NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2011*
Decided June 29, 2011
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
Nos. 10-2255, 10-2401 & 10-3795
RALPH W. MLASKA, Appeals from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 10-3055
VIPIN SHAH, et al., Harold A. Baker,
Defendants-Appellees. Judge.
ORDER
Ralph Mlaska claimed in a suit under 42 U.S.C. § 1983 that several doctors and
administrators at the Western Illinois Correctional Center denied him appropriate medical
care in violation of the Eighth Amendment. At screening the district court dismissed
Mlaska’s complaint without prejudice for failure to exhaust administrative remedies. See 28
*
The defendants were not served with process in the district court and are not
participating in these appeals. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeals are submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
Nos. 10-2255, 10-2401 & 10-3795 Page 2
U.S.C. § 1915A. The court later denied Mlaska’s motions to reconsider and to reopen the
case. Mlaska filed appeals after each decision. We affirm the judgments.
We accept as true Mlaska’s description of events. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 820 (7th Cir. 2009). Beginning in the spring of 2009, Mlaska
started experiencing intense pain and burning in his penis and noticed that a “small
nodule” had appeared. He was treated by prison physician Vipin Shah several times for the
condition. Then on September 30, 2009, while zipping his pants, Mlaska nicked his penis
with the zipper when a prison guard startled him. According to Mlaska, the zipper injury
exacerbated his pain and, Mlaska suspects, caused more complications. Over the next few
months, Mlaska continued to experience pain, burning, impotence, itching, swelling, and
discoloration. Prison medical staff saw him frequently for these complaints and prescribed
antibiotics and painkillers and also ordered diagnostic tests including a urine screening for
kidney stones.
In November 2009 the medical staff ordered a consultation with a urologist. Mlaska
was told that the wait for appointments was two months, yet in December he filed four
“emergency” grievances, see 20 Ill. Adm. Code § 504.840, demanding an immediate
examination. The warden concluded that no emergency existed and denied Mlaska’s
request to expedite the grievances. The warden told Mlaska that he could resubmit his
grievances using the normal procedure, which Mlaska then did.
Mlaska was seen by the urologist in January 2010. The specialist did not detect any
abnormality but did tell Mlaska about a test used to diagnose erectile dysfunction that was
available at a facility in Springfield, Illinois. The urologist declined to order this test but
added that a prison physician could do so if necessary. He offered to do a cystogram to
determine if Mlaska had kidney stones, but Mlaska refused. Afterward, Mlaska continued
to file grievances and regularly visited the prison infirmary asking for the test described by
the urologist.
Mlaska filed his § 1983 suit on March 3, 2010. On the fourth page of his complaint,
Mlaska acknowledged, under a section entitled “Exhaustion of Administrative Remedies,”
that the grievance process was “incomplete.” He explained that the warden had declined to
expedite his grievances, thus requiring him to pursue them “in a normal manner that can
take up to 6 months.” Mlaska asked the district court to stay his lawsuit while he finished
exhausting his administrative remedies, but instead the court screened the complaint and
dismissed it on the ground that Mlaska had conceded a failure to exhaust.
That ruling prompted the first of these appeals. Mlaska also filed a motion to
reconsider, see FED. R. CIV. P. 59(e), arguing that prison administrators had made the
Nos. 10-2255, 10-2401 & 10-3795 Page 3
grievance process “unavailable” by not answering his grievances at all or else returning
them marked as duplicates without further action. The district court denied the motion on
the understanding that Mlaska’s further explanation showed, not that administrative
remedies had been unavailable, but that he failed to follow the established procedures. An
inmate must strictly comply with the institution’s grievance process, Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), and the
district court, focusing on the four “emergency” grievances that Mlaska submitted in
December 2009, faulted him for not taking further action when the warden declined to find
an emergency. As the court pointed out, the regulations spell out that inmates who disagree
with a warden’s refusal to expedite a grievance as an emergency can either resubmit it using
the standard procedure or else appeal the decision to the Director of the Department of
Corrections. See 20 Ill. Adm. Code. § 504.850. The court, overlooking that Mlaska had said in
this Rule 59 motion that he did resubmit the grievances using the standard procedure,
promised to entertain a motion to reopen, see Fed. R. Civ. P. 60(b), if Mlaska could
document that he appealed the warden’s decisions to the Director. Mlaska then filed a
second notice of appeal.
Almost six months later Mlaska filed a motion to reopen. He described all of his
grievances and administrative appeals filed since the district court had dismissed his suit.
Mlaska contended that, by that point, he had exhausted his administrative remedies and
thus should be permitted to reopen his suit. The district court denied the motion, explaining
that exhaustion must be completed before suit is filed. The court told Mlaska that he could
include the exhausted claims in a new lawsuit and offered suggestions on how to compose
his new complaint. Mlaska filed his third appeal.
Exhaustion of administrative remedies is a precondition for prisoners who want to
file suit under § 1983 to challenge prison conditions. 42 U.S.C. § 1997e(a); Brengettcy v.
Horton, 423 F.3d 674, 682 (7th Cir. 2005). Exhaustion is an affirmative defense, however, and
thus Mlaska was not required to describe his grievances in his complaint. See Jones v. Bock,
549 U.S. 199, 216 (2007); Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). For this reason
we have cautioned district courts against raising the defense sua sponte at screening, see 28
U.S.C. § 1915A, unless the defense is “so plain from the face of the complaint that the suit
can be regarded as frivolous.” Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010). Here,
Mlaska openly conceded in his complaint that he had not yet exhausted his administrative
remedies, and, in fact, he requested that the district court stay his case until he could
complete the process. Dismissal of the complaint was therefore appropriate.
In his Rule 59(e) motion, Mlaska accused prison officials of obstructing the grievance
process by failing to respond to his complaints or improperly marking them as duplicates.
Attached to his motion were copies of all of the grievances he submitted from December
Nos. 10-2255, 10-2401 & 10-3795 Page 4
2009 to April 2010, none of which memorializes a decision on the merits by the warden, who
is the decisionmaker at the first level of review. See 20 Ill. Adm. Code § 504.830(d). We have
held that administrative remedies are “unavailable” if prison officials fail to respond to an
inmate’s grievances. Brengettcy, 423 F.3d at 682. The district court missed the fact that
Mlaska did resubmit his December grievances under the normal procedures (choosing not
to dispute the urgency of his complaints) but as yet had never received decisions from the
warden on those or any other grievances. At that stage Mlaska had followed the grievance
procedures exactly, and the district court’s contrary assumption was erroneous.
That assumption would be problematic if not for the fact that Mlaska filed suit so
quickly that he did not allow the warden enough time to respond. The grievance process in
Illinois prisons is set up so that nonemergency grievances are first relayed to a counselor,
and, if the counselor does not resolve the issue, it is passed on to a grievance officer. 20 Ill.
Adm. Code §§ 504.810, 504.830. The grievance officer, in turn, reports his findings to the
warden, who then will respond to the inmate in writing within two months when
“reasonably feasible.” Id. § 504.830. Here, Mlaska filed suit on March 3—at most three
months after his earliest grievance in December and within days of his last grievance on
February 28. Even though the warden was required to respond within two months, a
prisoner litigant cannot “make a beeline for court” the moment this deadline passes. Ford v.
Johnson, 362 F.3d 395, 400 (7th Cir. 2004) (concluding that when prison regulation required
an appeals decision within 60 days “whenever possible,” inmate’s remedies were not
“unavailable” simply because decision from prison’s Administrative Review Board instead
took six months). When Mlaska filed suit, he had not allowed the prison a reasonable time
to respond to his grievances, and thus we agree that he had not yet exhausted his available
remedies.
Moreover, the district court gave Mlaska an opportunity to reopen the case if he
could show either that he had exhausted or that his remedies really were unavailable.
Mlaska took the court up on this offer six months later. Instead of showing how he had
exhausted his remedies before filing his suit in March 2010, Mlaska premised his motion to
reopen on evidence that he exhausted his remedies after the court already had dismissed his
complaint. As the district court noted, however, exhaustion is a precondition to filing suit; it
is not enough for a prisoner litigant to meet this requirement after filing. Dixon v. Page, 291
F.3d 485, 489 (7th Cir. 2002). The district court advised Mlaska that he could initiate a new
suit based on his complaints if wished to do so, and we note that Mlaska has followed the
court’s advice. He now has another suit pending in the district court and is pursuing his
claims there. See Mlaska v. Talbot, No. 2:11-cv-02084-MPM-DGB (C.D. Ill. filed March 25,
2011).
Accordingly, the decision underlying each appeal is AFFIRMED.