NONPRECEDENTIAL DISPOSITION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 December 9, 2013*
Decided December 10, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13-2137
WILLIE J. GRIFFIN, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 11-cv-110-JPG-PMF
BELINDA AUTERSON, J. Phil Gilbert,
Defendant-Appellee. Judge.
ORDER
Willie Griffin, a federal inmate, challenges the dismissal of his civil-rights lawsuit
against a disciplinary hearing officer based on his failure to exhaust his administrative
remedies. See 42 U.S.C. § 1997e(a). Because Griffin did not exhaust those remedies
before he sued, we affirm the judgment.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13-2137 Page 2
The timing of Griffin’s disciplinary hearing and administrative appeals in
relation to this suit are not in dispute. Griffin was charged with violating prison rules
by arguing with staff in late 2010 after they turned away two unapproved visitors. The
disciplinary officer who reviewed the charges, Belinda Auterson, held a hearing in
January 2011 and completed her report in April. She concluded that Griffin had been in
an unauthorized area, had refused to obey staff, and had been insolent. Before Auterson
finished her report, Griffin sued the guards for allegedly falsifying the charges against
him. Once Auterson completed her report, Griffin added her as a defendant. (The other
defendants were dismissed at screening, and Griffin does not challenge that dismissal.)
Three months after adding Auterson, Griffin administratively appealed the disciplinary
report, and the charges were remanded for a new hearing. After another round of
appeals, prison staff expunged the charges in December 2011. Three months later,
Auterson answered the complaint in this suit, raising her exhaustion defense.
Although Griffin initially was allowed to proceed in forma pauperis, the district
court revoked that status after correctly determining that Griffin previously had
incurred at least three strikes. 28 U.S.C. § 1915(g); Griffin v. DeRosa, No. 03-5597-RBK
(D. N.J. June 4, 2004) (dismissing entire suit concerning prison blackout for failure to
state claim), aff’d 153 F. App’x 851 (3d Cir. 2005); Griffin v. Florida, No. 03-13769-C (11th
Cir. Nov 26, 2003) (ruling that appeal was frivolous); Griffin v. Escambia Cnty. Sheriff’s
Dep’t, No. 3:03cv30-LAC-MD (N.D. Fl. July 10, 2003) (dismissing entire suit challenging
transfer from state to federal custody for failure to state claim).
Auterson later moved for summary judgment, repeating that Griffin had failed
to exhaust his administrative remedies before suing her, as required by § 1997e(a). She
submitted affidavits showing that Griffin administratively appealed the disciplinary
report three months after adding her as a defendant, leading to his eventual success in
obtaining a new disciplinary hearing. Griffin opposed the motion, arguing that he had
exhausted his administrative appeals before Auterson raised exhaustion as an
affirmative defense in her answer. The magistrate judge in charge of discovery
recommended dismissal based on Griffin’s failure to complete the administrative
grievance process before bringing suit. The district court adopted the recommendation
and dismissed Griffin’s suit without prejudice. After Griffin belatedly objected to the
dismissal, the court reaffirmed its conclusion that dismissal was proper, noting that
Griffin sued Auterson months before finishing the prison’s grievance process, violating
the exhaustion requirement of § 1997e(a).
No. 13-2137 Page 3
On appeal Griffin maintains that because he had completed the administrative
appeals process before Auterson raised her exhaustion defense, the district judge erred
in dismissing his suit. But Griffin misunderstands § 1997e(a). The provision requires
prisoners to exhaust administrative remedies before they file suit, not just before the
exhaustion defense is raised. See Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005).
Exhausting before suing allows the prison administrators a chance to remedy possible
mistakes before court intervention and ensures that prisoners concentrate on the
grievance process, not litigation. See Woodford v. Ngo, 548 U.S. 81, 89–90 (2006); Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Thus, even though Griffin did eventually
exhaust his administrative remedies while this suit was pending, the court correctly
dismissed his suit without prejudice. See Ford, 362 F.3d at 401 (explaining that “if the
prisoner does exhaust, but files suit early” dismissal without prejudice is correct
response so “the premature action may be followed by a new suit that unquestionably
post-dates the administrative decision”).
Griffin replies that, if exhaustion bars this suit, the district court would have
dismissed it when the court screened his complaint adding Auterson as a defendant.
But exhaustion is an affirmative defense that inmates need not anticipate and refute in
their complaints. Jones v. Bock, 549 U.S. 199, 216 (2007); Pavey v. Conley, 663 F.3d 899, 903
(7th Cir. 2011). Here, moreover, the court could not have dismissed at screening the
claim against Auterson because Griffin alleged in his amended complaint that he had
completed the grievance procedure at the time of his April 2011 amendments adding
Auterson as a defendant.
Griffin alternatively asserts that the district judge erred in dismissing the suit
because, he says, the administrative appeals process was “unavailable” since it limited
his potential monetary recovery. But the grievance process is available if it can offer any
potential relief, even if it is not the prisoner’s preferred remedy. See Porter v. Nussle, 534
U.S. 516, 524 (2002); Dole v. Chandler, 438 F.3d 804, 808–09 (7th Cir. 2006). Here the
administrative process offered Griffin some relief because it could—and did—expunge
his disciplinary charges.
We have reviewed Griffin’s remaining assertions, and they all lack merit.
AFFIRMED.