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White v. Bukowski

United States Court of Appeals, Seventh Circuit

September 1, 2015

WENONA WHITE, Plaintiff-Appellant,
v.
TIMOTHY F. BUKOWSKI, et al., Defendants-Appellees

Argued August 4, 2015.

Appeal from the United States District Court for the Central District of Illinois. No. 2:11-cv-02221-CSB-DGB -- Colin S. Bruce, Judge.

For Wenona White, Plaintiff - Appellant: Sarah Thomas Kovoor, Attorney, Ford, Gold, Kovoor & Simon, Ltd., Warren, OH.

For Timothy Bukowski, Heather Gill, Timothy Menard, Clyde W. Dayhoff, Defendants - Appellees: Michael W. Condon, Attorney, Jason W. Rose, Attorney, Hervas, Condon & Bersani, Itasca, IL.

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

OPINION

Page 393

Posner, Circuit Judge.

The plaintiff in this suit under 42 U.S.C. § 1983 accuses members of the Kankakee County Sheriff's Office of deliberate indifference to her need for proper prenatal care and prompt transport to a hospital for delivery of her baby while she was in their temporary custody at an Illinois county jail on suspicion of conspiring to commit bank fraud (a federal offense). The district judge dismissed the suit on the ground that the plaintiff had failed to exhaust her available administrative remedies (that is, remedies available within the correctional system itself) as required by 42 U.S.C. § 1997e(a).

When she arrived at the jail she was almost eight months pregnant. Eleven days later she experienced birth pangs and was taken by ambulance to a hospital, where she gave birth, to a girl, that

Page 394

day. Her complaint charges that the child suffered serious birth defects because of oxygen deprivation attributable to a displacement of the placenta from its proper location in the uterus. She was returned to the jail several days after the birth but remained there for only four days before being transferred to another jail. Two months later, having been shifted among several places of detention, she pleaded guilty to the conspiracy charge, for which she was later sentenced to 50 months in prison. She filed this suit two years after the events of which she complains.

She alleges that the defendants failed to take a proper medical history (which she claims would have revealed complications in the birth of her most recent child) when she was first placed in the jail; failed to respond to several requests by her for medical assistance (though the record contains only one request, a complaint about labor pains to which a member of the medical staff responded, and also reveals that a physician's assistant at the jail wanted to check up on her previously but she refused because she wasn't feeling well and it was too early in the morning); and, most important, failed to react quickly enough when she went into labor and needed to be rushed to the hospital.

Our opinion in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), encourages district courts to determine, before scheduling discovery relating to the merits of a prisoner's civil rights suit, whether administrative remedies have been exhausted. The plaintiff points out that the defendants failed to press the issue of exhaustion until after a year and a half of discovery relating to the merits. She argues that their delay forfeits their defense of failure to exhaust, and also that there were no administrative remedies available to her. As the defendants raised the defense of failure to exhaust in their answer to the plaintiff's complaint and as there is no indication that their delay in pursuing that defense harmed her, we'll consider only her claim that she had no administrative remedies.

The purpose of a prisoner's filing a grievance is to obtain a change of some sort--to obtain better medical care, for example. To be motivated to file a grievance the prisoner has to be aware of the need for action by the prison or jail. Suppose he becomes ill because of unsanitary conditions in his cell, reports his illness to a guard, is promptly whisked away to the prison infirmary, is treated competently there, and forthwith recovers. ...


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