                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53



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

                            Submitted May 19, 2005*
                             Decided May 23, 2005

                                     Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. JOHN L. COFFEY, Circuit Judge

                    Hon. DANIEL A. MANION, Circuit Judge

No. 04-1850

DAVID C. TURNER,                              Appeal from the United States District
    Plaintiff-Appellant,                      Court for the Central District of
                                              Illinois
      v.
                                              No. 02-C-1140
ROBERT HUSTON, Tazewell County
Sheriff, et al.,                              Harold A. Baker,
      Defendants-Appellees.                   Judge.




      *
      After examining the briefs and record, we have concluded that oral argument
is unnecessary. Accordingly, this appeal is submitted on the briefs and record.
See Fed. R. App. P. 34(a)(2).
No. 04-1850                                                                    Page 2

                                     ORDER

       David Turner, formerly a pretrial detainee at the Tazewell County Jail in
Pekin, Illinois, and now an inmate in the Illinois Department of Corrections, sued
the county sheriff and two jail employees under 42 U.S.C. § 1983, claiming they
violated his constitutional rights. The district court dismissed the entire complaint,
concluding that Turner had failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a). Turner
appeals; we affirm in part, and vacate and remand in part.

       Turner brought suit in 2002 after he was transferred from county to state
custody. In his amended complaint Turner alleges that while at the jail (1) his
issues of a weekly entertainment magazine were withheld under a policy
prohibiting any outside reading materials except those obtained from the local
library, (2) the heat in the jail was not turned on before mid-November and the
inmates were refused extra blankets even though outside temperatures dropped to
freezing, (3) he was punished with disciplinary segregation on four separate
occasions without adequate notice or an opportunity to defend himself against the
charges, (4) he was denied “phone rights” while in segregation, (5) he had no access
to a photocopy machine, notary public, prompt mailing services for legal documents,
or an adequate law library, and 6) he was denied an extra sheet even though a
doctor had directed that he be given one to help combat a skin rash. Turner further
alleges that he submitted written grievances—sometimes several—on the first four
of these six claims but never got responses. He also attached to his amended
complaint an affidavit verifying the truth of its factual allegations.

       The defendants filed a motion to dismiss, raising several grounds, including
that Turner had failed to “plead exhaustion of all administrative remedies.”
According to the defendants, dismissal was “mandated” because “[p]laintiff does not
allege that any of his claims were submitted to the Jail and Detention Standards
Unit of the Illinois Department of Corrections.” The defendants asserted that
Turner had submitted written grievances at the jail on just two of his claims but
failed to exhaust his administrative remedies even as to those two because he did
not “pursue[] administrative remedies beyond the local level.” The defendants,
however, submitted no evidence to substantiate their assertion that Turner had
submitted written grievances on just two of his claims, rather than four as Turner
avers in his sworn complaint. Neither did the defendants offer evidence to
refute—or even acknowledge—Turner’s verified allegations that he never received
decisions on his grievances and, in fact, was never told what the grievance
procedure was at the jail.

    The district court effectively converted the defendants’ motion to one for
summary judgment and granted it, reasoning that despite Turner’s contention that
No. 04-1850                                                                    Page 3

he “exhausted all administrative remedies known to him at the time . . . and that he
never knew about the Illinois Administrative Code,” he indeed failed to exhaust his
administrative remedies. In support of its conclusion, the court pointed out that the
Illinois Administrative Code provides that inmate complaints denied at the local
level can be submitted to the Jail and Detentions Unit of the Illinois Department of
Corrections. See Ill. Admin. Code tit. 20, § 701.160(c) (2005). Since Turner had not
pursued his grievances at this higher level, the court explained, he did not fully
exhaust his claims.

       On appeal Turner challenges the district court’s exhaustion ruling on the
ground that he presented sufficient evidence to create a material issue of fact about
whether he exhausted his administrative remedies. According to Turner, the
defendants kept him “from appealing his grievances to the Jail and Detention
Standards Unit of the Illinois Department of Corrections by having no available
information regarding the grievance procedures.” He also points out that he
received no responses to the grievances he filed.

       The defendants initially contend that, because the district court dismissed
Turner’s complaint without prejudice, the order of dismissal is not final and hence
not appealable. See 28 U.S. C. § 1291. If the defendants were correct, Turner
would have no means to appeal the district court’s decision on the exhaustion
question. (Although the defendants suggest that Turner could simply re-file, the
statute of limitations will have run on at least two of his claims. See Williams v.
Lampe, 399 F.3d 867, 870 (7th Cir. 2005)). But the defendants are not correct. As
we have explained, finality does not turn on whether the suit is dismissed with or
without prejudice, and instead “[t]he test is whether the district court has finished
with the case.” Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir. 2003). The district
court’s judgment terminated the lawsuit and was “conclusive in practical effect,”
and Turner would be “out of court” if we did not review the decision; therefore, we
have appellate jurisdiction. See Am. States Ins. Co., 392 F.3d 939, 941 (7th Cir.
2004); Strong v. David, 297 F.3d 646, 648 (7th Cir. 2002).

       We review de novo the district court’s exhaustion analysis. See Witzke v.
Femal, 376 F.3d 744, 749 (7th Cir. 2004). To meet the exhaustion requirement, an
inmate must “file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002). The Illinois Legislature has directed that county jails permit inmates to
submit complaints to the jail administration in written form and, if those
complaints are not resolved at the local level, to submit a further complaint to the
Jail and Detention Standards Unit of the Illinois Department of Corrections. See
Ill. Admin. Code tit. 20, § 701.160(c). In order to seek this review of the local
decision, however, a “copy of the local decision must be attached to the complaint.”
Ill. Admin. Code tit. 20, § 701.160(c)(2).
No. 04-1850                                                                   Page 4

       The defendants have never disputed Turner’s contentions that they not only
failed to apprise him of the grievance procedures they now say he should have used,
but also failed even to respond to his grievances. Nor have the defendants ever
explained how Turner might have appealed to the Jail and Detention Standards
Unit given that he would have been unable to attach copies of the jail’s decisions.
See Ill. Admin. Code tit. 20, § 701.160(c)(2). Preventing inmates from submitting
grievances, or failing to respond to their grievances, renders administrative
remedies unavailable. See Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Lewis
v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). And where administrative
remedies are unavailable, they are deemed exhausted for purposes of § 1997(e)(a).
Lewis, 300 F.3d at 833. Lack of exhaustion is an affirmative defense, and, contrary
to the defendants’ assertions in the district court, their burden of proof. See Dale,
376 F.3d at 655. Having never even acknowledged, much less disputed, Turner’s
sworn assertions that he submitted written grievances on his first four claims and
that those grievances went unanswered, the defendants plainly failed to carry their
burden on the exhaustion question.

        Accordingly, this case must be remanded for further proceedings as to
Turner’s first four claims. As to the fifth and sixth claims, however, Turner does
not dispute that he never submitted grievances even at the local level. And though
he suggests that the effort would have been to no avail anyway, the apparent
futility of filing a grievance is not an exception to the exhaustion requirement.
Booth v. Churner, 532 U.S. 731, 741 n.6 (2001); Dixon v. Page, 291 F.3d 485, 488
(7th Cir. 2002); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000). We
express no opinion about the merits of any of these claims.

      The dismissal of Turner’s first four claims is VACATED and the case is
REMANDED to the district court for further proceedings. As to the fifth and sixth
claims, the judgment is AFFIRMED.
