Peter Lewis v. ODIE WASHINGTON , Director, Illinois Department of Corrections, MARY NICHOLS ,…

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-2017
P ETER L EWIS ,
Plaintiff-Appellant,
v.
O DIE W ASHINGTON , Director,
Illinois Department of Corrections,
M ARY N ICHOLS , R ICHARD G RAMLEY ,
L IEUTENANT S HAW , and L IEUTENANT J ONES ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 1050—Harold A. Baker, Judge.
____________
A RGUED J ULY 10, 2002—D ECIDED A UGUST 14, 2002
____________
Before C OFFEY , K ANNE , and R OVNER , Circuit Judges.
K ANNE , Circuit Judge. Illinois prisoner Peter Lewis
sued various employees of the Illinois Department of Cor-
rections (“IDOC”) under 42 U.S.C. § 1983, alleging that
they failed to protect him from an attack by his cellmate
and that they conspired to cover up the attack by ignor-
ing many of his grievances and requests. The district court
dismissed the case, concluding that Lewis had failed
to exhaust his administrative remedies as required by
the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C.

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2 No. 00-2017
§ 1997e(a). We affirm the dismissal of the failure-to-
protect claim, but remand the conspiracy claim to the
district court for further proceedings.
Background
In October 1997 Lewis complained to unnamed security
officers at Henry Hill Correctional Center that his new
cellmate, Joseph Carlos, was “aggressive and threatening”
and that he was afraid to stay in the cell with him. The
next day Lewis spoke with Lieutenant Jones, who as-
sured Lewis that he would speak with Carlos. Lewis con-
tends that Carlos displayed a “furious anger” toward him
after Lt. Jones spoke with Carlos. The following night
Lewis called for security officers because Carlos began “act-
ing ‘crazy’ by jumping up and down in the middle of the
floor screaming and hitting the walls.” The security offi-
cers did not respond to Lewis’s calls for help. The next
day Lewis told Lt. Jones about Carlos’s behavior and re-
quested to be moved to another cell, including a segrega-
tion cell for his own safety. Lt. Jones refused Lewis’s trans-
fer request.
A few days after Lt. Jones’s refusal, Lewis awoke in the
morning to the sound of Carlos speaking to security officer
Lt. Shaw. Lt. Shaw had escorted Carlos to his cell to re-
trieve his personal property because he was being placed
in segregation for fighting in the dining hall that morning.
Lt. Shaw left Carlos alone in the cell with Lewis, and
Lewis went back to sleep. Carlos suddenly began to beat
Lewis with a metal walking cane. Lewis screamed for help,
and a security officer appeared and took Lewis to the
health care unit. Lewis spent two days in the health care
unit and was treated for an injury to his right leg.
As soon as Lewis was released from the health care unit
he filed two grievances concerning the Carlos attack. The
first grievance sought disciplinary action against Carlos

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No. 00-2017 3
and listed numerous witnesses to the attack. The second
grievance, titled “Staff Conduct,” alleged that Lt. Shaw
endangered Lewis’s life by returning Carlos to his cell in
a hostile state despite knowing of Lewis’s complaints of
Carlos’s behavior. That grievance also alleged that Lt.
Jones failed to transfer him to another cell.
The following month Lewis spoke with Officer Connor
of the Internal Affairs Office regarding the Carlos attack.
He explained that he wanted to press criminal charges
against Carlos, and Officer Connor said that she would
look into it. Officer Connor also explained that Carlos had
denied attacking Lewis, that there were no eye witnesses,
and that Lewis had not been injured in the attack. Lewis
then asked Officer Connor for a polygraph examination
to prove that he was telling the truth, and Officer Connor
said that she would look into it.
In December 1997 Lewis learned that a grievance offi-
cer had denied his “Staff Conduct” grievance and that the
Chief Administrative Officer (“CAO”) of the prison had
concurred. The denial did not address Lewis’s grievance
against Carlos or Lewis’s request for a polygraph exam-
ination, but did explain that Lewis had 30 days to appeal
the CAO’s decision to the Administrative Review Board
(“ARB”). A few days later and before appealing to the
ARB, Lewis wrote to the Internal Affairs Office and to
Warden Richard Gramley seeking responses to his griev-
ance against Carlos and to his polygraph request. Lewis
also requested from a grievance officer a copy of the investi-
gation report on which the denial of his “Staff Conduct”
grievance was based. Lewis received no response to any
of these requests.
That same month Lewis asked Internal Affairs Officer
Connor about the status of his polygraph examination re-
quest. She told him that he needed to file a grievance in
order to take a polygraph examination. Lewis then filed a

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4 No. 00-2017
grievance in January 1998 in which he alleged that he had
sent a polygraph request to the grievance officer, the
Internal Affairs Office, and Warden Gramley, but received
no response. He also renewed his request for criminal
charges against Carlos. When he received no response,
Lewis filed another grievance on January 20, 1998, request-
ing the same relief and concluding that he had “not re-
ceived any kind of a respond [sic] . . . granting or denial
[sic] the request to the polygraph test and to press chargest
[sic] for the attacked [sic].” About a week later he received
a response that “there is no record of a request for a poly-
graph test” and that “[a]ll requests are to be submitted
to the Warden.” The response did not mention Lewis’s
grievance against Carlos or explain why his other requests
had gone unanswered.
That same week Lewis happened to see Warden Gramley
and explained to him that he had received no responses
to his requests for a polygraph examination and his griev-
ance against Carlos. Warden Gramley said that he would
look into the matter and get back to him, but Lewis again
received no response. In February 1998 Lewis again ex-
plained to the warden that he wanted a polygraph exam-
ination and that he wanted to press criminal charges
against Carlos. About a week later the warden replied
that he saw no basis to pursue disciplinary action against
Carlos because Lewis had no injuries and because Carlos
had denied the attack. But the warden wrote that he would
forward the investigation report to the State’s Attorney,
who would decide whether to pursue criminal charges
against Carlos.
Lewis waited to hear from the State’s Attorney, but he
received no response. About three months after receiving
the warden’s letter, Lewis appealed his “Staff Conduct”
grievance to the ARB. Lewis explained that he never re-
ceived a response regarding his grievance against Carlos
or his request for a polygraph examination. In June 1998

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No. 00-2017 5
the ARB declined to consider Lewis’s appeal because it
was untimely filed.
In January 1999 Lewis filed this § 1983 case against
various employees of the IDOC. In February 2000 the
district court dismissed the case without prejudice be-
cause, by untimely appealing to the ARB, Lewis had failed
to exhaust administrative remedies. The court, however,
granted Lewis leave to “reinstate the case upon filing
a written statement with the court within 14 days of re-
ceipt of this order establishing why he failed to file a
timely appeal” to the ARB. In a footnote, the district court
advised Lewis that “the court must first be persuaded
by the plaintiff’s filing that cause and prejudice exist for
his procedural default before the court will reinstate
the case.” Lewis submitted his written statement within
the 14-day period, but the district court clerk had al-
ready entered judgment against him. After receiving
Lewis’s statement, however, the district court reiterated
that Lewis’s “complaint was dismissed for failure to ex-
haust administrative remedies.”
Analysis
I. Failure-to-protect claim
Lewis filed a “Staff Conduct” grievance alleging that two
security officers failed to protect him from his cellmate.
That grievance was denied in December 1997, and Lewis
had 30 days to appeal the denial to the ARB. Lewis did
not appeal until May 1998.
Lewis contends that, despite his untimely appeal to the
ARB, the district court erred in dismissing his failure-to-
protect claim for failure to exhaust administrative reme-
dies. He lists several grounds for reversal: (1) he had no
duty to exhaust because the prison officials rendered
administrative remedies unavailable by failing to respond

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6 No. 00-2017
to many of his other grievances and requests; (2) he sub-
stantially complied with the exhaustion requirement; and
(3) the government should be equitably estopped from
raising the exhaustion defense because it prevented him
from exhausting.
Lewis first argues that he was not required to exhaust
administrative remedies because the prison officials’ fail-
ure to respond to many of his grievances and requests
rendered those remedies unavailable. Lewis must exhaust
only those administrative remedies that are available
to him. See 42 U.S.C. § 1997e(a); Johnson v. Litscher, 260
F.3d 826, 829 (7th Cir. 2001). The Eighth and Fifth Cir-
cuits have deemed administrative remedies exhausted
when prison officials fail to respond to inmate griev-
ances because those remedies had become “unavailable.”
Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001);
Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); Powe
v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999); Underwood
v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (per curiam).
Both circuits based their holdings on the plain meaning
of “available.” Miller, 247 F.3d at 740; Underwood, 151
F.3d at 295. We join the Eighth and Fifth circuits on this
issue because we refuse to interpret the PLRA “so nar-
rowly as to . . . permit [prison officials] to exploit the
exhaustion requirement through indefinite delay in re-
sponding to grievances.” Goodman v. Carter, No. 2000 C
948, 2001 WL 755137, at *3 (N.D. Ill. July 2, 2001).
But prison officials responded to Lewis’s “Staff Conduct”
grievance, despite their failure to respond to his other
grievances and requests. And the grievance form clear-
ly explained, without exception, that Lewis had 30 days
to appeal the denial. We have recently reiterated that
“to exhaust administrative remedies, a person must fol-
low the rules governing filing and prosecution of a claim,”
including the prison’s rules for filing an appeal. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Thus,

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No. 00-2017 7
because Lewis received a response to his “Staff Conduct”
grievance, administrative remedies were available for his
failure-to-protect claim, and he was required to appeal the
denial of his grievance within the time frame set by the
prison.
Lewis next argues that the district court erred in dismiss-
ing his case because he substantially complied with the
exhaustion requirement. Exhaustion of administrative rem-
edies is mandatory because the PLRA “eliminated the
[district courts’] discretion to dispense with [it].” Booth v.
Churner, 532 U.S. 731, 739 (2001). Nevertheless, some
courts apply a substantial compliance doctrine to cases
where the cause of action accrued prior to April 26, 1996
(effective date of the PLRA). McCoy v. Gilbert, 270 F.3d
503, 512 (7th Cir. 2001); Curry v. Scott, 249 F.3d 493, 502
(6th Cir. 2001); Wolff v. Moore, 199 F.3d 324, 327 (6th Cir.
1999). In those cases, a prisoner need only show that he
substantially complied with the prison’s grievance policy
by “clearly giv[ing] the institution notice of his particu-
lar demands and reasonably trigger[ing] an attempt to
resolve them.” McCoy, 270 F.3d at 512.
Lewis argues that even though the events in his com-
plaint occurred after the effective date of the PLRA, we
should apply the substantial compliance doctrine when
“requests and grievances have gone completely unan-
swered.” But courts have applied the substantial compli-
ance doctrine only to pre-PLRA causes of action to avoid
the injustice of requiring exhaustion of remedies that were
not required to be exhausted at the time of the alleged
conduct and could no longer be exhausted when the PLRA
became effective. McCoy, 270 F.3d at 512; Wyatt v. Leonard,
193 F.3d 876, 879-80 (6th Cir. 1999); Freeman v. Francis,
196 F.3d 641, 645 (6th Cir. 1999). We decline to extend
this narrow exception to include cases involving the fail-
ure to respond to grievances. See Smith v. Zachary, 255
F.3d 446, 452 (7th Cir. 2001) (suggesting in dicta that the
substantial compliance doctrine applies only to pre-PLRA

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8 No. 00-2017
causes of action, but declining to decide the issue because
prisoner failed to raise substantial compliance in the dis-
trict court), cert. denied, 122 S. Ct. 1207 (2002). Thus, be-
cause Lewis’s cause of action accrued after the PLRA’s
“invigorat[ion] [of] the exhaustion prescription,” Porter v.
Nussle, 122 S. Ct. 983, 988 (2002), the substantial compli-
ance doctrine is not available to him.
Lewis finally argues that the defendants should be
estopped from raising the exhaustion defense because his
procedural default occurred while he waited for responses
to his outstanding grievances and requests. Although we
have held that exhaustion is not a jurisdictional require-
ment, Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir.
2000), we have yet to conclude that the exhaustion defense
is subject to equitable estoppel. The Fifth Circuit is the only
circuit to hold that equitable estoppel can apply to the
PLRA exhaustion requirement. Wright v. Hollingsworth,
260 F.3d 357, 358 n.2 (5th Cir. 2001); Wendell v. Asher,
162 F.3d 887, 890 (5th Cir. 1998). Although the Fifth
Circuit’s ruling on this matter is persuasive because non-
jurisdictional prerequisites to suit in federal court are
typically subject to equitable estoppel, see Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982); Ameritech
Benefit Plan Comm. v. Communication Workers of America,
220 F.3d 814, 819 (7th Cir. 2000), cert. denied, 531 U.S.
1127 (2001), we need not decide the issue because Lewis
cannot satisfy the requirements for equitable estoppel.
To establish equitable estoppel, the party claiming estop-
pel must show: (1) a misrepresentation by the oppos-
ing party; (2) reasonable reliance on that misrepresenta-
tion; and (3) detriment. LaBonte v. United States, 233 F.3d
1049, 1053 (7th Cir. 2000). When asserting equitable estop-
pel against the government, one must also prove affirma-
tive misconduct. Gibson v. West, 201 F.3d 990, 994 (7th
Cir. 2000). Affirmative misconduct “requires an affirma-
tive act to misrepresent or mislead . . . [and] a govern-
ment’s failure to discharge an ‘affirmative obligation’ is not

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No. 00-2017 9
the same as engaging in ‘affirmative misconduct.’ ” Id.
at 994 (quoting Edgewater Hosp., Inc. v. Bowen, 857 F.2d
1123, 1138 n.8 (7th Cir. 1988), as amended, 866 F.2d
228 (7th Cir. 1989). Moreover, omissions amount only to
ordinary negligence. Gibson, 201 F.3d at 994.
Lewis cannot prevail on his equitable estoppel theory
because his allegations concerning the prison officials’
actions do not amount to affirmative misconduct. Lewis
urges this court to conclude that the prison officials’ fail-
ure to respond to many of his grievances and requests
amounts to affirmative misconduct rather than merely a
failure to discharge an affirmative obligation. Lewis likens
the failure to respond to “‘a pattern of false promises,’ ”
which the Ninth Circuit has concluded amounts to af-
firmative misconduct. Socop-Gonzalez v. I.N.S., 272 F.3d
1176, 1184 (9th Cir. 2001) (en banc) (quoting Mukherjee
v. I.N.S., 793 F.2d 1006, 1009 (9th Cir. 1986)). But the
prison officials made no promises to Lewis that he could
have reasonably interpreted as an assurance that he did
not have to appeal his “Staff Conduct” grievance with-
in the required 30 days. Lewis, however, argues that he
waited to appeal because an appeal would have been un-
necessary if his grievance against Carlos had been granted.
Nevertheless, the time for appeal was clearly marked on
the grievance form, and it made no exception for the
outcome of other pending grievances. Because the prison
officials did nothing to affirmatively misguide Lewis
into thinking that his other grievances and requests al-
tered the time for appeal, we will not estop the government
from raising the exhaustion defense.
II. Conspiracy claim
Lewis alleges that the prison officials failed to answer
many of his grievances and requests, including: (1) the
grievance against Carlos for the attack; (2) the requests
and grievances for a polygraph examination; (3) the re-

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10 No. 00-2017
quests for a copy of the investigation report; and (4) the
grievances complaining that he had not received responses
to his other grievances and requests. Lewis claims that
this failure to respond amounts to a conspiracy to cover
up the Carlos attack. The prison officials contend that
Lewis failed to exhaust his conspiracy claim because he
never grieved a conspiracy to the prison. Lewis, however,
filed two grievances complaining of the prison officials’
failure to respond.
The district court did not separately address the conspir-
acy claim or determine whether Lewis had exhausted
those administrative remedies. Thus, we remand the
claim to the district court to determine whether Lewis
exhausted his administrative remedies. In analyzing
Lewis’s exhaustion on this claim, the district court should
consider whether Lewis’s administrative remedies were
available in light of the prison officials’ failure to respond
to some of his grievances and requests. See Foulk, 262
F.3d at 698; Miller, 247 F.3d at 740; Powe, 177 F.3d at
394; Underwood, 151 F.3d at 295.
Conclusion
Accordingly, we A FFIRM the dismissal of Lewis’s failure-
to-protect claim for failure to exhaust administrative rem-
edies and R EMAND the conspiracy claim to the district
court for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-14-02

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