ Administrative Review Board, within 60 days of
receiving the final disciplinary report. 20 Ill. Admin. Code
§ 504.870(a)(4) (2017). His deadline for submitting a
grievance, then, was February 5, 2019. He says he made three
attempts to submit a grievance form before this deadline.
First, he says, without elaboration, that he mailed a grievance
to the Board on December 18, 2018. Second, he says he sent a
copy of this grievance to his attorney, whom he asked to
forward it to the Board. His attorney did so—mailing a copy
of the grievance to the Board on January 22—but the Board
promptly returned it, asserting that only offenders
themselves were permitted to submit grievances. See 20 Ill.
Admin. Code § 504.870(a). Third, Behning mailed another
grievance, which the prison received on February 20, 2019 and
rejected as untimely.
Behning then brought this suit under 42 U.S.C. § 1983. He
sued the prison guards for excessive force during the alterca-
tion, inadequate medical care received after the altercation,
and due-process violations in connection with his discipli-
nary hearing. After preliminary proceedings, the defendants
moved for summary judgment based on the theory that
Behning had failed to exhaust his administrative remedies.
The district court granted the defendants’ motions on ex-
haustion grounds. With regard to Behning’s grievance relat-
ing to inadequate medical care, the court found that Behning
had not provided any facts in his grievance that either identi-
fied the nurse whom he now sought to sue (Paula Young) or
described her alleged misconduct. In any event, the court
added, Behning misrouted his grievance by not first sending
it to an institutional counselor or grievance officer. (Under

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4 No. 21-1840
Illinois prison regulations, grievances over medical issues
must be sent to the facility where the offender is currently as-
signed. See 20 Ill. Admin. Code § 504.870(a)(4).) As for
Behning’s grievances against the remaining guards, the court
found the record evidence insufficient to support his assertion
that he mailed a grievance some time in December. In making
this finding, the court accepted the state’s contention that
Behning was not permitted to have his attorney submit a
grievance to the Board on his behalf.
On appeal, Behning challenges the district court’s exhaus-
tion analysis regarding his non-medical grievances and ar-
gues that the Illinois Department of Corrections’ regulations
do not prohibit his attorney from submitting his grievances
for him. The state counters that Behning’s attorney’s attempt
to send the grievances to the Board on his behalf runs afoul of
the Department’s regulation that an inmate submit grievances
himself.
The regulation in question, which addresses grievances
over an incident that occurs at another facility, sets forth only
this general language: “Offenders shall submit grievances di-
rectly to the Administrative Review Board.” 20 Ill. Admin.
Code § 504.870(a). We considered this regulation in Chambers
v. Sood, 956 F.3d 979, 984 (7th Cir. 2020) (affirming dismissal
where Illinois inmate was transferred to new facility and
failed to file grievance concerning prior facility with the
Board). No case before this court has yet presented the ques-
tion here.
We agree with Behning that nothing in the text of this
regulation prohibits an offender from submitting a grievance
through an attorney. The weighty word in this provision is
“directly,” which we understand not to mean personally but

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No. 21-1840 5
directly with the appropriate office—here, the Administrative
Review Board. This command contrasts with the procedure
governing grievances that arise out of events at the prisoner’s
current facility: those grievances must be filed with on-site
counselors or a grievance officer. See 20 Ill. Admin. Code
§ 504.810(a). Relying on one’s attorney to file a grievance may
be unusual, but nothing in the Illinois code explicitly
prohibits it. See James v. Cartwright, No. 11-cv-1083-MJR-SCW,
2013 WL 3353922 at *6 (S.D. Ill. Jul. 3, 2013) (interpreting
Illinois grievance procedure to permit prisoner to submit
signed and fully completed grievance faxed by prisoner’s
mother to appropriate official). By contrast, a comparable
federal prison regulation includes language that expressly
prohibits submission by third parties. See 28 C.F.R. § 542.16
(“no person may submit a Request or Appeal on the inmate's
behalf").
A significant policy reason supports this interpretation.
The primary purpose of the administrative exhaustion re-
quirement is to give prison officials an opportunity to resolve
issues raised by prisoners before resort is made to the federal
courts. See Woodford v. Ngo, 548 U.S. 81, 89 (2006). Regardless
of how Behning’s grievance arrived, it apprised the Board of
the nature of his complaints. We see no sign that Behning
sought to skirt grievance procedures. As best we can tell, he
tried to file his grievance “in the place, and at the time, the
prison’s administrative rules require.” Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002).
The cases cited by the state in support of its interpretation
are inapposite. In Jones v. Dart, No. 14 C 1929, 2016 WL
1555588 (N.D. Ill. Apr. 18, 2016), the plaintiff testified that he
handed his grievance to another prisoner and asked that

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6 No. 21-1840
prisoner to deliver it. There was no evidence that the griev-
ance was ever sent to the proper recipient. See id. at *3. Simi-
larly, in Catalayud v. Townley, No. 12-cv-792-JPG, 2015 WL
514594 (S.D. Ill. Feb. 6, 2015), no competent evidence showed
that a prisoner’s friend sent grievances to the review board as
the plaintiff suggested. Id. at *5. Here, however, it is undis-
puted that Behning submitted competent evidence that his at-
torney mailed a copy of his grievance before the deadline, and
that the Board received it.
Behning mounts no meaningful challenge to the summary
judgment entered on his claims against Paula Young, and we
uphold the judgment in her favor. See Fed. R. App. P. 28(a)(8);
Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001).
We AFFIRM in part, VACATE in part, and REMAND the
case to the district court for further proceedings consistent
with this opinion.

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