SEVENTH CIRCUIT REVIEW

Volume 1, Issue 1

Spring 2006

CIVIL RIGHTS OF PRISONERS: THE SEVENTH
CIRCUIT AND EXHAUSTION OF REMEDIES
UNDER THE PRISON LITIGATION REFORM ACT

DEVIN MCCOMB∗
CITE AS: DEVIN MCCOMB, Civil Rights of Prisoners: The Seventh Circuit and
Exhaustion of Remedies Under the Prison Litigation Reform Act, 1 SEVENTH
CIRCUIT REV. 46 (2006), at http://www.kentlaw.edu/7cr/v1-1/mccomb.pdf.

INTRODUCTION
Recently, the images of Iraqi citizens imprisoned and tortured at
Abu Ghraib enflamed the hearts and minds of many Americans who
believed that our shared values forbid such treatment.1 But within our
own borders, we have turned a blind eye to the often severe and
inhumane conditions and treatment of American citizens incarcerated
in federal and state prisons.2 One criminal judge in the Circuit Court
of Cook County recently described a life spent in prison as "a kind of

∗ J.D. candidate, May 2006, Chicago-Kent College of Law, Illinois Institute of
Technology.
1
See Larry Seaquist, Op-Ed., U.S. Military's Bad-Guy Dragnet — A Terrible
Way to Win a War, CHRISTIAN SCIENCE MONITOR, May 5, 2004, available at
http://www.csmonitor.com/2004/0505/p09s02-coop.html. See also David Dishneau,
Abu Ghraib Dog Handler Sentenced to Six Months for Tormenting Prisoners, CHI.
SUN-TIMES, March 23, 2006, available at:
http://www.suntimes.com/output/news/cst-nws-abu23.html.
2
Aside from the examples provided by the cases discussed below see Mathie v.
Fries, 121 F.3d 808, 810-11 (2nd Cir. 1997) (inmate's had to be amputated due to
medical neglect) and Williams v. U.S., 747 F. Supp. 967, 971-82 (S.D.N.Y. 1990)
(male inmate sexually assaulted by male prison guard).

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slow, torturous death."3 Though Congress created a statute to allow
citizens to sue individuals acting under color of state law for violating
their constitutional rights, this protection is not equally available to all
citizens.4 In fact, a large and steadily increasing group of individuals
in American society, arguably those who have had their rights most
severely curtailed, is not allowed to utilize the broad power of section
1983 as freely as other citizens.5
This unequal treatment was fostered through the Prison Litigation
Reform Act of 1995 ("PLRA"), a federal statute enacted in response to
the large number of prisoner lawsuits alleging civil rights violations.6
The PLRA, in contrast to previous congressional action, requires that
inmates exhaust all administrative remedies before bringing suit
alleging a civil rights violation under any federal statute.7 By placing
an additional hurdle in front of prisoners who claim violations of their
civil rights, Congress has shifted the balance away from protection of
constitutional rights in favor of judicial economy.8 This additional
3

Stefano Esposito, Killer Gets Life Despite Wishes of Girl's Mom, CHI. SUNTIMES, April 11, 2006 (quoting Judge Stanley Sacks) available at
http://www.chicagosuntimes.com/output/news/cst-nws-durr11.html.
4
42 U.S.C. § 1983 (2000). This section reads: “Every person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. ”See generally SHELDON H. NAHMOD, CIVIL RIGHTS AND
CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2004) (discussing
what Section 1983 is and how it provides civil rights protection against state
officials).
5
See Porter v. Nussle, 534 U.S. 516, 520 (2002) (holding that prison inmates
must exhaust all available administrative remedies before instituting a Section 1983
suit).
6
141 CONG. REC. S726 (daily ed. May 23, 1994) (Statement of Sen. Dole)
(describing the detrimental effects of frivolous litigation on justice and court
systems).
7
42 U.S.C. § 1997 (1996).
8
David M. Adlerstein, In Need of Correction: The "Iron Triangle" of the
Prison Litigation Reform Act, 101 COLUM. L. REV. 1681, 1683 (2001).

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requirement has immediately and drastically affected the fundamental
rights of prisoners by preventing them from seeking judicial remedies
for many possibly valid claims.9 Further, this exhaustion requirement
must be viewed in the context of the modern penal system, the
complex and often labyrinthine regulations that govern prison life, the
broad range of rights that are affected and the harsh conditions in
which these prisoners live out their lives.
This Article examines the history of prisoner civil rights litigation,
focusing on different congressional attempts to alleviate the burden on
crowded federal dockets, while preserving the rights of prisoners.
This is done by first addressing the predecessor of the PLRA, the Civil
Rights of Institutionalized Persons Act ("CRIPA")10, and then
discussing the purposes and consequences of the PLRA. This is
followed by a discussion of several recent cases in which the Seventh
Circuit has considered the scope of the PLRA's exhaustion
requirement in prisoner civil rights actions. These cases reveal two
trends in recent Seventh Circuit jurisprudence illustrating how the
court has tried to strike a balance between the legitimate goals of the
PLRA and the constitutional rights of prisoners. First, the Seventh
Circuit will carefully consider the administrative remedies at issue to
determine whether or not they are “available.” Second, the court
reasonably examines the actions of inmates to determine whether they
have exhausted all their administrative remedies. Finally, this Note
will address the future landscape of prisoner civil rights litigation, both
in the Seventh Circuit and throughout the country.
BACKGROUND
While the number of individuals currently incarcerated in
American prisons has steadily risen, numbering now over 1.5

9

Jennifer Winslow, The Prison Litigation Reform Act's Physical Injury
Requirement Bars Meritorious Lawsuits: Was It Meant To?, 49 UCLA L. REV.
1655, 1668 (2002).
10
42 U.S.C. §§1997-1997j (1980).

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million,11 the goal of correctional facilities has gradually shifted from
rehabilitation to simple punishment.12 Within the states governed by
the Seventh Circuit, over 91,000 men and women are incarcerated in
either federal or state correctional facilities.13 Though prisons are not
meant to be pleasant places, the Supreme Court has repeatedly
acknowledged, "prison walls do not form a barrier separating prison
inmates from the protections of the Constitution."14 There are certain
rights that inmates must forfeit as a consequence of their incarceration,
but they are understandably protective of the few civil rights that they
retain while incarcerated.15 This defensive and protective attitude by
prisoners is exacerbated by the imbalance of power between the
individual inmate and their alleged aggressors, the state or federal
government supervising the facility.16 The Supreme Court noted this
difficulty in Preiser v. Rodriguez, stating that “[w]hat for a private
citizen would be a dispute with his landlord, with his employer, with
his tailor, with his neighbor, or with his banker becomes, for the
prisoner, a dispute with the State.”17 Given the involuntary nature of
their incarceration and the harsh conditions present in the penal
system, it is not surprising that prisoners throughout the country often
file lawsuits alleging violations of their constitutional rights under
section 1983.18
After the Supreme Court acknowledged that inmates could bring
suit under section 1983, the number of lawsuits skyrocketed from

11

Allen J. Beck, U.S. Dep't of Justice, Prisoners in 2004, at 3. (2005) available
at http://www.ojp.gov/bjs/pub/pdf/p04.pdf.
12
Adlerstein, supra note 8, at n.5.
13
Beck, supra note 11, at 3.
14
Turner v. Safley, 482 US 78, 84 (1987).
15
Adlerstein, supra note 8, at 1682.
16
Adlerstein, supra note 8, at 1683.
17
411 U.S. 475, 492 (1973).
18
Aside from section 1983, prisoners may bring: habeas corpus claims, Bivens
actions, a Federal Tort Claims Act against the US, or an Administrative Procedures
Act claim against a specific BOP guideline or procedure.

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6,600 in 1975 to 68,000 in 1996.19 This flood of litigation threatened
to overwhelm already crowded federal court dockets.20 These law
suits addressed a broad range of interests, some of which were
constitutionally recognizable and some which were not, including
conditions of confinement, food, privacy, heat, mail, hair length, work
details, segregation cells, religious practice and rehabilitation.21 As the
number of inmate suits in federal court continued to rise, the increased
presence of federal judicial review troubled many prison
administrators, as well as state and local officials.22 Inmates were
successful in achieving many meaningful reforms including greater
access to legal materials23 and medical treatment.24, though there were
certainly examples of frivolous lawsuits and inmates abusing the
system.25 Eventually in 1980, the steadily increasing number of
19

See Jamie Ayers, To Plead or Not to Plead: Does the Prison Litigation
Reform Act's Exhaustion Requirement Establish a Pleading Requirement or an
Affirmative Defense?, 39 U.C. DAVIS L. REV. 247, 248 (2005) (stating that the
number of prisoner complaints rose from 6,600 in 1975 to more than 39,000 in
1994); Danielle M. McGill, To Exhaust or Not to Exhaust?: The Prisoner Litigation
Reform Act Requires Prisoners to Exhaust All Administrative Remedies Before
Filing Excessive Force Claims in Federal Court, 50 CLEV. ST. L. REV. 129, 130
(2003) (discussing that from 1980 to 1996, petitions filed by federal and state
prisoners almost tripled, from 23,230 to 68,235).
20
141 CONG. REC. S726 (daily ed. May 23, 1994) (Remarks of Sen. Dole)
(describing the detrimental effects of frivolous litigation on justice and court
systems).
21
Donald P. Lay, Exhaustion of Grievance Procedures for State Prisoners
under Section 1997(e) of the Civil Rights Act, 71 IOWA L. REV. 935, 936 n. 4 (1986).
22
Christopher E. Smith, The Governance of Corrections: Implications of the
Changing Interface of Courts and Corrections, 2 CRIM. JUST. 113, 126 (2000)
(“States could no longer run prisons and jails according to their own values and for
their own convenience.”).
23
Bounds v. Smith, 430 U.S. 817, 828 (1977) (mandating that prison officials
provide inmates with access to legal materials).
24
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (obligating prison officials to
provide prisoners with seriously needed medical care under the Eighth Amendment).
25
Jeffrey R. Maahs & Rolando V. Del Carmen, Curtailing Frivolous Section
1983 Inmate Litigation: Laws, Practices, and Proposals, FED. PROBATION, Dec.
1995 at 53, 54 (estimating, “in one decade, [a single inmate] filed between 600 and

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prisoner lawsuits and the resulting burden on crowded federal dockets,
as well as congressional concerns about the constitutional rights of
inmates, spurred federal legislative action.26
A. The Civil Rights of Institutionalized Persons Act
In an effort to stem the tide of prisoner section 1983 litigation and
strike a balance between deference to state officials and the rights of
the institutionalized, Congress enacted the Civil Rights of
Institutionalized Persons Act (“CRIPA”) in 1980.27 Prior to 1980,
inmates who wanted to sue in court were not required to exhaust their
administrative remedies.28 CRIPA applied only to section 1983
actions and contained the first exhaustion requirement for prisoner
lawsuits.29 CRIPA did not require mandatory exhaustion, however,
and gave judges the power to require plaintiffs to exhaust
administrative remedies when "appropriate and in the interests of
justice."30 A judge could continue a case for up to 180 days if he

700 suits in federal and state courts, the vast majority of which were repetitive,
frivolous, and filed in forma pauperis.”).
26
See Lynn S. Branham, The Prison Litigation Reform Act's Enigmatic
Exhaustion Requirement: What It Means and What Congress, Courts and
Correctional Officials Can Learn from It, 86 CORNELL L. REV. 483, 493 (2001).
27
42 U.S.C. §§1997-1997j (1994 and Supp. III 1997). The question of
whether the number of lawsuits increased is an interesting one: in 1980 there were
12,397 increasing 227% to 40,569 in 1995. But during the same time-span, the
number of inmates increased 237%, thus the per capita rate of suits fell. Adam
Slutsky, Totally Exhausted: Why a Strict Interpretation of 42 U.S.C. § 1997E(A)
Unduly Burdens Courts and Prisoners, 73 Fordham L. Rev. 2289, 2294 (2005).
28
See Winslow, supra note 9, at 1670. (stating that in 1964, in Cooper v. Pate,
the Supreme Court held that the Civil Rights Act of 1871 protects the fundamental
rights of inmates. 378 U.S. 546 (1964). After the Cooper decision, prisoners began
to sue for civil rights violations at an astonishing rate).
29
Civil Rights of Institutionalized Persons Act, 42 US.C. § 1997(e) (1996).
30
42 US.C. § 1997(e)(a) (1996). See also McCarthy v. Madigan, 503 U.S.
140, 146 (1992)(holding that CRIPA's exhaustion requirement was not mandatory).

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believed that the suit could be resolved using administrative
remedies.31
This discretionary exhaustion requirement offered prison officials
the ability to resolve violations in administrative proceedings without
involving the courts.32 The exhaustion provision of CRIPA further
limited its own application by mandating that exhaustion could only be
required where the administrative remedies had been certified by the
Attorney General as meeting certain minimum standards.33 These
standards required that inmates be afforded an advisory role in
creating and applying a grievance procedure.34 The Supreme Court
created a balancing test for determining when to require exhaustion
under CRIPA, "federal courts must balance the interest of the
individual in retaining prompt access to a federal judicial forum
against countervailing institutional interests favoring exhaustion."35
Beyond the exhaustion requirement, CRIPA also gave the
Attorney General of the United States authority to sue state and local
officials responsible for facilities exhibiting a pattern or practice of
flagrant or egregious violations of constitutional rights.36 CRIPA also
set forth guidelines for prison administrative procedures and required
that states have their procedure certified by the Attorney General in
order to require exhaustion of remedies.37 Even with this discretionary
exhaustion requirement, CRIPA allowed inmates to participate in the
formation of the grievance procedures and many states refrained from
having their procedures certified because of this requirement.38 The
states’ refusal to adopt these provisions and alter their grievance
procedures to accommodate inmates’ civil rights had the opposite of
31

42 US.C. (e)(a)(1) (1996).
Branham, supra note 26, at 494-95.
33
Civil Rights of Institutionalized Persons Act (e)(a)(2).
34
Minimum Standards for Inmate Grievance Procedures, 28 C.F.R. § 40.2.
35
McCarthy, 503 U.S. at 146.
36
42 U.S.C. § 1997(a) (1996).
37
42 U.S.C. §1997(e)(a)(2) (1996).
38
28 C.F.R. § 40.2 See also Lay, supra note 21 (discussing states’ rejection of
the advisory role of inmates).
32

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the intended effect and actually increased the number of prisoner suits
filed and contributed to the burden on federal dockets as well as
increased costs to prisons caused by defending suits.39 In response,
many legal scholars, politicians and judges supported a change in the
system that would reduce the number of frivolous lawsuits.40
B. The Prison Litigation Reform Act of 1995
The civil rights of inmates were again the subject of
Congressional legislation in 1996 with the passage of the aptly named
amendment to CRIPA, the Prisoner Litigation Reform Act
(“PLRA”).41 Though the legislative history is minimal, the PLRA was
intended to stem the tide of purportedly frivolous prisoner lawsuits and
reduce judicial oversight of correctional facilities.42 The PLRA
represented a major change in prison litigation creating barriers such
as requiring physical injury in tort claims, forcing even in forma
pauperis prisoners to pay filing fees, and creating limits on attorney's
fees.43 Most importantly, however, the PLRA drastically modified the
CRIPA’s exhaustion of administrative remedies provision.44 Under the
PLRA, inmates are required to exhaust all administrative remedies
available, mandating, “No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal
39

See 142 CONG. REC. S10, 576 (daily ed. Sept. 16, 1996) (statement of Sen.
Abraham) (States were spending $81 million annually fighting frivolous prisoner
suits). See also, Tracy M. Sullivan, Prisoners' Seeking Monetary Relief for Civil
Rights Claims: Must They Exhaust Administrative Remedies Under § 1997(e)
Before Filing a Claim in Federal Court?, 8 WASH. U. J.L. & POL'Y 419, 421 (2002)
(As the prison population increased, lawsuits filed by prisoners nearly tripled
between 1980 and 1996).
40
See Slutsky, supra note 27, at 2295 (discussing the alliance of the National
Association of Attorneys General and the National District Attorneys Association.)
41
42 U.S.C. § 1997 (amended 1996).
42
141 CONG. REC. S14413-14 (daily ed. September 27, 1995) (statement of
Sen. Dole, who sponsored and introduced the PLRA).
43
See Winslow, supra note 28, at 1660 and Adlerstein, supra note 9, n. 29.
44
See Branham, supra note 26, at 494-96.

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Law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.”45
The PLRA's exhaustion requirement was more restrictive and
differed from CRIPA in five important ways: First, the PLRA applies
to all state, local and federal prisoners in contrast to CRIPA, which did
not apply to federal prisoners or juveniles.46 Second, the exhaustion
requirement was broadened to include pretrial detainees as well as
convicted prisoners.47 Third, the PLRA requires dismissal of cases in
which administrative remedies were not exhausted.48 Before the
PLRA, courts continued or stayed cases until prisoners had exhausted
administrative remedies.49 The PLRA lacks the discretionary
application of the exhaustion requirement and removes the ability of
judges to determine when requiring exhaustion is appropriate. Finally,
before a court could require a prisoner to use a prison's administrative
grievance process, the process had to met certain requirements.50 The
PLRA removed the requirements that exhaustion of administrative
remedies must be "appropriate and in the interests of justice" or that
the administrative remedies be "plain, speedy and effective."51 The
PLRA also removed the five statutory standards for administrative
remedies and required only that the remedies be "available."52
45

42 U.S.C. § 1997(e)(a) (1996).
42 U.S.C. § 1997(e)(h) (1996) (defining a "prisoner" subject to the
exhaustion requirement as "any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole, probation, pretrial release or
diversionary program.").
47
42 U.S.C. § 1997(e)(h) (1996).
48
42 U.S.C. § 1997(e)(a) (1996).
49
42 U.S.C. § 1997(e)(a)(1) (1996).
50
42 U.S,C. §1997(e)(a)-(b) (1996).
51
42 U.S.C. §1997(e)(a)-(b) (1996).
52
42 U.S.C. §1997(e)(a) (1996). Interestingly, an earlier version of the PLRA
approved by the House of Representatives retained the CRIPA requirements that
administrative remedies be "plain, speedy, and effective" and that the Attorney
General or court find that they meet certain delineated standards or are otherwise
46

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The impact of the PLRA on prisoner lawsuits for constitutional
violations was immediate and substantial.53 In the last year under
CRIPA, inmates filed 41,679 civil rights petitions.54 In 2000, four
years after the passage of the PLRA, the number of civil rights
petitions dropped to 25,504, a reduction of 39%.55 Specifically, the
more comprehensive and automatic exhaustion requirement greatly
increased the number of inmate lawsuits that were dismissed for
failure to exhaust all available administrative remedies.56 The
Supreme Court, in interpreting the new exhaustion requirement under
the PLRA, held that inmates were required to exhaust all available
administrative remedies regardless of whether the claims involved
general circumstances of incarceration or particular incidents, thus
ensuring that the PLRA will govern all prisoner lawsuits in every
state.57
THE SEVENTH CIRCUIT AND
EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Background Seventh Circuit Jurisprudence
There are two Seventh Circuit cases that help provide context for
its more recent decisions. The first is Massey v. Helman, in which the
Seventh Circuit affirmed by strictly interpreting the PLRA’s
exhaustion requirement and clarified the definition of “available”

"fair and effective." H.R. J. RES. 667, 104th Cong. (1995). These requirements were
removed without explanation from the final version of the PLRA..
53
Slutsky, supra note 27, at 2302.
54
John Scalia, U.S. Dep't of Justice, Prisoner Petitions Filed in the U.S.
District Courts, 2000, with Trends 1980-2000, at 1 (2002), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/ppfusd00.pdf.
55
See Scalia, supra note 54.
56
See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1627-28
(2003).
57
Porter v. Nussle, 534 U.S. 516, 520 (2002).

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remedies.58 Massey claimed that because his lawsuit sought money
damages and there were no administrative procedures in which he
could collect monetary compensation, there were no administrative
remedies “available” within the meaning of the PLRA.59 Relying on
the earlier decision, the court clarified that the “effectiveness” of an
administrative remedy is not the same as its “availability.”60 The court
further stated that the inquiry was whether an administrative grievance
procedure existed and not whether the inmate was satisfied with the
results.61 The Seventh Circuit affirmed the dismissal of the district
court, but acknowledged that if Massey’s hernia had healed before he
filed his lawsuit, then he could have been exempted from the
exhaustion requirement because money may have been the only
remedy to his harm.62 Massey v. Helman also established that
defendants must plead exhaustion of remedies as an affirmative
defense under rule 8(c) of the Federal Rules of Civil Procedure.63
The second case is Pozo v. McCaughtry, in which the Seventh
Circuit addressed whether an inmate’s failure to file a timely appeal
would satisfy the exhaustion of remedies requirement of the PLRA.64
First, the court pointed out that inmates must file complaints and
appeals in the manner provided by the prison’s administrative rules.65
But the court went further to say that if an inmate failed to file a

58

Massey v. Helman, 196 F.3d 727, 729 (7th. Cir. 1999). Massey had not
sought any administrative relief before bringing his suit. See also Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
(requiring prisons to provide inmates with seriously needed medical care to avoid
constituting cruel and unusual punishment under the Eighth Amendment).
59
Massey, 196 F.3d .at 733-34.
60
Id. (citing Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th
Cir. 1999).
61
Id.
62
Id. at 734.
63
Id. at 735.
64
286 F.3d 1022, 1023 (2002).
65
Id. at 1025.

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grievance within the prescribed period of time, then he would be
barred from bringing a suit regardless of the merits of his claim.66
B. The Two Trends in Recent Seventh Circuit Exhaustion Analysis
In 2005, the Seventh Circuit’s holdings have attempted to restore
the balance between the civil rights of prisoners and autonomy for
prison officials. There are two related trends that appear in much of
the courts recent jurisprudence that are helping to achieve this return
to equilibrium. First, the Seventh Circuit has carefully reviewed the
administrative procedures at issue to determine whether they are
“available” for purposes of the exhaustion requirement. As the cases
below reveal, this is not simply a rubber-stamp review and has led the
court to find exhaustion in many cases where the correctional facility
argued that there were indeed administrative remedies that were not
exhausted before the suit was filed and the district court agreed by
dismissing the suit.
The second trend involves the court’s consideration given to
inmate efforts to utilize internal prison procedures, even if these efforts
are ultimately unsuccessful in resolving the disputed conduct or
condition. Again, the court has found exhaustion where an inmate has
attempted to use grievance procedures or other “available”
administrative remedies, even where prison officials have argued that
those efforts were not sufficient. These two related trends, as
evidenced by the following cases, show how the Seventh Circuit has
attempted to balance inmate rights against the competing objectives of
administrative autonomy and avoiding crowded federal dockets.
1.

The Seventh Circuit’s Evaluation of “Available”
Administrative Remedies.

In a recent case, Turner v. Huston, the Seventh Circuit carefully
reviewed the actions of prisoner officials and determined that they had
66

Id. at 1024. The Supreme Court recently granted certiorari to decide this
issue. Woodford v. Ngo, 403 F.3d 620 (cert. granted Nov. 14, 2005).

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made administrative remedies unavailable.67 Turner had filed his suit
alleging six separate violations of his civil rights.68 First, the court
reiterated that in order to meet the exhaustion requirement, an inmate
must “file complaints and appeals in the place, and at the time, the
prison’s administrative rules require.”69 Next, in reviewing the
administrative remedies at issue, the court considered that the Illinois
Legislature had required that county jails permit inmates to submit
complaints to the jail administration in written form and, if those
complaints were not resolved at the local level, to submit a further
complaint to the Jail and Detention Standards Unit of the IDOC.70 In
order to seek review of the local decision, however, the prison rules
required that a copy of the local decision must be attached to the
complaint.71
Turner alleged that he had submitted written grievances on four of
his six claims, but never received any response from prison officials.72
As a result, he was unable to submit any appeals because he never
received any decision whatsoever and would not be able to attach it to
his appeal as required.73 Further, the court noted the prison
administrators never even explained the grievance procedures that
Turner was supposed to have used to him and failed to respond to his
grievances in any way.74 Accordingly, the court found that the
67

137 Fed. App’x 880, 882 (2005).
He alleged that issues of a magazine were unreasonably withheld, the heat
was not turned on before mid-November and inmates were denied blankets despite
the freezing temperatures, he was subject to disciplinary segregation without
adequate notice or an opportunity to rebut the charges, he was denied phone rights
while in segregation, he was denied access to a copy machine, notary public, prompt
mailing service or legal documents or an adequate law library, and he was denied an
extra sheet even though a doctor had directed he be given one to treat a skin
condition. Id. at 881.
69
Id. (citing Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).
70
See ILL. ADMIN. CODE tit. 20 § 701.160(c) (2005).
71
See ILL. ADMIN. CODE tit. 20, § 701.160(c)(2) (2005).
72
Turner, 137 Fed. App’x at 881.
73
Id. at 882.
74
Id.
68

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administrative remedies offered by the prison officials had been
rendered unavailable to Turner.75 And where administrative remedies
are unavailable, they are deemed exhausted for purposes of §
1997(e)(a).76 The Seventh Circuit upheld the dismissal of two of
Turner’s claims, however, where he had never submitted grievances at
the local level.77 Even though Turner argued that filing these
grievances would probably not have accomplished anything, the court
held that the apparent futility of filing a grievance is not an exception
to the exhaustion requirement.78
In Brengettcy v. Horton, the Seventh Circuit considered the case
of an inmate at the Cook County Department of Corrections
(“CCDOC”) who alleged violations of his constitutional rights under
Section 1983 stemming from a physical altercation with a corrections
officer.79 The defendants filed two motions to dismiss, one of which
was based on Brengettcy’s alleged failure to exhaust administrative
remedies as required by the PLRA, section 1997(e)(a).80 Initially,
Judge Bucklo, who presided over the case, dismissed both motions.81
On appeal, the Seventh Circuit first examined the circumstances
leading to the lawsuit, focusing on the confrontation with the
correctional officers, to determine what remedies were indeed

75

Id. See also Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (preventing
inmates from submitting grievances, or failing to respond to their grievances, renders
administrative remedies unavailable).
76
Id.
77
Id.
78
Turner, 882-883, citing Booth v. Churner, 532 U.S. 731, 741 n.6 (2001);
Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002); and Massey v. Wheeler, 221 F.3d
1030, 1034 (7th Cir. 2000).
79
423 F.3d 674, 677 (7th. Cir. 2005).
80
Id.
81
Id. The case was transferred for administrative reasons to Judge St. Eve,
who entered judgment in the defendants’ favor on the exhaustion argument after it
was presented to her in a motion for summary judgment. The Seventh Circuit held
that there was not a compelling reason, as required, to overturn Judge Bucklo’s
ruling regarding exhaustion. Id. at 681.

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available.82 Brengettcy’s complaint alleged that on August 21, 2000
he was verbally abused by one of the defendants, Officer Horton, and
then physically attacked.83 When Brengettcy fought back,
reinforcements were called and he was repeatedly beaten and kicked
by officers, even after he was handcuffed, and was then thrown down
a flight of stairs where he was knocked unconscious.84 Brengettcy
awoke the next morning in the hospital with pain throughout his body,
sutures in his lip, and chipped front teeth.85 Two days later, on August
23, 2000, he filed a written grievance with the CCDOC concerning the
incident, which was within fifteen days as required by CCDOC’s
grievance policy.86 He did not receive a reply within thirty days as the
policy dictated and was not notified that his grievance would take
longer to resolve.87 In October, Brengettcy asked Officer McCullen
about the status of his grievance was told that sometimes the
grievances are destroyed by corrections officers or other officials.88
On November 27, 2000, he filed another grievance and again the
CCDOC failed to respond within 30 days or give notice that it would
take longer.89 Brengettcy brought suit under Section 1983 on March
13, 2001, alleging that the officers’ conduct violated his civil rights.90
In considering the defendants’ motion to dismiss, Judge Bucklo
reasoned that “[p]laintiff’s grievance was filed in 2000. Defendants
do not dispute that plaintiff never received a response... A plaintiff is
not require[ed] to wait an unreasonable length of time-during which
evidence, witnesses and memories may be lost - for a decision before
he can go forward with his federal suit.”91
82

Id. at 677-78.
Id.
84
Id.
85
Id. at 678.
86
Id.
87
Id.
88
Id..
89
Id..
90
Id. at 678-79.
91
Id. at 678-79.
83

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When considering the question of exhaustion, the court first
reiterated the holding that exhaustion is “an affirmative defense that
the defendants have the burden of pleading and proving.”92 Requiring
that prisoners file grievances and appeals according to the prison’s
administrative rules93, a prison official’s failure to respond to a
prisoner’s claim can render administrative remedies unavailable.94
This rule, also followed by the Fifth95 and Eighth96 Circuits, is based
on a refusal to interpret the PLRA so narrowly as to permit prison
officials to “exploit the exhaustion requirement through indefinite
delay in responding to grievances.”97 In examining the facts, the court
found that Brengettcy followed the CCDOC policy regarding filing
grievances, but had not received any response as was required.
Further, the court found that while the policy allowed a prisoner to
appeal a decision within five days of its receipt, there was no policy
regarding what prisoner should do when the CCDOC fails to respond
and there is no decision for them to appeal.98 Accordingly, the court
reversed the entry of summary judgment for the defendants on the
alleged failure to exhaust because Brengettcy alleged that he filed a
grievance within the time period mandated by CCDOC rules and the
defendants had failed to meet their burden of proof.99
In Westefer v. Snyder, the Seventh Circuit considered the claims of
several prisoners, all members of various prison gangs, that they had
been transferred to Tamms Correction Center (“Tamms”) as retaliation

92

Id. at 682 (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)).
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
94
Lewis v. Washington, 300 F.3d 829, 835 (7th Cir. 2002).
95
Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999); Underwood v. Wilson,
151 F.3d 292, 295 (5th Cir. 1998).
96
Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001); Miller v. Norris, 247
F.3d 736, 740 (8th Cir. 2001).
97
Brengettcy, 423 F.3d 674 at 682.
98
Id.
99
Id.
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for exercising their First Amendment rights.100 Tamms is the highest
security prison in Illinois and was designed to be harsh, so that the
threat of transfer to Tamms would deter prisoners throughout the
IDOC from disobeying prison rules.101 The district court had
dismissed the suits of several of the prisoners for failure to exhaust
their administrative remedies.102 As usual, the Seventh Circuit’s
analysis began by examining the administrative procedures by which
the inmates could have challenged their transfers to Tamms.103
As an initial matter, the court requested that the parties file
supplemental briefs discussing the administrative procedures available
to a Tamms prisoner because the record and initial briefs did not
present a “clear picture.”104 The IDOC has two avenues by which
inmates must challenge their transfer to Tamms: through the transfer
review hearing process and the inmate grievance process.105
Additionally, Illinois regulations establish two types of transfer
hearings at Tamms, depending on the inmate’s segregation category
upon arrival at the facility.106 Prisoners are classified as subject to
either administrative or disciplinary segregation, and different review
processes govern each category.107
Inmates in administrative detention are given a transfer review
hearing within ten working days of their arrival at Tamms “whenever
possible.”108 At this hearing inmates can make statements challenging
their placement, submit documentary evidence and request that the
transfer committee interview witnesses.109 This transfer committee
100

422 F.3d 570, 572-573 (7th Cir. 2005).
Id. at 572.
102
Id. at 576.
103
Id. at 577.
104
Id. at 577.
105
Id. at 578. Transfer review hearing at ILL. ADMIN. CODE tit. 20 § 505.60(a)
(2005) and the grievance procedure at ILL. ADMIN. CODE tit. 20 § 504.810(a) (2005).
106
Id. at 578.
107
Id. at 578.
108
ILL. ADMIN. CODE tit. 20 § 505.60(a) (2005).
109
ILL. ADMIN. CODE tit. 20 § 505.60(b) (2005).
101

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makes a recommendation to the warden, who approves or denies the
recommendation before forwarding it to the Deputy Director.110 In
contrast, inmates who are transferred to Tamms in disciplinary
segregation are not afforded an initial transfer review hearing.111 In
fact, prisoners in disciplinary segregation only receive a hearing when
their term of disciplinary segregation ends.112 The court was
concerned by this provision’s possible application, where a prisoner
who was transferred while serving a long disciplinary sentence would
not be able to contest their transfer until the end of that long
sentence.113 After the initial transfer review hearing, inmates are
reviewed every ninety days to determine whether placement at Tamms
is still appropriate.114 Again, however, inmates in disciplinary
segregation are not given this quarterly review.115 Finally, individuals
in administrative segregation are given an annual review while those
in disciplinary segregation are not.116
The court found that this transfer review process was not an
adequate administrative remedy for two reasons.117 First, prisoners
who were transferred in, and remained in, disciplinary segregation had
not yet qualified for a review hearing.118 Accordingly, this remedy
was not “available” to them and did not have to be exhausted.119
Second, prisoners are not informed of the reasons for their transfer to
Tamms and cannot contest these reasons at their review hearings.120 If
a prisoner does find out the reasons for his transfer after completing
the initial transfer review, they must wait at least one more year before
110

ILL. ADMIN. CODE tit. 20 § 505.60(b) and (d) (2005).
ILL. ADMIN. CODE tit. 20 § 505.60(a) (2005).
112
ILL. ADMIN. CODE tit. 20 §505.60(a) (2005).
113
Westefer v. Snyder, 422 F.3d 570, 578 (7th Cir. 2005).
114
ILL. ADMIN. CODE tit. 20 §505.70(a) (2005).
115
Westefer, 422 F.3d at 578 (citing 20 ILL. ADMIN. CODE §505.70(a) (2005)).
116
ILL. ADMIN. CODE tit. 20 §505.70(b) (2005).
117
Westefer, 422 F.3d at 579-80.
118
Id. at 579, (relying on ILL. ADMIN. CODE tit. 20 §505.60(a) (2005)).
119
Id. (citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)).
120
Id.
111

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they can present evidence at an annual review hearing.121 Relying on
these issues, the Seventh Circuit found that the IDOC had not shown
that the prisoners had failed to exhaust their administrative
remedies.122
In examining the second administrative remedy by which an
inmate could appeal their transfer to Tamms, the grievance process,
the Seventh Circuit found confusion within the IDOC guidelines.123
In Illinois, “incidents, problems, and complaints” can be addressed
through grievances.124 The grievance process cannot, however, be
used for complaints “regarding decisions that are outside the authority
of the Department, such as parole decisions, clemency, or order
regarding length of sentence or decisions that have been rendered by
the Director.”125 The court interpreted the phrase “or decisions that
have been rendered by the Director” to possibly apply to the
administrative decision to transfer an inmate to Tamms.126 The court
also found that the IDOC’s ultimate grievance appeal body, the
Administrative Review Board (“ARB”), had been inconsistent in
categorizing inmate grievances requesting transfers as properly before
them on appeal or an administrative prerogative of IDOC.127 The
court also considered the fact that a Tamms counselor and other IDOC
officials had given contradictory advice to inmates about the proper
venue for their transfer appeals.128

121

Id.
Id.
123
Id.
124
ILL. ADMIN. CODE tit. 20 §504.810(a) (2005).
125
ILL. ADMIN. CODE tit. 20 §504.810(a) (2005).
126
Westefer, 422 F.3d at 579.
127
Id. at 579-580. (The ARB had addressed one prisoner’s grievance
complaining of his transfer, but had refused to address another prisoner’s grievance
for transfer saying it was administrative prerogative of IDOC).
128
Id. at 580 (A Tamms counselor said he could not use grievance system,
other prison officials said this was the only way to contest transfer.)
122

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Finally, the court examined the variety of Tamms-specific
regulations in the Illinois Administrative Code129 for a provision
addressing how a prison could challenge his transfer to Tamms.130
Finding none, the court concluded that if there were a regulation that
specified the proper means for this challenge, then prisoners would be
required to fulfill its administrative requirements.131 In struggling to
determine whether an administrative remedy existed at all, the court
predicted, “[i]f the ARB took consistent positions on its authority to
address a transfer grievance, a clear route for the prisoner at least
would be evident and we could proceed to determine its
effectiveness.”132 But absent any such consistency or other remedy,
the court concluded that the grievance process was not an “available”
administrative remedy for the prisoners who wished to appeal their
transfers.133
2.

The Seventh Circuit’s Evaluation of “Exhaustion”

In December 1994, Donald Greeno began complaining of severe
heartburn while incarcerated at Racine Correctional Institution.134
Over the next three years, Greeno was repeatedly denied necessary
medical treatment and eventually suffered severe and permanent
digestive damage.135
In June 2000, Greeno filed suit under Section 1983, alleging that
his doctors and other Wisconsin Department of Correction’s
employees had shown deliberate indifference to his serious medical
needs in violation of the Eighth Amendment.136 Greeno also alleged
deliberate indifference by the employees who had processed his
129

ILL. ADMIN. CODE tit. 20 §505(2005).
Westefer, 422 F.3d at 580.
131
Id.
132
Id.
133
Id.
134
Greeno v. Daley, 414 F.3d 645, 649 (7th Cir. 2005).
135
Id.
136
Id. at 651.
130

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inmate complaints relating to his medical care.137 On appeal, the
defendants argued that Greeno had failed to exhaust his administrative
remedies as required because he “did not appeal every single
complaint that he filed through the highest level of review, the
Department of Corrections Secretary.”138 The Seventh Circuit rejected
this argument and found that there was no requirement that every
inmate complaint be appealed through the highest level.139 The court
also found that Greeno had exhausted his administrative remedies as
required by § 1997(e)(a) where he had filed every grievance according
to the prison’s policies, detailed exactly what his injuries and needs
were, and appealed at least seven of his complaints to the Department
of Corrections Secretary, “Greeno fully exhausted his prison remedies
with respect to complaints that alerted prison officials to the nature of
his problem and gave them an opportunity to resolve it.”140 “In short,
Greeno took all steps prescribed by the prison grievance system, thus
satisfying the exhaustion requirement.”141 The Seventh Circuit
concluded by vacating the district court’s judgment and allowing
Greeno’s claims against most of the prison employees to continue.142
Rodger Thornton is an inmate serving out a life sentence in the
IDOC, currently at the Pontiac Correctional Center.143 After a
disciplinary charge, Thornton was placed in a segregation cell on
January 13, 2000.144 Thornton was very upset by the conditions in his
cell and wrote letters to the Director of the Pontiac Correctional
Center, the Warden, and other officials.145 Thornton received no
response to these requests and submitted an emergency grievance to
137

Id.
Id. at 652.
139
Id.
140
Id. (citing McCoy v. Gilbert, 270 F.3d 503, 512 (7th Cir. 2001)).
141
Id. See Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004).
142
Id. at 658, 659.
143
Thornton v. Snyder, 428 F.3d 690, 692 (7th Cir. 2005).
144
Id.
145
Id.
138

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the warden asking to be moved on January 28, 2000, two weeks after
his placement in the segregation cell.146 Thornton subsequently
received a letter stating that his grievance did not constitute an
emergency.147
On February 22, 2000, after being transferred to another
segregation cell, Thornton filed a grievance requesting a clean
mattress in his new cell.148 After receiving another unsatisfactory
mattress, Thornton was given a satisfactory one on May 11. The next
day, prison officials dismissed the February 22 grievance as moot
since Thornton had received an acceptable mattress.149
Thornton eventually brought suit against several prison officials
pursuant to Section 1983 for alleged violations of his Eighth
Amendment right to be free from cruel and unusual punishment.150
He sought monetary damages for the time he was confined in the
initial segregation cell as well as the time he was in the second
segregation cell without a mattress.151The district court granted
summary judgment for the defendants on Thornton’s cell condition
claims on the basis that he had failed to exhaust his administrative
remedies.152
146

Id. As written, the grievance stated in part:
This seg cell north 106 is in very poor shape. There appears to be
human feces smeared on the walls covering most of the inside of
the cell. It has a foul smell to it. The toilet leaks. There is 2 to 3
inches of water on the floor, it clearly has a sewer aroma to it. The
water that comes from the sink is discolored it looks like rust
water. The conditions of this mattress sir is so bad that there is no
way I can or will sleep on it. Its stained and its got a piss smell to
it...I can’t even eat cuz of the smell in this cell. I’ve already had
several asthma attacks since I’ve been back here. Sir please help
this is just not right at all...Please I beg of you before I contract
some major health problems get me out of here.
147
Id.
148
Id. at 693.
149
Id.
150
Id.
151
Id.
152
Id.

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The Seventh Circuit first examined the grievance process
followed by the IDOC, codified in the Illinois Administrative Code.153
Under that procedure, an inmate can submit a written grievance to a
designated grievance officer, who then submits his recommendation to
the institution warden.154 In response, the warden “shall advise the
offender of the decision in writing within two months after receipt of
the written grievance, where reasonably feasible.155 Alternatively, an
inmate can request that a grievance be handled on an emergency basis
by submitting the grievance directly to the warden.156 If the warden
determines that there is a substantial risk of imminent personal injury
or other serious or irreparable harm, the grievance is to be handled on
an emergency basis.157 The process also provides: “[i]f, after
receiving the response of the [warden], the offender still feels that the
problem, complaint, or grievance has not been resolved to his or her
satisfaction, he or she may appeal in writing to the Director within 30
days after the date of the decision.”158 With this policy in hand, the
Seventh Circuit turned to the defendants’ argument that Thornton had
failed to exhaust his administrative remedies.159
The defendants’ initial exhaustion argument was that Thornton did
not even properly begin the grievance process regarding the conditions
in his first segregation cell.160 Under this argument, the defendants’
claimed that after the warden found that the grievance was not an
emergency, the grievance ceased to exist.161 The Seventh Circuit
disagreed, however, because Thornton had followed the procedures for
filing an emergency grievance when he submitted his grievance

153

Id. at 694 (citing ILL. ADMIN. CODE tit. 20 § 504.800 et seq. (2005))
Id. (citing ILL. ADMIN. CODE tit. 20 §§ 504.810; 504.830 (2005)).
155
ILL. ADMIN. CODE tit. 20 § 504.830(d) (2005).
156
ILL. ADMIN. CODE tit. 20 § 504.840 (2005).
157
ILL. ADMIN. CODE tit. 20 § 504.840 (2005).
158
ILL. ADMIN. CODE tit. 20 § 504.850(2005).
159
Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005).
160
Id.
161
Id.
154

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directly to the warden.162 When the warden only informed Thornton
that his grievance was not an emergency and did not discuss the merits
of the grievance, “There is nothing in the current regulatory text,
however, that requires an inmate to file a new grievance after learning
that it will not be considered on an emergency basis.”163 Additionally,
the fact that Thornton was transferred, and thus received exactly the
relief he had requested, before the thirty-day time for him to appeal the
warden’s decision had expired led the court to reject this initial
argument.164
In response to the defendants’ larger exhaustion argument,
Thornton argued that he had properly filed his grievances and received
exactly the relief he asked for and thus fulfilled his duty to exhaust his
administrative remedies.165 As to his initial grievance filed on January
28, Thornton had asked to be transferred and was indeed transferred to
another cell by February 22.166 In his second grievance, Thornton
requested a replacement mattress and subsequently received one.167
After he was given the new mattress, the grievance officer and warden
found that the grievance was now moot and dismissed it as such.168
The defendants contended that Thornton should have appealed both of
these grievances to the Director of the Department of Corrections as
allowed in the grievance procedures.169 The court disagreed with the
defendants’ interpretation of the PLRA exhaustion requirement,
however, and found that Thornton did not have to “appeal grievances
that were resolved as he requested and where money damages were
not available.”170

162

Id. (citing ILL. ADMIN. CODE tit. 20 § 504.840 (2005)).
Id.
164
Id.
165
Id. at 694-695.
166
Id. at 695.
167
Id.
168
Id.
169
Id.
170
Id.
163

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In rejecting the defendants’ interpretation that the PLRA required
inmates to appeal grievance resolved favorably to the highest level
possible, the court looked to its previous interpretations as well as the
analysis of the Second and Tenth Circuits on this issue.171 First, the
court found that if an injury has been healed by the time a lawsuit
begins, nothing other than damages could be a “remedy,” and if the
administrative process cannot provide compensation then there is no
administrative remedy to exhaust.172 This conclusion was buttressed
by the Tenth and Second Circuits’ interpretation that prisoners are not
required to appeal favorable decisions.173 Even where the defendants
relied on the statement in Booth v. Churner that futility is not an
excuse for failure to exhaust available remedies, the Seventh Circuit
found that the circumstances of the case made Booth inapplicable.174
While there was a possibility of some relief in Booth, Thornton had
already received what he requested in his grievances and there was
nothing else that prison officials could give him, “Without the
possibility of some relief, the administrative officers would
presumably have no authority to act on the subject of the complaint,
leaving the inmate with nothing to exhaust.”175
Finally, the Seventh Circuit addressed several policy arguments
advanced by the defendants, chief among them the contention that the
grievance system is designed to provide notice to prison officials of
systemic problems and inmates should be required to pursue further
administrative review to ensure such notice is given.176 The court
disagreed and countered that Thornton had properly submitted his
grievances and prison officials were aware of his complaints and it is
not “Thornton’s responsibility to notify persons higher in the chain
when this notification would be solely for the benefit of the prison
171

Id. at 695-696.
Id.
173
Id. (citing Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.
2001) and Ortiz v. McBride, 380 F.3d 649, 653 (2nd Cir. 2004)).
174
Id. (citing Booth v. Churner, 532 U.S. 731, 734 (2001)).
175
Id. (quoting Booth, 532 U.S. at 746 n.6 (2001)).
176
Id. at 696-97.
172

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administration.”177 Further, requiring inmates to appeal favorable
decisions would risk reversal of these decisions and thus increase, not
decrease, the number of inmate suits, in contrast to the very purpose of
the PLRA.178 Accordingly, the court reversed the lower court’s entry
of summary judgment against Thornton and found that he had
exhausted his administrative remedies as required.179
TRENDS AND OVERALL ANALYSIS
Though each case is fact-specific, the cases discussed above
illustrate the two prevailing trends in the Seventh Circuit’s
interpretation of inmate claims under Section 1983. These two related
trends recognize that an efficient exhaustion requirement creates a
burden on both prison officials and prison inmates. In determining
whether any administrative remedies are “available,” the deference
given to prison officials traditionally by the courts with regard to the
operation of prisons and their administration will not prevent the court
from closely examining alleged constitutional violations and the
administrative remedies available to aggrieved inmates. By requiring
that prison officials offer effective and comprehensive administrative
remedies, the Seventh Circuit actually reinforces the primary goal of
the PLRA, a reduction in the number of lawsuits and an increase in the
quality of lawsuits that actually get onto federal dockets. Through
these decisions, the court has been able to critique several
administrative procedural requirements and tip the balance in favor of
civil rights where these remedies are unavailable.
The second group of cases focuses less on the adequacy of the
specific administrative remedy and more on the conduct of the
prisoner who has filed suit. As long as prisoner follow the
administrative procedures as they are described, they will satisfy the
exhaustion of remedies requirement of the PLRA. Further, prisoners
are not forced to appeal favorable decisions in order to preserve their
177

Id. at 697.
Id.
179
Id.
178

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ability to bring suit to vindicate their rights. Additionally, the court
will find that administrative remedies have been exhausted where the
inmate has filed their grievances in a timely manner, even if the prison
officials have not responded as required.
Even though inmates are required to exhaust administrative
procedures, the Seventh Circuit’s characterization of the exhaustion
requirement under the PLRA as an affirmative defense places the
burden on prison officials to show what an inmate should have done
and why they should have done it. Though this burden may be heavy,
it is justified for several reasons. First, prison officials are in a much
betterposition than inmates to understand the often-confusing
administrative regulations and procedures necessary for resolving
complaints and would ,therefore ,be better able to explain an inmate’s
failure to the court. Second, studies show that a large percentage of
inmate suits are brought pro se and to require the average inmate to
adequately understand the administrative procedures and further show
how they were or were not “available” would lead to the dismissal of
many legitimate Section 1983 claims and, thereby, damage to the civil
rights of prisoners everywhere. This is beyond the simple fact that
seven out of ten prisoners have only the lowest level of reading and
writing ability.180
In the cases discussed above, the Seventh Circuit correctly shifted
the burden of proof onto prison officials, rather than placing it on
uneducated and abused prisoners. This helped insure that prisons were
indeed responding to inmate grievances or appeals for change, or that
at least the inmates were given a voice with which to protect their
constitutional rights. While this goes against the interpretations of
many of the district courts throughout the Seventh Circuit, it serves the
purpose of the PLRA where it requires that prisons adopt reasonable
and effective administrative procedures so that inmates do not need to
bring suit in federal court in order to have their rights protected.
While there may be inmates that will file frivolous lawsuits even
where there are administrative remedies available, the recent cases
180

Karl O. Haigler et al., Literacy Behind Prison Walls 17-19 (1994),
available at http://www.nces.ed.gov/pubs94/94102.pdf.

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decided by the Seventh Circuit show that many inmates present valid
claims that could have been remedied had the grievance or other
administrative procedure functioned effectively.
CONCLUSION
The increasing number of inmates in American prisons and
subsequent overcrowding are likely to lead to an increasing number of
lawsuits filed by prisoners. In the face of this tide, the pressure on
federal courts to manage their dockets will only continue to grow.
Under the PLRA, every inmate lawsuit that enters federal court will
force the court to weigh the rights of prisoners against the
administrative remedies available to them. In the Seventh Circuit, the
court should continue to place the burden on prison officials to show
that there were indeed administrative remedies that should have been
exhausted. Further, the court should continue to closely scrutinize the
“availability” of administrative remedies to ensure that grievance
procedures are effective. Finally, given the fact that many prisoners
will not be able to retain lawyer to litigate their section 1983 or other
civil rights claims, the court must look at the conduct of the inmate in
the context of the particular administrative remedies available to
determine whether they have exhausted all available administrative
remedies. Only in this way can the court insure that they do not
sacrifice justice for the sake of judicial economy and protect the
fundamental civil rights of prisoners.

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