RANDY M. SWISHER, Plaintiff-Appellant,
PORTER COUNTY SHERIFF'S DEPARTMENT, et al., Defendants-Appellees
Submitted September 22, 2014
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:10-cv-00337-CAN -- Christopher A. Nuechterlein, Magistrate Judge.
Randy M. Swisher, Plaintiff - Appellant, Pro se, Bunker Hill, IN.
For Porter County Sheriff's Department, DAVID LAIN, Porter County Sheriff, JOHN J. WIDDUP, Warden, Porter County Jail, CHERYL CASKO, Head Nurse, Porter County Jail, Defendants - Appellees: Elizabeth A. Knight, Attorney, Knight, Hoppe, Kurnik & Knight, Ltd., Rosemont, IL.
Before CUDAHY, POSNER, and KANNE, Circuit Judges.
Posner, Circuit Judge.
The plaintiff brought this suit under 42 U.S.C. § 1983 complaining that while a pretrial detainee in a jail in Porter County, Indiana, he was denied medical care for a bullet wound to his abdomen, and other essential medical care, during his nine-month sojourn at the jail. He named as defendants the local sheriff plus jail personnel, including the warden and other officers and the jail's physician and head nurse. The district court, while fully crediting the plaintiff's testimony at an evidentiary hearing, dismissed his suit for failure to exhaust administrative remedies. 42 U.S.C. § 1997e(a).
There was no record in the jail's grievance log of the plaintiff's having filed a grievance. But at the hearing he testified that he'd never received, or been given access to, a copy of the jail's grievance procedure, though he knew from other inmates of the jail that there was such a procedure and knowing this asked a guard for a grievance form but wasn't given it.
Indiana requires every correctional facility to have a grievance procedure. Indiana Code § 11-11-1-2. The grievance procedure for the jail in which the plaintiff was being held is set forth in a document entitled " Inmate Grievances--Standard Operating Procedure." It is supposed to be given to all inmates but apparently was not given to the plaintiff. It states that " All inmates, no matter their custody classification or disciplinary status, may make a grievance according to this policy. ... Inmates shall get all grievance and appeal forms from their Pod Officer [the officer in charge of the particular inmate's residential unit in the jail]. Jail Personnel must not interfere with or delay an inmate's action to file a grievance or an appeal, nor delay a response without just cause."
The plaintiff's Pod Officer didn't give him the grievance form but instead told him to speak to a supervisory officer in the jail, Captain Taylor, who, the Pod Officer assured the plaintiff, would speak to the Warden about resolving the plaintiff's grievance about the lack of medical care. The plaintiff asked Taylor whether he should file a grievance and Taylor replied by telling him " not to worry about it." (Another prisoner testified that he overheard the plaintiff ask Taylor for the grievance form.) The plaintiff testified that the Warden's son, who was another one of the jail's officers, also said he'd speak to the Warden about the plaintiff's grievance. The plaintiff never got the form but did eventually meet with the Warden, who promised to speak to the medical staff and " take care of the problem." He did not suggest that the plaintiff file a grievance.
The jail encourages informal resolution of grievances. The Standard Operating Procedure states that " both Jail Personnel and inmates are responsible for trying to resolve grievances informally ... . Informal resolution prevents inmates from using the formal grievance process to circumvent ... having to confront the affected people or the reality of the conditions of being in Jail that they want to avoid. ... Jail personnel shall not normally allow an inmate to file a formal grievance until the inmate has tried to resolve the grievance informally by discussing the matter with a Jail Officer." The plaintiff did discuss the matter with several officers before filing a formal grievance, but without any success, though assured by them that they would take care of his grievance. And so he was entitled to file a formal grievance, but was prevented from doing so by not being given the form.
Taylor, the Warden, and the Warden's son didn't contradict the plaintiff's testimony at the evidentiary hearing; they merely testified that they didn't remember speaking to him about his medical complaints. And so the magistrate judge credited the plaintiff's testimony in its entirety. Yet surprisingly he ruled that the plaintiff had not exhausted his administrative remedies, because while knowing there was a grievance procedure he never submitted a written grievance. He had given up too soon, the magistrate judge reasoned, by failing to take additional action when his verbal requests for attention to his medical problems had no effect. The magistrate judge thought it enough to require dismissal of the suit that the plaintiff " ...