In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1414

Donald Larkin,

Plaintiff-Appellant,

v.

Richard Galloway and Jerry Bowling,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 96-C-607--David R. Herndon, Judge.

Argued September 21, 2000--Decided September 21, 2001


  Before Rovner, Diane P. Wood, and Williams,
Circuit Judges.

  Diane P. Wood, Circuit Judge. While he
was incarcerated at the Federal
Correctional Institution in Greenville,
Illinois (Greenville), Donald Larkin was
allegedly severely beaten by prison
personnel. About nine months later, he
filed a complaint under 42 U.S.C. sec.
1983 against two officers who he charged
were personally responsible, Lt. Richard
Galloway and Lt. Jerry Bowling.
Initially, the answers that Lts. Galloway
and Bowling filed said nothing about
exhaustion of prison remedies. In August
of 1999, however, shortly before trial
was to commence, they asked for and
received permission to amend their
pleadings to add the defense that Larkin
had failed to exhaust his administrative
remedies prior to filing suit, as
required by 42 U.S.C. sec. 1997e(a). The
district court concluded that the
exhaustion requirement indeed applied to
Larkin’s case and it accordingly
dismissed his suit without prejudice.
Larkin now appeals, claiming that the
district court should never have allowed
the eleventh-hour amendment, and that the
exhaustion requirement does not apply to
him in any event. Recognizing the likely
pertinence of the Supreme Court’s then-
forthcoming decision in Booth v. Churner,
121 S. Ct. 1819 (2001), we postponed
resolving Larkin’s claim until that case
was decided. In light of Booth, as well
as our decisions in Smith v. Zachary, 255
F.3d 446 (7th Cir. 2001), and Johnson v.
Litscher, 2001 WL 915376 (7th Cir., Aug.
15, 2001), we now affirm.

I

  As Larkin presents the facts, and as we
take them for present purposes, the
trouble started when, on October 26, 1995
(a time when the atmosphere in the prison
was tense because of riots in other
institutions), he was falsely accused of
damaging the locks on his cell. As
punishment, he was dragged by special
Disturbance Control Team (DCT) officers,
in full riot gear, to Greenville’s
Special Housing Unit. Upon his arrival
there, Lt. Galloway confronted him. After
a brief verbal exchange with Larkin, Lt.
Galloway directed the DCT officers to
take Larkin to the recreation area and
"teach him some manners." They did. As
Larkin reports it, he was "thrown into
the walls and beaten with night sticks;
kicked, punched, and thrown head first
into the walls." After this initial
beating (which stopped when Larkin
suffered an asthma attack), the officers
took Larkin to the Special Housing Unit’s
"strip room" and beat him again. While
this second beating was taking place, Lt.
Bowling arrived. Rather than commanding
the guards to stop, however, he told them
to "hurry up" and directed Larkin to
strip naked if he wanted to avoid yet
another beating. Larkin did, but his act
of compliance did not help. The officers
cuffed him, raked his face against the
walls as they moved him, and threw him
into a cell on top of another nude
inmate. Before they left, they kicked and
beat both inmates (who were still
handcuffed at that point) with batons.

  Greenville has an administrative
grievance process, but Larkin did not try
to use it in conjunction with this
episode--a fact he acknowledges in his
complaint. As he put it, "I was afraid to
complain. I threw the grievance procedure
away because I did not want to provoke
this administration." With respect to
relief, Larkin sought "to be Compensated
for Mental, Emotional, and Physical
distress. Also awarded for
Unconstitutional Confinement, because of
5 mo. in segregation, do [sic] to the
violation of my Constitutional Due
Process."

  Lts. Galloway and Bowling filed their
answers to Larkin’s complaint on December
8, 1997 and May 27, 1998, respectively,
but neither one mentioned this crucial
omission on Larkin’s part. In time, they
filed a motion for summary judgment, but
it was denied. The case moved along
toward trial, as the district court
granted Larkin’s motion for a jury trial,
appointed counsel for him, and granted in
part counsel’s motion for leave to reopen
discovery. With respect to the latter
motion, the district court decided to
permit one deposition and to grant
counsel’s requests for videotapes,
photographs, and certain prison records.

  It was not until August of 1999 that
Lts. Bowling and Galloway filed motions
for leave to amend their answers to raise
the affirmative defense that Larkin
failed to exhaust his prison
administrative remedies prior to filing
suit. They also argued that, if they were
permitted to amend, Larkin’s suit should
be dismissed because he conceded in his
complaint that he had not used the prison
grievance procedure. The magistrate judge
denied the motion to amend as untimely
under the scheduling order the court had
entered on January 4, 1999, but the
district court granted both the motion to
amend and the motion to dismiss. Finally,
Larkin filed a Rule 59(e) motion to amend
the judgment, which the district court
denied.

  On appeal, Larkin argues that the
district court abused its discretion in
permitting Galloway and Bowling to amend
their complaints at such a late date.
Furthermore, he argues, even if the
amendment was proper, the Prison
Litigation Reform Act’s (PLRA)
administrative exhaustion requirement,
which is found in 42 U.S.C. sec.
1997e(a), does not cover excessive force
complaints or, if it does, his particular
complaint comes under a narrow exception
to the requirement. Larkin also
challenges the district court’s refusal
to fully grant his motion to reopen
discovery.

II

  Although the parties do not raise the
issue, we begin by considering our
subject matter jurisdiction. The district
court dismissed Larkin’s claim without
prejudice, and in the usual case, such a
dismissal does not qualify as an
appealable final judgment because the
plaintiff is free to re-file the case.
See Furnace v. Board of Trustees, 218
F.3d 666 (7th Cir. 2000). Nonetheless,
under certain circumstances a dismissal
without prejudice will be sufficiently
final to permit appellate review. If it
is clear, for example, that the plaintiff
will not be able to amend her complaint,
the dismissal is final for purposes of
appellate review. Id. at 670. That, we
conclude, is the case here. It is
apparent from the record that there is no
amendment Larkin could make to his
complaint that would permit it to go
forward: amendment cannot change his
argument about the district court’s
decision to allow the guards to raise the
exhaustion point, nor can it alter the
grounds on which we must consider that
issue on its merits. It is even possible,
though we express no definitive view on
the subject, that a newly filed complaint
would be barred by the statute of
limitations. In Elmore v. Henderson, 227
F.3d 1009, 1011 (7th Cir. 2000), we held
that "a suit dismissed without prejudice
is treated for statute of limitations
purposes as if it had never been filed."
If that principle applies, then the two-
year period expired long before the
district court dismissed Larkin’s claim;
if instead the limitations period is
measured from the time when exhaustion
occurs and it is still possible for
Larkin to do something, then perhaps a
new suit might be timely. In any event,
these are not points that are pertinent
to the present litigation. We are
satisfied that the district court’s
judgment on the present record is final
for purposes of 28 U.S.C. sec. 1291.


  A.   Motions to Amend

  Whether or not to grant a defendant’s
motion to amend her answer is a decision
committed to the discretion of the
district court. Jackson v. Rockford
Housing Authority, 213 F.3d 389, 390 (7th
Cir. 2000). Although it was certainly not
necessary for the district court to grant
the guards’ motion, we cannot say that
the court’s decision amounted to an abuse
of discretion. First, the district court
was entitled to conclude that a new look
at the exhaustion question was warranted
by this court’s intervening decision in
Perez v. Wisconsin Dep’t of Corrections,
182 F.3d 532 (7th Cir. 1999), which held
that exhaustion is required under sec.
1997e(a) even where a plaintiff seeks
only money damages and the prison
administrative process cannot award such
damages, id. at 537. Second, under Rule
15(a) of the Federal Rules of Civil
Procedure, the district court may grant
leave to amend pleadings and such leave
"shall be freely given when justice so
requires." Fed. R. Civ. P. 15(a). Even
though Rule 15(a) also acknowledges that
leave to amend is "inappropriate where
there is undue delay, bad faith, dilatory
motive on the part of the movant . . .
[or] undue prejudice to the opposing
party by virtue of allowance of the
amendment," Perrian v. O’Grady, 958 F.2d
192, 194 (7th Cir. 1992), the district
court was entitled to reject Larkin’s
arguments that undue delay and bad faith
existed here.

  We also find no merit in Larkin’s
argument that the defendants’ delay cost
him his case because the statute of
limitations has now run. (This argument
is probably late in any event, as it
appears most clearly only in his reply
brief, but glimmers of it are present in
earlier papers, so we address it for the
sake of completeness.) As we noted above,
it is not even clear that this is the
case, and Larkin himself has equivocated
on that point. Larkin never hinted that
he erred in representing that he has, up
until now, failed to exhaust. If that
omission could somehow survive Booth, we
might have a bigger problem. But, as we
now explain, it cannot. The district
court did not abuse its discretion in
permitting the amendment, and even if it
did, we would find the error to be
harmless.


  B. A Claim "With Respect to Prison
Conditions"

  The PLRA requires administrative
exhaustion of any prisoner claim "with
respect to prison conditions." 42 U.S.C.
sec. 1997e(a). Larkin argues that the
phrase "with respect to prison
conditions" should not be interpreted to
include complaints about individual acts
of excessive force. This argument,
unfortunately, runs headlong into our
recent decision in Smith, which applied
Booth to exactly this kind of claim.
Booth itself took a broad view of the
exhaustion requirement set forth in sec.
1997e(a), insofar as it held that
exhaustion is required even if the
prison’s administrative process is
incapable of giving the inmate the kind
of remedial measure he or she has
requested--in particular, monetary
damages. See Booth, 121 S. Ct. at 1825.
And while the parties in Booth both
agreed that exhaustion would not be
required if "the relevant administrative
procedure lacks authority to provide any
relief or to take any action whatsoever
in response to a complaint," id. at 1822,
the Court went on to discuss approvingly
the government’s argument that "the very
fact of being heard and prompting
administrative change can mollify
passions even when nothing ends up in the
pocket." Id. at 1823.

  Larkin’s argument, like that of the
inmate in Smith, focuses less on the type
of relief that might be granted and more
on the difference between a single
violent act or incident and the broader
concept of "prison conditions." We do not
disagree that this is a possible
distinction, but for now it is one that
this circuit has rejected in Smith. To
similar effect, our later decision in
Johnson rejects the idea that the PLRA’s
exhaustion requirement does not apply to
acts of individual officers. Johnson,
[slip op. at 4]. This may or may not be
the ultimate conclusion the Supreme Court
reaches: we acknowledge that the Court
has granted certiorari in Porter v.
Nussle, 121 S. Ct. 2213 (2001), to review
the Second Circuit’s decision in Nussle
v. Willette, 224 F.3d 95 (2d Cir. 2000),
which held that the PLRA’s exhaustion
requirement does not apply to allegations
of particular instances of excessive
force or assault by prison employees. 224
F.3d at 97. But, just as we said in
Johnson, until the Supreme Court speaks
we are bound in this circuit to follow
Smith.


  C.   Perez

  After Booth, Larkin’s alternative
argument--that his case fits into a
narrow exception to the PLRA’s
administrative exhaustion requirement
created by Perez--is also unavailing.
Perez held that there is no futility
exception to the administrative
exhaustion requirement but it went on to
reserve judgment on the proper way to
resolve "a case in which the harm is done
and no further administrative action
could supply any ’remedy’. . . . [I]f the
administrative process cannot provide
compensation then there is no
administrative remedy to exhaust." 182
F.3d at 538. Although some opinions have
referred to this as an "exception" to the
exhaustion requirement Perez recognized,
see, e.g., Massey v. Helman, 196 F.3d
727, 734 (7th Cir. 2000), Brazelton v.
Myatt, No. 99 C 1169, 1999 WL 966435
(N.D. Ill. Oct. 19, 1999); Rodriguez v.
Oakley, No. 98 C 4152, 1999 WL 618840
(N.D. Ill. Aug. 9, 1999), it is more
accurate to describe it as an issue Perez
simply did not resolve.

  The district court in this case,
however, rejected the notion that Perez
created an exception to the PLRA’s
exhaustion requirement. Larkin disagrees,
claiming that Perez recognized a
necessary exception to the exhaustion
requirement, and that based on the facts
pled in his complaint, he fits within it.
He contends that once the beatings were
over and his injuries had healed, "the
harm was done and no further
administrative action" could alter the
amount of monetary damages to which he
was entitled.

  Even if Larkin is correct that his
complaint is not the same as a prison
condition complaint about poor heating,
or unqualified medical staff, for which
one could envision effective prospective
relief, Perez is no longer the last word
on the point. Booth, as we have already
noted, took a broader view of the utility
of prison administrative processes. It
requires the exhaustion of all
administrative procedures that have
"authority to take some action in
response to a complaint," even if the
procedure cannot provide the only relief
that the prisoner is seeking, e.g., money
damages. 121 S. Ct. at 1823. In Larkin’s
case, this means that under sec. 1997e(a)
Larkin had to exhaust any prison
administrative process that (1) was
empowered to consider his complaint and
(2) could take some action in response to
it. Larkin does not contend that his
excessive force complaint against Lts.
Galloway and Bowling somehow lay beyond
the authorized jurisdiction of the
Greenville administrative process. And
there is no question that some action
could have been taken in response to the
complaint, even after Larkin’s wounds had
healed; the officers might have been
disciplined, he might have been moved to
a unit or facility not under the
defendants’ supervision, and, at a
minimum, he would have received a hearing
on his grievances.

  It cannot be said in Larkin’s case that
the "relevant administrative procedure
lack[ed] authority to provide any relief
or to take any action whatsoever in
response to [his] complaint." 121 S. Ct.
at 1822. The district court therefore
properly dismissed Larkin’s complaint for
his admitted failure to exhaust as
required by sec. 1997e(a).

III

  Because Larkin’s complaint was properly
dismissed, we need not address his
challenge to the district court’s partial
denial of his motion for additional
discovery. The judgment of the district
court is Affirmed.
