                     NONPRECEDENTIAL DISPOSITION
              To be cited only in accordance with Fed. R. App. P. 32.1



            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                            Submitted January 17, 2007*
                             Decided January 17, 2007

                                       Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. KENNETH F. RIPPLE, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

No. 06-2304

SHABAZZ MUHAMMAD,                           Appeal from the United States District
    Plaintiff-Appellant,                    Court for the Southern District of Illinois

      v.                                    No. 03-CV-152-JPG

EUGENE McADORY, et al.,                     J. Phil Gilbert,
    Defendants-Appellees.                   Judge.

                                     ORDER

      Illinois inmate Shabazz Muhammad claims in this action under 42 U.S.C.
§ 1983 that prison officials were deliberately indifferent to unsanitary conditions in
C-Wing at Menard Correctional Center and that medical staff failed to treat
physical injuries he sustained as a result of those conditions. The district court
granted summary judgment for the defendants after concluding that Muhammad
had failed to exhaust his administrative remedies. Muhammad appeals.




      *
       After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2304                                                                  Page 2

       We construe the evidence in the light most favorable to Muhammad. See
Tibbs v. City of Chi., 469 F.3d 661, 664 (7th Cir. 2006). In December 2002
Muhammad was assigned to disciplinary segregation in C-Wing. According to
Muhammad, the living conditions in C-Wing were foul—trash, chewing tobacco,
blood, and feces littered the floors; stale scraps of food encrusted the walls; and
garbage bins containing food, soiled diapers, and exhausted medical supplies were
purposefully left uncovered by staff. The conditions created a breeding ground for
bugs and rodents, and on January 14, 2003, a rodent bit Muhammad’s foot while he
prayed in his cell. That same day Muhammad submitted an emergency grievance
directly to Eugene McAdory, who was then the warden at Menard, complaining
about the conditions in C-Wing and advising McAdory that he had been bitten by a
mouse. The grievance contained no mention of the medical care he received as a
result of the mouse bite. On January 18, having heard nothing from McAdory,
Muhammad delivered a copy of his emergency grievance to a grievance officer. Still
he heard nothing from either McAdory or the grievance officer, so on January 24 he
sent a copy of his emergency grievance to the Administrative Review Board. The
Board received the grievance on January 28 and returned it to Muhammad the
following day, advising: “Follow grievance procedure if [the warden] denies
emergency—per DR504 emergency grievance has no specific time period to be acted
upon.” Muhammad maintains that neither McAdory nor the grievance officer ever
responded to his submissions.

       On March 6, 2003, fifty-one days after he first tendered his emergency
grievance to Warden McAdory, Muhammad filed this lawsuit.1 As relevant to
Muhammad’s claims, he named as defendants Warden McAdory, four other
administrators, and Dr. Stephen Doughty. Muhammad alleged that the
administrators were aware of the unsanitary conditions in C-Wing and purposefully
allowed the conditions to exist as additional punishment for the inmates assigned to
that wing. As to Dr. Doughty, Muhammad alleged that when he sought medical
treatment for the mouse bite, Doughty told him that nothing was wrong with his
foot and refused to prescribe antibiotics. In addition, Muhammad alleged that he
attempted but was unable to exhaust his administrative remedies because “officials
at the Illinois Department of Corrections deliberately sabotaged the completion of
this process by refusing to answer plaintiffs’ grievances.” Muhammad also raised a
culpable negligence claim against all defendants under Illinois state law.

     The district court, concluding that Muhammad had failed to exhaust his
administrative remedies as required by 42 U.S.C. § 1997e(a), granted summary


      1
       Two other inmates confined to C-Wing—Glen Smith and Herman
Rich—joined Muhammad as plaintiffs. Smith voluntarily dismissed his claims, and
Rich has not appealed.
No. 06-2304                                                                   Page 3

judgment for all defendants on Muhammad’s federal claims.2 The court reasoned
that, even though Muhammad’s attempt to utilize the emergency grievance
procedure might have been frustrated by Warden McAdory’s failure to respond to
his grievance, the standard grievance procedure remained available to him. The
court continued that, despite Muhammad’s arguments to the contrary, the fact that
he submitted a copy of his emergency grievance to a grievance officer on January 18
refuted his contention that the standard grievance procedure was unavailable due
to a shortage of grievance officers. The court added that fifty-one days was not the
“sort of ‘indefinite[] delay’ that renders an administrative remedy unavailable.” The
district court then declined to exercise supplemental jurisdiction over Muhammad’s
state-law claim. The court dismissed the suit without prejudice, but as a practical
matter that dismissal was with prejudice because more than three years had
elapsed since Muhammad filed suit, and the statute of limitations for both the
federal and state claims in his complaint is two years. See Savory v. Lyons, 469
F.3d 667, 672 (7th Cir. 2006); see also Dolis v. Chambers, 454 F.3d 721, 723-24 (7th
Cir. 2006) (explaining that dismissal without prejudice is effectively dismissal with
prejudice if statute of limitations bars refiling).

       Muhammad argues here that the conditions in C-Wing were inhumane and
therefore the steps he took to pursue his emergency grievance were sufficient to
exhaust his administrative remedies. He says that he was not required to pursue
his grievance through both the emergency and the standard procedure even though
he did so “in good faith.” In any event, he insists, the standard grievance procedure
was unavailable to him because grievances were not being processed due to a
shortage of grievance officers.

        An inmate must exhaust all available administrative remedies before filing a
lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 126
S. Ct. 2378, 2382-83 (2006); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002). Nevertheless, we have held that an inmate who has requested that prison
officials handle a grievance on an emergency basis under Title 20, § 504.840, of the
Illinois Administrative Code is not required to resubmit that grievance through the
standard procedure after the warden—the official responsible for acting on
emergency grievances—concludes that the grieved condition is not an emergency.
Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005). And prison administrators
may not frustrate an inmate’s efforts to comply with the administrative review
process by imposing hurdles that are not part of the established grievance
procedure. See Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).


      The district court granted summary judgment for three of the defendants on
      2

March 29, 2005, and for the other three defendants on March 29, 2006. The court
employed similar reasoning in each decision.
No. 06-2304                                                                   Page 4

       A genuine issue of material fact exists concerning whether prison officials
thwarted Muhammad’s efforts to exhaust his administrative remedies when they
did not respond to his emergency grievance. Prison officials may not “exploit the
exhaustion requirement through indefinite delay in responding to grievances.”
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (internal quotation marks
and citation omitted). In this case it is undisputed that Warden McAdory never
responded to Muhammad’s emergency grievance. McAdory did not address the
grievance on the merits or advise Muhammad that he did not deem expedited
handling necessary. Moreover, as far as the record shows, McAdory never passed
the emergency grievance on to a grievance officer for routine action. The
defendants are left to argue, then, that it was up to Muhammad to pursue his
grievance through the standard grievance procedure when he did not receive a
response from McAdory.

        The defendants, however, offered no evidence to support their position that
Muhammad was obliged to refile his emergency grievance through the standard
grievance procedure, and they fail to explain how their position can be reconciled
with § 504.840 and the reading we gave that provision in Thornton. See Dale v.
Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (explaining that failure to exhaust is an
affirmative defense that defendants must plead and prove). The defendants insist
that the standard grievance procedure remained available to Muhammad, as
evidenced by his admission that he gave a copy of his emergency grievance to a
grievance officer on January 18, and thus, the defendants contend, Muhammad was
required to wait two months from that time before filing suit. See Ill. Admin. Code.
tit. 20, § 504.830(d). But the defendants produced no evidence that the grievance
officer understood Muhammad’s January 18 submission to be a newly initiated
grievance that required the officer’s action rather than, as Muhammad says, a copy
of the emergency grievance he was trying to prod Warden McAdory to address. The
defendants have never cited any section of the administrative code or produced any
evidence that a policy in force at Menard required Muhammad to pursue his
grievance through both the emergency and standard procedures as a prerequisite
for exhaustion. Moreover, even if Muhammad’s act of giving a copy of his
emergency grievance to a grievance officer somehow imposed a duty on him to
pursue his grievance through the standard procedure (and we do not suggest that it
did), see Thornton, 428 F.3d at 694, the record contains no evidence that the
grievance officer ever responded to the grievance, see Dole v. Chandler, 438 F.3d
804, 811-12 (7th Cir. 2006) (explaining that inmate’s administrative remedy was
unavailable where prison officials mishandled inmate’s grievance). Indeed, in the
district court the defendants did not even acknowledge whether a grievance officer
ever received a copy of Muhammad’s emergency grievance.

       The defendants also contend that Muhammad “was specifically instructed to
follow the regular grievance procedure.” This contention, however,
No. 06-2304                                                                   Page 5

mischaracterizes the explicit instruction he received from the Administrative
Review Board. The Board advised Muhammad to follow the regular grievance
procedure “if [the warden] denies emergency.” The warden, though, never
responded to Muhammad’s emergency grievance, so the condition precedent to
using the regular procedure never came to pass. The Board expected Warden
McAdory to act, and he did not. This is exactly the type of situation that renders an
inmate’s administrative remedy unavailable. See id. (holding that Illinois prisoner
exhausted available remedies where he properly submitted grievance and alerted
Administrative Review Board that grievance had been submitted, but Board failed
to instruct him on how to proceed after grievance was lost); Brengettcy v. Horton,
423 F.3d 674, 682 (7th Cir. 2005) (holding that prisoner exhausted available
remedies where he filed several unanswered grievances, was told that “sometimes
the grievances get torn up,” and regulations did not instruct him on how to proceed
when grievances remained unanswered).

        It follows that disputed issues of fact remain concerning whether Muhammad
exhausted his administrative remedies as to his federal claim that Warden
McAdory and the other administrators maintained C-Wing in a condition that
violated the Eighth Amendment; summary judgment for the prison administrators
was not appropriate on this affirmative defense. On the other hand, the present
record is sufficient for us to conclude that Muhammad did not exhaust his federal
claim against Dr. Doughty because his grievance cannot be construed to object to
the medical treatment he received during his confinement in C-Wing. Accordingly,
the dismissal of Muhammad’s federal claim against Dr. Doughty is AFFIRMED, but
in all other respects the judgment of the district court is VACATED, and the case is
REMANDED for further proceedings on Muhammad’s federal claim against the
prison administrators as well as his supplemental pendent state claim against all
defendants.
