Gregory Turley v. Dave Rednour

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1491

G REGORY J. T URLEY,

Plaintiff-Appellant,

v.

D AVE R EDNOUR, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:10-cv-00789-MJR—Michael J. Reagan, Judge.

A RGUED S EPTEMBER 10, 2012—D ECIDED JULY 3, 2013

Before E ASTERBROOK, Chief Judge, and C UDAHY and

K ANNE, Circuit Judges.

C UDAHY, Circuit Judge. This is a case about a prison’s

lockdowns and Eighth Amendment, conspiracy, and

Due Process claims arising from those repeated lockdowns.

Gregory J. Turley is serving a life sentence in Menard

Correctional Center, a state prison in downstate Illinois.

He is classified as a low-aggression offender, and housed

in a unit with other prisoners of similar aggression levels.

In the period between January 7, 2008, and October 4, 2010,

2 No. 11-1491

prison administration frequently placed the prison on

lockdown wherein prisoners were confined to their

cells without any yard time. In all, 25 lockdowns were

imposed, with 81 days being the longest continuous

period of lockdown, and totaling 534 lockdown days.

Thus, prisoners were confined in lockdown status for

more than 50% of the period in question.

Turley brought two intertwined Eighth Amendment

violation claims, a conspiracy claim and a Due Process

claim with regard to Menard’s lockdowns. He alleged

that these lockdowns were often imposed for non-

penologically-related purposes, such as isolated fights

between two inmates from other cellhouses, rumors of

a potential fight or for no reason at all. The repeated

lockdowns resulted in lack of exercise for inmates. Turley

further claims that by confining two inmates together

in a small cell, in the context of the frequent use of

lockdowns, prison officials showed deliberate indif-

ference to inmates’ physical and psychological injuries.

Specifically, Turley claims that he suffered injuries such

as irritable bowel syndrome, headaches, tinnitus, sleep

deprivation, colon spasms, nosebleeds, weight loss and

extreme stress.

Turley alleges that the excessive use of lockdowns

arose out of a conspiracy among prison officials and

union employees to create a staff shortage and nego-

tiate a pay raise. Additionally, Turley alleges there was

a conspiracy to exaggerate prison response to minor

incidents, or no incidents at all, in order to allow staff

to take vacation and/or to psychologically punish all

prisoners for the misconduct of a few. Finally, Turley

No. 11-1491 3

claims that his $10 per month idle pay stipend was with-

held during lockdown periods without due process.

His complaint was brought against various prison per-

sonnel. See SA at A-16 (listing names and positions).

Before bringing this claim, Turley filed several griev-

ances with Menard Correctional Center. The record

includes a letter from the Administrative Review Board,

the highest authority within the prison’s complaint

system, denying a grievance Turley filed based on “Ad-

ministrative Policy (Lockdowns)” in 2008. SA at A-24.

The underlying grievance report is not included in

the record.

Turley also filed a grievance in February 2009. SA at A-

18. There, he challenged the frequent use of lockdown

as an exaggerated response to security concerns, a way

to avoid paying overtime to employees and a way

to give staff vacation time (particularly around holidays).

A-19-22. Turley specifically listed lockdowns that oc-

curred from November 24, 2008 to December 9, 2008, and

from December 29, 2008 to January 12, 2009. A-19.

Further, Turley listed 14 other lockdowns occurring

throughout 2008 that showed a pattern of lockdowns

coinciding with holidays. Id. He also complained that

a lockdown in his own low-to-medium-aggression

cellhouse was frequently imposed due to incidents be-

tween inmates in other, completely separate cellhouses.

A-20, A-23. His grievance was denied by the Admin-

istrative Review Board on June 10, 2009. SA at A-17.

Turley then filed an October 2009 grievance. SA at A-27

(partially illegible). In this grievance, Turley described

4 No. 11-1491

his confinement to a 40 square foot segregation cell

with another prisoner. Turley alleges that this grievance

was ignored by prison officials. Similarly, he received

no response to a grievance filed in August 2010.

In October 2010, Turley filed his pro se federal com-

plaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C.

§ 1915A, the district court reviewed this claim for suf-

ficiency.1 The court dismissed both Eighth Amend-

ment claims at the screening review stage and did not

address the conspiracy or Due Process claims. The

district court erroneously noted that Turley did not state

“how long the lockdown lasted, making it impossible

for the Court to determine . . . whether there had been

an eighth amendment violation.”

Turley, now represented by counsel, is appealing the

dismissal of his complaint. The state of Illinois has filed

a brief as a party in interest in the matter.

1

Section 1915A provides as follows: (a) Screening.—The court

shall review, before docketing, if feasible or, in any event, as

soon as practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.—On review, the court

shall identify cognizable claims or dismiss the com-

plaint, or any portion of the complaint, if the com-

plaint—

(1) is frivolous, malicious, or fails to state a claim on

which relief may be granted; or

(2) seeks monetary relief from a defendant who is

immune from such relief.

No. 11-1491 5

This court reviews § 1915A dismissals under the Federal

Rule of Civil Procedure 12(b)(6) standard for stating a

claim for relief. Santiago v. Walls, 599 F.3d 749, 755-56

(7th Cir. 2010). Dismissal orders are reviewed de novo,

“taking all well-pleaded allegations of the complaint as

true and viewing them in the light most favorable to the

plaintiff.” Id. at 756 (quoting Zimmerman v. Tribble, 226 F.3d

568, 571 (7th Cir. 2000) (internal quotation marks omitted)).

We must examine whether Turley properly exhausted

administrative remedies before filing suit, whether

these federal claims are time-barred and whether

Turley’s complaint sufficiently states a claim to survive

dismissal. We find that Turley’s Eighth Amendment

claim clears these hurdles, but his Due Process claim

does not, and so we partially reverse the judgment of

the district court. Turley’s conspiracy claim is super-

fluous in light of the fact that all named defendants

are state actors.2

I.

Prisoners must properly exhaust all available admin-

istrative remedies before pursuing claims, including

2

We need not conduct a separate analysis of the conspiracy

claim outside of our treatment of Turley’s Eighth Amendment

claims. As we noted in Fairley v. Andrews, 578 F.3d 518, 526

(7th Cir. 2009), the function of a conspiracy claim under 42

U.S.C. § 1985(3) is to “permit recovery from a private actor

who has conspired with state actors.” When, as here, the

defendants are all state actors, “a § 1985(3) claim does not

add anything except needless complexity.” Id.

6 No. 11-1491

§ 1983 actions, in federal court. Prison Litigation Reform

Act, 42 U.S.C. § 1997e(a) (2006). A prisoner must ex-

haust his grievances in accordance with prison pro-

cedural rules. Woodford v. Ngo, 548 U.S. 81, 84, 88 (2006).

In Illinois, the last level of appeal for a prisoner

pursuing a grievance is a final determination by the

Director. 20 Ill. Admin. Code 504.850(a)-(f). The exhaus-

tion requirement’s primary purpose is to “alert[] the

state” to the problem “and invit[e] corrective action.”

Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004); see

also Jones v. Bock, 549 U.S. 199, 219 (2007). Exhaustion is

an affirmative defense, with the burden of proof on the

defendants. Jones, 549 U.S. at 203-04; Maddox v. Love,

655 F.3d 709, 720 (7th Cir. 2011).

The State asserts that Turley did not exhaust all of his

administrative remedies because first, he mentioned

only two specific instances of lockdown in his grievances,

and second, his latter two grievances did not receive

a response. We disagree.

Turley’s February 2009 grievance, which was pursued

to a final decision by the Director, suffices to exhaust

the claims challenging lockdown policy. The state is

right that Turley listed only two specific dates of

lockdowns, but the state does not note the fact that he

also mentioned 14 other lockdown incidents in 2008.

Turley was challenging not just specific incidents of

lockdown, but Menard’s lockdown policies in general.

This is confirmed by the 2008 decision letter, which

indicates that Turley was challenging lockdown policy

as a continuing violation of his rights.

No. 11-1491 7

In order to exhaust their remedies, prisoners need not

file multiple, successive grievances raising the same

issue (such as prison conditions or policies) if the ob-

jectionable condition is continuing. See, e.g., Parzyck v.

Prison Health Servs. Inc., 627 F.3d 1215, 1219 (11th Cir.

2010) (prisoner “not required to initiate another round

of the administrative grievance process on the exact

same issue each time” a deprivation occurred); Howard

v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008); Johnson v.

Johnson, 385 F.3d 503, 521 (5th Cir. 2004). Separate com-

plaints about particular incidents are only required if

the underlying facts or the complaints are different. See,

e.g., Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir.

2011) (distinguishing Johnson and another case finding

exhaustion, because in those cases the underlying com-

plaint was the same); Moore v. Bennette, 517 F.3d 717,

728-29 (4th Cir. 2008) (finding no exhaustion where pris-

oner complained of inadequate medical care for

Hepatitis C but not for gout). Thus, once a prison has

received notice of, and an opportunity to correct, a prob-

lem, the prisoner has satisfied the purpose of the exhaus-

tion requirement. Here, Turley’s complaints centered

around continuing prison policies, including allegedly

illegal lockdowns, and one occurrence of notice from

Turley was sufficient to give the prison a chance to

correct the problems.

The present grievance was likely sufficient to exhaust

all Turley’s complaints. For instance, he made related

allegations such as that his state stipend was confiscated

during lockdowns, and discussed how his tiny cell pre-

vented exercise and how prison officials knew prison

conditions led to injuries.

8 No. 11-1491

The state’s argument that Turley’s latter two grievances—

those to which he had not received a response when he

filed suit—were not exhausted is unpersuasive since

the original grievance suffices. 3

II.

The State asserts that some portion of Turley’s com-

plaint was clearly time-barred and should have been

dismissed on this basis. This argument is without merit.

3

Even if Turley’s February 2009 grievance were deficient,

Turley’s August 2009 and 2010 grievances would satisfy

exhaustion regardless of the prison’s failure to respond. This

court has declined to find exhaustion where the prisoner

himself made some error in following grievance procedure.

See, e.g., Dixon v. Page, 291 F.3d 485, 488-89 (7th Cir. 2002)

(prisoner failed to exhaust before filing suit; failed to appeal

to highest level); Cannon v. Washington, 418 F.3d 714, 718 (7th

Cir. 2005) (per curiam) (prisoner failed to use sufficient post-

age). However, when the prisoner follows procedure but

receives no response due to error by the prison, this court

has found that the prisoner exhausted his administrative

remedies. See, e.g., Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006)

(prisoner’s grievance received no response because prison lost

it; prisoner waited 18 months before filing suit); Brengettcy v.

Horton, 423 F.3d 674 (7th Cir. 2005) (grievance received no

response; prisoner waited between 1 and 4 months before

filing suit); Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002)

(holding that a prison’s failure to respond to a grievance

would make remedies “unavailable” and thus the prisoner

would have exhausted). Here, Turley committed no pro-

cedural error in filing his grievances.

No. 11-1491 9

Section 1983 suits in Illinois have a two-year statute

of limitations, which is tolled while the prisoner

exhausts the administrative grievance process. Johnson

v. Rivera, 272 F.3d 519, 521-22 (7th Cir. 2001). For con-

tinuing Eighth Amendment violations, the two-year

period starts to run (that is, the cause of action accrues)

from the date of the last incidence of that violation, not

the first. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir.

2001) (finding that an Eighth Amendment deliberate

indifference claim for failure to treat an inmate’s hernia,

a continuing violation, accrued when the inmate left

the prison). A violation is continuing where “it would

be unreasonable to require or even permit [a prisoner] to

sue separately over every incident of the defendant’s

unlawful conduct.” Id. at 319.

Turley’s Eighth Amendment and conspiracy com-

plaints concern continuing actions. The nature of his

allegations are that prison officials repeatedly and regu-

larly imposed lockdown for improper purposes, and

with each continuing day and period of lockdown,

Turley’s injuries increased. The statute of limitations

began running from the last date of lockdown, or last

day confined to the tiny cell, and consequently, Turley

is well within the two-year statute of limitations.

Alternatively, Turley’s claims could conceivably also

be tolled under the cumulative approach to the con-

tinuing violation doctrine as described in National

10 No. 11-1491

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).4

Morgan concerned the timeliness of a hostile work en-

vironment claim brought under Title VII. The Court

held that the continuing violation doctrine applied to

repeated conduct “occur[ing] over a series of days or

perhaps years” in light of the fact that “a single act of

harassment may not be actionable on its own.” Id. at 115.

Similarly, the case before us focuses on the cumulative

impact of numerous imposed lockdowns.

III.

Having held that Turley’s suit is not procedurally

barred, we must next determine if he has sufficiently

made out a claim to survive dismissal. Twombly and

Iqbal direct us to consider whether the plaintiff’s claims

are plausible. However, it is important to keep in mind

that even after Twombly and Iqbal, pro se complaints like

Turley’s are to be construed liberally. See, e.g., Erickson

v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam); Munson

v. Gaetz, 673 F.3d 630, 632-33 (7th Cir. 2012). Here,

Turley survives dismissal because his claims are plausible

4

Though Morgan concerned Title VII, at least one other circuit

has applied Morgan to Eighth Amendment claims arising

from deliberate indifference. See Shomo v. City of New York, 579

F.3d 176 (2d Cir. 2009). The Shomo Court also noted that Heard

comports with “Morgan’s application of the continuing viola-

tion doctrine to a series of predicate acts forming the basis for

a single claim.” Id. at 182. Neither party discussed Morgan in

its briefs.

No. 11-1491 11

and his complaint sets out more than conclusory state-

ments.

A. Eighth Amendment Claims

Turley argues that frequent lockdowns for substantial

periods of time have deprived him of exercise and

caused him various health issues. The State’s response

is that Turley has failed to allege a constitutionally suf-

ficient injury, especially since no individual lock-

down exceeded 90 days, and the defendants were not

deliberately indifferent to Turley’s or the other inmates’

situation. The district court dismissed this claim because

it thought that Turley had not listed specific periods

of confinement, but this conclusion is incorrect.

The State relies heavily on Pearson v. Ramos, 237 F.3d

881, 886 (7th Cir. 2001), for the notion that there exists

an ironclad rule that a denial of yard privileges shorter

than 90 consecutive days cannot be the basis for an

Eighth Amendment claim. However, the State has mis-

construed this rule. In Pearson, we stated that we

thought “it a reasonable rule that a denial of yard privi-

leges for no more than 90 days at a stretch is not cruel

and unusual punishment.” Id. at 884. However, we were

careful to explain that the “norm of proportionality”

would guide the acceptable duration of lockdown. Even

a lockdown not exceeding 90 days could violate that

norm if it were “impos[ed] . . . for some utterly trivial in-

fraction of the prison’s disciplinary rules.” Id. at 885. Pear-

son focused on the period of confinement for a single

prisoner in response to that prisoner’s specific actions, so

12 No. 11-1491

that the prison’s decision “[t]o confine in ‘solitary’ a

prisoner who behaves like a wild beast whenever he is

let out of his cell is the least cruel measure that occurs

to us for dealing with such a person.” Id. In contrast,

here we are confronted with a pattern of prison-wide

lockdowns, which Turley alleges occurred for flimsy

reasons or no reason at all.

In a similar unit-wide lockdown case, this court found

a viable claim for deprivation of exercise. In Antonelli

v. Sheahan, 81 F.3d 1422 (7th Cir. 1996), a prisoner was

housed in a cramped cell with “no room” to exercise

and “not permitted to recreate ‘for periods up to seven

weeks in succession,’ and at most, was called ‘once

every two weeks for sessions of no longer than one hour

at one time.’ ” Id. at 1432. The court in Antonelli noted

that no doubt the State would raise any valid justifica-

tion for the restriction “in due course,” but that “at this

stage,” the prisoner had a viable claim for deprivation

of exercise. Id.

Turley has not had the benefit of discovery, and the

defendants have yet to answer the complaint. Turley

has alleged sufficiently serious injuries stemming from

his confinement without exercise, including irritable

bowel syndrome, severe stress, headaches and tinnitus.

He alleges that he could not “improvise” with in-cell

exercise, because the unencumbered floor space in his

tiny cell measured only 7'8" by 1'7", which is not even

enough space to lie down, much less exercise. Turley

filed numerous grievances involving the issue, directed

at a similar group of defendants. Similar allegations

were sufficient to show deliberate indifference in other

No. 11-1491 13

cases. See, e.g., Delaney v. DeTella, 256 F.3d 679, 685-86

(7th Cir. 2001) (requiring 5 hours of exercise per week

after 90 days segregation due to grievances filed and

medical care sought). The State is free to produce evi-

dence or studies, if any exist, that the intervals between

weeks-long (or even months-long) lock-downs are suf-

ficiently restorative.

As for deliberate indifference, Turley filed multiple

grievances about the conditions at Menard, including in

his October 2010 grievance specific challenges to the

small cells. The administration should have been well

aware of multiple grievances from inmates regarding

small cells. In fact, Menard was the subject of numerous

past lawsuits, including one specifically describing

and ordering a remedial plan for overcrowding, small

cells and lack of adequate medical care and hygiene, all

conditions similar to those described by Turley. See

Lightfoot v. Walker, 486 F.Supp. 504, 511 (D.C. Ill. 1980).

Finally, in Munson v. Hulick, 2010 WL 2698279 (S.D. Ill.

July 7, 2010), a complaint similar to Turley’s passed

§ 1915A screening. There, a Menard prisoner chal-

lenged the same 40' cells where two inmates were

confined for 21-22 hours per day, and the court allowed

the claim to proceed, finding that the grievances by the

plaintiff and other prisoners were sufficient to provide

notice to prison officials.

B. Due Process Claim

The district court did not address Turley’s Due Process

claim. Turley alleges that when he was on lockdown,

14 No. 11-1491

he was not paid his $10 per month state stipend, pro-

vided for in a state administrative directive. The State

argues that first, Turley had no property interest in his

stipend, and second, he was not denied Due Process

through loss of the stipend, but rather had several

avenues of recovery open to him, specifically an action

in the Court of Claims to challenge the deprivation.

We will assume without deciding that Turley has a prop-

erty interest in the stipend he would have received had

he not been in segregation.5 However, we agree with

the State’s second argument.

The Illinois Court of Claims provides an exclusive

remedy for “[a]ll claims against the State founded upon

any law of the State of Illinois or upon any regulation

adopted thereunder by an executive or administrative

officer or agency,” 705 ILCS 505/8(a), and “[a]ll claims

5

While we have found that Illinois law does not create a

property interest in prison employment, see Wallace v. Robinson,

940 F.2d 243 (7th Cir. 1991) (en banc), that is not quite the

issue presented here. This case involves unassigned pay

potentially unlawfully withheld during wrongful segregation.

The Illinois Court of Claims has noted that though “an

inmate in a correction institution in . . . Illinois does not have

a right to a job”, he “ha[s] a right to his unassigned pay [if]

he was wrongfully placed in segregation.” Pippion v. State, 43

Ill. Ct. Cl. 327, 328 (1990). In cases decided after Wallace, the

Illinois Court of Claims has pondered, without deciding, the

interests at stake in matters of stipend confiscation. See Turner-

El v. Illinois Bd. of Educ., 1995 WL 506011, *8 (N.D. Ill. Aug. 22,

1995).

No. 11-1491 15

against the State for damages in cases sounding in tort,

if a like cause of action would lie against a private

person or corporation in a civil suit,” 705 ILCS 505/8(d).

The Illinois Court of Claims has recognized that

prisoners do have a right to their unassigned pay when

not in segregation, even though they do not have a

right to a job or wages therefrom while in prison. Pippion

v. State, 43 Ill. Ct. Cl. 327, 328 (1990). The Court of

Claims has consistently awarded prisoners “back pay”

when they were denied their stipend during unlawful

confinement in segregation.

There is nothing to indicate that this post-deprivation

remedy is inadequate in Turley’s case. The monetary

amount in question is rather small,6 and it is unclear

what value additional safeguards would provide. Cf.

Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). As Turley

had the opportunity for an adequate post-deprivation

remedy, and his deprivation was not of a type that

would require a pre-deprivation hearing, his Due

Process claim must fail. See Logan v. Zimmerman Brush

Co., 455 U.S. 422, 436 (1982).

We R EVERSE IN P ART and A FFIRM IN P ART the judg-

ment of the district court.

6

We note that prisoners often do not have full enjoyment of

their earnings, as these earnings may be reserved for restitu-

tion. The Eighth Circuit has determined that post-depriva-

tion procedures are adequate for recovering victim restitution

payments from an inmate’s prison trust account or freezing

them. Mahers v. Halford, 76 F.3d 951, 955 (8th Cir. 1996).

16 No. 11-1491

E ASTERBROOK, Chief Judge, concurring. Although I join

the court’s opinion, I think it helpful to elaborate on the

limitations issue discussed in Part II.

Turley contends that his suit is timely because the

lockdowns constituted a “continuing violation” and the

suit was filed within two years of the most recent

lockdown. He relies on Heard v. Sheahan, 253 F.3d 316 (7th

Cir. 2001), which used that phrase, but later decisions

such as Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618

(2007), and National Railroad Passenger Corp. v. Morgan,

536 U.S. 101 (2002), show that some refinement is essential.

That something is continuing could matter to the

period of limitations in at least three ways:

• Violations begin and continue, and the pre-

vailing rule treats new acts, or ongoing inac-

tion, as new violations. The eighth amend-

ment creates such a doctrine: failure to treat

a significant painful medical condition, with

deliberate indifference to the prisoner’s situ-

ation, is a form of inaction that offends the

Constitution. Estelle v. Gamble, 429 U.S. 97

(1976). The period of limitations runs from

each independently unlawful act or failure to

act.

• Deeds that are not themselves violations of

law become actionable if they add up. This

situation was addressed by the hostile-environ-

ment part of Morgan, 536 U.S. at 115–21. One

or two offensive remarks do not violate Title

VII, but a cascade of remarks over the course

No. 11-1491 17

of months may do so—and Morgan holds

that the period of limitations for a hostile-

environment claim runs from the last remark

rather than the first.

• A discrete wrongful act causes continuing

harm. Morgan and Ledbetter hold that a con-

tinuation of injury does not extend the period

of limitations. 536 U.S. at 110–15. Likewise

a new discrete violation does not extend the

time to sue about an old discrete violation,

even if the new violation occurs while the

injury from the old discrete violation contin-

ues.

Grouping all three of these situations under a single

name has the potential for confusion—a potential

realized here, where the parties discuss Heard, which

deals with the first situation, as if it were an exemplar

of the second. And on other recent appeals lawyers have

treated continuing injury, the third situation, as if it

were the same as ongoing wrongs.

Giving different things different names promotes

clarity of thought. The first situation is a genuine con-

tinuing violation. The second should be called a cumula-

tive violation. And the third should be labeled a contin-

uing injury.

Lockdowns of 90 days or fewer are not independent

violations of the eighth amendment. But lockdowns

that cumulate to much longer periods, with only short

breaks, may be. This case thus is within the scope of the

cumulative-violation doctrine, for the reasons given in

18 No. 11-1491

Morgan, 536 U.S. at 115–21. But the fact that Turley

may continue to suffer injury from lockdowns has no

bearing on the period of limitations.

The court reaches this conclusion, though using dif-

ferent terminology, so I join its opinion.

7-3-13