‘Common sense’ requires ruling in favor of inmate, judge says

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The 7th Circuit Court of Appeals reversed judgment in favor of jail officials on an inmate’s complaint that he was denied medical access while in jail. The judges did not agree with the magistrate judge’s decision that Randy Swisher had failed to exhaust his administrative remedies by not filing a written grievance.

Swisher sued Porter County jail officials, alleging violations of 42 U.S.C. Section 1983 because he was denied medical care for a bullet wound to his stomach and other care while awaiting trial. Swisher had complained of his lack of medical care, but jail officials never gave him a grievance form to file a formal complaint, as is outlined under I.C. 11-11-1-2. Instead, his concerns were always addressed informally and verbally, with the jail warden promising to “take care of the problem.” None of the officials ever suggested Swisher file a formal written grievance.

Magistrate Judge Christopher Nuechterlein credited Swisher’s testimony in its entirety, but still ruled in favor of the defendants. Nuechterlein reasoned that Swisher had not exhausted his administrative remedies because, while knowing there was a grievance procedure, he never submitted a written grievance.

“A dose of common sense would have led the magistrate judge to a different conclusion,” Judge Richard Posner wrote in Randy M. Swisher v. Porter County Sheriff’s Dept., et al., 13-3602 . “If you are an inmate and you speak to senior jail officers up to and including the Warden of the jail and are told not to file a grievance because the officers understand your problem and will resolve it without need for you to invoke the formal grievance procedure and they don’t tell you how to invoke that procedure, you are entitled to assume that you don’t have to file a written grievance.

“Anyway no one was willing to give the plaintiff a grievance form or even explain the grievance procedure to him, so he couldn’t have filed a written grievance even if he had thought it necessary.”

“When a jail official invites noncompliance with a procedure the prisoner is not required to follow the procedure,” Posner continued. “When jail personnel mislead inmates about how to invoke the procedure the inmates can’t be blamed for failing to invoke it.”

The case is remanded for further proceedings.  

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