Sworn Evidence of Unavailable Grievance Appeals Bars PLRA Exhaustion Summary Judgment; Court Must Use Pavey Hearing or Jury if Merits-Intertwined

1. Introduction

This appeal arises from a pretrial detainee’s § 1983 claim alleging inadequate medical response during a COVID-19-related episode at the Milwaukee County Jail. Lawrence Gregory Burns sued corrections officers Sterling Polk and John Proeber under the Fourteenth Amendment, asserting they failed to respond to his intercom call and failed to relay COVID-19 test results or check on him as his condition worsened, culminating in hospitalization.

The case turned not on the underlying medical-care merits at the summary-judgment stage, but on the Prison Litigation Reform Act (PLRA) exhaustion requirement. Defendants moved for summary judgment contending Burns did not exhaust the jail’s grievance process—specifically, he did not pursue appeals. Burns countered that the appeal route was not “available” to him in practice because his grievance was not forwarded to the proper decisionmaker and “no appeal was granted.”

The Seventh Circuit reversed, holding that Burns’s sworn declaration created a genuine dispute of material fact regarding the availability of grievance appeals—making summary judgment improper and requiring factfinding through the appropriate procedural mechanism on remand.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

Standards for summary judgment in PLRA exhaustion disputes

• Breyley v. Fuchs (156 F.4th 845 (7th Cir. 2025)) supplied both the summary-judgment posture (facts viewed in the nonmovant’s favor) and the de novo standard of review for exhaustion-based summary judgment. The panel relied on Breyley for the proposition that where “genuine factual disputes exist related to the availability of remedies,” summary judgment is inappropriate.
• Williams v. Ortiz (937 F.3d 936 (7th Cir. 2019)) anchored the burden allocation: exhaustion is an affirmative defense, so defendants bear the burden to show non-exhaustion.
• Jones v. Lamb (124 F.4th 463 (7th Cir. 2024)) was used to articulate what defendants must show to win on summary judgment: lay out the defense elements, cite facts satisfying them, and show the record is one-sided—plus, crucially, show procedures were “available ... as a matter of law.”
• Hernandez v. Lee (128 F.4th 866 (7th Cir. 2025)) was invoked for two closely related points: (1) a prisoner need not exhaust unavailable remedies; and (2) where genuine disputes exist about availability, the district court must proceed via evidentiary factfinding rather than summary judgment.

The PLRA’s “proper exhaustion” requirement and the meaning of “available”

• Pozo v. McCaughtry (286 F.3d 1022 (7th Cir. 2002)) and 42 U.S.C. § 1997e(a) supported the baseline rule: prisoners must exhaust administrative remedies before filing suit.
• Jones v. Bock (549 U.S. 199 (2007)) supplied the governing concept of “proper exhaustion”: compliance with the prison’s own grievance rules (not rules invented by courts), because the PLRA does not prescribe grievance procedures.
• Ross v. Blake (578 U.S. 632 (2016)) provided the controlling framework for “availability.” The panel used Ross to emphasize that a remedy can be “on the books” yet unavailable in practice, and it adopted Ross’s three illustrative categories of unavailability: “dead end,” “opaque” procedures, and “machination, misrepresentation, or intimidation.”
• Smallwood v. Williams (59 F.4th 306 (7th Cir. 2023)) reinforced that only “actually available” remedies must be exhausted and that “availability” is a fact-specific inquiry. The panel also relied on Smallwood for the practical takeaway: contested availability usually defeats summary judgment and triggers a Pavey-type proceeding.
• Gooch v. Young (24 F.4th 624 (7th Cir. 2022) (per curiam)) contributed two key ideas: (1) the definition of “available” as “capable of use to obtain some relief,” and (2) that evidence of officials blocking access (e.g., refusal to provide forms) can establish unavailability. The panel also cited Gooch for the burden shift concept once the plaintiff makes a showing of unavailability.
• Miles v. Anton (42 F.4th 777 (7th Cir. 2022)) reinforced the “on paper vs. in practice” distinction, underscoring that formal procedures do not resolve availability if they are “incapable of use in practice.”
• Kaba v. Stepp (458 F.3d 678 (7th Cir. 2006)) and Dole v. Chandler (438 F.3d 804 (7th Cir. 2006)) supplied concrete Seventh Circuit applications of unavailability: intimidation/threats or obstruction can render remedies unavailable; refusal to allow access to the grievance mechanism or failure to process grievances can likewise do so.

Procedures for resolving factual disputes about exhaustion

• Pavey v. Conley (544 F.3d 739 (7th Cir. 2008)) underpinned the Seventh Circuit’s established approach: judges may resolve disputed exhaustion facts in a preliminary evidentiary hearing (a “Pavey hearing”) when those facts are not intertwined with the merits.
• Perttu v. Richards (605 U.S. 460 (2025)) updated the remedial architecture: where PLRA exhaustion disputes are intertwined with the merits of a Seventh Amendment-protected claim, parties are entitled to a jury trial on those intertwined facts. The panel emphasized this post-briefing development and directed the district court to decide in the first instance whether Perttu requires a jury here.

Limits on judicial factfinding at summary judgment; “swearing contests”

• Jackson v. Esser (105 F.4th 948 (7th Cir. 2024)) and FED. R. CIV. P. 56(c)(1)(A) supported the evidentiary proposition that sworn affidavits/declarations can create a genuine dispute of fact.
• Taylor v. City of Milford (10 F.4th 800 (7th Cir. 2021)) (quoting Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003)) was used to police summary-judgment boundaries: courts may not make credibility determinations or choose among competing inferences.
• Roberts v. Neal (745 F.3d 232 (7th Cir. 2014)) provided the “swearing contest” concept: when parties submit competing sworn accounts, an evidentiary hearing is needed to resolve the dispute.
• Ingram v. Watson (67 F.4th 866 (7th Cir. 2023)) directly supported the panel’s rebuke of the district court: a court cannot disbelieve affidavit statements without holding a hearing.

Merits context (not decided here)

• Miranda v. County of Lake (900 F.3d 335 (7th Cir. 2018)) was cited for the underlying constitutional principle: pretrial detainees have a Fourteenth Amendment right to adequate medical treatment. While not central to the exhaustion holding, it situates the litigation’s substantive stakes and may become relevant if Perttu intertwining is litigated on remand.

3.2 Legal Reasoning

The court’s reasoning followed a structured PLRA exhaustion analysis:

1. Identify the governing exhaustion rule: Under the PLRA, prisoners must exhaust available administrative remedies, and proper exhaustion requires compliance with the jail’s grievance rules (Pozo v. McCaughtry; Jones v. Bock).
2. Focus on “availability,” not merely existence: The jail handbook described an appeal pathway, but the existence of a written process does not alone prove availability. The panel applied Ross v. Blake, Smallwood v. Williams, and Miles v. Anton to emphasize that remedies can be officially described yet practically inaccessible.
3. Apply the summary-judgment lens and burden rules: Defendants bore the burden as the party asserting the affirmative defense (Williams v. Ortiz). Burns’s sworn declaration asserted that, “due to the grievance system,” his grievance “was not forwarded” to the proper designee and “no appeal was granted.” That evidence, viewed in Burns’s favor (Breyley v. Fuchs), could support a finding of unavailability.
4. Reject improper inference/credibility weighing by the district court: The district court inferred Burns merely misunderstood the process. The Seventh Circuit held that was impermissible at summary judgment (Taylor v. City of Milford; Payne v. Pauley), especially because the record presented competing sworn positions—i.e., a “swearing contest” (Roberts v. Neal).
5. Prescribe the correct next step: Because a genuine dispute existed, summary judgment was improper. The proper vehicle is factfinding—traditionally a Pavey v. Conley hearing—but the court highlighted Perttu v. Richards, which may require a jury if exhaustion facts are intertwined with merits. The panel left that determination to the district court on remand.

3.3 Impact

The decision’s practical and doctrinal impacts are significant within Seventh Circuit PLRA litigation:

• Affidavit-driven availability disputes will more often survive summary judgment: The opinion reinforces that a prisoner’s sworn statement alleging obstruction or non-functioning grievance routing can create a triable dispute over availability, even when written policies describe an appeal right.
• District courts must avoid “misunderstanding” shortcuts: Courts cannot resolve competing explanations by labeling the prisoner’s account a misunderstanding without factfinding. This will tend to increase the number of evidentiary proceedings in exhaustion disputes.
• Greater procedural complexity after Perttu v. Richards: By expressly integrating Perttu, the opinion signals that district courts must now analyze whether exhaustion disputes overlap with merits facts (e.g., who did what, when, and with what intent) and choose between judge-decided Pavey hearings and jury determinations.
• Institutional incentives for jails: Facilities relying on kiosks and multi-level appeals may face increased scrutiny about whether their systems actually transmit grievances, provide appeal access, and generate audit trails sufficient to rebut unavailability claims.

4. Complex Concepts Simplified

• PLRA exhaustion (42 U.S.C. § 1997e(a)): Before suing about prison conditions in federal court, incarcerated people must use the facility’s internal complaint system—but only if that system is genuinely usable.
• “Proper exhaustion”: Not just complaining—following the facility’s steps and rules (e.g., filing, appealing) as required by the local process (Jones v. Bock).
• “Available” remedy: A remedy is available if it is realistically capable of being used to get some relief. A written policy is not enough if, in practice, the process is a dead end, too confusing to navigate, or officials block access (Ross v. Blake).
• Summary judgment: A pretrial ruling where the court decides there is no genuine dispute of material fact. The court cannot choose which side seems more believable or draw inferences against the nonmovant.
• Pavey hearing: A preliminary evidentiary hearing where a judge resolves disputed facts about exhaustion, used when those facts are separate from the merits.
• Perttu jury entitlement: If deciding exhaustion requires resolving factual disputes that overlap with the merits of a claim that carries a Seventh Amendment jury-trial right, a jury—not the judge—must decide those intertwined facts.
• “Swearing contest”: When both sides submit conflicting sworn statements, courts generally must hold an evidentiary proceeding to decide what actually happened (Roberts v. Neal).

5. Conclusion

Lawrence Burns v. Sterling Polk reinforces a core PLRA principle: exhaustion is required only for remedies that are actually available, and availability is often a fact question not suitable for summary judgment when the prisoner offers sworn evidence of obstruction or system failure. The Seventh Circuit held the district court erred by treating Burns’s declaration as mere “misunderstanding” and by resolving competing inferences without an evidentiary process.

The opinion’s broader significance lies in its procedural directive: when exhaustion turns on disputed facts, courts must use factfinding—traditionally a Pavey hearing—while now also accounting for Perttu v. Richards and the possibility that a jury must decide exhaustion facts intertwined with the merits. This approach both preserves the PLRA’s gatekeeping function and ensures that administrative “availability” is tested against operational reality, not just written policy.