James K. Breyley , Iii v. Larry Fuchs

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1663
JAMES K. BREYLEY , III,
Plaintiff-Appellant,
v.
LARRY F UCHS , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 20-cv-00006 — William M. Conley, Judge.
____________________
A RGUED F EBRUARY 7, 2024 — DECIDED O CTOBER 9, 2025
____________________
Before WOOD,* LEE, and PRYOR , Circuit Judges.
PRYOR , Circuit Judge. On December 24, 2016, an inmate at-
tacked Plaintiff James Breyley at the New Lisbon Correctional
Institution in Wisconsin. Following the attack, Breyley sued
several of the prison’s employees, alleging they were
* Circuit Judge Wood retired on May 1, 2024, and did not participate in the
decision of this case, which is being resolved under 28 U.S.C. § 46(d) by a
quorum of the panel.

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2 No. 22-1663
deliberately indifferent to his health and safety. The district
court granted summary judgment in favor of Defendants af-
ter concluding that Breyley failed to exhaust his administra-
tive remedies before seeking relief in federal court. Finding
controlling our decision in Lockett v. Bonson, 937 F.3d 1016 (7th
Cir. 2019), the court observed that a prisoner could not offer a
“bald assertion of timely filing” to counter evidence that a
prison did not receive the prisoner’s administrative filing, and
that Breyley should have inquired as to the status of his in-
mate complaint after not receiving any acknowledgment of
receipt. Lockett, however, is distinguishable. Breyley offered
evidence, not a mere “bald assertion,” to create a genuine dis-
pute of fact as to whether he timely filed an inmate complaint.
937 F.3d at 1027. We therefore vacate the judgment below and
remand.
I. BACKGROUND
The following facts are presented in the light most favora-
ble to Breyley. See Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.
2006).
Breyley is a prisoner at the New Lisbon Correctional Insti-
tution. On December 24, 2016, another inmate struck Breyley
in the face ten times, severely fracturing Breyley’s nose.
Prison officials knew there was a risk Breyley might be at-
tacked yet took no preventative measures. A doctor in-
structed Breyley to see a specialist within a week to ensure
proper healing, but medical staff refused to arrange for him
to be seen in that timeframe.
Nine days after the attack, on January 2, 2017, Breyley re-
quested and received an inmate complaint form. A correc-
tional officer instructed him to place the complaint in the door

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No. 22-1663 3
of his cell for collection. Breyley did so the same day, claiming
in his complaint that prison officials failed to protect him from
the attack and prevented him from seeing a specialist to ad-
dress his injury.
Breyley did not receive an acknowledgment that an Insti-
tution Complaint Examiner received his complaint. Accord-
ingly, on February 1, 2017, he asked one of the examiners why
he did not receive any letter notifying him of receipt. The ex-
aminer told Breyley that she never received an inmate com-
plaint from him. In response, Breyley recounted that he
placed his complaint in the door of his cell. He also told the
examiner that he had written to several inmates and recorded
in his journal that he had filed a complaint. The examiner in-
structed Breyley to file a new complaint, advising that it men-
tion that Breyley had placed the prior complaint in the door
of his cell and recorded the complaint’s filing in his journal.
Breyley did so that day, mentioning in the new complaint his
journal, his letters to other inmates, and the examiner’s ad-
vice. Breyley’s new complaint and subsequent appeal were
rejected.
Nearly three years later, Breyley sued prison officials and
medical staff in federal court for failing to protect him from
the attack and deliberately refusing him medical treatment.
Defendants moved for summary judgment on the basis that
Breyley failed to exhaust his administrative remedies by fail-
ing to file an inmate complaint within fourteen days of the
attack. Though Defendants acknowledged that a complaint
filed on January 2, 2017, would have been timely, they argued
there was no evidence Breyley had filed a complaint on that
date. Instead, they urged that Breyley only filed a complaint
on February 1, 2017, which fell outside the fourteen-day

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4 No. 22-1663
timeline. As support, Defendants submitted Breyley’s inmate
complaint history and February 1 complaint, as well as a dec-
laration from one of the prison’s Institution Complaint Exam-
iners.
Breyley responded that he exhausted all administrative
paths available to him, including by filing a complaint on Jan-
uary 2. He submitted a sworn declaration stating that he filed
a complaint on that date, wrote to other inmates about the
complaint, recorded it in his journal, and filed a new com-
plaint after speaking with an examiner. He also submitted a
copy of his January 2 journal entry in which he recounted fill-
ing out an “IC Form.”
The district court granted Defendants’ motion for sum-
mary judgment and dismissed Breyley’s claims, finding that
Breyley did not timely file a complaint about the attack or re-
lated medical treatment. It reasoned that Breyley would have
received an acknowledgment from the prison had he filed a
complaint on January 2, and, under Lockett, he was obligated
to follow up when he did not receive one. Breyley appeals.1
II. A NALYSIS
“We review a district court’s decision to grant summary
judgment de novo.” Jones v. Lamb, 124 F.4th 463, 467 (7th Cir.
2024). A defendant is entitled to summary judgment on the
affirmative defense of failure to exhaust administrative reme-
dies if the defendant shows there is no genuine dispute of
1 We thank court-appointed counsel Bridget Murphy Wholey, Neil Con-
rad, Emma Kurs, Ellen Wiencek, and the law firms of Sidley Austin LLP
and Goldman Ismail Tomaselli Brennan & Baum LLP for their able service
to Breyley on appeal.

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No. 22-1663 5
material fact and the defendant is entitled to judgment as a
matter of law. Id.
Breyley challenges the district court’s conclusion that he
did not file a complaint on January 2. He argues that he fol-
lowed the instructions provided by the Wisconsin Adminis-
trative Code, but that the prison kept his administrative rem-
edies out of reach. He requests reversal or remand for an evi-
dentiary hearing under Pavey v. Conley, 544 F.3d 739 (2008), to
resolve the question of exhaustion.
Under the Prison Litigation Reform Act (“PLRA”), “[n]o
action shall be brought with respect to prison conditions …
by a prisoner … until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). “To exhaust
remedies, a prisoner must file complaints and appeals in the
place, and at the time, the prison’s administrative rules re-
quire.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
We take a “strict compliance” approach to exhaustion. Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
However, “a prisoner need not exhaust remedies that are
unavailable.” Hernandez v. Lee, 128 F.4th 866, 869 (7th Cir.
2025). An administrative remedy becomes “unavailable” if
prison employees do not “respond to a properly filed griev-
ance or otherwise use affirmative misconduct to prevent a
prisoner from exhausting.” Dole, 438 F.3d at 809; see also Jones,
124 F.4th at 468 (administrative remedies are unavailable
“[w]hen prison officials fail to timely respond to a prisoner’s
grievances”).
“[W]e must bear in mind that failure to exhaust is an af-
firmative defense, and as such the burden of proof is on the
defendants to establish that administrative remedies were not

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6 No. 22-1663
exhausted, and not on the prisoner to show that administra-
tive remedies were unavailable.” Smallwood v. Williams, 59
F.4th 306, 315 (7th Cir. 2023). “If genuine factual disputes exist
related to the availability of remedies, summary judgment is
inappropriate.” Hernandez, 128 F.4th at 869.
At the time of the events in this case, inmates were re-
quired to file a complaint “within 14 calendar days after the
occurrence giving rise to the complaint.” WIS . A DMIN . C ODE
DOC § 310.09(6) (2014). Complaints filed after that timeframe
without good cause for untimeliness would be rejected. Id.
§ 310.11(5)(d) (2014). In light of these requirements, the dis-
trict court concluded that Breyley did not file a timely inmate
complaint relating to the December 24, 2016, attack or treat-
ment of his injury. It analogized this case to Lockett, observing
that Breyley “should have” received an acknowledgment of
receipt had he timely filed a complaint on January 2, 2017, and
“fail[ed] to follow up” about the absence of a receipt until Feb-
ruary 1.
In Lockett, we affirmed the district court’s finding on sum-
mary judgment that the plaintiff failed to exhaust his admin-
istrative remedies. 937 F.3d at 1026, 1028. The plaintiff sup-
ported his position that he timely filed an administrative ap-
peal with no more than a “bald assertion of a timely filing,”
did not offer an acknowledgment of receipt to prove he filed
his appeal, and did not show that he contacted anyone about
not receiving such an acknowledgment. Id. at 1027.
But we have more than a “bald assertion” that Breyley
timely filed a complaint on January 2. Breyley stated in a
sworn declaration that he filed a complaint on January 2,
wrote to other inmates about filing a complaint, and recorded
the filing in his journal. See Hernandez, 128 F.4th at 870 (a

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No. 22-1663 7
sworn declaration is “sufficient to raise a genuine factual dis-
pute” on exhaustion of remedies). He corroborated his decla-
ration with a copy of his journal entry from January 2, in
which he wrote, “Filled out IC Form.” And his February 1
complaint includes repeated references to a “lost” complaint
that he reported filing on January 2. Defendants did not chal-
lenge the admissibility of or otherwise contest Breyley’s evi-
dence in the district court. Given the evidence that Breyley
timely filed his complaint, we need not look to the prison’s
acknowledgment of receipt system for evidence of that com-
plaint, as we did in Lockett.
We acknowledge Defendants submitted evidence to the
district court to support their contention that Breyley did not
file a complaint on January 2. For instance, Defendants sub-
mitted a report of Breyley’s inmate complaint history, which
contains no record of a complaint filed on January 2, and a
declaration from one of the prison’s Institution Complaint Ex-
aminers stating that Breyley did not file a complaint regard-
ing the treatment of his nose following the attack. The con-
flicting evidence submitted by the parties creates a dispute of
fact as to whether Breyley filed a complaint on January 2. Dis-
missal for non-exhaustion was therefore unwarranted, and
remand is appropriate. See Jackson v. Esser, 105 F.4th 948, 957–
58 (7th Cir. 2024).
One final piece of business remains. Typically, we have re-
quired district courts to hold an evidentiary hearing to resolve
the exhaustion question on remand. See Pavey, 544 F.3d at
742.2 But while this case was pending on appeal, the Supreme
2 The Defendants argue that Breyley waived his request for a Pavey hear-
ing. A Pavey hearing, however, is not something to be waived; it’s one of

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8 No. 22-1663
Court decided Perttu v. Richards, 605 U.S. 460 (2025). In Perttu,
the Supreme Court held that “parties are entitled to a jury trial
on PLRA exhaustion when that issue is intertwined with the
merits of a claim protected by the Seventh Amendment.”
Perttu v. Richards, 605 U.S. 460, 479 (2025). Before proceeding
with the evidentiary hearing, the district court must deter-
mine whether the issue of exhaustion is intertwined with the
merits of Breyley’s claims. Given the lack of briefing on this
question both before us and the district court, we decline to
take it up in the first instance. We will leave it to the district
court to determine whether Breyley’s case falls within the ex-
ception entitling the parties to a jury under the Seventh
Amendment.
III. CONCLUSION
For these reasons, we VACATE the judgment of the dis-
trict court and REMAND for proceedings consistent with this
opinion.
the means of deciding a factual issue when exhaustion is contested. 544
F.3d at 742; see Wagoner v. Lemmon, 778 F.3d 586, 588 (7th Cir. 2015) (“Often
exhaustion (or its lack) will be apparent, but when it is not, the district
court must hold an evidentiary hearing to resolve the question.”).

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