In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3623

Rodosvaldo Pozo,

Plaintiff-Appellee,

v.

Gary McCaughtry, Randall Gerritson,
and David Hautamaki,

Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-C-1464--Aaron E. Goodstein, Magistrate Judge.

Argued April 8, 2002--Decided April 18, 2002



  Before Bauer, Easterbrook, and Williams,
Circuit Judges.

  Easterbrook, Circuit Judge. This
interlocutory appeal, by permission under
28 U.S.C. sec.1292(b), presents a single
question: Whether a prisoner’s neglect to
take a timely administrative appeal
within the state system means that he has
failed to exhaust state remedies for
purposes of 42 U.S.C. sec.1997e(a). The
district court, acting through a
magistrate judge following consent under
28 U.S.C. sec.636(c), answered "no." The
magistrate judge reasoned that a prisoner
exhausts his state remedies by taking all
steps that the state requires, whether or
not the prisoner complies with the
state’s rules for form and timeliness of
action. We reach the opposite conclusion:
unless the prisoner completes the
administrative process by following the
rules the state has established for that
process, exhaustion has not occurred. Any
other approach would allow a prisoner to
"exhaust" state remedies by spurning
them, which would defeat the statutory
objective of requiring the prisoner to
give the prison administration an
opportunity to fix the problem--or to
reduce the damages and perhaps to shed
light on factual disputes that may arise
in litigation even if the prison’s
solution does not fully satisfy the
prisoner. See Porter v. Nussle, 122 S.
Ct. 983 (2002); Booth v. Churner, 532
U.S. 731 (2001).

  McCoy v. Gilbert, 270 F.3d 503, 508 (7th
Cir. 2001), foreshadows this conclusion.
Now we make it definitive. See also Marsh
v. Jones, 53 F.3d 707, 710 (5th Cir.
1995); Harper v. Jenkin, 179 F.3d 1311
(11th Cir. 1999). The argument on the
other side is that "exhaustion" carries
two senses. One, from administrative law,
is that exhaustion means using all steps
that the agency holds out, and doing so
properly (so that the agency addresses
the issues on the merits). The other,
until recently the norm in the law of
collateral attack, is that a prisoner
exhausts state judicial remedies by using
whatever is available at the moment; if
no remedies are left, then the challenge
may proceed in federal court. See Engle
v. Isaac, 456 U.S. 107, 125-26 n.28
(1982). The magistrate judge applied to
sec.1997e(a) the old understanding for
collateral attacks, rather than the norm
for administrative law. We call it the
"old" understanding for collateral
attacks because it was jettisoned by
O’Sullivan v. Boerckel, 526 U.S. 838
(1999). The Supreme Court held in
Boerckel that to "exhaust" state judicial
remedies, for purposes of 28 U.S.C.
sec.2254(b)(1), a prisoner must use all
available avenues of review. Thus a
prisoner who did not ask the state’s
highest court to grant discretionary
review in his case may well have no state
remedies left, but his failure to use
those the state had offered means that he
did not exhaust those remedies.
Thisholding merges the collateral-attack
and administrative-law understandings of
exhaustion. After Boerckel, a procedural
default also means failure to exhaust
one’s remedies.

  When we accepted the appeal in this
case, we directed the parties to brief
the question whether the approach of
Boerckel applies to exhaustion under
sec.1997e(a). Sensibly, the parties have
agreed that it does. Exhaustion under
sec.1997e(a) is administrative only; a
prisoner who uses all administrative
options that the state offers need not
also pursue judicial review in state
court; but a prisoner who does not
properly take each step within the
administrative process has failed to
exhaust state remedies, and thus is
foreclosed by sec.1997e(a) from
litigating. Failure to do what the state
requires bars, and does not just
postpone, suit under sec.1983.

  Nonetheless, Pozo submits, his failure
to file a timely administrative appeal is
not conclusive. Pozo filed a proper
administrative complaint. He had 10 days
to appeal within the state system.
Instead he waited a year, and after
receiving his appeal the agency dismissed
it as untimely. According to Pozo, his
eventual appeal "exhausted"
administrative remedies because the state
could have accepted it and addressed the
merits under Wis. Admin. Code sec. DOC
310.13(3). This rule says that the
Corrections Complaint Examiner "may"
accept and decide a belated appeal unless
the passage of time has made it
"difficult or impossible to investigate
the complaint." In Pozo’s case the
Examiner did not adjudicate the untimely
appeal, but the power to do so is enough
for exhaustion, Pozo insists. He
acknowledges that Coleman v. Thompson,
501 U.S. 722, 740-44 (1991), could be
read the other way. Coleman holds that
failure to take a timely appeal within
the state system is a procedural default
(and thus blocks federal collateral
review unless the prisoner can show cause
and prejudice) even when the state court
has some power to accept untimely
appeals. But Pozo treats Coleman as
limited to situations in which the power
to accept an untimely appeal is tightly
confined; when the adjudicator has a
broad discretionary power, as in
Wisconsin, an untimely appeal should be
treated as successful exhaustion.

  As we said at the outset, this position
would leave sec.1997e(a) without any
oomph. Wisconsin cannot be unusual in
allowing prison officials some authority
to entertain untimely complaints and
appeals. If the existence of this power
means that prisoners need not file timely
complaints and appeals, then the
incentive that sec.1997e(a) provides for
prisoners to use the state process will
disappear. Prisons are unlikely to
entertain many appeals filed a year late,
or by prisoners who otherwise thumb their
noses at the specified procedures.

  To exhaust administrative remedies, a
person must follow the rules governing
filing and prosecution of a claim. As
Artuz v. Bennett, 531 U.S. 4, 9-10 & n.2
(2000), observes, these include time
limits. Consider once more the analogy to
collateral attack: if a state court
accepts a belated filing, and considers
it on the merits, that step makes the
filing "proper" for purposes of state law
and avoids exhaustion, default, and
timeliness hurdles in federal court. See
Jefferson v. Welborn, 222 F.3d 286 (7th
Cir. 2000). But if the state stands on
its time limits and rejects the filing as
too late, then state remedies have not
been properly invoked. See Freeman v.
Page, 208 F.3d 572 (7th Cir. 2000). Cases
look both ways on the question whether a
document that is rejected as both late
and unmeritorious counts as properly
filed. Compare Brooks v. Walls, 279 F.3d
518 (7th Cir. 2002), with Rice v. Bowen,
264 F.3d 698 (7th Cir. 2001). But Pozo’s
application was not dismissed on dual
grounds. It was rejected as dilatory,
with no other ground given or even hinted
at. What is more, discretion to extend
the time under sec. DOC 310.13(3) is not
linked to the merits. Cf. Ake v.
Oklahoma, 470 U.S. 68 (1985). That is to
say, the Examiner’s decision not to
entertain Pozo’s untimely appeal does not
imply any view about the merits of his
grievance. So no matter how the Supreme
Court resolves the question whether
plain-error review or other merits-linked
doctrines that may relax procedural rules
can relieve a defendant of a default in
the state’s process, see Smith v.
Stewart, 241 F.3d 1191 (9th Cir. 2001),
cert. granted and question certified
under the name Stewart v. Smith, 122 S.
Ct. 1143 (2001), there is no doubt about
the right treatment when the one and only
ground for rejecting a claim or appeal is
untimeliness. An unseasonable claim is a
defaulted claim, as Coleman holds; and
under Boerckel a defaulted claim has not
been exhausted either.

  To exhaust remedies, a prisoner must
file complaints and appeals in the place,
and at the time, the prison’s
administrative rules require. Pozo filed
a timely and sufficient complaint but did
not file a timely appeal. He therefore
failed to exhaust his administrative
remedies, and his federal suit must be
dismissed.
Reversed
