Dion Strong v. Alphonso David

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3264
D ION S TRONG ,
Plaintiff-Appellant,
v.
A LPHONSO D AVID , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-118—G. Patrick Murphy, Chief Judge.
____________
A RGUED F EBRUARY 19, 2002—D ECIDED J ULY 23, 2002
____________
Before C OFFEY , E ASTERBROOK , and D IANE P. W OOD ,
Circuit Judges.
E ASTERBROOK , Circuit Judge. Two days after Dion
Strong, then an inmate at Shawnee Correctional Center,
was seen by Dr. Alphonso David for a physical examination,
he complained to a guard that David had sexually assaulted
him. A lieutenant in the prison’s Internal Affairs division
ordered Strong to take a polygraph test. He did so, the
examiner concluded that he was lying, and the prison com-
menced a disciplinary proceeding for making false accusa-
tions against a staff member. The prison’s Adjustment Com-
mittee found Strong guilty of the charge and recommended
that he be placed in segregation for six months, lose three

-- 1 of 7 --

2 No. 01-3264
months of good-time credits, be transferred to a maximum-
security facility, and be demoted in grade. Shawnee’s war-
den reduced the penalty to six months of segregation, three
months of “C-grade” status, and a transfer to another
medium-security facility. Because in the end Strong did not
lose any good-time credits, he is entitled to seek damages
under 42 U.S.C. §1983 without first waging a successful
collateral attack under 28 U.S.C. §2254. See Edwards v.
Balisok, 520 U.S. 641 (1997).
Before filing this §1983 action, Strong filed two intra-
prison grievances. The first complained not only about the
alleged sexual assault but also about the way in which the
officers from Internal Affairs and the prison’s Adjustment
Committee responded. Strong asked to be released from
segregation, that the “matter to not be overlooked”, and
that certain property and privileges be returned to him. His
grievance was submitted to and denied by Shawnee’s Ad-
ministrative Review Board. The Board is the prison’s final
reviewing body for prisoner grievances, and defendants
concede that Strong pursued all administrative remedies
available to him with respect to this grievance. After ar-
riving at his new prison (recall that a transfer was part of
his punishment) Strong filed a second grievance. This re-
peated the first grievance’s factual allegations but sought
additional relief, including a new polygraph examination,
that “all persons involved be held liable for their actions”,
and compensation for pain and suffering. Like the first
grievance, this came to naught. Strong then initiated this
litigation seeking damages not only from David but also
from most of the officers involved in the investigation and
the disciplinary proceedings. Strong contends that the
defendants other than David conspired to conceal David’s
misconduct and punished him for refusing to recant his
charge against David. The district court understood the
complaint as making an eighth amendment claim against
David and a due process claim against the other defendants

-- 2 of 7 --

No. 01-3264 3
for “negligently failing to hire, train and supervise their
employees in violation of state and federal law”.
Defendants moved for summary judgment on the ground
that Strong had not exhausted his administrative remedies.
The Prison Litigation Reform Act prohibits prisoners from
filing a suit in federal court “with respect to prison condi-
tions until such administrative remedies as are available
are exhausted.” 42 U.S.C. §1997e(a). Strong insists that his
complaint concerns not “prison conditions” but an isolated
incident and therefore is not subject to §1997e(a). This line
of argument was rejected in Porter v. Nussle, 534 U.S. 516
(2002), and does not require further analysis. Exhaustion is
necessary—and, the district judge held, has not been accom-
plished. As the judge saw matters, Strong’s first grievance
was inadequate because it did not cover all of the legal
theories and request the same relief that he seeks in court,
while the second did not do the trick because it had not
been pursued to conclusion. The court dismissed Strong’s
complaint without prejudice to refiling after exhaustion.
Normally a complaint’s dismissal without prejudice is not
a final judgment and therefore may not be appealed. See
Kaplan v. Shure Brothers, Inc., 153 F.3d 413, 417 (7th Cir.
1998). An order to patch up the complaint, or take some
other easily accomplished step, is no more reviewable than
the resolution of a discovery dispute or equivalent interlocu-
tory ruling. When, however, a plaintiff cannot cure the de-
fects, the dismissal is effectively with prejudice and ap-
pealable no matter what language the district judge uses.
See Otis v. Chicago, 29 F.3d 1159 (7th Cir. 1994) (en banc).
Here, as in Dixon v. Page, No. 01-1973 (7th Cir. May 28,
2002), slip op. 4, the “without prejudice” language is mis-
leading. Strong filed two grievances and pursued both to
conclusion; there is no indication that Illinois would allow
him to file another. He has no more remedies to exhaust, so
the defect that the district judge identified is irreparable—if
it is a defect at all. The judge’s belief that Strong had neg-

-- 3 of 7 --

4 No. 01-3264
lected to take an administrative appeal of the second griev-
ance—a belief doubtless induced by the defendants’ repre-
sentations to that effect in the district court—was incorrect,
as those defendants represented by the Attorney General of
Illinois (all defendants other than David) have honorably
and commendably conceded on appeal. But unless we act
now, Strong is effectively out of court, so as in Dixon we
have appellate jurisdiction.
The discovery that Strong actually submitted his second
grievance to the Administrative Review Board pulls the rug
out from under the district court’s decision. Defendants
nonetheless argue that the order should be affirmed on the
ground that neither of Strong’s grievances is detailed
enough. The district court called the second grievance the
“applicable [one] forming the basis of this action” but did
not explicitly address its sufficiency after finding that
Strong had neglected to take an administrative appeal. The
defendants are free to pursue this line because they may
seek to preserve—though not enlarge—their victory by pre-
senting any argument made in the district court and sup-
ported by the record. Compare Massachusetts Mutual Life
Insurance Co. v. Ludwig, 426 U.S. 479 (1976), with El Paso
Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-81 (1999).
It is unclear how the district judge evaluated the com-
pleteness of Strong’s grievances: he summarily declared
that the first would not suffice but did not say why. Very
few courts have addressed what things an administrative
grievance must contain, and none has attended to the
choice-of-law issue. Courts—and presumably litigants too—
have assumed that the general objectives that inspired
§1997e(a) also determine how a prisoner must go about ex-
hausting state remedies. The sixth circuit, for example, de-
mands that the administrative grievance name each person
who ultimately becomes a defendant. Curry v. Scott, 249
F.3d 493, 504-05 (6th Cir. 2001). In contrast, the eleventh
circuit requires only that a prisoner include in a grievance

-- 4 of 7 --

No. 01-3264 5
all the information the prisoner reasonably can be expected
to know; failing to identify a specific person does not pre-
vent a later suit against that person. Brown v. Sikes, 212
F.3d 1205, 1208 (11th Cir. 2000). Presumably the sixth cir-
cuit likewise would require legal claims to be identified,
while the eleventh would not. Yet both of these decisions
skip over a vital question: what body of law governs the
specificity inquiry?
Section 1997e(a) does not delineate the procedures pris-
oners must follow. We have held that the rules come from
the prison grievance systems themselves—state law for
state prisons, federal administrative law for federal prisons.
We wrote in Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th
Cir. 2002), that “prisoner[s] must file complaints and ap-
peals in the place, and at the time, the prison’s administra-
tive rules require.” Now we add the logical extension that
the grievances must contain the sort of information that the
administrative system requires. Some states (Illinois is an
example) require fact-pleading in litigation, and these
might be expected to require factual detail in administra-
tive grievances too. They may use the old code-pleading
system under which the complaint must identify each “ele-
ment” of a “cause of action.” See Bartholet v. Reishauer A.G.
(Zürich), 953 F.2d 1073 (7th Cir. 1992). Federal courts and
many states use notice pleading, under which the nature of
the claim need only be sketched, see Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002), and a pleader need not match
facts against the elements of a legal theory. If they follow
this approach, prisons would require very little of grievants.
Or a given prison system might ask for something in be-
tween. It is up to the administrators to determine what is
necessary to handle grievances effectively. Systems with
more money to hire investigators will require less of pris-
oners than do resource-starved systems that are strapped
to handle even those claims made with particularity. The
only constraint is that no prison system may establish a

-- 5 of 7 --

6 No. 01-3264
requirement inconsistent with the federal policy underlying
§1983 and §1997e(a). See Robertson v. Wegmann, 436 U.S.
584 (1978). Thus, for example, no administrative system
may demand that the prisoner specify each remedy later
sought in litigation—for Booth v. Churner, 532 U.S. 731
(2001), holds that §1997e(a) requires each prisoner to ex-
haust a process and not a remedy. No comparable doctrine
prevents a prison system from requiring factual particular-
ity in an internal grievance.
As far as we can see, however, Illinois has not established
any rule or regulation prescribing the contents of a griev-
ance or the necessary degree of factual particularity. De-
fendants do not contend that either Illinois or the Shawnee
Correctional Center has implemented such a standard, and
our own research did not locate one. When the administra-
tive rulebook is silent, a grievance suffices if it alerts the
prison to the nature of the wrong for which redress is
sought. As in a notice-pleading system, the grievant need
not lay out the facts, articulate legal theories, or demand
particular relief. All the grievance need do is object intelligi-
bly to some asserted shortcoming. Strong’s two grievances
were comprehensible and contained everything that Illinois
instructed him to include. Defendants can’t complain that
he failed to do more. The case must be remanded for deci-
sion on the merits.
On remand, the district judge should be sure to treat sep-
arately the claims against David and the other defen-
dants—for even if David did what Strong alleges (and thus
violated the eighth amendment in addition to committing a
tort under state law), none of the other defendants would be
vicariously liable for David’s acts. If any of the other de-
fendants knew in advance that David poses a serious risk
to Strong or other prisoners, then an eighth amendment
claim against them would be available on the theory of
Farmer v. Brennan, 511 U.S. 825 (1994). Cf. DeShaney v.
Winnebago County Department of Social Services, 489 U.S.

-- 6 of 7 --

No. 01-3264 7
189 (1989). But if these defendants learned only too late, or
if they just believed David in a swearing contest between
David and Strong, they did not offend the Constitution,
which does not require states to prosecute persons accused
of wrongdoing. See Leeke v. Timmerman, 454 U.S. 83
(1981); Linda R.S. v. Richard D., 410 U.S. 614 (1973). As
long as they did not deprive Strong of his opportunity to
contest the merits of the charge before the grievance board
or sabotage his chance to obtain redress in court, the de-
fendants’ uncooperative approach is not an independent
constitutional tort; there is no duty to assist in an effort to
obtain private redress, and calling lack of assistance a “cov-
er up” adds nothing. See Christopher v. Harbury, 122 S. Ct.
2179 (2002). None of the defendants prevented Strong from
learning that a wrong had been done him, and none is
alleged to have manufactured any evidence. But ours is a
system of notice pleading, and Strong may be able to show
that he has a real claim against someone other than David.
Given what we said above it should not be necessary to
add—though we add it anyway—that Strong’s entitlement
to do this is not limited to or by the contents of his intra-
prison grievances.
R EVERSED AND R EMANDED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-23-02

-- 7 of 7 --