                        NONPRECEDENTIAL DISPOSITION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 23, 2016 *
                                 Decided June 24, 2016

                                          Before

                       FRANK H. EASTERBROOK, Circuit Judge

                       ILANA DIAMOND ROVNER, Circuit Judge

                       DIANE S. SYKES, Circuit Judge

No. 15-2300

PAUL S. MORROW,                                  Appeal from the United States District
     Plaintiff-Appellant,                        Court for the Southern District of Illinois.

       v.                                        No. 13-CV-331-NJR-DGW

AARON HOOD, et al.,                              Nancy J. Rosenstengel,
    Defendants-Appellees.                        Judge.

                                        ORDER

        Paul Morrow, an Illinois prisoner, claims in this suit under 42 U.S.C. § 1983 that
the defendants, all of them guards or medical staff at Menard Correctional Center,
violated the Eighth Amendment by assaulting him and then refusing medical treatment
for his injuries. After an evidentiary hearing, see Pavey v. Conley, 544 F.3d 739, 742 (7th
Cir. 2008), the district court found that Morrow had not exhausted his administrative
remedies as to any of the defendants and dismissed the case, see 42 U.S.C. § 1997e(a).
Because that finding is not clearly erroneous, we affirm the dismissal.




       *
        After examining 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)(C).
No. 15-2300                                                                            Page 2

       The Prison Litigation and Reform Act, see id., requires that a prisoner exhaust
available administrative remedies before suing to challenge prison conditions, see Ross v.
Blake, No. 15-339, 2016 WL 3128839, at *3 (U.S. June 6, 2016); Wagoner v. Lemmon, 778 F.3d
586, 588 (7th Cir. 2015). In Illinois a prisoner must first attempt to resolve issues by
talking to his counselor, and if an informal resolution cannot be reached, then the
prisoner must submit a formal written grievance to a grievance officer within 60 days of
the incident. ILL. ADMIN. CODE tit. 20, § 504.810(a); see Beahringer v. Page, 789 N.E.2d 1216,
1225 (Ill. 2003). After reviewing the grievance, the officer will submit a written
recommendation to the warden, who issues a final decision. ILL. ADMIN. CODE tit. 20,
§ 504.830(d); see Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014). If the prisoner is
dissatisfied with the warden’s decision, he may within 30 days appeal to the statewide
Administrative Review Board, which will submit a written report of its findings and
recommendation to the Director of the Illinois Department of Corrections to make a final
determination. ILL. ADMIN. CODE tit. 20, § 504.850; see Roberts, 745 F.3d at 235.

       Morrow alleges that he was assaulted on October 9, 2012. In his complaint he says
that on November 14, 2012, within the 60-day window, he wrote a formal grievance and
left two copies on the bars of his cell for pickup. Morrow attached to his complaint his
cellmate’s declaration attesting that on November 14 he watched Morrow write an
original and two copies of his grievance and then “mail” two of the three, keeping one
for himself. But, Morrow says, he never received a response to the November 14
grievance, and when he inquired about it in January 2013, he was told that no grievance
had been received. According to his complaint, Morrow then resubmitted the
November 14 grievance, first on an “emergency” basis to the warden, and then to his
counselor after the warden had decided that the grievance was not an emergency and
told Morrow to submit it through normal channels. Morrow alleged, and the exhibits to
his complaint confirm, that his counselor received the grievance on January 29 and
returned it on February 2 with a written explanation that the grievance had been
submitted “out of timeframe.” More than a month later, on March 10, 2013, Morrow sent
another copy of the grievance to the Administrative Review Board, which refused to
address the merits because, the Board explained, the grievance was “[n]ot submitted in
the timeframe outlined in Department Rule 504.”

        The defendants moved for summary judgment on the sole ground that Morrow
had not submitted a timely grievance and thus failed to exhaust his administrative
remedies. The defendants acknowledged receiving a grievance dated November 14, 2012,
but, they asserted, that grievance was not received until January 2013, more than 60 days
after the alleged assault. The defendants pointed to Morrow’s handwriting in the margin
of the grievance saying “Sent to GO 1-14-13” and to a “received” stamp from the
No. 15-2300                                                                           Page 3

grievance office dated January 16, 2013. The defendants also submitted the prison
grievance log with only one entry in January 2013 corresponding to Morrow’s grievance
dated November 14. Additionally, the defendants argued that Morrow’s administrative
appeal not only was untimely but also defective because he did not attach a
recommendation from a grievance officer or a decision from the warden when he
submitted the grievance to the Administrative Review Board.

        A magistrate judge conducted the Pavey hearing and, after hearing testimony
from Morrow, concluded that his grievance, although dated November 14, 2012, was not
submitted for the first time until January 2013, more than 60 days after the alleged
assault. The magistrate judge reasoned that Morrow was not credible because his
testimony that no one had responded to his grievance before he sent it to the Board was
impeached by a copy he appended to his complaint, which confirms that his counselor
had given back the grievance marked in writing as late. Morrow explained that he had
forgotten about receiving a written response from his counselor, but the magistrate
judge thought this explanation disingenuous “when viewed in light of his meticulous
efforts to document the progression of this grievance through the administrative
channels at Menard.” The magistrate judge added that no other evidence corroborates
Morrow’s “self-serving” annotations on the grievance or the affidavit from his cellmate
(who did not testify). Having found Morrow not credible, the magistrate judge
disbelieved his version of events and found that he had not exhausted his administrative
remedies. The district court, over Morrow’s objections, agreed with the magistrate
judge’s report and recommendation and dismissed the lawsuit.

       On appeal Morrow still maintains that he submitted his grievance on time in
November 2012, but he does not challenge the magistrate judge’s adverse credibility
assessment. We review factual findings and credibility determinations for clear error,
FED. R. CIV. P. 52(a)(6); Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011), and we see no
reason to disturb the magistrate judge’s credibility finding, see Anderson v. City of
Bessemer City, 470 U.S. 564, 575 (1985) (explaining that credibility findings are given great
deference); United States v. Norris, 640 F.3d 295, 297 n.1 (7th Cir. 2011) (explaining that
credibility determination will be upheld unless “completely without foundation”
(internal citation omitted)). The magistrate judge—and the district court by
adoption—was permitted to disbelieve Morrow’s testimony that he submitted the
grievance within the required 60 days. Thus, the district court did not err in dismissing
the case for failure to exhaust administrative remedies.
                                                                                  AFFIRMED.
