Darwin Ramirez v. Warden

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15‐3298 DARWIN RAMIREZ, Plaintiff‐Appellant, v. RICHARD YOUNG, et al., Defendants‐Appellees. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 13‐3362 — Colin S. Bruce, Judge. ____________________ ARGUED APRIL 4, 2018 — DECIDED OCTOBER 9, 2018 ____________________ Before WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges. WOOD, Chief Judge. Under the Prison Litigation Reform Act of 1995 (PLRA), “[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983 ], or any other Fed‐ eral law, by a prisoner … until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis 2 No. 15‐3298 added). This appeal concerns the availability of administra‐ tive remedies described to a prisoner by prison officials only in a language they knew he could not understand. We hold that this was not enough to render those remedies “available” to the prisoner. We therefore reverse the judgment dismissing Darwin Ramirez’s federal suit for failure to exhaust and re‐ mand for further proceedings. I Ramirez, who is a Spanish speaker, sued administrators and officers of the Western Illinois Correctional Center under 42 U.S.C. § 1983 for alleged constitutional wrongs. He was in prison at the time he filed his action, and so it was subject to the PLRA’s exhaustion requirement. See 42 U.S.C. § 1997e(a). Western Illinois indisputably had administrative remedies available for prisoners’ use. Ramirez did not use those proce‐ dures in a timely fashion to complain about the issues raised in his federal action, and so the defendants moved for sum‐ mary judgment based on Ramirez’s failure to exhaust. Ramirez responded that Western Illinois’s existing grievance process was unavailable to him and he was thus excused from the PLRA’s exhaustion requirement. See id.; Ross v. Blake, 136 S. Ct. 1850 , 1858–59 (2016). The district court held an eviden‐ tiary hearing on the availability question as required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), after which it dismissed Ramirez’s complaint without prejudice. It concluded that remedies are unavailable under the PLRA only under certain exclusive circumstances: if prison officials fail to respond to properly filed grievances; if prison officials affirmatively pre‐ vent exhaustion through misconduct; or if compliance with the grievance process is impossible. None of those applies to Ramirez. No. 15‐3298 3 Ramirez has now appealed from the order dismissing his action. Ordinarily, the fact that the district court’s dismissal was without prejudice would bar an appeal on grounds of lack of finality, but that is not the case here. Ramirez is no longer in custody, and so he cannot remedy his failure to ex‐ haust. The dismissal was thus effectively a final order, and we may proceed with the appeal. See Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). If, as in this case, a prisoner’s complaint is dismissed after a Pavey hearing for failure to exhaust, we review factual find‐ ings for clear error and legal decisions de novo. Wilborn v. Ea‐ ley, 881 F.3d 998, 1004 (7th Cir. 2018). Failure to exhaust is an affirmative defense for which the defendants carry the burden of proof. Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016). All remaining factual disputes must be construed in Ramirez’s favor at this juncture. Id. To meet their burden, the defendants must show beyond dispute that remedies were available. Id. The record shows that Ramirez was arrested in 2007 and taken initially to the Cook County jail. While there, he was attacked. He notified a sergeant, who moved Ramirez to pro‐ tective custody. After eight months at Cook County jail, Ramirez was transferred to Western Illinois, a state prison. Af‐ ter his transfer, Ramirez attended a new‐prisoners orienta‐ tion. This English‐only orientation introduces prisoners to Western Illinois’s internal grievance procedures. Ramirez, however, did not understand English, a fact that he disclosed to a prisoner working at the orientation. That prisoner started translating the orientation into Spanish for Ramirez. Yet the 4 No. 15‐3298 administrator conducting the orientation ordered the pris‐ oner to stop doing so. The translator had not explained the grievance process to Ramirez prior to being silenced. Western Illinois maintained a cumulative counseling sum‐ mary for Ramirez—a running log of each interaction between him and the prison staff. An entry from the day of orientation noted that Ramirez had “poor English skills” and that Ramirez had received an orientation manual, which con‐ tained information about Western Illinois’s grievance mecha‐ nisms. The counseling summary reflected that Ramirez re‐ ceived a Spanish‐language copy of the manual, but he insists that it was actually in English. Because the district court did not resolve this dispute in the Pavey hearing, we accept Ramirez’s account for present purposes. And we note that Western Illinois was asked during these proceedings to pro‐ duce a Spanish‐language manual that pre‐dates 2011, but it was unable to do so. Its failure corroborates Ramirez’s ac‐ count. When orientation ended, Ramirez signed a form con‐ firming that he had completed orientation and received the manual. That form also was in English. The prison asserts that it referred people identified during orientation as non‐English speakers to someone who would conduct orientation in the prisoner’s preferred language. Julia Vincent, a correctional counselor at Western Illinois, was the facility’s only Spanish‐speaking employee; she ordinarily helped with orientation for Spanish speakers. But Ramirez al‐ leges that his case was different. He and Vincent met the day after orientation; they spoke exclusively in Spanish. That meeting covered Ramirez’s immigration status but not the content of Western Illinois’s orientation or the manual. No. 15‐3298 5 Ramirez finished orientation in the dark about the prison’s grievance process. The evidence strongly suggests that Western Illinois’s staff knew that Ramirez did not understand English. Each time Ramirez visited a doctor Vincent would translate or, if she was unavailable, Ramirez communicated through body sig‐ nals. At his meetings with the mental health staff, Ramirez specifically requested a translator. And Ramirez separately met with Vincent more than ten times before filing his federal complaint. Ramirez testified that those meetings were con‐ ducted in Spanish, and again, there was no evidence to the contrary at the Pavey hearing. Vincent had reason to suspect that Ramirez was ignorant of the prison’s grievance process. In 2011, Ramirez’s cellmate threatened him with a shank. Ramirez tried to tell a correc‐ tional officer about the incident, but the language barrier pre‐ vented him from describing what had occurred. As a result, the officer directed Ramirez to return to his cell. When Ramirez refused to do so, he was placed in segregation. A dis‐ ciplinary hearing followed. Ramirez explained to Vincent, his translator at the hearing, that he had refused to comply be‐ cause he feared living with a cellmate who had threatened him with a shank. Despite the troublesome implications of Ramirez’s story, Vincent did not ask why he had not filed a grievance or if he wanted to do so. Nor did she advise him that the prison had a system in place that he might use to pur‐ sue a complaint about the threats or the move to segregation. While imprisoned, Ramirez did pick up tidbits about Western Illinois’s internal operations. For example, with the help of a fellow prisoner he discovered how to seek dental care. But Ramirez never saw another prisoner file a grievance 6 No. 15‐3298 and did not know about the possibility of filing complaints against prison staff. English‐language grievance forms were distributed throughout the prison’s common areas, but they were useless to Ramirez: as late as 2015 Ramirez could speak a little English but could not read in the language. Vincent in‐ sists that Spanish‐language forms also were available, but Ramirez and other prisoners dispute that. Again, this dispute must be resolved in Ramirez’s favor. No one from Western Illinois ever informed Ramirez in Spanish that there was a grievance process. He first learned of it in the summer of 2013, several months before filing his com‐ plaint in this action, after confiding in his cellmate about trou‐ bles he was enduring. Ramirez’s cellmate suggested that he file a grievance. Because Ramirez’s response conveyed confu‐ sion, the cellmate outlined how grievances function. Since that time, Ramirez has filed a number of grievances with sub‐ stantial assistance. The record does not reveal whether any of those grievances related to the issues in his federal complaint. II A Administrative remedies are available for purposes of the PLRA’s exhaustion requirement if they are “‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). Two principles inform whether Western Illinois’s ad‐ ministrative remedies were available to Ramirez. First, reme‐ dies are available only if a prisoner has been notified of their existence. Hernandez, 814 F.3d at 842 ; King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015). Prisoners are not expected “‘to divine the availability’ of grievance procedures.” Hernandez, 814 F.3d No. 15‐3298 7 at 842 (quoting King, 781 F.3d at 896 ). Second, existing reme‐ dial processes are available only if communicated in a way reasonably likely to be understood. Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014). Before dismissing a prisoner’s com‐ plaint for failure to exhaust, the district court should be able to point to evidence that the relevant administrative proce‐ dures were explained “in terms intelligible to lay persons.” Id. That analysis must also account for individual capabilities. Cf. Weiss v. Barribeau, 853 F.3d 873, 875 (7th Cir. 2017) (excusing failure to exhaust where defendants failed to show that exist‐ ing procedures could be used by prisoner suffering from men‐ tal illness). Western Illinois disclosed its grievance process to Ramirez through its orientation and manual. Yet both were in English, and it should have been apparent to prison officials that Ramirez’s English‐language skills were so limited that he could not comprehend either the oral or the written materials. As we noted earlier, Ramirez’s inability to understand Eng‐ lish was documented in the opening entry of the counseling summary. At orientation the instructor silenced the prisoner translating for Ramirez. Vincent met with Ramirez the next day, and the pair spoke exclusively in Spanish. Every time Ramirez sought medical treatment he requested a translator or communicated through signs. And no one at Western Illi‐ nois ever remedied the failure to communicate the grievance process to Ramirez despite widely shared knowledge of his lack of English proficiency. At a minimum, Vincent should have tried to acquaint Ramirez with the available procedures when it became evident during the 2011 disciplinary hearing that Ramirez was unaware of them. 8 No. 15‐3298 The defendants have not taken the extreme position that they are entitled in all cases to provide information only in English, no matter whether a single word gets through to the non‐English‐speaking recipient. But it is worth asking whether that would be permissible. English is the predomi‐ nant language in the United States, after all, and governments at all levels often use only English, or perhaps English plus one or two other languages. But “often” is not “always”: in some situations, too much is at stake to ignore linguistic dif‐ ferences. Two general scenarios illustrate this point: first, when a government places a person into a criminal or quasi‐ criminal proceeding; and second, where some other right weighty enough to trigger due‐process protections is at stake. The criminal situation presents an easy case. In United States v. Cirrincione, 780 F.2d 620 (7th Cir. 1985), we had this to say about language barriers: We hold that a defendant in a criminal proceed‐ ing is denied due process when: (1) what is told him is incomprehensible; (2) the accuracy and scope of a translation at a hearing or trial is sub‐ ject to grave doubt; (3) the nature of the pro‐ ceeding is not explained to him in a manner de‐ signed to insure his full comprehension; or (4) a credible claim of incapacity to understand due to language difficulty is made and the district court fails to review the evidence and make ap‐ propriate findings of fact. Id. at 634 ; accord, Mendoza v. United States, 755 F.3d 821, 827 (7th Cir. 2014) (“A criminal defendant is denied due pro‐ cess when he is unable to understand the proceedings due to No. 15‐3298 9 a language difficulty.”); see also 28 U.S.C. § 1827 (implement‐ ing that due‐process right in federal courts). This due‐process right is not limited to pure criminal pro‐ ceedings. Both state and federal courts have held that inter‐ preters may be necessary to protect a defendant’s due‐process rights in other proceedings where important rights are at stake. Due process must be observed in immigration proceed‐ ings, for instance, even though they are not criminal. See Bridges v. Wixon, 326 U.S. 135, 152 (1945). The same principle has been applied in other settings. See, e.g., Figueroa v. Doherty, 303 Ill. App. 3d 46 , 51–53 (1999) (truncated interpretation de‐ prived claimant of his right to a fair hearing in proceeding for unemployment benefits); Golden Egg Club, Inc. v. Illinois Liquor Control Comm’n, 124 Ill. App. 2d 241, 245 (1970) (interpreter necessary to effectuate due process when revoking a liquor license). As the Supreme Court put it in Mathews v. Eldridge, 424 U.S. 319 (1976), “[t]he essence of due process is the re‐ quirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’” Id. at 348–49 (quoting Joint Anti‐Fascist Comm. v. McGrath, 341 U.S. 123 , 171–72 (1951) (Frankfurter, J., concurring)). No‐ tice must, at a minimum, alert a reasonable recipient to the fact that further inquiry is necessary. See Nazarova v. I.N.S., 171 F.3d 478, 483 (7th Cir. 1999). It is ineffective if it is deliv‐ ered in a language that is incomprehensible to the recipient. The Second Circuit has drawn a line between proceedings that establish a benefit and proceedings to impose a depriva‐ tion, for purposes of the right to an interpreter. Abdullah v. I.N.S., 184 F.3d 158 (2d Cir. 1999). There the court rejected a claim that applicants for admission to the United States as Special Agricultural Workers had a due process right to an 10 No. 15‐3298 interpreter, because they were seeking a benefit. Id. at 165–66. It contrasted their position to that of an accused defendant or an alien claiming a risk of political persecution abroad, both of whom have a constitutional right to be provided with the services of an interpreter. Id. at 164–65. The remaining question before us is how these principles apply in prison disciplinary proceedings. To the extent it mat‐ ters, Ramirez was trying to complain about deliberate indif‐ ference to his medical needs and the risk of harm from other prisoners. This easily falls on the “deprivation” side of the Second Circuit’s line. We can thus turn immediately to the question whether his suit should be barred by his failure to file timely grievances. No prison is forced to have a grievance procedure. If it thinks that the costs of such a procedure outweigh the bene‐ fits, it can do without. In such a case, the question of a right to an interpreter never arises. But most prisons and jails, includ‐ ing Western Illinois, do offer a grievance process, and they ex‐ pect prisoners to use it in accordance with its terms. Congress has strongly backed up the prisons in this respect. A state pris‐ oner who wishes to bring a civil rights action—perhaps for inadequate medical care, or sub‐human prison conditions, or excessive force on a guard’s part—cannot do so unless he has exhausted his administrative remedies within the prison. See Woodford v. Ngo, 548 U.S. 81 (2006) (prisoner does not exhaust by filing a procedurally defective grievance); Porter v. Nussle, 534 U.S. 516, 520 (2002) (exhaustion required for “all prisoners seeking redress for prison circumstances or occurrences”); Booth, 532 U.S. 731 (exhaustion required even when intra‐ prison grievance procedure cannot offer remedy that prisoner seeks). No. 15‐3298 11 Access to the grievance procedure is thus the key to a pris‐ oner’s ability to seek redress for constitutional violations oc‐ curring within the prison. Prisoners are entitled to due pro‐ cess in those proceedings, even though the amount of process that is “due” is influenced by the prison context. Wolff v. McDonnell, 418 U.S. 539 (1974); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (reversing dismissal of prisoner’s com‐ plaint alleging due‐process violations). But the Supreme Court has never said that prisoners are not entitled to basic notice of charges against them and an opportunity to be heard. Notice may come in either oral or written form. But if every form of notice is in a language one does not speak or read, no notice at all has been conveyed. That describes Ramirez’s situation. This is not a case such as Nazarova, in which the Russian‐speaking petitioner real‐ ized that something important was afoot because she had an English‐language letter from which she could decipher a hearing date. 171 F.3d at 483–84. Accepting Ramirez’s allega‐ tions in the pleadings and the court’s factual findings at the Pavey hearing, as we must, this record shows that nothing gave him even a clue about the grievance process. Ramirez did not speak English, and the prison itself prevented a friendly fellow prisoner from quietly translating the prison orientation for him. After that, the one Spanish‐speaking em‐ ployee at the prison never told Ramirez how to use the griev‐ ance process or even that the grievance process existed. And Ramirez’s language barrier was not a secret to the prison. The prison officials knew—and recorded their awareness—of his inability to understand spoken or written English. On this rec‐ ord, we cannot conclude that remedies were available to him. 12 No. 15‐3298 The defendants’ assorted responses fall flat. Even if Ramirez might have elicited information about the grievance procedure from Vincent had he asked, it was not his burden to do so. What would have tipped him off to ask that particu‐ lar question, as opposed to a hundred others? The PLRA “does not invite prison and jail staff to pose guessing games for prisoners.” Hill v. Snyder, 817 F.3d 1037, 1040 (7th Cir. 2016). Prisons must affirmatively provide the information needed to file a grievance. If it were otherwise a prison could “shroud the prisoner in a veil of ignorance and then hide be‐ hind a failure to exhaust defense to avoid liability.” Hernan‐ dez, 814 F.3d at 842 . The defendants argue that Ramirez’s ex‐ perience in Cook County jail, where a complaint about an at‐ tack led to protective custody, should have alerted him to the fact that Western Illinois would have a similar grievance pro‐ cess. Setting aside that Cook County jail and Western Illinois are different facilities operated by different governments, the record suggests that Ramirez did learn from his earlier expe‐ rience: he took the same step at Western Illinois as he had at the Cook County jail. He divulged to Vincent during the dis‐ ciplinary proceeding that he had been placed in segregation for refusing to share a cell with a dangerous cellmate. But un‐ like the Cook County sergeant, she never mentioned the grievance process or its possible utility to Ramirez. Contrary to the defendants’ assertions, ruling for Ramirez here is not inconsistent with anything the Supreme Court has said. In Ross, the Court offered three examples of situations in which a finding of unavailability would be proper: (1) prison officials are “consistently unwilling to provide any relief to aggrieved inmates”; (2) the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; or (3) prison administrators take affirmative action to No. 15‐3298 13 thwart use of the grievance process. 136 S. Ct. at 1859–60. But these were only examples, not a closed list, and to the extent the district court thought they were the latter, it erred. See An‐ dres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017). Moreover, we are not holding that a prisoner’s subjective unawareness of a grievance procedure excuses his non‐com‐ pliance. See Chelette v. Harris, 229 F.3d 684 , 688 (8th Cir. 2000). The PLRA does not excuse a failure to exhaust based on a pris‐ oner’s ignorance of administrative remedies, so long as the prison has taken reasonable steps to inform the inmates about the required procedures. Id. The problem here is that the prison did not take the required reasonable steps. It does not follow from Ramirez’s discovery that he would be able to obtain dental treatment that he should also have intuited the existence of the grievance process. A prisoner eas‐ ily might learn that an institution provides medical care with‐ out concluding that it willingly receives complaints about prison conditions. Running a medical/dental clinic and offer‐ ing a grievance procedure are two entirely different enter‐ prises. Cf. Kaba, 458 F.3d at 685 (recognizing that administra‐ tive remedies might be available for only certain issues). Our decision does not force prisons to choose between keeping numerous translators on retainer and conceding lia‐ bility in all prison litigation. No such choice faced Western Il‐ linois, because like many such institutions, it had a Spanish‐ speaker on its permanent staff and it immediately noted that Ramirez’s English was poor. If Western Illinois had made the same assessment of another prisoner’s English ability, but then realized that the prisoner spoke a less common language, it would need to decide whether to use telephone resources for translation (if its budget would permit this option) or just 14 No. 15‐3298 to keep the prisoner in the dark about the grievance proce‐ dure. If it chose the latter option, it would save money on in‐ terpreters, at the potential cost of forfeiting an exhaustion de‐ fense should litigation arise. Naturally, it would still be free to raise any other arguments that were available to it in any subsequent litigation. B In the alternative, the defendants argue that even if the grievance process was unavailable to Ramirez when he was transferred to Western Illinois, it became available when he learned about it in the summer of 2013. They suggest that Ramirez could have exhausted remedies before filing his Oc‐ tober 2013 suit. Prisons normally insist that grievances must be filed within a certain time and with a certain person. Western Illi‐ nois’s system is no exception. Ramirez had 60 days from the incidents about which he now complains to file a grievance. ILL. ADMIN. CODE tit. 20, § 504.810(a) (2013), amended at 41 Ill. Reg. 3869 (effective Apr. 1, 2017). It is unclear from Ramirez’s federal complaint when the alleged wrongs started. The par‐ ties have agreed that a grievance filed in 2013 would have been untimely. Maybe so, but maybe not. Ramirez’s com‐ plaint alleged wrongs that continued at least until he filed his federal complaint. The district court ruled that the ongoing nature of Ramirez’s allegations meant that he could have ex‐ hausted administrative remedies by filing a grievance in 2013. Cf. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“In or‐ der to exhaust their remedies, prisoners need not file multiple, successive grievances … if the objectionable condition is con‐ tinuing.”). But many people assert that problems are ongoing, when the issue really stems from a discrete act that starts the No. 15‐3298 15 clock running. The parties may thus be correct in their assess‐ ment of Ramirez’s grievance. In addition, that is not the argu‐ ment defendants have advanced. Instead, they now reason that in 2013 Ramirez could have taken advantage of language in Illinois’s regulation that al‐ lows a prison to consider an untimely grievance “if an offender can demonstrate that a grievance was not timely filed for good cause.” ILL. ADMIN. CODE tit. 20, § 504.810(a) (2013), amended at 41 Ill. Reg. 3869 (eff. Apr. 1, 2017). Here the first problem is forfeiture: the defendants did not raise this argument in the district court. The second problem is lack of merit. Prison of‐ ficials cannot defeat a prisoner’s suit after hiding existing remedies by the simple expedient of saying that they would have forgiven the procedural noncompliance and entertained a late grievance. King, 781 F.3d at 896 . If such a work‐around were permissible, prisons could “always defeat prisoner suits by announcing impossible procedural hurdles beforehand and then, when they are sued, explaining that they would have waived the requirements for the plaintiff.” Id. Accepting the concession that Ramirez needed to initiate the grievance process within 60 days of the start of the defendants’ allegedly unconstitutional conduct, remedies were not available to him at a time when he could have filed a timely grievance. He therefore did not need to satisfy the PLRA’s exhaustion re‐ quirement. III Defendant Cynthia Lynch offers one more basis for dis‐ missing her from the case. At the Pavey hearing Ramirez testi‐ fied that had he filed a grievance against Lynch, who was one of Western Illinois’s mental health counselors, it would have 16 No. 15‐3298 complained of her failure to use a translator when communi‐ cating with him. Because the hypothetical grievance would not have related to Ramirez’s federal claims, Lynch argues that it does not matter whether remedies were available to Ramirez. Yet the content of a hypothetical grievance is irrele‐ vant to the question of the availability of the process in the first place. The unavailability of the process “lifts the PLRA exhaustion requirement entirely and provides immediate en‐ try into federal court.” Hernandez, 814 F.3d at 840 . The efficacy of a would‐be grievance is academic, id. at 843 , and so Lynch’s alternative argument is unavailing. IV Because no administrator or officer of Western Illinois ever informed Ramirez of its grievance process in a way that he might reasonably understand, that process was unavailable to him and he was excused from the PLRA’s exhaustion require‐ ment. We therefore REVERSE the district court’s judgment dis‐ missing the case and REMAND for further proceedings.