Michael Reck v. Shana Clarkson

judgment for Trusewych and Clarkson because Reck had not exhausted his administrative remedies. The judge also dismissed the claims against the correctional officers because Reck had failed to identify them. We affirm. In early 2022 Reck ran out of his blood-pressure medication while incarcerated at Western Illinois Correctional Center and requested a refill. Clarkson, his nurse practitioner, ordered a refill for him, but Reck did not receive the medication for over a month. When he began to experience impaired motor skills and dizziness, Reck complained to Trusewych but received no treatment. In May 2022, Reck submitted an emergency grievance, complaining that he had yet to receive his medication. Within a few days, Reck's counselor returned the grievance, explaining that Reck had used an outdated version of the grievance form and directing him to refile using the current version of the form. The next day, Reck suffered a stroke in his cell. He claims that his cellmate alerted two unidentified officers, but they initially refused to contact medical staff.

Recks was taken to the hospital and admitted for treatment. About two weeks after his discharge and return to prison, he filed a second emergency grievance using a different outdated form. Once again, Reck's counselor instructed him to refile using the current version of the form. Reck submitted a third emergency grievance a few days later, this time using the correct form. The prison's chief administrative officer responded to the third grievance, explaining that because no emergency could be substantiated, Reck would need to submit his grievance through the standard process. Dissatisfied with this outcome, Reck sent a letter to his counselor complaining that prison officials had refused to process his emergency grievances. The counselor responded, explaining that Reck had 60 days to submit a standard, "non-emergency"

grievance. Instead, Reck appealed to the Administrative Review Board. Because Reck had not attached the responses to his grievances—as required by Illinois administrative rules—the Board denied his appeal, instructing him to refile it with the attachments. Instead, Reck filed this lawsuit alleging that Trusewych, Clarkson, and the two unidentified correctional officers were deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment. See 42 U.S.C. § 1983. After the district judge screened Reck's complaint and permitted him to proceed on claims of deliberate indifference, see 28 U.S.C. § 1915A, the parties consented to have a magistrate judge decide the case, see id. § 636(c).

2

Trusewych and Clarkson then moved for summary judgment on exhaustion grounds, and the magistrate judge granted the motion. The magistrate judge concluded that Reck had failed to exhaust all available remedies before filing his suit. The judge explained that the record did not support an inference that the up-to-date grievance form was unavailable in Reck's housing unit and that the rules allowed prison officials to require that grievances be submitted on the current version of the form. The judge also found that prison officials had responded promptly to Reck's grievances, instructed him on how to properly submit a grievance, and notified him of the timeline for filing. And in any event, Reck had not availed himself of all available administrative remedies because he had not filed a standard grievance after his emergency grievance was denied. The magistrate judge also dismissed Reck's claims against the unidentified correctional officers, finding that Reck had failed to timely identify them as required by the district judge's scheduling order.

On appeal Reck argues that he was not required to exhaust administrative remedies because they were effectively unavailable to him. See Ross v. Blake, 578 U.S. 632, 642 (2016). Reck asserts that by requiring him to submit his emergency grievances on the current version of the form, officials imposed unreasonably technical rules that went beyond those specified in the Illinois Administrative Code or the prison's rules. While we recognize that Reck may have prematurely filed in federal court because he was frustrated by the returned grievances, administrative remedies were available to Reck, and thus, exhaustion was required. See Wallace v. Baldwin, 55 F.4th 535, 543-44 (7th Cir. 2022). Illinois rules require prisoners to submit written grievances

"on a grievance form that shall be made available in all living units." I LL. ADMIN. CODE tit. 20 § 504.810(a). As the magistrate judge concluded, the record lacks any evidence suggesting that Reck did not have access to the current version of the grievance form. Indeed, Reck eventually filed a timely emergency grievance on the correct form. Next, the prison's requirement that Reck use the current version of the grievance form was not so technical as to render the grievance process unavailable. See Ross,

578 U.S. at 643-44. Prison officials promptly and repeatedly instructed Reck to submit his grievances using the correct form, which Reck does not dispute was available to him. Cf. King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015) ("Prisoners are required to exhaust grievance procedures they have been told about, but not procedures they have not been told about."). Granted, neither Illinois regulations nor the prison's rules discuss the use of outdated grievance forms. But the outdated forms that Reck used were not the forms available in his living unit: Reck admitted that he had obtained the

3

outdated forms at another facility before he was transferred to Western Illinois Correctional Center. In any event, Reck's failure to follow prison officials' reasonable instructions for submitting grievances does not mean that administrative remedies were unavailable to him. See Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005). Reck also argues that prison officials inconsistently applied the rule requiring that grievances be submitted on a current form. Reck attaches to his opening brief five grievances dating from 2023 and 2024 that he says were processed despite having been submitted on outdated forms. Reck argues that if prison officials had applied the rule consistently, each of these grievances should have been returned unprocessed, and prison officials should have directed him to file the grievances on the current form. If true, this inconsistency could show that prison "officials thwarted the effective invocation of the administrative process through … game-playing[] or misrepresentations, either on a system-wide basis or in [Reck's] case." See Ross, 578 U.S. at 648. But Reck did not raise this argument or present this evidence in the district court. Arguments made for the first time on appeal are waived, so we do not consider them. See Cooper v. Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 675, 688 (7th Cir. 2022). Next, Reck asserts that even if exhaustion were required, taken together, his emergency grievances, his appeal to the Administrative Review Board, and the letter he submitted to his counselor were sufficient to satisfy the Prison Litigation Reform Act's exhaustion requirement. See 42 U.S.C. § 1997e(a). We disagree. To satisfy the Act's exhaustion requirement, a prisoner must follow each step set out in the state's administrative rules governing prison grievances. See Chambers v. Sood, 956 F.3d 979, 983 (7th Cir. 2020). In Illinois a prisoner must resubmit grievances deemed a nonemergency by the chief administrative officer through the standard three-step grievance process. See Williams v. Wexford Health Sources, Inc., 957 F.3d 828, 831-32 (7th Cir. 2020); I^LL. ADMIN. CODE tit. 20 § 504.840(c).

But Reck did not resubmit his emergency grievance through the standard process after the chief administrative officer notified him that it would not be handled as an emergency and instructed him to follow the standard process. Reck instead sent a letter to his counselor complaining about the outcomes of his emergency grievances. Even after the counselor responded to Reck's letter and directed him to file a standard grievance using the current form, Reck did not do so. Reck contends that the letter to his counselor was his attempt to initiate the standard grievance process. We acknowledge the exasperation Reck might have felt having to resubmit his grievances on forms with little material difference, especially after suffering an allegedly preventable stroke. But

4

Illinois law requires that written grievances be submitted on a grievance form, see ILL. ADMIN. CODE tit. 20 § 504.810(a), so Reck fell short of the "strict compliance" required to satisfy the exhaustion requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Given Reck's failure to exhaust, we do not reach his argument that the magistrate judge erred by dismissing his claims against the unidentified correctional officers.

AFFIRMED

5