Eric Gooch v. S. YOUNG and J. WILSON

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-1702
ERIC GOOCH ,
Plaintiff-Appellant,
v.
S. Y OUNG and J. WILSON ,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:19-cv-00607-JPH-MJD — James P. Hanlon, Judge.
____________________
A RGUED DECEMBER 14, 2021 — DECIDED J ANUARY 24, 2022
____________________
Before S YKES , Chief Judge, and HAMILTON and S T. EVE,
Circuit Judges.
PER C URIAM . Eric Gooch, a federal prisoner, sued correc-
tional officers who he alleges encouraged another inmate to
assault him. The defendants moved for summary judgment,
arguing that Gooch failed to exhaust his administrative
remedies. Gooch responded that his counselor had refused
his request for the required grievance form and that prison
officials threatened to hurt him if he filed a grievance. The

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2 No. 21-1702
district court entered summary judgment for the defendants.
Because exhaustion is not required when the responsible
prison officials refuse to give a prisoner the necessary griev-
ance form or thwart a prisoner from filing a grievance
through threats or intimidation, we vacate the summary-
judgment order and remand for further proceedings.
I. Background
Gooch filed a Bivens action in December 2019 against two
correctional officers at the United States Penitentiary in Terre
Haute, Indiana, alleging that they violated his rights under
the Eighth Amendment. See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (He has
since been transferred to a facility in Tucson, Arizona.)
Gooch alleged in his complaint that correctional officers
Lieutenant S. Young and Officer J. Wilson falsely informed
another inmate that Gooch had stolen from him and directed
the inmate to “take action on this matter.” He further alleged
that the inmate then attacked Gooch with a weapon, and
when Gooch began to defend himself, Officer Wilson inter-
vened and instructed Gooch to lie on the floor, where the
inmate attacked him again.
According to the evidence presented at summary judg-
ment, which we view in the light most favorable to Gooch,
Reid v. Balota, 962 F.3d 325, 327 (7th Cir. 2020), Gooch asked
his correctional counselor for the form on which to file a
grievance against the officers who incited the attack on him.
Gooch asserts that his counselor refused to give him the
form and instead told him: “I’m not giving you a form to file
on that and you better watch out snitching on staff.” Over
the next two days, “multiple guards” walked by Gooch’s

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No. 21-1702 3
cell, calling him a “rat” and saying, “[G]o ahead and write
staff up[;] the next time you’re gonna die.”
Three days after the attack, Gooch sued Young and
Wilson for violating his Eighth Amendment rights by en-
couraging the other inmate to attack him. After answering,
the officers moved for summary judgment on the affirmative
defense of failure to exhaust administrative remedies as
required by the Prison Litigation Reform Act (“PLRA”). See
42 U.S.C. § 1997e(a); 28 C.F.R. §§ 542.10 et seq. Gooch re-
sponded that given the officers’ threats and his counselor’s
refusal to give him the form, he feared for his life if he filed a
grievance and believed that the court would protect him.
In support of their summary-judgment motion, Wilson
and Young filed a declaration from administrative-remedy
clerk Renee Turner. Turner attested that an inmate can
access the federal Bureau of Prisons (“BOP”) policies via the
institution’s law library and that her search revealed no
record of a grievance filed by Gooch about his attack. How-
ever, her declaration did not dispute or address Gooch’s
assertion that his correctional counselor refused to provide
him with the necessary form to file a grievance. And the
defendants adduced no other evidence and did not take
discovery on exhaustion or the availability of the forms to
Gooch. Nor did they ask for an evidentiary hearing on
exhaustion under Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008).
The district judge entered summary judgment for the de-
fendants. The judge reasoned that even if Gooch’s counselor
refused to provide the grievance form and the prison
guards’ threats deterred him from filing a complaint at Terre
Haute, Gooch could have “mail[ed] his request directly to

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4 No. 21-1702
the Regional Office, as the regulations and program state-
ment provide.” Thus, the judge concluded, the prison offi-
cials had demonstrated that the administrative-remedy
process was “available” to Gooch, so he had to exhaust all of
its steps before filing a complaint in federal court.
II. Discussion
Now represented by recruited counsel, Gooch argues
that the judge erred in entering summary judgment because
he misapprehended the meaning of “available” remedies
under the PLRA. He maintains that exhaustion was not
required because prison officials refused to provide him
with the necessary grievance form and, further, thwarted
him from filing a grievance through threats and intimida-
tion. We review de novo the district court’s exhaustion
determination on summary judgment. Reid, 962 F.3d at 329.
The PLRA applies in Bivens actions to prevent prisoners
from bringing a case in federal court challenging prison
conditions until the available administrative remedies are
exhausted. See Kaba v. Stepp, 458 F.3d 678, 683–84 (7th Cir.
2006); § 1997e(a). Administrative remedies are “available” if
they are “‘capable of use’ to obtain ‘some relief for the action
complained of.’” Ross v. Blake, 578 U.S. 632, 642 (2016) (quot-
ing Booth v. Churner, 532 U.S. 731, 738 (2001)). If an adminis-
trative remedy is unavailable, a prisoner need not exhaust it.
Id. at 635. Failure to exhaust is an affirmative defense, so the
defendants bear the burden of proof and cannot shift it to
require Gooch to show that administrative remedies were
unavailable. See Kaba, 458 F.3d at 686.
Under Jones v. Bock, 549 U.S. 199 (2007), and Woodford v.
Ngo, 548 U.S. 81 (2006), prison regulations define what is

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No. 21-1702 5
(and is not) required of an inmate to “properly” exhaust. In
this case, the BOP has promulgated an administrative-
remedy process consisting of multiple steps. 28 C.F.R.
§§ 542.10 et seq. An inmate must first attempt to resolve the
issue informally, and if still unsatisfied, must submit a
formal written request to the institution. § 542.13–14. This
request must be “on the appropriate form (BP-9),” which the
inmate “shall obtain” from the correctional counselor or
other appropriate staff. § 542.14. If an inmate “reasonably
believes the issue is sensitive” and that filing the form at his
institution would threaten his safety, the inmate “may
submit the Request directly to the appropriate Regional
Director.” § 542.14(d).
The defendants were not entitled to summary judgment
because they did not demonstrate that administrative reme-
dies were available to Gooch, and Gooch provided evidence
to the contrary. The grievance process was arguably una-
vailable for two reasons. The first rests on Gooch’s conten-
tion that the correctional counselor refused to give him the
necessary form. The BOP’s policy states that an inmate “shall
obtain the appropriate form” to file a grievance, § 542.14(c),
which demonstrates that the form is required to seek any
form of administrative remedy. In Hill v. Snyder, 817 F.3d
1037 (7th Cir. 2016), we held that “exhaustion is not required
when the prison officials responsible for providing grievance
forms refuse to give a prisoner the forms necessary to file an
administrative grievance.” Id. at 1041 (citing Dale v. Lappin,
376 F.3d 652, 655–56 (7th Cir. 2004)). Evidence of the appro-
priate official’s refusal to give a prisoner an available form
“is sufficient to permit a finding” that the administrative
remedies were not available. Id.

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6 No. 21-1702
Yet Young and Wilson argue that Gooch had time re-
maining to file a timely grievance, and so he should have
tried harder to procure the BP-9 form—for instance, by
asking other staff—before “rushing to court.” But Hill reject-
ed this proposed rule as “unworkable,” holding that “[t]he
PLRA does not impose such a requirement” for “prisoners to
go on scavenger hunts just to take the first step toward filing
a grievance.” Id. Like the inmate in Hill, Gooch asked the
appropriate official for the form to submit a formal griev-
ance and says he was refused. See id. at 1039. The govern-
ment does not contest his testimony on that score. Therefore,
Gooch’s case cannot reasonably be distinguished from Hill.
Nor is it meaningfully different from Dale, in which the
inmate requested the appropriate grievance form from his
counselor and several other prison staff who either told him
they did not have the form or ignored his requests. 376 F.3d
at 655–56. We rejected the defendants’ assertion that inmates
need not use the form to submit a grievance because the
prison’s policy plainly stated that the form was required,
and we held that remedies were not available to the inmate.
Id. at 656.
Further, the government’s suggestion that Gooch could
have filed a grievance directly with the Regional Director is
hard to square with BOP regulations—although the judge
stated otherwise when he agreed that Gooch could have
done this “as the regulations and program statement pro-
vide.” First, an inmate may submit a grievance with “sensi-
tive” content to the Regional Director, § 542.14, but the
government did not establish that Gooch’s concern would be
considered a “sensitive” matter. Second, the sensitive-issue
workaround is not an exception to the requirement that a
prisoner write out his grievance on a BP-9 form. Under the

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No. 21-1702 7
plain language of the rules, in order to submit a grievance to
the Warden or Regional Director, a prisoner must use “the
appropriate form (BP-9).” § 542.14(a). The government does
not engage with that argument. Because the government did
not contest Gooch’s testimony that he was prevented from
obtaining a BP-9 grievance form, it failed to meet its burden
of showing that administrative remedies were “available.”
Under Hill and Dale, the prison’s refusal to provide the
form suffices to show that Gooch did not have administra-
tive remedies available. But he also attested that prison
officials threatened and intimidated him to prevent him
from reporting the defendants’ conduct. An administrative
remedy that a prisoner is required to exhaust under the
PLRA must be “available in fact and not merely in form.”
Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013). A remedy is
not considered “available” to an inmate who is prevented by
threats or intimidation by prison officials from submitting a
grievance according to the prescribed policies. Id. Gooch
attested that he feared for his life if he continued with the
BOP’s administrative-remedy process because guards told
him that he was “gonna die” if he complained about prison
staff. The government did not contest this assertion, so for
this additional reason, it failed to meet its burden of showing
that remedies were “available” to Gooch. See Ross, 578 U.S.
at 644; Schultz, 728 F.3d at 620.
We therefore VACATE the summary-judgment order and
R EMAND for further proceedings.

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