by Douglas Ankney

On March 16, 2023, the U.S. Court of Appeals for the Seventh Circuit ruled that the grievance procedure in Chicago’s Cook County Jail is an “incomprehensible trap,” making it effectively unavailable to a detainee and so excusing his failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.

While incarcerated at the jail, Gerald Hacker was found standing in a doorway by guard D. Sandoval, who ordered Hacker to return to his bed. Hacker is almost entirely deaf, with just 10% hearing in his right ear and none in his left. Unable to hear the guard, he did not comply. Sandoval responded by shoving Hacker, knocking him unconscious. Hacker later awoke at Cermak Health Services, handcuffed to a bed.

Hacker filed an administrative grievance with the jail. That same day, he received a written notice informing him that his grievance had been referred to the Office of Professional Responsibility (OPR), as per jail policy, as well as to the Divisional Superintendent. The notice said Hacker could follow up on the investigation by contacting either OPR or the Divisional Superintendent. Attached to the referral notice was a form allowing Hacker to appeal within 15 days and including a standard warning that Hacker had to appeal the prison’s response in order to exhaust his remedies under PLRA.

But Hacker received no instruction what to do, if anything. The response informed him only that his complaint had been forwarded to OPR. Nor was there any timeline given for OPR or the Divisional Superintendent to resolve Hacker’s grievance. After more than three months – long after the 15 days for appeal had lapsed – an OPR investigator issued a memorandum concluding the claims against Sandoval could not be substantiated, and the investigation was closed. The memorandum was not addressed to Hacker but to the investigator’s superior officer. Nothing in the memorandum indicated it brought the grievance process to a close; it made no mention of an appeals process; and it did not include an appeal form.

Hacker did not return the appeals form in response to the initial referral or the OPR memorandum. By the time OPR closed its investigation, Hacker had filed suit under 42 U.S.C. § 1983 in federal court for the Northern District of Illinois, accusing Cook County and Sheriff Thomas J. Dart, as well as various jail officials, of violating his civil rights.

In addition to his grievance against Sandoval, Hacker also filed a grievance in May 2017, complaining that the jail failed to provide him access to assistive listening devices (ALD), without which he cannot hear or understand what others are saying to him. The jail responded by telling Hacker it did not have to provide him with ALD. It then denied Hacker’s appeal of this grievance, completely exhausting the grievance process.

Meanwhile, Hacker was periodically missing medication for his dental abscess because he could not hear the nurse calling his name when medications were dispensed. Hacker filed a grievance about this in July 2017 – after he had filed his suit – complaining that the missed medications left him in pain and delayed his tooth extraction. The jail forwarded the grievance to Cermak, where it was denied. Hacker appealed and the appeal was also denied.

At the district court, Defendants argued that Hacker failed to exhaust his administrative remedies concerning the excessive force grievance against Sandoval by failing to appeal the OPR referral notice within 15 days. The district court rejected the 15-day deadline to appeal, however. In its view, the referral notice allowed Hacker to delay his appeal until he heard back from OPR. But Hacker was still required to appeal at some point; because he failed to do so, the district court dismissed the claim for failure to exhaust.

The district court also dismissed Hacker’s claims relating to ALD, made under the Americans with Disabilities Act (ADA), 412 U.S.C. ch. 126, § 12101 et. seq., and the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 701 et seq., saying he failed to show any physical injury stemming from denial of the devices. Regarding his ADA and RA claims related to missed medications, Hacker admitted that he did not exhaust his administrative remedies prior to commencing suit. Therefore, those claims were dismissed, too. The district court then granted summary judgment to Defendants. Hacker appealed.

Seventh Circuit Hears Appeal

At the Seventh Circuit, Hacker did not argue in his opening brief that the grievance procedure was so opaque and confusing as to be unavailable to him. Instead, he waited until his reply brief to articulate, develop and include this argument. The Court observed, “We require litigants to raise and develop all of their arguments in their opening appellate brief to ensure ‘that the opposing party has an opportunity to reflect upon and respond in writing to the arguments that his adversary is raising,’” quoting Beckman v. Vanihel, 33 F.4th 937 (7th Cir. 2022). By failing to advance his argument in his opening brief, Hacker forfeited it, the Court said.

Ordinarily, that would be the end of the case, since the Court usually will not consider forfeited arguments. However, as laid out in Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020), the Court may review a forfeited argument for plain error in the infrequent instance where “(1) exceptional circumstances exist; (2) substantial rights are affected; and (3) a miscarriage of justice will occur if plain error review is not applied.” The Court concluded this case presented rare issues that it would consider for the first time on appeal.

Generally, PLRA bars prisoners from bringing federal claims challenging prison conditions, including medical care, “until such administrative remedies as are available are exhausted,” the Court noted. However, prisoners do not have to exhaust remedies that are unavailable. If an administrative remedy is so opaque that it becomes essentially “unknowable,” then prisoners are no longer required to exhaust, the Court continued, citing Ross v. Blake, 578 U.S. 632 (2016). Hacker had identified a plain error: The notice of referral to the OPR contained no clear instruction that he was supposed to appeal it. To the contrary, the clear and sensible takeaway from the notice was that Hacker should stand by while OPR investigated the complaint against Sandoval.

Nor did the jail tell Hacker to appeal after OPR made its decision. The memorandum made no reference or suggestion to appeal, and it contained no appeals form. In light of these facts, the Court had “little trouble concluding that the Cook County Jail’s grievance procedures became unavailable to Hacker after the jail involved the OPR.” Therefore, the district court plainly erred in holding Hacker had failed to exhaust his administrative remedies.

Second, the circumstances of Hacker’s case were exceptional because of the consequences for Hacker and other CCJ prisoners. Faced with “a labyrinthine and confusing process,” civil litigants like Hacker risked being locked out of court entirely for some of the most serious claims they could bring, the Seventh Circuit noted.

Exercising its discretion to review Hacker’s claims also provided the benefit of resolving conflicting district court opinions, with some courts ruling the OPR referral notice must be appealed within 15 days and others ruling appeal could be delayed until after the OPR’s decision. The Court confessed that even it had a difficult time understanding the jail’s grievance process. But substantial rights were at stake: Since the only basis for dismissing the claim against Sandoval was Hacker’s alleged failure to exhaust his remedies, the district court had substantially prejudiced Hacker in the way anticipated by Perry v. City of Chicago, 733 F.3d 248 (7th Cir. 2013).

Fourth, the Court opined that “a miscarriage of justice looms if we do not apply plain error review. The Cook County Jail’s grievance process was not just a confusing annoyance. It was an incomprehensible trap that risked locking Hacker – and potentially other inmates as well – out of court altogether on serious claims,” the Court said, citing Henry again. Thus PLRA did not require Hacker to exhaust CCJ’s grievance process, the Court concluded, because it was effectively unavailable to him.

The Court next turned to Hacker’s ADA and RA claims. It agreed with the district court that Hacker did not exhaust his grievance regarding his delay in receiving medication. However, with regard to the district court’s determination that Hacker did not show physical injury stemming from denial of ALD, the Court disagreed.

PLRA requires prisoners to make a prior showing of physical injury – or the commission of a sexual act, in a claim of that nature – before recovering compensatory damages for mental or emotional injuries, as laid out in Thomas v. Illinois, 697 F.3d 612 (7th Cir. 2012). In his exhausted grievance related to the denial of ALD, Hacker complained that he could not hear what others were saying to him. And in his exhausted grievance related to the missed medication that resulted in pain and delayed his tooth extraction, he said he had not received his medication because he could not hear the nurse calling his name. Taken together, the denial of ALD caused him to not hear the nurse, which in turn caused him to miss his medication – resulting in pain, the Court noted. This allegation was sufficient to satisfy the physical injury necessary for PLRA purposes, since a dental abscess is a “serious medical condition requiring prompt treatment,” as held in Dobbey v. Mitchell-Lawshea, 806 F.3d 938 (7th Cir. 2015).

Accordingly, the Court vacated summary judgment as to the claim against Sandoval for excessive force and as to the ADA and RA claims relating to the denial of the ALD. Hacker was represented before the Court by attorney Patrick W. Morrissey of Thomas G. Morrissey, Ltd. in Chicago. See: Hacker v. Dart, 62 F.4th 1073 (7th Cir. 2023).

A request for rehearing before the full Seventh Circuit en banc was denied on May 15, 2023. See: Hacker v. Dart, 2023 U.S. App. LEXIS 11873 (7th Cir.). The case has now returned to the district court, and PLN will update developments as they are available. See: Hacker v. Dart, USDC (N.D.Ill.), Case No. 1:17-cv-04282.