                        NONPRECEDENTIAL DISPOSITION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 June 29, 2018*
                                 Decided June 29, 2018

                                         Before

                       DIANE P. WOOD, Chief Judge

                       MICHAEL S. KANNE, Circuit Judge

                       MICHAEL Y. SCUDDER, Circuit Judge

No. 17-2573

CHRISTOPHER JONES,                                Appeal from the United States District
     Plaintiff-Appellant,                         Court for the Western District of Wisconsin.

      v.                                          No. 15-cv-831-bbc

ANDREA NELSON, et al.,                            Barbara B. Crabb,
    Defendants-Appellees.                         Judge.


                                      ORDER

       Christopher Jones, a prisoner in Wisconsin, sued prison correctional officers for
violating his Eighth Amendment rights when they failed to respond adequately to his
requests for medical attention while he was in an observation cell. The district court
entered summary judgment for the defendants on the ground that Jones did not
exhaust his administrative remedies before filing suit, as required by the Prison

      *
         We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17-2573                                                                            Page 2

Litigation Reform Act, see 42 U.S.C. § 1997e(a). Because the undisputed evidence shows
that Jones failed to appeal the rejection of his initial grievance, we affirm.

       We review the facts in the light most favorable to Jones, the nonmovant.
See Tradesman Int’l, Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013). On July 7, 2010, Jones
was transferred to an observation cell after he reported feeling depressed and suicidal.
Over the next four days, prison staff ignored his requests for medical attention—
regarding complaints of blurred vision, dizziness, fatigue, leg cramps, numbness, and
pain. On July 11, staff found Jones comatose in his cell covered in his own vomit. He
was rushed to the hospital, where he remained in a coma for several days.

       Jones was discharged from the hospital on July 20, and upon returning to the
prison was assigned an inmate assistant to help him cope with his continuing physical
limitations. On August 3, Jones asked his assistant to retrieve an inmate complaint form
so that he could prepare a grievance about the prison staff’s disregard of his condition
during the four days he spent in the observation cell. The assistant made an inquiry and
reported to Jones that a correctional officer said “not to worry about that right now”
and that Jones could file the complaint after he was fully recovered.

       On September 27, Jones submitted a grievance over the prison staff’s failure to
respond to his requests for medical attention while he was in the observation cell.
The complaint examiner rejected the grievance as untimely, explaining that it related to
events “beyond 14 calendar days from the date of the occurrence giving rise to the
complaint.” See WIS. ADMIN. CODE § DOC 310.11(5)(d) (2010). The rejection letter
advised Jones that he could appeal “within 10 days to the appropriate reviewing
authority” and described the process for doing so. Jones did not appeal.

        Five years later, in September 2015, Jones filed another grievance regarding the
events of July 2010, and he attributed his delay to advice from prison staff to “let the
matter go” and difficulties in obtaining his hospitalization records. This grievance too
was rejected as untimely, and the complaint examiner found no good cause to extend
the filing deadline. Jones appealed this rejection to the reviewing authority, which
upheld the decision.

       Jones then sued prison staff for deliberate indifference. The defendants moved
for summary judgment on exhaustion grounds. Jones responded that prison officials
prevented him from exhausting administrative remedies by denying him access to
grievance forms, and in any event he could not use the grievance process because of his
physical incapacitation (until July 20, 2010), his illiteracy, and his mental-health-related
No. 17-2573                                                                          Page 3

functional impairments, specifically schizoaffective disorder. He also alleged that he
was confined at an inpatient mental health treatment facility from April 2011 to October
2013, and afterwards had difficulty accessing his hospital records from July 2010.

       The district court granted the defendants’ motion for summary judgment,
concluding that Jones presented no admissible evidence that any prison official
prevented him from filing a grievance. Jones, the court explained, offered only vague,
“thirdhand testimony” that prison staff told his inmate assistant “not to worry” about
the deadline for filing a grievance, and that he could take his time waiting to file one.
Even if this account were true, the court continued, Jones still could not explain why he
did not file his grievance until September 27 (given that he was able to file an unrelated
grievance on September 7), or why he failed to appeal the rejection of that September 27
grievance. The court also considered Jones’s argument that he was unable to file a
grievance because of his mental illness and illiteracy, but determined that his ability to
file numerous grievances over the past years shows that the prison’s grievance process
generally was available to him; he simply failed to follow the requisite administrative
procedures with respect to bringing his claim.

       Jones later sought relief from judgment under Federal Rule of Civil Procedure
Rule 60(b)(2) on the basis that he had newly discovered evidence proving that the
grievance process was unavailable to him. Jones points to an affidavit from his recently
located inmate assistant, corroborating his contention that an officer told the assistant
on August 3, 2010 that Jones need not worry about the late timing of any grievance.
The district court denied the motion; even if Jones had good cause to wait until
September 27 to file his grievance, he did not take advantage of the prison’s procedures
for reconsidering untimely filings because he made no arguments about good cause to
the complaint examiner nor did he appeal the rejection of his grievance.

      On appeal, Jones argues that summary judgment was premature because
disputed facts remain over his ability to exhaust his administrative remedies.
He highlights the obstacles to filing that he faced in the summer of 2010 after he was
physically incapacitated for 14 days and prison staff misled his inmate assistant about
the appropriate timeline for filing a timely grievance.

       A grievance process can be rendered unavailable to an inmate on account of
physical incapacitation, see Hurst v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011), or
misrepresentation from prison officials about the requirements for timely filing a
grievance, Ross v. Blake, 136 S. Ct. 1850, 1860 (2016), but these exceptions do not apply
here. Even if Jones’s initial physical incapacitation were “good cause” for his
No. 17-2573                                                                          Page 4

untimeliness, he still had to file the grievance “as soon as it was reasonably possible for
him to do so.” Hurst, 634 F.3d at 412; Hernandez v. Dart, 814 F.3d 836, 843 (7th Cir. 2016).
But not until September 27, 2010 did Jones file any grievance over the lack of medical
treatment he received more than ten weeks earlier. Further, when this grievance was
rejected as untimely, he failed to appeal to the reviewing authority. See WIS. ADMIN.
CODE § 310.11(6). And even if we accept Jones’s assertion that a prison official refused
on August 3 to give his inmate assistant a grievance form, Jones similarly offers no
justification for waiting until September 27 to file his grievance or for not appealing the
denial of that grievance. And to the extent that Jones believes that his mental limitations
prevented him from participating in the grievance process, he does not dispute the
district court’s finding that he had managed to file numerous grievances in recent years
(according to his Inmate Complaint History Report, he submitted 23 grievances
between May 2008 and May 2016, including six alone between his 2010 hospitalization
and his 2015 grievance about that incident).

       Finally, Jones has moved on appeal to supplement the record with the inmate
assistant’s affidavit that the district judge refused to consider when she denied his Rule
60(b) motion. But Federal Rule of Appellate Procedure 10(e), which governs correction
or modification of the record on appeal, does not allow us to admit on appeal any
document that was not part of the record in the district court. See FED. R. APP. P. 10(e);
Midwest Fence Corp. v. United States Dep't of Transp., 840 F.3d 932, 946 (7th Cir. 2016).
Jones’s motion to supplement the record is therefore DENIED.

                                                                                AFFIRMED
