Lavelle Malone v. JENNY McKINNEY AND SAKIRU T. ADETUNJI

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2024*
Decided July 25, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-3243
LAVELLE MALONE,
Plaintiff-Appellant,
v.
JENNY McKINNEY AND SAKIRU T.
ADETUNJI,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:22-CV-274-JD-JPK
Jon E. DeGuilio,
Judge.
O R D E R
Lavelle Malone, an Indiana prisoner, contends that after his cellmate stabbed
him, two nurses deliberately ignored his wounds in violation of his rights under the
Eighth Amendment. See 42 U.S.C. § 1983. The district court entered summary judgment
* 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NONPRECEDENTIAL DISPOSITION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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for the nurses on the ground that Malone failed to exhaust an available administrative
appeal. Without holding a live hearing, the court decided that Malone had not timely
requested an appeal, despite his sworn written assertion that prison officials ignored his
request to supply him with the required appeal form. Because the district court should
have held a hearing to assess Malone’s contention, we vacate the judgment and remand.
Malone’s claim arises from an incident on August 28, 2021, when he was stabbed
in the face by his cellmate. He alleges that two nurses at the prison, the appellees here,
ignored his need for medical care for an hour and a half after the stabbing while he
waited for prison staff to have him airlifted to an outside hospital. He was bleeding
profusely, and he asked the nurses for help many times, but they refused to bandage
the wound, provide pain relief, or do anything else to assist him.
Malone provided an affidavit about his administrative grievance against the
nurses. He states that he submitted his grievance two days after the stabbing, on August
30, 2021. When he did not receive a response, he wrote to the grievance specialist to ask
about the status of his grievance. The specialist responded with a receipt showing that
his grievance had been received on September 23 and that the prison had until October
18 to respond to it. Malone then wrote to the specialist on October 18, the due date for a
response to his grievance, stating that he had not yet received a response. Also on that
date, he requested the form to file an internal appeal. The prison’s rules state that a
prisoner must use “Form 45473” to appeal the denial of a grievance. I ND. DEP ’ T OF
C ORR ., 00-02-301, OFFENDER GRIEVANCE PROCESS (2020) at 12. The next day,
October 19, he received the prison’s response to his grievance, a denial of relief. Under
the prison’s rules, he had five business days, id., until October 25, to lodge an appeal.
Malone’s affidavit and other evidence describe his attempts to file the appeal. He
states that he received no reply to his letter of October 18 requesting the form to appeal,
Form 45473. He wrote again on October 31, asking once again for the form. The
grievance specialist responded that he must return the “Offender Grievance Response
Report” (reflecting the denial of relief) to “request his appeal.” Three days later, on
November 2, Malone wrote to the specialist, contested the outcome of his grievance,
again requested an appeal form, and attached the Offender Grievance Response Report.
On November 4, he was told that his appeal was untimely.
Malone next turned to federal court. The district court screened his complaint,
see 28 U.S.C. § 1915A, dismissed some claims (a decision unchallenged on appeal), and
allowed him to proceed against the two nurses, who later moved for summary
judgment. They argued that Malone failed to exhaust his administrative remedies

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because he did not pursue an appeal within five business days (i.e., by October 25).
They relied on 42 U.S.C. § 1997e(a), which bars § 1983 suits by prisoners unless
administrative remedies, including appeals, “as are available” are exhausted. To
exhaust, prisoners must “comply strictly” with the prison’s own rules and procedures.
Hacker v. Dart, 62 F.4th 1073, 1078 (7th Cir. 2023). Malone responded that he did
everything available to exhaust an appeal remedy because, on October 18, he asked for
the form to appeal, and the prison ignored the request. The district court disagreed. It
acknowledged that Malone “provided evidence” that on October 18 he requested the
form for an appeal. But it reasoned that the prison’s grievance policy “does not allow”
him to request that form before he received the response to his grievance. Under this
view of the policy, Malone had five business days after he received his denial on
October 19 to seek an administrative appeal, and he never did. Therefore, the district
court concluded, summary judgment was proper.
On appeal, Malone maintains that the district court wrongly decided that he
failed to exhaust the administrative appeal process that was “available” to him. See 42
U.S.C. § 1997e(a). We review de novo a ruling that a prisoner failed to exhaust his
available administrative remedies. Jackson v. Esser, 105 F.4th 948, 956(7th Cir. 2024).
A remand is required to determine if the administrative appeal process was
“available” to Malone. The Supreme Court has held that a remand is required where
evidence suggests that prison officials “thwarted” the administrative process, thereby
rendering it potentially unavailable. Ross v. Blake, 578 U.S. 632, 648 (2016). As the district
court acknowledged, Malone provided evidence that, on October 18, before his time to
appeal had expired, he requested the form that the prison’s own rules say he must use
to initiate an appeal, yet the prison officials refused to provide it to him.
For two reasons, the district court wrongly rejected Malone’s contention that the
appeals process was not available to him. First, it erroneously ruled that, because he
had not yet received his response to his grievance when he asked for the appeal form on
October 18, prison policy “did not allow” him to request the form then. The court cited
the prison’s policy statement that prisoners may submit their appeals if “dissatisfied
with the grievance response.” OFFENDER GRIEVANCE PROCESS at 12. But Malone
was not attempting to appeal before he received his grievance response; he was trying
only to obtain the appeal form—an understandable move in light of the quick, five-day
timeframe to lodge the appeal once he received his response to his grievance. Prisoners
are required to follow only the rules specified in the prison’s written policy. Gooch v.
Young, 24 F.4th 624, 627 (7th Cir. 2022). And no prison rule required that Malone wait

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until he received his grievance before he requested the appeal form. Second, the
prison’s policy also did not require that prisoners furnish their “Offender Grievance
Response Report” to appeal, as the prison’s grievance specialist told Malone. It instead
requires that prisoners appeal using Form 45473, but the grievance specialist ignored
Malone’s request for one. Thus Malone’s sworn statement that he monitored the status
of his grievance, that he timely asked for the appeal form, that the prison ignored his
request, and that it erected a new, unwritten requirement to proceed with an appeal, is
evidence that the appeal procedure was unavailable to him. See id. at 627–28.
This evidence, however, is contested and must be addressed at a live evidentiary
hearing. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). The nurses do not concede
that Malone requested an appeal form in his letter of October 18. At times they omit any
acknowledgment of the letter, implicitly questioning whether Malone sent it or officials
received it. Likewise, they do not concede that the prison ignored any request for the
appeal form. Thus, because the existence, content, and receipt of the letter are at issue, a
Pavey hearing is required to determine what the letter said and whether prison officials
received and ignored it. Smallwood v. Williams, 59 F.4th 306, 315 (7th Cir. 2023).
We thus VACATE the judgment and REMAND for further proceedings.

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