In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2503

James E. Davis,

Plaintiff-Appellee,

v.

Byron Streekstra and Randy Olesen,

Defendants-Appellants.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-305--Lynn Adelman, Judge.


No. 00-2577

Floyd R. Romatowski,

Plaintiff-Appellee,

v.

Roman Kaplan,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-518--Lynn Adelman, Judge.


Submitted August 23, 2000--Decided September 7, 2000



  Before Easterbrook, Manion, and Diane P. Wood, Circuit
Judges.

  Easterbrook, Circuit Judge. "No action shall be
brought with respect to prison conditions . . .
by a prisoner confined in any jail, prison, or
other correctional facility until such
administrative remedies as are available are
exhausted." 42 U.S.C. sec.1997e(a). Three courts
of appeals have held that this law, part of the
Prison Litigation Reform Act, does not require
exhaustion when a prisoner seeks financial relief
and the prison’s internal grievance system does
not award money damages. Whitley v. Hunt, 158
F.3d 882, 886-87 (5th Cir. 1998); Lunsford v.
Jumao-As, 155 F.3d 1178 (9th Cir. 1998); Garrett
v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997).
These courts reason that remedies are unavailable
when the prisoner wants a form of relief that
administrators never provide. Three circuits
disagree and hold that exhaustion is required no
matter what remedy the prisoner seeks, and no
matter what remedies the administrative process
affords. Nyhuis v. Reno, 204 F.3d 65 (3d Cir.
2000); Wyatt v. Leonard, 193 F.3d 876 (6th Cir.
1999); Alexander v. Hawk, 159 F.3d 1321 (11th
Cir. 1998). These circuits conclude that, if the
administrative process holds out a prospect of
some remedy, prisoners cannot take a shortcut to
court by insisting on a different kind of relief.
This circuit has agreed with the latter group
when the conditions about which the prisoners
complain still exist--for then the prison could
afford relief in kind, even if not in cash, and
could alter the conditions of which the prisoner
complains; both steps could affect the amount of
damages if any turn out to be required--but has
reserved the question whether exhaustion is
required if the injury lies wholly in the past,
and no relief other than money is conceivable.
Perez v. Wisconsin Department of Corrections, 182
F.3d 532, 536-37 (7th Cir. 1999). In the two
cases now on appeal the district court resolved,
in favor of the no-exhaustion view, the question
reserved in Perez. (It did not embrace the view,
accepted by Nussle v. Willette, 2000 U.S. App.
Lexis 21431 (2d Cir. Aug. 24, 2000), that
sec.1997e(a) does not apply to claims of injury
from transient events, no matter what remedies
the administrative process employs. But see 18
U.S.C. sec.3626(g)(2) (another part of the PLRA
defining "prison conditions" as including "the
effects of actions by government officials on the
lives of persons confined in prison", and
McCarthy v. Bronson, 500 U.S. 136 (1991), holding
that claims arising from medical treatment
concern "prison conditions" for purposes of 28
U.S.C. sec.636(b)(1)(B).) Defendants have
appealed, asking us to side with Nyhuis, Wyatt,
and Alexander.

  What the defendants want us to review, however,
is an abstract question of law, not the outcome
of the prisoners’ suits. Defendants appealed as
soon as the district judge denied their motions
to dismiss. Denial of a motion to dismiss, like
denial of summary judgment, is a classic
interlocutory order. All it does is require the
litigation to continue. Such an order might be
appropriate for certification under 28 U.S.C.
sec.1292(b), see Ahrenholz v. University of
Illinois, No. 00-8010 (7th Cir. July 18, 2000),
which was the route apparently employed in
Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999).
But defendants did not seek the district court’s
leave under sec.1292(b) or ours under Fed. R.
App. P. 5; they claim a legal entitlement to an
immediate appellate decision, contending that
every denial of a motion to dismiss based on
sec.1997e(a) is a "final decision" under the
collateral-order doctrine. See Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541
(1949).

  As a rule, appeal must await the terminating
order--the decision that "’ends the litigation on
the merits and leaves nothing for the court to do
but execute the judgment.’" Van Cauwenberghe v.
Biard, 486 U.S. 517, 521-22 (1988), quoting from
Catlin v. United States, 324 U.S. 229, 233
(1945). That time lies ahead for these suits. The
district court’s order means only that the
litigation will continue. Litigants may not
appeal with respect to each decision in a case
but must await the outcome; then they may contest
each of the many forks on the road to final
decision. Cohen identifies a set of situations in
which something short of the bottom line is a
"final decision": orders that "are conclusive, .
. . resolve important questions separate from the
merits, and . . . are effectively unreviewable on
appeal from the final judgment in the underlying
action." Swint v. Chambers County Commission, 514
U.S. 35, 42 (1995). See also, e.g., Cunningham v.
Hamilton County, 527 U.S. 198 (1999); Digital
Equipment Corp. v. Desktop Direct, Inc., 511 U.S.
863 (1994). Defendants tell us that the district
court’s decision concerning exhaustion is
"conclusive," that the subject is "important" (as
the conflict among the circuits demonstrates),
that exhaustion is "separate from the merits,"
and that their entitlement to be free from
litigation until administrative remedies are over
is "effectively unreviewable on appeal from the
final judgment in the underlying action." We
grant the first three points, but not the fourth.
Arguments based on sec.1997e(a) may be resolved
on appeal from the final judgment--just as they
were in Perez and the other eight cases cited in
this opinion’s first paragraph. If the plaintiff
was required to exhaust yet failed to do so, the
appellate court will hold that the suit must be
dismissed without prejudice. Defendants thus are
freed of any adverse decision by the district
court, and if they prevailed on the merits in the
district court a remand for dismissal under
sec.1997e(a) eliminates any risk of an adverse
decision on the merits by the court of appeals
(or the Supreme Court).

  Defendants want us to think of sec.1997e(a) as
establishing a right not simply to prevail but
also to be free from litigation, along the lines
of double jeopardy, see Abney v. United States,
431 U.S. 651 (1977), absolute or qualified
immunity from suit, see Helstoski v. Meanor, 442
U.S. 500 (1979); Nixon v. Fitzgerald, 457 U.S.
731 (1982); Mitchell v. Forsyth, 472 U.S. 511
(1985); and sovereign immunity under the eleventh
amendment, see Puerto Rico Aqueduct and Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139
(1993). If this is the right way to conceive an
exhaustion requirement, then public officials
have been asleep at the switch for decades, for
the United States Code is chock full of
exhaustion rules (think not only of exhaustion
required before a prisoner initiates a collateral
attack but also of administrative exhaustion
before suit under the Administrative Procedure
Act, employment-discrimination laws, the Federal
Tort Claims Act, and comparable statutes). None
of these has led to a recognized right of
immediate appeal. So clear is this that, until
now, no court of appeals has been required to
deal in a published opinion with a contention
that rejection of an exhaustion argument is
immediately appealable. Silence of the reporters
is unsurprising, because the issue is simple.
Exhaustion requirements do not create absolute
(or even qualified) rights to be free from
litigation. Assuredly they affect the timing of
litigation, and if the administrative claim
produces all of the relief the applicant
requested they may prevent suit from occurring,
but they do not create a "right not to be sued."

  True enough, an error by the district court in
denying a motion based on sec.1997e(a) may
require the claim to be tried twice, but one
could say the same whenever a district court
makes a legal ruling that affects how the case
proceeds. Litigants might as well argue that they
can appeal from any order denying summary
judgment, because erroneous denial of such a
motion subjects the parties to costs that could
have been avoided had the case been terminated
earlier. Attorneys’ fees usually can’t be
recouped after a court of appeals decides that
the case should have come to an earlier end (or,
worse, must be tried a second time to correct a
legal error that infected the first proceedings).
Actually, litigants have made such arguments, and
without success. The Supreme Court held in United
States v. Hollywood Motor Car Co., 458 U.S. 263,
269 (1982), that there is a "crucial distinction
between a right not to be tried and a right whose
remedy requires the dismissal of [the suit]." The
former right supports appeals under the
collateral-order doctrine, the latter does not.
See also Midland Asphalt Corp. v. United States,
489 U.S. 794 (1989); United States v. MacDonald,
435 U.S. 850 (1978).
  Van Cauwenberghe holds that orders rejecting
defendants’ claims of immunity from civil
process, and of forum non conveniens, are not
appealable as collateral orders. Lauro Lines
S.R.L. v. Chasser, 490 U.S. 495 (1989), adds that
an order rejecting a motion to dismiss based on
a forum-selection agreement is not immediately
appealable. Errors by district judges in cases
such as Lauro Lines and Van Cauwenberghe may lead
to litigation in the wrong place at the wrong
time, producing unnecessary expense and delay
when a court of appeals later vacates the
judgment and directs that litigation occur
somewhere else. All this the Justices recognized,
but they held that such expenses differ
conceptually from immunity and thus do not
support appeal under the collateral-order
doctrine. Just so with invocation of an
exhaustion requirement. Our defendants assert
that the right forum for plaintiffs’ claims is
administrative rather than judicial, just as the
defendants in Lauro Lines and Van Cauwenberghe
asserted that the right forum was elsewhere. If
the decisions in Lauro Lines and Van Cauwenberghe
were not immediately appealable, neither are the
decisions at issue here.

  The appeals are dismissed for want of
jurisdiction.
