This is an appeal involving exhaustion of administrative remedies, as required by the Prison Litigation Reform Act (42 U.S.C. § 1997e(a)). It establishes no new law, but reemphasizes yet again that a prisoner’s affidavit can establish a genuine issue of material fact sufficient to require that a motion for summary judgment be denied.

The facts of the underlying case are simple: a Wisconsin jail detainee alleged that he was not provided proper medical care during COVID, and as a result almost died.

He filed a series of grievances, but all parties agreed that he did not appeal any of them. Defendants moved for summary judgement, on the grounds that he did not complete the grievance process. Plaintiff responded with his own affidavit, stating, “due to the grievance system in the jail, [it] was not forwarded to the responsible or proper designee, and no appeal was granted to further pursue this grievance.” The defendants replied by submitting the rules, which clearly provided that prisoners could file appeals, and did not need anyone from the prison to cooperate in that process (the grievances and appeals were all filed electronically via a kiosk on the unit). The District Court held that plaintiff clearly did not understand how the appeal process worked, and failure to understand was not a legally recognized excuse for not completing the process. It thus entered judgement for defendants. Plaintiff appealed.

The Seventh Circuit reversed, holding that the existence of a written policy is not sufficient. The issue is whether the process was “due to the grievance system in the jail, [it] was not forwarded to the responsible or proper designee, and no appeal was granted to further pursue this grievance.” Actually available to plaintiff. By filing an affidavit asserting that the system was not available, plaintiff had created a genuine issue of material fact, which could only be resolved by holding an evidentiary hearing.