Roy Bessler v. Wexford of Indiana, LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2023*
Decided June 23, 2023
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22‐3200
ROY BESSLER,
Plaintiff‐Appellant,
v.
WEXFORD OF INDIANA, LLC,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:21‐CV‐691 JD
Jon E. DeGuilio,
Chief Judge.
O R D E R
Roy Bessler, an Indiana prisoner, appeals the summary judgment rejecting his
claims that Wexford of Indiana (the company contracted to provide medical care to
Indiana state prisoners) inadequately treated his broken hip. Because the undisputed
* 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NONPRECEDENTIAL DISPOSITION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

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No. 22‐3200 Page 2
facts show that Bessler did not exhaust the prison’s administrative remedies in the time
and manner required of him, see 42 U.S.C. § 1997e(a), we affirm.
Bessler fell and severely injured his hip in July 2020, while incarcerated at the
Miami Correctional Facility in Bunker Hill, Indiana. Wexford medical providers
evaluated Bessler and gave him pain medication, which he says was ineffective. Three
days after his fall, he received an x‐ray and was diagnosed with a hip fracture. Wexford
staff placed him on bed rest and gave him more pain medication. About three weeks
later, Bessler saw an orthopedic surgeon, who evaluated him and determined that he
would need a total hip replacement. Bessler remained on bed rest until he received the
surgery in late 2020.
In connection with his injury, Bessler filed two grievances. First, a few days after
his fall, he submitted a grievance stating that he had bumped his foot into a door stop
that was “about 2–3 inches high,” throwing him off balance and causing him to fall and
break his pelvis. Bessler wrote that he needed “an operation to repair [his] pelvis
because of the position of the door stops,” adding that he wouldn’t know what relief to
seek “until [his] operation is final.” A grievance specialist denied his grievance,
explaining that the door stops served a purpose and would not be removed, and that
Bessler should follow his doctor’s instructions to help regain his quality of life. Bessler
filed a formal appeal, which was also denied. He did not further appeal to the
Department Offender Grievance Manager.
Bessler filed his second grievance in February 2021, after his hip‐replacement
surgery. He complained of “major issues with [his] blood pressure” after his surgery
and sought the assistance of a cardiologist “to check on [his] heart and get [his] meds
under control.” A grievance specialist contacted a health care administrator about the
matter, and then responded to Bessler: “It is up to the onsite provider to determine
what medication and treatment plan you are given … If you need additional medical,
please submit a Health Care Request Form.” Bessler did not file such a form or take an
appeal, and he submitted no further grievances or requests related to his hip injury.
Bessler then sued Wexford, asserting that its providers deliberately ignored his
medical needs by failing to provide appropriate treatment in the five months after his
hip injury. See 42 U.S.C § 1983. Wexford in turn moved for summary judgment on
grounds that Bessler failed to exhaust his administrative remedies as required by the
Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a).

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No. 22‐3200 Page 3
The district court entered summary judgment against Bessler, ruling that he had
not exhausted his available administrative remedies. According to the court, neither of
Bessler’s two grievances directly addressed the subject of his lawsuit (the medical
treatment of his hip injury), and he did not complete the multi‐step appeals process
outlined in the Indiana Department of Correction’s rules for either grievance. Further,
Bessler had not shown that the grievance process was effectively unavailable to him.
The court added that Bessler was informed of the grievance process, given Wexford’s
evidence that all new prisoners received written notice of the grievance procedures in
their orientation paperwork, and Bessler produced no evidence that he did not receive
such notice.
On appeal Bessler only generally contests the summary judgment ruling. We
agree with the district court, however, that, based on the undisputed facts, he did not
complete all necessary steps to exhaust his administrative remedies. Under the PLRA,
exhaustion of “available” administrative remedies must precede a prisoner’s lawsuit.
See 42 U.S.C. § 1997e(a). To exhaust such remedies, a prisoner must follow the rules set
by the prison to file a claim and must properly complete all steps of the grievance
process, including appeals. Pozo v. McCaughtry, 286 F.3d 1022, 1024–25 (7th Cir. 2002);
see also Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The prison’s rules require that
prisoners like Bessler submit their grievances within 10 business days of the relevant
incident; they may then appeal the provided response to the Warden and then make a
final appeal to the Department Offender Grievance Manager, whose decision is final.
See IDOC Manual of Policies and Procedures No. 00‐02‐301 at 9–10, 12–13. Bessler’s July
2020 grievance 1 mentioned his need for “an operation to repair [his] pelvis” but did not
directly address the subject of this lawsuit—the allegedly inadequate medical care he
received in the weeks after his injury. Even if we assume that the grievance was
sufficiently related to the claims in his complaint, Bessler does not dispute that he did
not appeal this or any grievance to the Department Offender Grievance Manager—the
third step of the grievance process.
Bessler argues relatedly that the district court improperly resolved a disputed
fact at summary judgment, since the parties disputed whether he was informed how to
exhaust his administrative remedies through the grievance process. But Bessler did not
furnish any evidence to persuade a reasonable jury that he did not receive notice of the
1 We assume Bessler’s February 2021 grievance—requesting a cardiologist
appointment—does not sufficiently address the subject of this lawsuit, nor did he file it
within the required 10‐day window or file any appeals.

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No. 22‐3200 Page 4
grievance procedures in his orientation paperwork, as Wexford attested all new
prisoners had. Nor did he explain why, despite managing to file other grievances
regarding the door stops and a cardiologist appointment, he did not file any grievance
directly addressing the subject of this lawsuit—the medical care he received following
his injury.
Bessler also argues for the first time on appeal that he was unable to send papers
out of his cell because of the prison’s COVID‐19 quarantine policies. But he waived this
argument by not raising it first in the district court. Bradley v. Village of University Park,
59 F.4th 887, 897 (7th Cir. 2023).
AFFIRMED

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