James Pello v. Pam Cool

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 28, 2026*
Decided April 30, 2026
Before
THOMAS L. KIRSCH II, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
REBECCA TAIBLESON, Circuit Judge
No. 25-1498
JAMES PELLO,
Plaintiff-Appellant,
v.
PAM COOL,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:24-CV-206-JD-JEM
Jon E. DeGuilio,
Judge.
O R D E R
James Pello, an Indiana prisoner, sued nurse Pam Cool, alleging that her
deliberate indifference caused him to fall and break his arm. See 42 U.S.C. § 1983. The
* 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. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 4 --

No. 25-1498 Page 2
district court entered summary judgment for Cool because Pello did not exhaust his
administrative remedies. We affirm the judgment.
We review de novo the entry of summary judgment for failure to exhaust
administrative remedies, construing the facts and drawing all reasonable inferences in
favor of Pello, the non-moving party. Jackson v. Esser, 105 F.4th 948, 956 (7th Cir. 2024).
Pello is in his eighties and uses a wheelchair because he had one leg amputated. He
underwent surgery on April 18, 2023, to treat an infection on his amputated leg. The
next day, Pello had an open wound that needed cleaning and dressing. Cool was the
nurse on duty that day. She did not treat Pello but told him to take a shower. In the
shower, Pello slipped and fell on his right arm, breaking it. Another inmate helped him
back into his wheelchair. Pello filed a grievance on April 20, stating that he was not
given proper assistance in the shower and seeking compensation.
The prison’s grievance process is composed of three steps: submission of a
written grievance, a first-level appeal to the warden or a designee, and a second-level
appeal to the department offender grievance manager. A prisoner initiates a first-level
appeal by completing an appeal form and submitting it to the prison grievance
specialist within five business days of receiving notice that the initial grievance was
denied. The warden or designee then has ten business days to respond to the first-level
appeal. Once the prisoner receives the warden’s or designee’s response, he has five
business days to initiate a second-level appeal by checking a “disagree” box on a form,
signing it, and returning it to the prison grievance specialist.
Grievance Specialist Michael Gapski responded to Pello’s initial written
grievance in early June 2023 by explaining that a health services administrator would
discuss the matter with medical staff. Gapski sent Pello a further response on June 19,
stating that he could not do anything because the medical staff lacked notes related to
his fall and Pello did not provide the names of the staff members who saw him fall.
Pello timely filed a first-level appeal on June 23 by identifying the staff members who
witnessed his fall in the shower in an appeal form (“June 23 Appeal Form”), which
Gapski received on June 26.
On June 29, Gapski, now acting as the warden’s designee, sent Pello a Response
Notice and returned Pello’s June 23 Appeal Form. In both documents, Gapski noted
that Pello had an accident attempting to transfer from his wheelchair to the shower,
explained that procedures for assisting infirmary patients would be reviewed, and
stated that staff responded to his situation after his fall. Both documents had “disagree”

-- 2 of 4 --

No. 25-1498 Page 3
boxes, but Pello did not check the box on either one. Instead, on June 30, Pello
attempted to initiate a second-level appeal by submitting another appeal form (“June 30
Appeal Form”).
Gapski returned Pello’s June 30 Appeal Form five days later and informed Pello
in writing that he needed to follow the prison’s policy by checking the “disagree” box to
advance his appeal. On July 13, Pello marked “disagree” on the Response Notice and
signed it. Gapski then rejected that form as untimely because Pello’s five-business-day
deadline expired on July 6. Because Gapski rejected the June 30 Appeal Form and
Pello’s updated Response Notice, the department offender grievance manager never
considered Pello’s grievance.
Pello sued Cool, two other medical professionals, and their employer under
§ 1983. Pello alleged that the defendants were deliberately indifferent to his condition
after his surgery by requiring him to take a shower and causing him to fall. The district
court screened Pello’s complaint pursuant to 28 U.S.C. § 1915A and dismissed his
claims against all defendants except Cool because they lacked personal involvement.
The district court later granted Cool’s motion for summary judgment because
Pello admitted that he did not take all the steps needed to exhaust administrative
remedies. Further, Pello failed to establish that administrative remedies were
unavailable because he had access to the forms and failed to follow the grievance
process. And because Pello offered no reason to excuse the late filing of the signed
Response Notice, Gapski was within his discretion to reject it.
Pello appeals. He argues that the district court erroneously rejected his assertion
that the grievance process was unavailable to him. Specifically, he contends that the
prison did not timely respond after he submitted the June 23 Appeal Form, so he was
unable to pursue further review. But the undisputed facts establish that Gapski mailed
the Response Notice to Pello on June 29; the document contains a handwritten notation
stating so. In this court, Pello now urges that “someone wrote this date in” and claims
he received this document “well after” the prison’s ten-day deadline had passed.
Pello’s appellate argument does not establish a genuine issue of material fact.
First, in the district court, Pello adopted the defendants’ statement of facts, including
the facts set forth in Gapski’s affidavit, in which Gapski attested that the Response
Notice was returned to Pello on June 29. Second, even if Pello had not adopted Gapski’s
affidavit, Pello provided no countervailing evidence that he received it on a different

-- 3 of 4 --

No. 25-1498 Page 4
date. Without this evidence, there are no “specific facts establishing a material issue for
trial.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019). Third, Pello’s suggestion of
non-receipt cannot be squared with his own statements in his June 30 Appeal Form.
There, Pello responded to statements Gapski made in the Response Notice—
specifically, who assisted Pello after his fall and whether restitution was recommended.
Pello could not have made these specific responses in his June 30 Appeal Form if he did
not receive Gapski’s Response Notice until sometime in July.
Because there is no genuine dispute that Pello received the Response Notice on
June 29, we must reject his assertion that the grievance process was unavailable to him
on the grounds that the prison never responded to his grievance. Rather, Pello failed to
comply with the process for exhaustion: He did not make a second-level appeal by
checking the “disagree” box on any form. By the time he attempted to do so, the
deadline had passed. And Pello did not request an extension to file the second-level
appeal. Pello’s own mistakes do not make the process unavailable. Westmoreland v.
Hughes, 144 F.4th 952, 956 (7th Cir. 2025); see also Williams v. Rajoli, 44 F.4th 1041, 1046
(7th Cir. 2022). And Pello must strictly comply with the prison’s administrative appeal
process. Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020). He did not. Because Pello failed
to fully exhaust his administrative remedies, the district court properly granted Cool’s
motion for summary judgment.
AFFIRMED

-- 4 of 4 --