NONPRECEDENTIAL DISPOSITION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 11, 2008*
Decided June 12, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐3836
JOHN L. DYE, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 06‐C‐0634
BYRAN BARTOW,
Defendant‐Appellee. Rudolph T. Randa,
Chief Judge.
O R D E R
Wisconsin inmate John Dye was involved in a fight with another inmate and was
sanctioned with 90 days of disciplinary segregation. The following month, he sued the
warden under 42 U.S.C. § 1983, demanding his release from segregation. (Dye mislabeled
his complaint as a petition for writ of mandamus, but the district court recognized it for
what it is.) Dye claimed that he was disciplined in violation of prison “rules, policies, and
procedures,” and that the “stress” of life in segregation had left him unable to eat
*
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).
No. 07‐3836 Page 2
“anything” for more than a month and, as a consequence, caused his blood pressure to drop
precipitously. At screening, see 28 U.S.C. § 1915A, the court immediately dismissed Dye’s
claim concerning his disciplinary hearing because Dye had no liberty interest in avoiding
segregation. But the court construed Dye’s allegation about not eating as a claim under the
Eighth Amendment for deliberate indifference to a serious medical condition, and directed
the warden to respond. Later the court granted summary judgment for the warden on the
ground that Dye had failed to exhaust his administrative remedies.
Under the Prisoner Litigation Reform Act, an inmate must exhaust available
administrative remedies by completing all the procedural steps of the prison grievance
process before complaining in federal court about prison conditions. 42 U.S.C. § 1997e(a);
Woodford v. Ngo, 126 S.Ct. 2378, 2382‐83, 2385, 2387 (2006); Kaba v. Stepp, 458 F.3d 678, 684
(7th Cir. 2006). But administrative remedies are deemed to be unavailable if prison staff
prevent an inmate from pursuing them by, for instance, withholding the necessary forms.
Kaba, 458 F.3d at 684; Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Dale v. Lappin, 376
F.3d 652, 655‐56 (7th Cir. 2004).
As relevant here, Dye renews his contention that he had no available remedies to
exhaust because, he maintains, prison staff denied him the necessary form for filing a
grievance. See WIS. ADMIN. CODE DOC §§ 310.06, 310.09. But Dye’s response to the
warden’s motion for summary judgment did not support this allegation. Dye stated only
that on “various occasions” he was denied “necessary requested institution forms,” and he
did not even identify grievance forms as the ones denied him. The scant record he
submitted showing that he filed a grievance complaining about the lack of forms offers no
clarification. To the contrary, the warden’s undisputed evidence at summary judgment
showed that Dye indeed had access to grievance forms during the time he allegedly was not
eating.
The altercation that resulted in Dye’s discipline occurred on April 15, 2006. He was
placed in temporary segregation while prison authorities investigated and was moved to
disciplinary segregation shortly thereafter. When Dye signed his complaint on May 21,
2006, he alleged that he had not eaten for 36 days, or since April 15. The list of Dye’s
grievances presented by the warden shows that Dye filed two grievances on May 4, two on
May 9, and one on May 19. One of the May 9 grievances was the one he used to grieve the
denial of unidentified forms. All of these grievances were filed while Dye was allegedly not
eating, and any one of them could have been used to grieve his conditions. See WIS. ADMIN.
CODE DOC §§ 310.09(6) (providing that grievance can be filed within 14 days of occurrence
giving rise to complaint).
No. 07‐3836 Page 3
Dye also argues that his state of “medical emergency” should have excused him
from exhausting his administrative remedies. We have difficulty discerning the emergency;
Dye alleged only that he was not eating, not that he was being denied food, or that he
suffered from a medical condition that prevented him from eating when he tried to. Either
way, though, this court has never recognized such an exception to the exhaustion
requirement. See Dole, 438 F.3d at 809 (“This circuit has taken a strict compliance approach
to exhaustion.”) Accordingly, the district court properly granted summary judgment
because there was no material factual dispute as to Dye’s access to grievance forms or his
failure to exhaust administrative remedies.
We also conclude that this appeal is frivolous. Dye is no stranger to the exhaustion
requirement. See Dye v. Kingston, 130 Fed. Appx. 52 (7th Cir. 2005) (affirming summary
judgment for defendant on ground that Dye had failed to exhaust administrative remedies);
Dye v. Bett, 79 Fed. Appx. 226 (7th Cir. 2003) (same). In this instance, his failure to exhaust
administrative remedies was plain from the record in the district court, and since Dye’s
appeal simply repeats arguments that the court properly rejected and that were
“foreordained” to lose, it is frivolous. See Berwick Grain Co. v. Illinois Dep’t of Agric., 217 F.3d
502, 505 (7th Cir. 2000); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 938 (7th Cir.
1989). Dye already had incurred two “strikes” in the district court for pursuing frivolous
litigation. See Dye v. Kay, No. 00‐C‐1058 (E.D. Wis. Apr. 23, 2001); Dye v. Milwaukee Journal
Sentinel, Inc., No. 99‐C‐1324 (E.D. Wis. Dec. 28, 1999). He has incurred a third “strike” for
this appeal and has now “struck out.” See 28 U.S.C. § 1915(g).
AFFIRMED.