Bobby B. Cockerell, Iii v. Mike Conyers

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2025*
Decided April 21, 2025
Before
DIANE S. SYKES, Chief Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2988
BOBBY B. COCKERELL, III,
Plaintiff-Appellant,
v.
MIKE CONYERS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:21-cv-01788-MPB-TAB
Matthew P. Brookman,
Judge.
O R D E R
Bobby Cockerell, an Indiana prisoner, appeals the summary judgment entered
against him for failing to exhaust his administrative remedies before filing this lawsuit
under 42 U.S.C. § 1983 alleging a violation of his rights under the Eighth Amendment.
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2988 Page 2
Because Cockerell was required to exhaust his administrative remedies and did not do
so, we affirm.
Cockerell claimed in his lawsuit that several correctional officers, the deputy
warden, and the warden of Pendleton Correctional Facility failed to protect him from
an attack by other prisoners in violation of his rights under the Eighth Amendment.
More specifically, he alleged that on June 12, 2019, he was robbed and stabbed in his cell
at Pendleton Correctional Facility. He claimed that his attackers threatened to kill him if
he reported the assault, so he cleaned and stitched his wounds himself; guards noticed
his wounds on June 17, five days later, and took him for medical treatment. Cockerell
alleged that on that same day—June 17—the guards told him that an anonymous
prisoner had sent them a letter on June 10, two days before the assault, warning them
that an attack was going to happen. He further alleged that the guards told him that
they had received a second letter some days later reporting the attack. After Cockerell
was treated by medical staff, he was placed in protective custody.
Cockerell attested to these allegations under penalty of perjury. He later
amended his complaint, repeating the same chronology of events. As relevant here, he
again stated that the guards told him on June 17 about the letter warning them of a
forthcoming attack.
The defendants moved for summary judgment, explaining that the prison had no
record that Cockrell had filed a grievance regarding this incident, so he failed to exhaust
his administrative remedies. The Prison Litigation Reform Act (PLRA) requires
prisoners to exhaust “such administrative remedies as are available” before filing suit.
42 U.S.C. § 1997e(a). The statutory exhaustion requirement means that a prisoner must
file grievances and appeals “in the place, and at the time, the prison’s administrative
rules require.” Lockett v. Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019) (quoting Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).
At the time relevant to Cockerell’s allegations, the grievance procedure for the
Indiana Department of Correction required three steps before filing a suit: a prisoner
must file (1) a formal grievance within 10 business days of the incident; (2) a written
appeal to the warden or designee; and (3) a written appeal to the department grievance
manager. See IND. DEP ’ T OF C ORR ., A DMIN . P. NO. 00-02-301 § IV, XI (2017) (Offender
Grievance Process). Grievances had to be submitted to the grievance specialist. Id. § XI.
The prison’s records show that Cockerell did not file a grievance related to the
allegations in his lawsuit.

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No. 23-2988 Page 3
Cockerell argued in response that his claim was excepted from the exhaustion
requirement because it was a “tort claim[] seeking monetary compensation,” and the
Indiana Department of Correction’s grievance policy lists “Tort Claims seeking
monetary compensation” as a matter inappropriate for the grievance process. See Id.
§ IV B. Cockerell also argued that the grievance procedure was not “available” to him
because of staff misconduct. Specifically, Cockerell claimed that he delivered a
grievance related to this incident to a guard. In a surreply to the summary judgment
motion, Cockerell reiterated his arguments about exhaustion and stated again, under
penalty of perjury, that he learned on June 17 that the guards had received an
anonymous letter giving them notice of an imminent attack.
The district judge held a hearing to resolve the dispute about whether Cockerell
had exhausted his administrative remedies. See Pavey v. Conley, 544 F.3d 739, 742
(7th Cir. 2008). Contrary to what he had sworn to in his original and amended
complaints and reiterated in his surreply at summary judgment, Cockerell testified for
the first time that he did not learn about the letter alerting the guards to an attack until
July 4 (not June 17), and that he handed a grievance form to a guard during “the first or
second week of July.”
The judge held that Cockerell was required to exhaust his administrative
remedies and failed to do so. First, the judge explained that Cockerell’s Eighth
Amendment claim was not a “tort claim” in the sense meant by the exception to the
grievance requirement because a separate provision in the policy specified that “tort
claims” relate only to the loss or damage of personal property. Cockrell’s constitutional
claim against the guards for allegedly failing to protect him was therefore not exempt
from the exhaustion requirement. Next, the judge determined that the prison had
established that the grievance process was “available” to Cockerell and that he did not
file a timely grievance. Prison records did not show that Cockerell had filed any
grievance related to this incident, and the judge rejected Cockerell’s hearing testimony
as not credible because it blatantly contradicted his earlier sworn statements that he had
learned of the alleged warning letter to the guards on June 17. Finally, the judge
explained that even if Cockerell had in fact handed a grievance form to a guard
sometime after July 4 (as he claimed for the first time at the hearing), it would have
been untimely. The grievance policy required Cockrell to file a written grievance within
10 days of learning of the guards’ alleged misconduct—that is, not later than July 1.
Accordingly, the judge granted the defendants’ motion for summary judgment.

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Cockerell appeals, essentially reiterating his arguments at summary judgment.
The PLRA’s exhaustion requirement applies even when a prisoner seeks only remedies
(such as money damages) that cannot be obtained through the grievance process—so
long as there is some possibility of relief available through administrative procedure.
See Booth v. Churner, 532 U.S. 731, 738 (2001). Remedies are not available if (1) officials
who process grievances are unable or consistently unwilling to provide relief; (2) the
process is so opaque that it cannot be used by an ordinary prisoner; or (3) officials
actively thwart a prisoner’s access to the grievance process. Ross v. Blake, 578 U.S. 632,
643–44 (2016).
Cockerell argues that the district judge erred in determining that he was required
to exhaust his administrative remedies. As he did at summary judgment, Cockerell
refers to his claim as a “tort claim” because he is seeking only money damages and
argues that this type of claim is specifically excepted under the administrative policy.
The district judge read the grievance policy’s reference to “tort claim” as limited
to claims for property damage, but we do not need to decide if that was correct.
Cockrell’s allegations that the guards failed to protect him concern the actions or
omissions of individual staff—a matter explicitly listed as appropriate for the grievance
process. See A DMIN . P. NO. 00-02-301 § IV A. Cockerell’s claim that prison staff failed to
act to protect him was therefore within the “authorized jurisdiction of [the]
administrative process” and exhaustion was required. See Larkin v. Galloway, 266 F.3d
718, 723 (7th Cir. 2001). Moreover, prison officials had “authority to take some action in
response to [the] complaint.” Id. (quoting Booth, 532 U.S. at 736). Disciplinary action
against the guards could have discouraged them from disregarding a similar threat to
Cockerell’s safety in the future. See id. We agree with the district judge that Cockerell
was required to exhaust his administrative remedies before bringing this suit.
To the extent that Cockerell argues that the district judge erred in concluding
that he did not submit a timely grievance, we disagree. We review the district judge’s
findings of fact and credibility determinations at a Pavey hearing for clear error.
See Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018).
The judge’s findings were well-supported by the record. He rejected Cockerell’s
hearing testimony that he had not learned of the alleged warning letter until July 4 and
subsequently handed a guard a grievance form. Prison records establish that Cockerell
did not file any grievance at all, and Cockrell’s testimony contradicted his repeated
sworn statements that he learned about the alleged warning letter on June 17. Even if
the judge had credited Cockrell’s hearing testimony, the grievance he claimed to have

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hand-delivered to a guard would have been too late; his deadline to file was July 1. And
Cockerell presented no evidence that guards thwarted his efforts to file a grievance
before the deadline.
Cockerell also addresses the merits of his claims, but his failure to exhaust his
administrative remedies precludes any consideration of his case on the merits. Finally,
Cockerell moved for recruitment of pro bono counsel on appeal. Having reviewed the
briefs in this case, we find that step to be unnecessary.
We therefore DENY Cockerell’s motion for recruitment of counsel and AFFIRM
the judgment of the district court.

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