Andrew Waldrop v. Nicole Marshall

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 4, 2021*
Decided August 4, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20‐1012
ANDREW WALDROP,
Plaintiff‐Appellant,
v.
NICOLE MARSHALL,
Defendant‐Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:18‐cv‐1770‐NJR‐GCS
Nancy J. Rosenstengel,
Chief Judge.
O R D E R
Andrew Waldrop, an Illinois prisoner, sued a member of the medical staff at
Menard Correctional Center for deliberate indifference to a knee injury. But an
evidentiary hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), convinced the
district court that Waldrop failed to exhaust administrative remedies before filing suit.
The court therefore dismissed the action. Because the district court was not required to
credit Waldrop’s account of his attempts to grieve the issue, we affirm.
* We have agreed to decide this 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NONPRECEDENTIAL DISPOSITION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. App. P. 32.1

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No. 20‐1012 Page 2
Waldrop says he fell from the top bunk of his cell, injuring his knees. He alleges
that Nicole Marshall then refused to treat him, leading to chronic pain and reduced
mobility. Those allegations, however, are not the focus of this appeal.
Rather, the question is whether Waldrop properly raised his claim through
Illinois’s mandatory administrative‐grievance process before suing Marshall under
42 U.S.C. § 1983. See Wilborn v. Ealey, 881 F.3d 998, 1004 n.2 (7th Cir. 2018). When
Marshall asserted an exhaustion defense, 42 U.S.C. § 1997e(a), the district court
conducted a Pavey hearing. Because administrative exhaustion is a prerequisite to suit,
factual disputes about exhaustion need not reach a jury, and a Pavey hearing permits
trial judges to resolve credibility contests, weigh evidence, and adjudicate the
exhaustion defense. See Wilborn, 881 F.3d at 1004.
At Waldrop’s Pavey hearing, he testified that he gave written grievances to two
officers at Menard. Several days after his injury, he explained, he gave one to an
unnamed female counselor whose physical appearance he could not describe; a month
later, he handed another to a counselor named Jason Vasquez.
Yet Vasquez testified that Waldrop had given him no grievances, that Waldrop’s
counseling logs contained no record of them, and that Vasquez would have flagged
them in the logs if Waldrop had submitted them. Indeed, although the logs were
admitted into evidence and showed that Waldrop spoke with counselors five times in
the two months after his fall, they did not mention any grievances. And no one at the
hearing identified the unnamed female counselor. Waldrop, meanwhile, admitted he
had no copies of grievances, and no receipts or staff responses.
The parties agreed at the hearing that, about a month after the supposed second
grievance (and sometime after his transfer from Menard to a different prison), Waldrop
tried to pursue a written grievance with the statewide Administrative Review Board.
But the Board rejected this grievance as untimely because, by then, more than 60 days
had lapsed since the nurse’s alleged misconduct. And it was not a proper
administrative appeal (as distinct from an original grievance), because Waldrop
attached no prior decision by Menard’s grievance officers and the Board had no other
record of a prior grievance.
On reviewing this evidence, the district court found that Waldrop’s testimony
was not credible, that no grievance was filed at Menard, and that Waldrop’s submission

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No. 20‐1012 Page 3
to the Board was indeed untimely or incomplete. Administrative remedies had been
available to Waldrop, but he had not pursued them. So, the court dismissed the suit.
The court designated its judgment “without prejudice,” but its decision is functionally
final and thus reviewable on appeal: the court signaled that it was “done with” the case,
Luevano v. Wal‐Mart Stores, Inc., 722 F.3d 1014, 1020 (7th Cir. 2013); Illinois does not
appear to offer Waldrop a path to grieving his medical issue anew; and the two‐year
statute of limitations likely would bar a future suit. See Ray v. Maher, 662 F.3d 770, 772
(7th Cir. 2011) (citing 735 ILCS 5/13–202).
Waldrop now argues that the district court should have credited his testimony
about written grievances at Menard. We review that contention for clear error, see Pavey
v. Conley (Pavey II), 663 F.3d 899, 904 (7th Cir. 2011), and reverse only if the court
credited testimony that was facially implausible or contradicted by irrefutable evidence,
or else discredited testimony on irrational grounds, see Wilborn, 881 F.3d at 1006. That
did not happen here. Vasquez contradicted Waldrop’s testimony and said nothing
implausible; no one could identify the other officer to whom Waldrop said he had given
a written grievance; and the administrative records were inconsistent with Waldrop’s
account. No trier of fact would be required to credit Waldrop’s testimony, discredit
Vasquez’s, and infer that the prison records were flawed.
For completeness, we address Waldrop’s argument that, before proceeding to a
hearing, the district court should have exercised its discretion to recruit counsel for him
under Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc). Waldrop did not
demonstrate a reasonable attempt to obtain counsel on his own—even after the court
invited him to amend his motion for counsel to include details about his attempts—and
that shortcoming was reason enough to deny his request. See id. at 655.
We have examined Waldrop’s other contentions on appeal, but none has merit.
AFFIRMED

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