Man can sue prison for failure to protect him

April 6, 2016

The 7th Circuit Court of Appeals ruled a prisoner can seek remedies against prison staff who did not protect him from other inmates who were throwing feces at him. It found the man had exhausted all of his remedies before filing suit.

Asher Hill filed suit after four incidents in which other prisoners threw feces at him through the bars of his cell. He said the prison staff failed to protect him on these occasions, and the 7th Circuit agreed with him on three of the occasions. The first two times, Hill filed a grievance to the prison, but it was returned unprocessed. The third and fourth time his prison counselor failed to give Hill the form to file his grievance, stating that Hill should know the exact time the incidents occurred, which he did not.

Chief Judge Richard Young in the Southern District of Indiana’s Indianapolis Division granted summary judgment for the prison, saying Hill had not exhausted all of his remedies. Hill appealed.

Summary judgment was overturned in the first incident. The staff returned his grievance unprocessed, saying a staff member viewed the video and could not verify this occurred. The 7th Circuit said verifying the incident is not one of policies for processing grievances, and the prison made it unclear to Hill how he should proceed.

The second incident was the only one in which the District Court should have granted summary judgment, the 7th Circuit said. Hill did not resubmit his grievance within five days of it being denied, and therefore the claim was not exhausted.

In the last two incidents, the refusal of the counselors to give him a form means Hill exhausted all of his remedies. The defendants said Hill could have asked more staff, but the 7th Circuit said there’s no knowing when Hill would have exhausted all of his remedies, because the amount of staff he needed to ask was undetermined. The counselor also did not have a legitimate reason to refuse his request.

The case is Asher B. Hill v. Jerry Snyder, et al., 15-2607.


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