In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2978

Cedric R. Johnson,

Plaintiff-Appellant,

v.

Jon E. Litscher, Secretary of the Wisconsin
Department of Corrections, in his official capacity,
and DONALD G. BANEY, JOANNE BARTON, THOMAS
BORGEN, KEVIN CANNON, JASON MacPHETRIDGE,
CLYDE MAXWELL, ERIN RICHARDS and JESS ROONEY
in their personal capacities,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C-0401 C--Barbara B. Crabb, Chief Judge.

Argued January 11, 2001--Decided August 15, 2001


  Before Flaum, Chief Judge, and Cudahy and
Posner, Circuit Judges.

  Cudahy, Circuit Judge. Cedric R. Johnson
appeals the dismissal of his 42 U.S.C.
sec. 1983 complaint against members of
the Wisconsin Department of Corrections
(DOC). The district court concluded that
Johnson had not exhausted his
administrative remedies pursuant to 42
U.S.C. sec. 1997e(a) and dismissed the
complaint without prejudice. We affirm.

  Johnson, an inmate in the Wisconsin
prison system, won a lawsuit against the
DOC’s director of health services for
unreasonably refusing to authorize a
liver transplant for Johnson. After his
success, Johnson was harassed repeatedly
by DOC officials./1 Correctional
officers were hostile toward Johnson and
dramatically increased the number of
conduct reports issued against him. The
large number of reports ultimately
resulted in Johnson’s transfer to a
maximum security prison. Johnson filed a
complaint charging the defendants with
retaliating against him for exercising
his First Amendment right to bring a suit
related to his confinement. Johnson
sought compensatory damages and a
preliminary injunction prohibiting DOC
from transferring him to the maximum
security prison. The district court
denied Johnson’s motion for an injunction
and--concluding that Johnson had not
exhausted his administrative remedies--
dismissed Johnson’s action without
prejudice.

I.

  In the Prison Litigation Reform Act of
1995, 110 Stat. 1321 (1996) (PLRA),
Congress imposed an exhaustion
requirement on suits by prison inmates.
Thus, 42 U.S.C. sec. 1997e(a) provides:
"No action shall be brought with respect
to prison conditions under section 1983
of this title, or any other Federal law,
by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted." Johnson argues
that his action is not subject to the
exhaustion requirement of sec. 1997e(a)
because it is not an action "with respect
to prison conditions." Prior to our
decision in Smith v. Zachary, 2001 WL
723010 (7th Cir. June 28, 2001), there
was room for this argument. But there is
no longer.

  Courts have divided sharply on the issue
whether the term "prison conditions"
incorporates discrete tortious acts like
harassment, beatings and other kinds of
excessive force. The Third and Sixth
Circuits have concluded that excessive
force and assault claims are subject to
sec. 1997e(a)’s exhaustion requirement.
See Booth v. Churner, 206 F.3d 289, 293-
98 (3d Cir. 2000),/2 aff’d on other
grounds, 121 S.Ct. 1819 (2001); Freeman
v. Francis, 196 F.3d 641, 643-44 (6th
Cir. 1999). The Second Circuit has held
to the contrary. See Nussle v. Willette,
224 F.3d 95, 100 (2d Cir. 2000), cert.
granted sub nom. Porter v. Nussle, 121
S.Ct. 2213 (2001). Our court recently
came down on the inclusive side of the
debate, ruling that "prison conditions"
does indeed include beatings by prison
guards. In Smith, a prison inmate had
filed a suit for allegedly being beaten
by prison guards in retaliation for
participating in a prison riot. He failed
to exhaust the administrative review
process prescribed for the complained-of
action, but argued that the sec. 1997e(a)
exhaustion requirement does not apply to
beatings by prison guards because, inter
alia, beatings are not "prison
conditions." This court found his
argument unpersuasive, and ultimately
concluded that "[i]n the context of
prisons, harassment from correctional
officers or government officials is not
equivalent to an unsolicited attack on
the street; rather, the harassment is
made possible by the correctional
environment. Thus, a remedy lies in
addressing prison conditions that
facilities [sic] or tolerates aberrant
behavior by guards." Smith, 2001 WL
723010 at *2. Therefore, we reasoned,
isolated incidents of harassment or of
assault by prison officials are "prison
conditions" within the meaning of the
PLRA exhaustion requirement. This is, of
course, binding precedent.

  Although Johnson’s claims are slightly
different from a claim of assault or
excessive force (because he alleges
retaliation of a different sort for the
exercise of his First Amendment rights)
the reasoning of Smith still applies.
Acts of individual prison officials
outside the scope of official prison
policy, whether governed by the Eighth
Amendment or the First, are within the
realm of "harassment made possible by the
correctional environment," and thus
subject to the exhaustion requirement.
See id. The Supreme Court in its
forthcoming review of the Second
Circuit’s Nussle decision may resolve the
debate among the circuits on what has
been a hotly contested issue, but for
now, in this circuit, Smith is
definitive. Thus, Johnson’s complaints
must be deemed allegations about "prison
conditions" within the meaning of the
PLRA.

II.

  Johnson makes the further argument that
the exhaustion requirement does not apply
to him because no administrative remedy
is available. For the exhaustion
requirement to apply, there must be some
administrative remedy to exhaust. See
Perez v. Wisconsin Dep’t of Corr., 182
F.3d 532, 537 (7th Cir. 1999). Johnson
argues that no remedy is open to him
because the DOC’s administrative remedy
program--the Inmate Complaint Review
System (ICRS)--does not address claims of
the nature of this one.
  Wisconsin Administrative Code sec.
310.08, which defines the scope of the
ICRS, provides that inmates may bring
complaints "to raise significant issues
regarding rules, living conditions, and
staff actions affecting institution envi
ronment . . . ." sec. 310.08(2) (emphasis
added). Section 310.08 outlines various
exceptions for which the ICRS is not
available, including challenges to a
"program review committee’s decision" and
"[t]he subject matter of a conduct report
. . . ." sec. 310.08(2)(a) & (b)./3
Johnson first argues that he could not
bring his complaint under sec. 310.08
because the portion of the explanatory
appendix relevant to this subsection
limits this remedy to challenges of
"institutional polic[ies] or
practice[s]." sec. 310 App., at n.310.08.
The defendants counter that sec. 310.08
is not intended to be exhaustive; it
simply provides guidance as to the types
of challenges that are covered by the
ICRS.

  The note to sec. 310.08 in the appendix
in some respects tends to support
Johnson’s argument, since neither he nor
the defendants argue that it is the DOC’s
institutional policy or practice to
retaliate against prison inmates for the
exercise of their First Amendment rights.
However, the language of the appendix
note does not indicate that the ICRS
system is limited to addressing
institutional policies and practices; in
fact, the note states that "[t]he scope
of the grievance system is wide." Id.
Further, it is apparent that claims
challenging conditions other than
institutional policies are eligible for
the grievance system. See Davis v.
Woehrer, 32 F.Supp.2d 1078 (E.D. Wis.
1999), appeal dismissed, 227 F.3d 759
(7th Cir. 2000). In Davis, a prisoner
filed a civil rights complaint charging
that the defendants had violated his
Eighth Amendment right to be free from
cruel and unusual punishment by ordering
him to operate a meat slicer without
appropriate training. Id. at 1078. The
district court ruled in favor of the
inmate, but on the grounds that the ICRS
could not provide monetary relief to
prisoners and that was the only relief
the prisoner was seeking./4 But the
court did not question whether there was
any sec. 310.08 administrative remedy
available to the inmate under the ICRS;
that appeared to be a given. And the
complaint in that case arguably cannot be
called a challenge to an "institutional
policy or practice,"/5 the limitation
Johnson alleges exists in the ICRS
system.

  And in Moore v. Stahowiak, 212 Wis.2d
744, 569 N.W.2d 711 (Ct. App. 1997), the
court dismissed an inmate’s petition for
a writ of mandamus against a prison
record custo-dian demanding a copy of a
prison policy on the grounds that he
failed to exhaust his administrative
remedies. The court concluded that sec.
310.08 provided an administrative remedy.
Thus, it necessarily concluded that sec.
310.08 was available for grievances that
do not address "institutional policies
and practices," because a writ of
mandamus challenges the failure to comply
with a policy--not the policy itself.
Johnson has failed to adequately counter
the assumptions that arise from the plain
language of the statute, as well as the
conclusions reached in Davis and Moore.

  Johnson also argues that his appeal of
the transfer to the maximum security
prison has no available administra-tive
remedy. He argues that 1) Wis. Adm. Code
sec. DOC 302.19(9), which provides for
appeals of decisions respecting "program
assignments," does not apply to prison
transfers, and 2) Wis. Adm. Code sec. DOC
302.20, which governs inter-prison
transfers, contains no appeal provision.
It is probably true that Johnson cannot
use these avenues to appeal the prison
transfer decision, but we need not
explore the point. He does not tell us
why prison transfers cannot be within the
scope of sec. 310.08. We see no reason
why they cannot. Further, if for some
reason they are not within the scope of
sec. 310.08, the Supreme Court’s recent
decision in Booth v. Churner indicates
that a prison grievance system’s
inability to prevent a prison transfer
does not obviate the need for exhaustion.
See 121 S.Ct. 1819, 1821, 1825 (2001)
(holding that prisoners must exhaust
administrative remedies, even when the
particular remedy sought cannot be
obtained through the prison grievance
system). Because Johnson’s challenge to
the prison transfer is part of his claim
of retaliatory conduct and because that
claim has an available administrative
vehicle for redress, we cannot excuse him
from the exhaustion requirement.

  If the ICRS system should fail to
address Johnson’s claim, that will
constitute exhaustion, and he may then
bring his claim to federal court.

III.

  The defendants argue that Johnson is
limited to habeas corpus relief on this
claim. In Heck v. Humphrey, the Supreme
Court ruled that a prisoner is barred
from pursuing a sec. 1983 claim when "a
judgment in favor of the plaintiff would
necessarily imply the invalidity of his
conviction or sentence." 512 U.S. 477,
487 (1994). This includes challenges to
the fact or duration of confinement. See
id. at 481-82. In Edwards v. Balisok, the
Court extended this holding to prison
disciplinary proceedings, holding that a
prisoner was barred from bringing a sec.
1983 suit that would nec-essarily imply
the invalidity of a loss of good time
credits. 520 U.S. 641, 646 (1997).
Johnson adequately distinguishes those
cases, along with our decision in Evans
v. McBride, 94 F.3d 1062 (7th Cir. 1996),
on the grounds that they all involved
direct challenges to convictions or
disciplinary findings, while his claim
involves a challenge to a course of
retaliatory conduct, only part of which
involved disciplinary action.
Particularly supportive of Johnson’s
claim is our decision in DeWalt v.
Carter, 224 F.3d 607 (7th Cir. 2000), in
which we said that Heck and Edwards do
not bar prisoners’ sec. 1983 claims
unless they are, in effect, challenges to
the fact or duration of the prisoner’s
confinement.

  The defendants contend that Johnson in
this claim is necessarily challenging the
validity of at least some of his conduct
reports. The defendants distinguish
DeWalt on two bases: 1) that here,
Johnson is in fact challenging the
duration of his confinement and 2) that
here, unlike in DeWalt, Johnson would be
able to challenge the retaliatory actions
through a petition for habeas corpus. But
the only challenge to the duration of
Johnson’s confinement that the defendants
can actually identify here is one item
from Johnson’s original complaint in the
district court: "In addition, the
penalties tied to the increase in conduct
reports has caused plaintiff to lose
’good time’ and has therefore extended
the date for his mandatory release." But
this is not the crux of Johnson’s
complaint; rather, the complaint states
that "he has received penalties greatly
in excess of those imposed on similarly
situated inmates" and as a result has
been ordered to serve more than 260 days
in segregation, and to be scheduled to be
transferred to a maximum-security prison.
Finding for Johnson would not
"necessarily imply the invalidity of his
conviction or sentence," see Heck, 512
U.S. at 487; nor would it necessarily
imply the invalidity of the conduct
reports, see Edwards, 520 U.S. at 646-47.
It also would not necessarily result in a
revocation of his conduct reports or a
restoration of the lost good time.
Johnson’s claims challenge much more than
the fact that the conduct reports were
undeserved; he is also arguing that they
are excessive in number. It is the act of
discipline that constitutes the
retaliatory conduct--a separate issue
from whether Johnson was, in fact, guilty
of the conduct alleged in the reports.
Johnson seeks monetary damages and an
injunction preventing his transfer to a
maximum security prison, not a reduction
in his sentence.

  Further, it appears that habeas relief
would not be available to Johnson in a
challenge to the prison transfer. Pischke
v. Litscher holds that habeas corpus
could not be used to challenge a transfer
between prisons "unless the custody in
which the transferred prisoner will find
himself when transferred is so much more
restrictive than his former custody that
the transfer can fairly be said to have
brought about what in Graham we called ’a
quantum change in the level of custody.’"
178 F.3d 497, 499 (7th Cir. 1999)
(quoting Graham v. Broglin, 922 F.2d 379,
381 (7th Cir. 1991) (defining "quantum
change" as "outright freedom, or freedom
subject to the limited reporting and
financial constraints of bond or parole
or probation, or the run of the prison in
contrast to the approximation to solitary
confinement that is disciplinary
segregation")). We have seen nothing to
indicate that the transfer to maximum
security in this case represents such a
quantum change. But perhaps it is a close
enough question that, were it really
before us, we would have to remand for
further development of the record. That
we need not do, however, because we
conclude that Heck and Edwards do not
apply to Johnson’s claim.

IV.

  For the foregoing reasons, the judgment
of the district court is Affirmed.

FOOTNOTES
/1 We are viewing the facts in the light most
favorable to Johnson. See Hentosh v. Herman M.
Finch Univ. of Health Sciences/The Chicago Med.
Sch., 167 F.3d 1170, 1173 (7th Cir. 1999).

/2 In dissenting from the Third Circuit panel,
Senior Circuit Judge John Noonan of the Ninth
Circuit, sitting by designation, protested that,
"A punch in the jaw in prison is not ’prison
conditions.’ A punch in the jaw is an act . . .
. That Churner’s alleged blow took place in a
prison does not make it ’prison conditions.’" 206
F.3d at 301 (Noonan, J. dissenting).

/3 The ICRS also permits prisoners to file civil
rights complaints in the ICRS. But, as the gov-
ernment concedes, this avenue is unavailable to
Johnson. See Wis. Adm. Code sec. 310.08(7).
"[C]ivil rights complaints" is defined as com-
plaints in which an inmate "alleges discrimina-
tion on the basis of race, creed, ethnicity,
national origin, sex, handicap, age, religion,
color, ancestry, sexual orientation or marital
status." Wis. Adm. Code sec. 310.03(7). Johnson
does not bring a discrimination claim.

/4 The Supreme Court has recently rejected this
approach, holding that prisoners seeking only
monetary relief still must exhaust administrative
remedies that do not provide such relief. Booth
v. Churner, 121 S.Ct. 1819, 1821, 1825 (2001).

/5 Whether it was an official prison policy to order
inmates to operate meat slicers without appropri-
ate training is unclear from the opinion in that
case. However, we think it likely that this was
not an official policy, and that this challenge
would likely not be classified as a challenge to
an "institutional policy or practice."
