                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted October 24, 2005*
                             Decided October 25, 2005

                                       Before

                 Hon. FRANK H. EASTERBROOK, Circuit Judge

                 Hon. KENNETH F. RIPPLE, Circuit Judge

                 Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 04-3737

JOHNNIE FLOURNOY,                           Appeal from the United States District
    Plaintiff-Appellant,                    Court for the Central District of Illinois

      v.                                    No. 02-1231

JAMES M. SCHOMIG, et al.,                   Harold A. Baker,
    Defendants-Appellees.                   Judge.


                                    ORDER

       In this action under 42 U.S.C. § 1983, Illinois inmate Johnnie Flournoy
claims that three prison officials at Pontiac Correctional Center and a contract
physician working at the institution violated his constitutional rights. The district
court dismissed several of those claims for failure to exhaust administrative
remedies—all but one based on the complaint alone—and several for failure to state
a claim. Flournoy appeals, and we affirm in part and vacate and remand in part.




      *
        After an examination of 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. 04-3737                                                                   Page 2

        Flournoy’s principal arguments concern a claim that the defendants refused
to investigate a lump in his groin that he says they knew might be cancerous.
According to his complaint and briefs and their attachments, the lump was
discovered during a routine medical exam in October 2001 while he was imprisoned
at the Joliet Correctional Center. The doctor hinted that it might be cancer and
told Flournoy that he would refer him to a specialist for x-rays and a biopsy. A week
later, though, Flournoy was transferred to Pontiac where defendant Arthur Funk, a
contract physician, examined him in November after seeing the condition flagged in
his file. Likewise hinting that the lump might be malignant, Funk said he would
reexamine Flournoy in three months to see if the lump had grown.

       After February 2002 passed without a follow-up visit, however, Flournoy
began questioning nurses about when Dr. Funk would see him. He waited, though,
until June to file a grievance; he says he waited because his grievance counselor,
defendant Judith Gragert, said the matter was “out of her jurisdiction,” and because
the nurses advised patience and assured him that Dr. Funk would soon see him.
But by June he still had not seen the doctor, and when he learned that month he
was soon to be transferred to Menard Correctional Center, he submitted an
“emergency grievance” to defendant Adella Jordan-Luster. See 20 Ill. Admin. Code
§ 504.840. She perceived no emergency and denied the grievance for that reason,
instructing Flournoy to pursue it through his counselor. Days later Flournoy was
transferred to Menard.

       After arriving at Menard, Flournoy filed another grievance on June 16, 2002,
using the state’s procedures for submitting a grievance concerning events that arose
at a different institution. See 20 Ill. Admin. Code § 504.870(a)(4). Instead of
waiting for an answer, Flournoy brought this suit less than two weeks later. Five
months later, on November 12, 2002, the Administrative Review Board denied his
June 16 grievance. The review board’s decision, which Flournoy submitted in
opposing the defendants’ motion to dismiss and includes in his appellate brief,
explains that a doctor at Menard saw him on July 30, 2002, and several times
afterward but noted no growth in the lump. Flournoy adds on appeal that the doctor
said the lump would go away. He also told the district court in his opposition to the
defendants’ motion to dismiss that after the review board denied his grievance he
saw at least two other doctors about the lump, one of whom said that it was not life-
threatening. Flournoy amended his complaint to drop his request for an injunction
compelling treatment.

      The district court dismissed this claim, reasoning that Flournoy’s own
account of events establishes that his grievance was denied in November 2002 after
he brought suit. Flournoy counters that the district court erred because he
complied with the “intent” and “spirit” of the Prison Litigation Reform Act and
lacked available administrative remedies due to his transfer to Menard.
No. 04-3737                                                                     Page 3

       The PLRA has a comprehensive exhaustion requirement, and prisoners may
not commence a suit regarding prison conditions before exhausting all available
remedies. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v.
Churner, 532 U.S. 731, 741 (2001). In applying this requirement, courts are to hold
prisoners strictly to a prison’s administrative rules. Pozo v. McCaughtry, 286 F.3d
1022, 1025 (7th Cir. 2002). Exhaustion is a prerequisite to bringing suit, so
completing the administrative process after the suit is filed cannot overcome an
exhaustion defense. Ford v. Johnson, 362 F.3d 395, 398-99 (7th Cir. 2004); Perez v.
Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Here, Flournoy admits that
he did not exhaust before bringing suit, so the only question is whether the
defendants rendered his administrative remedies unavailable. See Ford, 362 F.3d
at 400; Witzke v. Femal, 376 F.3d 744, 749, 753–54 (7th Cir. 2004). True, as
Flournoy suggests, movement out of an institution may render grievance procedures
unavailable if the change in custody status effectively terminates the
administrative process. See, e.g., Westefer v. Snyder, 422 F.3d 570, 578 (7th Cir.
2005); Witzke, 376 F.3d at 753–54. Yet that was not the case here. If Flournoy had
not been transferred, his next available step was to appeal his unsuccessful
emergency grievance to the very same review board that evaluated the grievance he
filed at Menard. See 20 Ill. Admin. Code §§ 504.850, 504.870. In both instances the
regulations dictate that the review board will follow identical procedures within the
same six-month time frame, see id. §§ 504.870(b), 504.850(f), and Flournoy has
never contended otherwise. The transfer therefore had no effect on his ability to
follow through with the emergency grievance. And although Flournoy argues
generally that waiting for an answer to the inter-facility grievance was futile, he
had to give the system a chance. See Ford, 362 F.3d at 400; Perez, 182 F.3d at 535.

       Next, Flournoy argues that the district court wrongly dismissed claims that
prison officials at Pontiac, including defendant Gragert and former warden James
Schomig, denied him equal protection by preventing him from calling his dying
father, forbidding special family visits, and denying a furlough to attend the funeral.
He explains that they denied him these privileges just because he is black though
they routinely provide such privileges to whites. Believing that Flournoy was trying
to state two separate claims, the district court dismissed the furlough claim for
failure to exhaust and the claim regarding the call to his father and special visits on
the merits, reasoning that the action of Gragert and Schomig did not interfere with
a federally protected right.

        For his part Flournoy now insists that he did exhaust his claim concerning
the funeral furlough and points to a grievance he attached to his original complaint.
In making the argument, however, Flournoy has pleaded himself out of court. See
Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992). The grievance
that he identifies is silent about a furlough. Instead, it simply asserts that prison
officials were rude to his family and waited a day before conveying news of his
father’s death. Thus, he admits that he did not exhaust.
No. 04-3737                                                                    Page 4

       As for the claim arising from denial of the call and visits, Flournoy argues
that the district court misconstrued this claim to be a matter of state law. Gragert
and Schomig, waiving any exhaustion argument, endorse the district court’s view
that there is no federal claim because denying a prisoner a chance to place a phone
call and special visits does not constitute an atypical condition of confinement. See
Sandin v. Conner, 515 U.S. 472, 484 (1995). Nevertheless, officials may not deny
privileges to prisoners on the basis of race, see Johnson v. California, 125 S. Ct.
1141 (2005); Sandin, 515 U.S. at 487 n.11; DeWalt v. Carter, 224 F.3d 607, 613 (7th
Cir. 2000); Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987), so dismissal was
precipitous.

       Moving to the next claim, Flournoy maintains that from November 2001 to
May 2002 guards at Pontiac routinely sprayed quarrelsome prisoners with mace or
pepper spray and that, although he was not an intended target, the fumes injured
him, too. He told guards—and notified defendants Gragert and Schomig through
the grievance process—that the fumes were hurting him. He asserts that the
guards just laughed and the defendants “maliciously” covered up.

       The defendants moved to dismiss for failure to exhaust and submitted the
affidavit of a records custodian who testified that Flournoy has submitted no
grievances about this subject. The court considered this affidavit and converted the
defendants’ motion to dismiss into one for summary judgment. Flournoy in turn
submitted an affidavit stating that when he was moved to a cell numbered 507 he
gave defendant Gragert a grievance over the mace incident. She denied the
grievance, so he forwarded it to the grievance officer, who never responded. He filed
another grievance with Gragert sometime later but that was never answered.

       In ruling against Flournoy, the court reasoned that he chose to “rest on [the]
pleadings” as he provided no copies of the grievances that he says he filed to
exhaust administrative remedies. Flournoy did not rest on his pleadings, however.
An affidavit providing specific testimony is competent evidence to avert summary
judgment. See Dale v. Lappin, 376 F.3d 652, 655–56 (7th Cir. 2004) (per curiam).
And here, the defendants do not argue that what Flournoy said, if true, did not
constitute exhaustion, nor do they respond to his suggestion that failing to answer
his grievances rendered them unavailable, Lewis v. Washington, 300 F.3d 829, 833
(7th Cir. 2002). Since exhaustion is an affirmative defense, it was their burden to
do so. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). Therefore,
Flournoy’s testimony is enough to raise an issue of fact and render summary
judgment inappropriate. See Dale, 376 F.3d at 655–56.

       Finally, Flournoy argues that the district court wrongly dismissed a claim
that Gragert, Schomig, and Jordan-Luster denied him access to the courts by
sabotaging the grievance procedure. The district court reasoned that there is no
constitutional right to the grievance procedure, see Antonelli v. Sheahan, 81 F.3d
No. 04-3737                                                                  Page 5

1422, 1430 (7th Cir. 1996), and dismissed on the merits. Still, we have explained
that “[p]risoners have a constitutional right of access to the courts that, by
necessity, includes the right to pursue the administrative remedies that must be
exhausted before a prisoner can seek relief in court.” DeWalt, 224 F.3d at 618. To
succeed on an access-to-courts claim, however, the prisoner must plead that the
unjustified acts prevented him from pursuing a nonfrivolous claim. Christopher v.
Harbury, 536 U.S. 403, 415 (2002); Lewis v. Casey, 518 U.S. 343, 349-53 (1996).
Here, Flournoy identified no interference with any grievance that prevented him
from bringing a nonfrivolous claim.

        For these reasons we vacate and remand the district court’s judgment insofar
as the court dismissed the claim against Gragert and Schomig for refusing Flournoy
the phone call and visits on the basis of race, and the claim for deliberate
indifference to Flournoy’s exposure to the pepper spray. The judgment is affirmed
in all other respects.

                          AFFIRMED in part; VACATED and REMANDED in part.
