Damon Turnage v. Thomas Dart

In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 20-3167 DAMON TURNAGE, Plaintiff-Appellant,

v.

THOMAS J. DART, SHERIFF OF COOK COUNTY; and COOK COUNTY, ILLINOIS, Defendants-Appellees. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cv-11672 — Charles R. Norgle, Judge. ____________________

ARGUED OCTOBER 5, 2021 — DECIDED OCTOBER 26, 2021 ____________________

Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges. EASTERBROOK, Circuit Judge. Damon Turnage contends that on September 21, 2016, he fell from an upper bunk at Cook County Jail and suffered a broken ankle plus other injuries. He seeks damages under §202 of the Americans with Disabil- ities Act, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794(a), on the ground that the Jail knew that he is subject to occasional seizures but failed to enforce his lower-

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bunk permit (which had been issued to reduce the risk of fall- ing during a seizure). Federal law requires prisoners to pursue administrative remedies, see 42 U.S.C. §1997e(a), and this means taking avail- able steps prescribed by the institution. See, e.g., Ross v. Blake, 136 S. Ct. 1850 (2016). Cook County Jail requires prisoners to file grievances within 15 days of an “incident, problem, or event” and to appeal any adverse decision. Turnage filed a grievance on September 27, six days after his fall, and filed an immediate appeal after that grievance was denied. The dis- trict court nonetheless dismissed his suit under §1997e(a), ob- serving that Turnage could have filed a grievance even ear- lier—within 15 days of August 30, 2016, when he was placed in a two-person cell and forced to take an upper bunk because the other inmate also had a lower-bunk permit (or claimed to have one). In the district court’s view, failure to file a griev- ance about the risk of injury permanently blocks any com- plaint about actual injury when the risk comes to pass. Perhaps it would be possible for a prison system to write its rules that way, but Cook County Jail did not do so. It per- mits a grievance following any “incident, problem, or event”. Turnage encountered a “problem” on August 30, when he was placed in an upper bunk. Then he experienced an “incident” and an “event” on September 21, when he fell out. These were separate occasions for grievances, and we do not see anything in the rules that makes omission of the first possible grievance a bar to filing a later grievance. Turnage is using the ADA and the Rehabilitation Act to pursue, in federal court, what is effectively a state-law tort claim. And there is no tort without injury. Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir. 1996). These statutes

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may be available to protest exposure to unjustified risks, but a prisoner or other litigant is free to wait until the risk comes to pass. Forget about §1997e(a) for a moment and suppose that Turnage had filed a common-law tort suit on September 10, 2018, more than two years after his placement into an up- per bunk but less than two years after his fall and injury. (Two years is a normal limit for tort suits.) A court would deem that suit timely, because injury, coupled with knowledge of its cause, marks the claim’s accrual. See United States v. Kubrick, 444 U.S. 111 (1979). For the same reason, a grievance that is timely with respect to an injury satisfies §1997e(a) when the suit seeks damages for that injury. Defendants do not cite, and we could not find, any deci- sion holding that, when two events could be the subject of in- tra-prison grievances, a grievance filed after the second event always is untimely. That rule would be incompatible with normal principles of tort law. We need not decide whether it could be adopted by clear language in prison rules. It is enough to say that the Jail did not specify such a rule. Nor did officials at the Jail think that such a rule exists there. They did not reject Turnage’s grievance on the ground that it had been filed too late. Instead they addressed and re- jected it on the merits, as did the Jail’s appellate tier. Maddox v. Love, 655 F.3d 709, 721–22 (7th Cir. 2011), shows that a griev- ance rejected on the merits must be deemed properly filed for the purpose of §1997e(a). Turnage has exhausted the administrative remedies avail- able to him. The judgment is vacated, and the case is re- manded for proceedings consistent with this opinion.