Kendrick Butler v. Richard Orenstein

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2024*
Decided October 3, 2024
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-3019
KENDRICK BUTLER,
Plaintiff-Appellant,
v.
RICHARD ORENSTEIN,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 19 C 0115
Robert W. Gettleman,
Judge.
O R D E R
Kendrick Butler, a state prisoner, sued dentist Richard Orenstein, alleging that
Orenstein refused to remove a tooth fragment and bullet pellet from his mouth, which
unnecessarily prolonged his pain and suffering in violation of his rights under the
Eighth Amendment. See 42 U.S.C. § 1983. Orenstein moved for 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NONPRECEDENTIAL DISPOSITION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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arguing that Butler failed to exhaust his administrative remedies as required by the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). After a Pavey hearing, the court
entered summary judgment for Orenstein and denied Butler’s motion to reconsider. We
affirm.
We recount the summary-judgment record in the light most favorable to Butler
as the non-moving party. See Lockett v. Bonson, 937 F.3d 1016, 1022 (7th Cir. 2019).
Between approximately May and October of 2017, Butler sought dental care at Stateville
Correctional Center in Crest Hill, Illinois. Orenstein was the resident dentist (employed
by the prison’s healthcare contractor). In July 2017, Butler tried to file two grievances
about Orenstein’s failure to treat his severe oral pain. The Illinois Department of
Corrections (“Department”) has no record of receiving the two grievances, and Butler
never received a response from a grievance officer.
Butler filed another grievance related to his dental care on August 22, 2017.
Butler wrote that he was in “excruciating pain” because a piece of tooth and a bullet
pellet remained lodged in his mouth. He asserted that a nurse at sick call was
indifferent to his condition, and he asked for medical treatment and a referral to the
dentist. Butler did not name Orenstein in the grievance or describe any interactions
with a dentist. More than a year passed before a grievance officer responded. By then,
Butler was at Pontiac Correctional Facility, in Pontiac, Illinois, and he had received
surgery to remove the painful fragments. The officer recommended that the grievance
be considered moot because Butler was receiving appropriate treatment. The chief
administrative officer agreed with the recommendation, and so Butler appealed. But the
Administrative Review Board (“Board”) responded that it was “unable to address” the
issue because Butler failed to attach the original grievance to his appeal.
In September 2018, Butler filed a grievance at Pontiac, stating that Orenstein had
delayed and denied him adequate dental treatment when he was still at Stateville. He
submitted the grievance directly to the Board, which denied the grievance for
untimeliness: It concerned events that had occurred more than 60 days before filing.
Butler next filed his § 1983 complaint. When Orenstein moved for summary
judgment based on Butler’s failure to exhaust administrative remedies, the district court
ordered an evidentiary hearing. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
At the Pavey hearing, Orenstein presented the testimony of Amanda Dietz (a
Department grievance counselor) and Travis Baylor (the Board Chairman). Each
explained that Butler’s August 2017 and September 2018 grievances did not comply

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No. 23-3019 Page 3
with the state’s grievance procedures. They also testified that Butler filed many
grievances during the relevant period at Stateville, but the Department’s database had
no record of any grievances from him about dental care in July 2017. During his cross-
examination of Dietz, Butler questioned whether the Department’s grievance policy had
been amended in April 2017, but Dietz asserted (perhaps inaccurately) that only the
disciplinary policy had changed. Butler also elicited testimony that the Department had
implemented a grievance-box policy in response to reports of missing grievances.
Butler testified that in July 2017 he filed two grievances about Orenstein in
accordance with the grievance policy then in effect: He placed the forms in an envelope
addressed to a grievance counselor and placed it between his cell bars for mail pickup.
A fellow prisoner testified that in 2017 several of his grievances were lost or went
unanswered at Stateville.
After additional briefing, the district court granted Orenstein’s motion for
summary judgment. It found that the August 2017 and September 2018 grievances did
not fulfill the requirement of proper exhaustion. The court then determined that Butler
did not properly file grievances in July 2017, highlighting that Butler had extensive
experience filing grievances, and in all other instances he had received responses to and
maintained copies of his grievances. As a result, his failure to make copies or inquire
about the status of the disputed grievances belied his testimony about correctly
submitting dental-care grievances in July.
Butler filed a motion to alter or amend the judgment under Federal Rule of Civil
Procedure 59(e). He argued that Dietz lied during the hearing and that his August 2017
grievance should be deemed exhausted because the prison took so long to respond to it
before resolving it as moot. The court denied his motion, and Butler timely appealed
that decision and the underlying judgment.
We begin with a note about our jurisdiction. Butler sued several unidentified
prison employees who were never served and not subject to the summary-judgment
and Rule 59(e) rulings that disposed of the case. Although the judgment mentions only
defendant Orenstein, it is still a final, appealable decision because Butler could not
timely serve the other defendants. See Manley v. City of Chicago, 236 F.3d 392, 395
(7th Cir. 2001). Federal Rule of Civil Procedure 4(m) requires service within 120 days of
filing a complaint, and Butler filed his complaint over five years ago. The summary-
judgment ruling and denial of reconsideration “effectively terminated” Butler’s suit,
and so we have jurisdiction to review the rulings. See id.; 28 U.S.C. § 1291.

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As for the merits, we review the exhaustion ruling de novo. Obriecht v. Raemisch,
517 F.3d 489, 492 (7th Cir. 2008). Under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a), a prisoner cannot file suit until he exhausts administrative remedies in
accordance with the prison’s administrative rules, Woodford v. Ngo, 548 U.S. 81, 90
(2006); Jones v. Bock, 549 U.S. 199, 218 (2007). In Illinois, these rules require prisoners to
file grievances within 60 days of an incident, to include “what happened, when, where
and the name of each person … involved in the complaint,” 20 I LL. A DMIN . C ODE
§ 504.810(a), (c), and to appeal grievances to the Board, id. § 504.850. The exhaustion
requirement is meant to provide prisons with an opportunity to address problems
before litigation. Woodford, 548 U.S. at 93–94.
Butler did not exhaust his claim that Orenstein denied him dental care and
prolonged his pain. An Illinois prisoner’s grievance must raise the same claim as the
lawsuit, Bowers v. Dart, 1 F.4th 513, 518 (7th Cir. 2021), and provide enough information
to indicate that the defendant is the target of the grievance, King v. Dart, 63 F.4th 602,
608 (7th Cir. 2023). See also 20 I LL. A DMIN . C ODE § 504.810(c) (listing details required).
The August 2017 grievance was Butler’s only timely filed and processed grievance
about dental care at Stateville. But Butler did not name or describe Orenstein in that
grievance, nor did he describe any conduct attributable to Orenstein or any dentist.
Butler responds that, regardless of technical deficiencies, his August 2017
grievance fulfilled the purpose of exhaustion by alerting the prison to his dental
problem and the treatment he sought. But we enforce a “strict compliance approach to
exhaustion.” See Lockett, 937 F.3d at 1025 (quoting Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006)). And his argument that administrative remedies were not “available”
for him because of the long response time and the determination that the grievance was
moot does not overcome the “fatal defect” of omitting required information in the
grievance. Roberts v. Neal, 745 F.3d 232, 235–36 (7th Cir. 2014). A prompt resolution of
that grievance would not have made it effective to exhaust a claim against Orenstein.
Orenstein contends that Butler’s failure to attach his August 2017 grievance to his
Board appeal is another ground for finding that he failed to exhaust, but we decline to
endorse this rationale. In Reid v. Balota, 962 F.3d 325, 330 (7th Cir. 2020), and Williams v.
Wexford Health Sources, Inc., 957 F.3d 828, 832–34 (7th Cir. 2020), we determined that
Illinois prisoners exhausted available remedies when the Board had informed them that
their appeals were missing documents but not that they could resubmit the appeal with
those documents. Here, too, the Board told Butler that it was “unable to address” his
issue because of missing attachments but neither instructed him that he could provide

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the information nor told him that further redress was unavailable. Because the Board
“obscured the next steps,” the missing attachment does not bear on our decision on
exhaustion. Reid, 962 F.3d at 330.
Butler also argues that he exhausted his administrative remedies with his
July 2017 grievances. Recall that at the Pavey hearing, Butler testified that these
grievances named Orenstein and described his denial of treatment, but Orenstein
presented testimony that there is no record of their existence. The court resolved the
dispute, deciding that the state witnesses credibly testified that the grievances never
reached the appropriate officials. We review the court’s factual findings for clear error,
Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018), and find none.
Butler contends that his grievances were lost because of systemic failures in the
Stateville grievance system, pointing to the other prisoner’s corroborating testimony
about lost grievances and Dietz’s testimony about subsequent changes to the grievance-
filing system. But the proposition that the prison sometimes lost grievances does not
make the court’s finding—that Butler did not properly file grievances about Orenstein
in July 2017—clearly erroneous. That finding was based not only on witness testimony
but on Butler’s extensive experience successfully filing other grievances, his habit of
making copies of grievances apart from the July 2017 grievances, and his concession
that he never inquired about the outstanding grievances. See Lockett, 937 F.3d at 1027
(expecting a prisoner to “ascertain the fate” of unacknowledged grievance is consistent
with the purpose of exhaustion and our case law).
With respect to the denial of Butler’s Rule 59(e) motion, the district court did not
abuse its discretion in deciding that Butler did not demonstrate any manifest error of
fact or law in the summary-judgment ruling. See Robinson v. Waterman, 1 F.4th 480, 483
(7th Cir. 2021). Butler reasserts that the ruling was premised on Dietz’s false and
incredible testimony at the Pavey hearing. But we give great deference to district court
findings on witness credibility, and Butler did not meet the “high hurdle” of showing
that Dietz knowingly made false statements or provided implausible testimony.
See Wilborn, 881 F.3d at 1006. Butler also insists that the district court misapplied Dole v.
Chandler, 438 F.3d 804 (7th Cir. 2006), by refusing to deem his claim exhausted based on
missing grievances. In Dole, we held that a prisoner exhausted his remedies even
though there was no record that the prison had received or reviewed his grievance.
Id. at 812. But there it was undisputed that the prisoner had properly mailed his
grievance, and he provided a copy of it. Neither fact is present here to corroborate the
July 2017 grievances; further, the district court catalogued the evidence supporting its

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conclusion that Butler did not file them properly, if at all. Thus, the court rightly denied
Butler’s motion to alter or amend the judgment.
We have considered Butler’s remaining arguments, and none has merit.
AFFIRMED

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