Bobby Ford v. Donald Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3709
B OBBY F ORD ,
Plaintiff-Appellant,
v.
D ONALD J OHNSON , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8464—Harry D. Leinenweber, Judge.
____________
A RGUED J ANUARY 12, 2004—D ECIDED MARCH 24, 2004
____________
Before P OSNER , E ASTERBROOK , and K ANNE , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Bobby Ford contends in
this suit under 42 U.S.C. §1983 that guards at Stateville
Correctional Center in Illinois violated his constitutional
rights by beating him without provocation and then re-
fusing to provide medical care for the injuries they inflicted.
Ford filed a grievance and appealed from its denial. His
appeal was referred to the prison’s Administrative Review
Board, which called him in for an interview to get his side
of the story. Ford refused to cooperate, telling the Board
that, because he had a federal suit under way, it was no

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2 No. 01-3709
longer necessary to participate in the grievance process.
The Board then resolved the grievance against Ford—not
because he had balked, but on the merits. The district judge
nonetheless dismissed Ford’s suit under 42 U.S.C.
§1997e(a), which provides:
No action shall be brought with respect to prison
conditions under [42 U.S.C. §1983], or any other
Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such ad-
ministrative remedies as are available are ex-
hausted.
This statute applies to isolated instances of misconduct
as well as to official practices, and some remedy may be
“available” whether or not the prisoner prefers a balm (such
as money damages) that the grievance process does not
provide. See Porter v. Nussle, 524 U.S. 516 (2002); Booth v.
Churner, 532 U.S. 731 (2001). The district judge wrote that,
by refusing to participate in the appellate process before the
Board, Ford had neglected to exhaust available remedies.
(The district judge also had a second ground, which we
discuss below.)
In order to exhaust administrative remedies, a prisoner
must take all steps prescribed by the prison’s grievance
system. See Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.
2002); Strong v. David, 297 F.3d 646 (7th Cir. 2002). The
district judge invoked this principle when dismissing Ford’s
suit: the Board required him to explain what had happened,
Ford refused and by doing so abandoned the grievance, the
judge believed. Similar reasoning supports dismissal of a
civil suit for failure to prosecute. No rule of law requires a
plaintiff to testify (or give a deposition) in his own suit, but
failure to do so may justify a termination on procedural
grounds without reaching the merits. See Newman v.
Metropolitan Pier & Exposition Authority, 962 F.2d 589 (7th
Cir. 1992). Just as courts may dismiss suits for failure to

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No. 01-3709 3
cooperate, so administrative bodies may dismiss grievances
for lack of cooperation; in either case this procedural default
blocks later attempts to litigate the merits.
Yet by analogizing exhaustion under §1997e(a) to ex-
haustion under 28 U.S.C. §2254, decisions such as Pozo and
Strong imply a corollary that is established in collat-
eral-attack jurisprudence: A procedural default in state
proceedings is fatal to the litigation in federal court only
if the state tribunal explicitly relies on that default.
See, e.g., Harris v. Reed, 489 U.S. 255 (1989); Brooks
v. Walls, 279 F.3d 518 (7th Cir.), rehearing denied, 301 F.3d
839 (2002). If the tribunal decides the merits, without
treating procedural default as an independent ground of
decision, then the federal court infers that the parties must
have done whatever the tribunal deemed necessary to
permit a reliable decision on the merits. By deciding Ford’s
appeal without invoking a forfeiture doctrine, the Adminis-
trative Review Board established that Ford had exhausted
his state remedies. Neither a court nor an agency is re-
quired to dismiss a proceeding when the complainant fails
to testify; if the proceeding reaches a decision on the merits,
it is fully reviewable later (here by an independent suit
under §1983).
Ford’s real problem, and the district court’s second
ground, is timing. Section 1997e(a) says that exhaustion
must precede litigation. “No action shall be brought” until
exhaustion has been completed. See Perez v. Wisconsin
Department of Corrections, 182 F.3d 532 (7th Cir. 1999).
Requirements of this kind are common: no suit under the
Federal Tort Claims Act until the agency has had time to
rule on a claim for damages, no suit under the employ-
ment-discrimination laws until the parties have had time
for administrative conciliation. And these rules routinely
are enforced, as in Perez, by dismissing a suit that begins
too soon, even if the plaintiff exhausts his administrative
remedies while the litigation is pending. See, e.g., McNeil

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4 No. 01-3709
v. United States, 508 U.S. 106 (1993); Hallstrom v.
Tillamook County, 493 U.S. 20 (1989). Rules of the form
“negotiate now, litigate later” or “administrative remedies
first, litigation second” reflect a belief that postponing suits
induces people to concentrate their attention on negotiation
or alternative dispute resolution, so that some fraction of
the time parties will not need to litigate at all. Once
litigation commences, however, that casts a pall over
negotiation or the administrative process, because it
commits both resources and mental energies to court. Some
persons are bound to do exactly what Ford did—to declare
that the administrative process is irrelevant once suit
begins. To prevent this subversion of efforts to resolve
matters out of court, it is essential to keep the courthouse
doors closed until those efforts have run their course.
Ford jumped the gun, just as he told the Administrative
Review Board. Ford mailed his complaint to the district
court in December 1999. It was stamped “received” on
December 28. Two days later, the prison system announced
its final decision. Now Ford stakes his all on the proposition
that he had not “brought” suit (the word used in §1997e(a))
before December 30, because a suit does not begin until the
complaint is “filed”, while his had just been “received.”
Prisoners’ complaints are reviewed under 28 U.S.C. §1915A
and not filed (nor are the defendants notified and served
with process) until the district judge finds that they pass
the statutory screen. Litigants also must pay all required
fees, or receive permission under 28 U.S.C. §1915 to proceed
in forma pauperis, before their complaints are “filed.” See
Williams-Guice v. Chicago Board of Education, 45 F.3d 161
(7th Cir. 1995). Ford relies on Fed. R. Civ. P. 3, which says
that “[a] civil action is commenced by filing a complaint
with the court.” If the action is not “commenced” until the
complaint has been “filed,” Ford maintains, then it has not
been “brought” either.

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No. 01-3709 5
As we discussed at length in Williams-Guice, the reasons
for linking commencement to filing concern not only the
judiciary’s need to collect the prescribed fees but also the
defendants’ entitlement to notice—for the date of filing
affects both the statute of limitations and the time to serve
the defendants with process under Fed. R. Civ. P. 4(m).
Neither fee collection nor notice to the adversary is at issue
when applying §1997e(a). Postponing litigation while the
administrative process continues is a different objective
altogether, which may explain why Congress used
a different word: “brought” rather than “filed” or “com-
menced.” Only equating “brought” with “got under way” or
some similar phrase ensures that the litigation does not
start until the administrative process has ended. Ford
launched the suit while the administrative process was on-
going and then told the Board to go fly a kite. He thought
that mailing the complaint to the court was enough to bring
suit; we hold that, for purposes of §1997e(a), it was. Other-
wise the statute cannot work. What sense would it make to
allow a prisoner to initiate litigation before exhausting his
intra-prison remedies, provided the prisoner takes care not
to pay the filing fee until later?
Counsel representing Ford cite several appellate opinions
that, they say, define “brought” as “filed.” None of these is
dispositive, because none actually faced the issue whether
§1997e(a) blocks a suit when the complaint was received by
the district clerk while the administrative process was
ongoing but “filed” only after it ended. The language counsel
has found was uttered in passing rather than the result of
a need to resolve this particular question. As far as we
know, ours is the first appellate opinion that has had to
interpret the word “brought” in §1997e(a). What’s more, the
decisions on which counsel rely do not support Ford’s
position. Consider Miller v. Tanner, 196 F.3d 1190, 1193
(11th Cir. 1990), and Harris v. Garner, 216 F.3d 970, 974
(11th Cir. 2000), the two decisions on which Ford places

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6 No. 01-3709
principal reliance. Each of these says that a prisoner cannot
“file” a suit until after the administrative process ends.
That statement is true even if a suit is “brought” when the
papers are lodged. Because filing never occurs earlier than
the date on which the district clerk receives the complaint,
the statements in these two opinions are accurate whether
or not the word “brought” is best understood as “tendered to
the court for filing.” Kerr v. Puckett, 138 F.3d 321 (7th Cir.
1998), offers even less help. Counsel tell us that Kerr holds
“that ‘brought’ as used in section 1997e(e) refers to the time
the lawsuit was commenced”. The suggestion is that the
court used the magic word from Rule 3 and thus equated
“bring” with “file.” But the word “commence” does not
appear in Kerr, and the word “file” appears only once, in the
phrase “[h]e filed a second suit.” Nothing in Kerr turns on,
or even remarks on, shadings among the words “bring,”
“commence,” and “file.” Some of the decisions on which
Ford’s counsel rely actually undercut their argument. See
Chandler v. Department of Corrections, 145 F.3d 1355, 1359
(D.C. Cir. 1998) (“the phrase ‘bring a civil action’ [in §1915]
means to initiate a suit”); Banos v. O’Guin, 144 F.3d 883,
885 (5th Cir. 1998) (“to implement this statutory scheme,
we must determine if danger exists at the time the plaintiff
seeks to file his complaint”). The language we have italicized
shows that these courts see a difference between “filing” a
suit and other steps—such as “initiating” suit or “seeking to
file” suit—that get litigation under way. Interpreting
“bring” for purposes of §1997e(a) as either “seeks to file” or
“initiate” would be a helpful translation, but either under-
standing dooms Ford’s suit.
One other principle looks in the same direction. A pris-
oner’s civil action may be dismissed under §1915(e)(2) or
§1915A before any fees have been paid, and thus before
“filing” occurs. We held in Walker v. Thompson, 288 F.3d
1005 (7th Cir. 2002), that failure to exhaust administrative
remedies can justify a dismissal under these sections. Yet

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No. 01-3709 7
such a dismissal would not be proper if the action is not
even “brought” until after the screening stage. On Ford’s
view, it would be impossible to use §1997e(a) to dismiss any
action under §1915 or §1915A, because until it passes those
screens it is not “filed” and therefore cannot be premature.
But once it had passed the screen, and been “filed,” then it
could be dismissed immediately. We can and do avoid such
pointless paper shuffling by holding that an action is
“brought” for purposes of §1997e(a) when the complaint is
tendered to the district clerk. (Ford’s contention that
treating a complaint as “brought” before it has been “filed”
would increase the workload of the clerk is puzzling.
Failure to exhaust administrative remedies is an affirma-
tive defense. How the judge handles that defense does not
affect what the district clerk does with incoming papers.)
According to Ford, he did not need to exhaust administra-
tive remedies at all, because none was “available” to him.
This point is hard to grasp, because the prison offered a
complaint process, which he used, plus an appeal, which he
took. How can it be that administrative procedures actually
used, leading to a decision by the Administrative Review
Board, were “unavailable”? Ford’s answer is that six months
passed between the administrative appeal and the prison
system’s final action (that of its Director, implementing the
Administrative Review Board’s decision). A regulation
provides that decision will be rendered within 60 days of
the appeal “whenever possible”. That means, Ford contends,
that once 60 days have expired without a decision, the
administrative process is no longer “available” and the
prisoner may start the litigation. That’s a non-sequitur. An
aspiration to act quickly “whenever possible” does not mean
that the prison system tosses out the papers and closes the
files after two months; what happened to Ford’s appeal
demonstrates that the process continues. Some appeals are
simple and will be wrapped up within two months; others
are more complex. This was one of the more complex ones,

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8 No. 01-3709
which is why the Administrative Review Board wanted to
take Ford’s live testimony. Section 1997e(a) applies to all
grievances, not just to the simple ones. Illinois made a
process available to Ford; he had to stick with that process
until its conclusion rather than make a beeline for court
just because the administrative officials gave his appeal the
time needed to resolve it. Even six months is prompt
compared with the time often required to exhaust appellate
remedies from a conviction.
One final matter and we are done. Ford filed two griev-
ances. The one we have been discussing dealt principally
with the question whether (as Ford asserts) a guard at-
tacked him without provocation or instead (as a disciplinary
board found) Ford attacked the guard and had to be
subdued. Ford’s second grievance concerned the medical
care that he received (or didn’t receive) for his injuries.
No matter who was the aggressor, a prison must treat an
inmate’s serious medical needs. Officials at Ford’s pris-
on took the medical-care grievance as duplicative of the
excessive-force grievance and dismissed it; Ford did not
appeal within the administrative hierarchy. The district
court dismissed Ford’s §1983 suit without prejudice, to the
extent it concerned medical care, so that he could exhaust
whatever remedies remain under state practice and try
again. (If it is too late to pursue administrative remedies,
then exhaustion will prove impossible and §1997e(a) will
permanently block litigation. See Pozo, supra.) Ford now
contends that the prison was right—that his second griev-
ance did duplicate the first, which Ford says protested the
medical care he received as well as the use of force against
him.
This means, Ford submits, that the two sets of allegations
stand together. Or they can fall together. As we have held
that Ford filed suit too soon on the initial grievance,
treating the first grievance as comprising both theories does
not assist him. But his argument does call into question the
distinction in the district court’s judgment— excessive-force

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No. 01-3709 9
claims dismissed with prejudice, medical-care claims
dismissed without prejudice.
Why should §1997e(a) ever lead to dismissal with pre-
judice? States may allow cure of failure to exhaust; or a
state may allow litigation in state court without the ex-
haustion rule that §1997e(a) adopts for federal litigation. In
either case, dismissal with prejudice blocks what may be an
appropriate suit. Moreover, if the prisoner does exhaust,
but files suit early, then dismissal of the premature action
may be followed by a new suit that unquestionably
post-dates the administrative decision. If Ford were to file
such a suit in federal court the statute of limitations might
provide a good defense, but that question should be worked
out directly and not be preempted by a dismissal with
prejudice. We therefore hold that all dismissals under
§1997e(a) should be without prejudice. See Walker, supra,
288 F.3d at 1009; accord, Morales v. Mackalm, 278 F.3d
126, 128, 131 (2d Cir. 2002); Wyatt v. Terhune, 315 F.3d
1108, 1120 (9th Cir. 2003); Steele v. Federal Bureau of
Prisons, 355 F.3d 1204, 1212-13 (10th Cir. 2003). Even a
dismissal without prejudice is “final,” and hence appealable,
when the statute of limitations is bound to block a fresh
suit, see Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.
2001), so this approach should provide some opportunities
to prisoners without costing them their crack at appellate
review.
The decision dismissing the medical-care claim without
prejudice is affirmed. The decision dismissing the exces-
sive-force claim is modified so that dismissal is without
prejudice; and, as so modified, it too is affirmed.

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10 No. 01-3709
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-24-04

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