In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3871
A NTHONY L. FLETCHER,
Plaintiff-Appellant,
v.
M ENARD C ORRECTIONAL C ENTER,
Warden of Security Operations, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-cv-1158—Harold A. Baker, Judge.
____________
S UBMITTED S EPTEMBER 8, 2010—D ECIDED O CTOBER 28, 2010
____________
Before B AUER, P OSNER and W OOD , Circuit Judges.
P OSNER, Circuit Judge. Anthony Fletcher, an Illinois state
prisoner, brought this civil rights suit against prison
employees who he claims violated his federal constitu-
tional rights by using excessive force to restrain him and
by recklessly disregarding his need for medical attention.
His complaint charges that while transferring him on
June 29, 2008, from one cell to another prison guards
used excessive force to restrain and move him and that
2 No. 08-3871
as a result he suffered “severe injury and pain to wrists,
arms, feet, neck, shoulders, and back.” For two days, the
complaint continues, he was denied medical treatment for
his injuries and for asthma, eczema, and diabetes, and as a
result he suffered from “diabetic pain” and asthmatic
attacks.
Because he had three “strikes” against him (that is,
earlier prisoner suits filed by him that had been dis-
missed as being frivolous or malicious or failing to state
a claim), he could not proceed in the district court in forma
pauperis (which would have excused him from having to
pay the filing fee up front rather than in installments,
28 U.S.C. § 1915(b)) unless he was “under imminent
danger of serious physical injury.” § 1915(g). The district
court ruled that he didn’t come within this exception
to the three-strikes rule; and so, because he hadn’t paid
the filing fee, dismissed the complaint, precipitating
this appeal. The district court refused to certify that the
appeal was taken in good faith, § 1915(a)(3), but a motions
panel of this court, disagreeing, authorized Fletcher
to appeal in forma pauperis. Fed. R. App. P. 24(a)(5).
He had the bad luck to have appeared before the same
district judge in one of his earlier suits, which was against
employees of the county jail in which he had been held
before being transferred to Menard. That suit had accused
the jail’s staff of denying him medicine for his asthma
and failing to monitor his diabetes. The defendants
had responded by submitting his medical record with
their motion for summary judgment and it showed that
he had neither asthma nor diabetes. The judge granted
the motion for summary judgment, Fletcher v. Deathridge,
No. 08-3871 3
No. 1:07-cv-1231 (C.D. Ill. Aug. 17, 2009), and Fletcher
had not appealed. We can take judicial notice of
prior proceedings in a case involving the same litigant.
Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361-
62 (10th Cir. 2008); Guaranty Bank v. Chubb Corp., 538 F.3d
587, 591 (7th Cir. 2008); Campbell v. Clarke, 481 F.3d 967,
968-69 (7th Cir. 2007); St. Louis Baptist Temple, Inc. v. FDIC,
605 F.2d 1169, 1172 (10th Cir. 1979). The judge ruled
similarly in the present case that Fletcher had not been in
imminent danger of serious physical injury when he sued,
and therefore he could not litigate in forma pauperis.
But the judge’s reasoning was incomplete because
it ignored the alleged beating. Although the beating (if
there was a beating) occurred before Fletcher sued,
an untreated wound, like an untreated acute illness, could
pose an imminent danger of serious physical
harm. Ciarpaglini v. Saini, 352 F.3d 328, 329-31 (7th Cir.
2003); Ibrahim v. District of Columbia, 463 F.3d 3, 6-7
(D.C. Cir. 2006); Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004); McAlphin v. Toney, 281 F.3d 709, 711
(8th Cir. 2002). Interpreted generously, this is what his pro
se complaint alleges.
There is an alternative ground on which the dis-
missal of this suit must be affirmed, however: failure
to exhaust administrative remedies. Exhaustion is ex-
plicitly required by the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 523-
25 (2002), and there is no exception for prisoners who
allege “imminent danger” in order to be excused from
having to pay the entire filing fee at the time the suit
4 No. 08-3871
is brought. McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir.
2004) (per curiam). Imminent danger excuses only that,
and not the duty to exhaust as well. Id.
Even so, if there are no administrative remedies, then of
course there’s nothing to exhaust. And we think it’s also
true that there is no duty to exhaust, in a situation
of imminent danger, if there are no administrative reme-
dies for warding off such a danger. Although there is
no “futility” exception to a prisoner’s duty to exhaust,
Booth v. Churner, 532 U.S. 731 (2001); Dixon v. Page, 291 F.3d
485, 488 (7th Cir. 2002), futility is not the same as unavail-
ability. Massey v. Helman, 196 F.3d 727, 733 (7th Cir.
1999). If a prisoner has been placed in imminent danger of
serious physical injury by an act that violates his constitu-
tional rights, administrative remedies that offer no possible
relief in time to prevent the imminent danger from becom-
ing an actual harm can’t be thought available. See
Thornton v. Snyder, 428 F.3d 690, 695-96 (7th Cir. 2005);
Dixon v. Page, supra, 291 F.3d at 491; Kaemmerling v. Lappin,
553 F.3d 669, 675 (D.C. Cir. 2008); Beharry v. Ashcroft,
329 F.3d 51, 58 (2d Cir. 2003). Suppose the prison requires
that its officials be allowed two weeks to respond to
any prisoner grievance and that before the two weeks are
up there can be no action taken to resolve it. An admin-
istrative remedy could not be thought available to a
prisoner whose grievance was that he had been told
that members of the Aryan Brotherhood were planning
to kill him within the next 24 hours and the guards
were refusing to take the threat seriously. Cf. Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (per curiam).
No. 08-3871 5
It’s true that in Booth v. Churner, supra, the Supreme
Court said that “an inmate must exhaust irrespective of
the forms of relief sought and offered through administra-
tive avenues.” 532 U.S. at 742 n. 6. But we must read
this language in context. The inmate wanted damages, and
the administrative remedies offered by the prison didn’t
include damages, so he argued that resort to the adminis-
trative procedures would be futile. But the requirement
of exhaustion is intended primarily for the benefit of the
prison rather than the prisoner. It is quid pro quo: a prison
grievance procedure offers the prisoner the possibility
of prompt remediation, but in exchange he must give the
prison a shot at attempting such remediation before
he drags its employees into court. He may not circumvent
the requirement of exhaustion by picking out a remedy
that the prison happens not to offer and contending that
its absence entitles him to bypass the administrative
grievance procedure.
But a case in which the prisoner might be killed if forced
to exhaust remedies that do not include any remedy
against an imminent danger is not a circumvention case
and is not controlled by Booth, which in any event distin-
guished between a case in which there are remedies
but none to the prisoner’s liking (which was the Booth case)
and a case in which there is no remedy; for the Court
said that “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.” Id. at 736 n. 4. If
it takes two weeks to exhaust a complaint that the com-
plainant is in danger of being killed tomorrow, there is
6 No. 08-3871
no “possibility of some relief” and so nothing for the
prisoner to exhaust.
But Illinois has created an emergency grievance proce-
dure—an expedited process for prisoners such as Fletcher
who claim to be in urgent need of medical attention.
20 ILCS § 504.840. The grievance is forwarded directly to
the warden, who determines whether “there is a substan-
tial risk of imminent personal injury or other serious
or irreparable harm” to the inmate. § 504.840(a). If there is
such a risk, the grievance is handled on an emergency basis
and the warden is required to tell the inmate what action
if any will be taken in response to the alleged danger.
§ 504.840(b).
Fletcher says he did file an emergency grievance—and on
the very day of the beating he claims to have suffered. But
just two days later, without waiting for a response, he filed
this suit though even on his own account so short a delay
in the response to his grievance could not have endangered
his health seriously. He concedes that he was receiving
medical treatment—even for his nonexistent asthma and
diabetes—within a week of mailing his complaint to the
court, but insists that if imminent danger existed when
he sued, what happened later was irrelevant. And it is true
that if when the prisoner files his suit he is in imminent
danger of serious physical harm, he doesn’t have to pay
the entire filing fee up front even if later the danger
passes; the existence of the danger and therefore the
applicability of the imminent-danger exception to the
“three strikes” rule are determined when the suit is filed.
Opinions that say the danger must be imminent when the
No. 08-3871 7
complaint is filed, e.g., Heimermann v. Litscher, 337 F.3d
781, 782 (7th Cir. 2003) (per curiam); Malik v. McGinnis,
293 F.3d 559, 562 (2d Cir. 2002) (citing cases), mean by
this that if the danger had passed when the suit was filed
the imminent-danger exception is inapplicable; the suit
lacks the urgency that would justify allowing the prisoner
who has accumulated three strikes to proceed in forma
pauperis. Congress “wanted to include a safety valve for
the ‘three strikes’ rule to prevent impending harms, not
those harms that had already occurred.” Abdul-Akbar v.
McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (en banc). By
the same token, however, if the danger is imminent
when the complaint is filed, the exception clicks in.
But remember that the imminent-danger exception does
not excuse a prisoner from exhausting remedies tailored to
imminent dangers. Fletcher had an available such remedy,
and—the danger being not of the greatest urgency—he had
to wait more than two days to test its availability before he
could sue. We are given no reason to think that the prison’s
grievance procedure would take longer than judicial
procedure. So imminent danger did not excuse his failure
to exhaust his administrative remedies, and his suit
was therefore properly dismissed.
A FFIRMED.
10-28-10