In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1354

ANTHONY McCOY,

Plaintiff-Appellant,

v.

JAMES R. GILBERT, FREDERICK H. APER,
DAVID POGGEMOELLER, HERMAN S. NELSON
and ROBERT ZACHARY,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 96-CV-790--David R. Herndon, Judge.

Argued SEPTEMBER 6, 2001--Decided October 30, 2001



  Before COFFEY, KANNE and EVANS, Circuit
Judges.

  COFFEY, Circuit Judge. Anthony McCoy is
a federal inmate in Lisbon, Ohio, who was
formerly held at the Federal Correctional
Institution in Greenville, Ill.
("Greenville"). McCoy claims that he
suffered cruel and unusual punishment at
the hands of Greenville’s correctional
officers, who allegedly beat him in late
October 1995 in retaliation for his
involvement in a prison riot that
occurred earlier in the month. The
district court found that McCoy had not
exhausted the administrative remedies
available to him at Greenville. The court
granted Defendant Zachary’s motion for
summary judgment, granted Defendant
Nelson’s motion to dismiss, and then
dismissed without prejudice the claims
against the remaining defendants sua
sponte. We affirm.

I.

  Greenville is an overcrowded, medium-
security federal prison where more than
1000 men are housed in four units that
have a capacity of 750. By October 1995,
tensions had been mounting at Greenville
for several weeks./1 The Bureau of
Prisons ("BOP") ordered a lockdown at all
federal institutions on October 20, 1995.
Greenville’s inmates are rarely confined
in this manner, and many of them became
agitated and suspicious of the guards
because they refused to explain the
reason for the lockdown. Scores of
prisoners in two housing units erupted
violently. The ensuing riot, which
engulfed the unit where McCoy resided,
lasted 24 hours and was of such magnitude
that it made national news. Numerous
employees sustained severe injuries, and
the prison itself suffered more than
$400,000 in property damage.

  A group of vigilante correctional
officers, including the appellees,
amassed a list of prisoners who were
believed to have been involved in the
disturbance. On the night of October 26,
1995, the officers donned full riot gear
and burst into McCoy’s cell. Nelson
sneered, "You like to hurt officers. You
like to kill officers. You tried to set
me on fire. You’re not so tough by
yourself. I got my gang now." McCoy told
Nelson that he neither joined nor
participated in the rioting and, upon
review, we have not discovered any
evidence that would disprove McCoy’s
statement. Nevertheless, according to
McCoy, Nelson and the others handcuffed
him, slammed his head against the cell
door, and dragged him into another room
used for strip searches. They cut his
shirt off, slapped him across the face,
and forced him to stand with his nose
against the wall. While McCoy stood
forlornly, the appellees repeatedly beat
him in the rib area with riot sticks.
After they completed their assaults, they
returned McCoy to his cell, where they
continued to verbally taunt him. A few
minutes later, the appellees threw
another inmate into McCoy’s cell and left
both men there, bare naked, for the rest
of the night.

  BOP and the U.S. Department of Justice
investigated the prison riot, and Aper,
Gilbert, Nelson, and Zachary were cited
in April 1996 for such odious misconduct
as: verbally and physically abusing
inmates, neglecting official duties,
advising staff to violate prison policy,
failing to report abusive behavior, and
filing false statements with the FBI.
McCoy brought suit pro se on September
11, 1996. With the assistance of
appointed counsel, he filed an Amended
Complaint on September 3, 1999, raising
claims under the Fifth Amendment and
Eighth Amendment.

  The Prison Litigation Reform Act of 1995
provides that "[n]o action shall be
brought with respect to prison
conditions" under 42 U.S.C. sec. 1983 "or
any other Federal law, 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).
Greenville, like all federal prisons, has
a multi-step administrative grievance
system that allows for the hearing and
review of prisoner complaints. Federal
regulations require prisoners to try to
resolve their complaints through informal
discussions with the prison’s staff. If
such discussions are unproductive, then
the prisoner has twenty days from the
complained-of events to file a written
Administrative Remedy Request with the
warden, who is empowered to investigate
the complaint and to grant or deny the
prisoner’s request for relief as he deems
prudent. If the prisoner is not satisfied
with the warden’s response, then he may
continue to seek relief by filing written
appeals to BOP’s regional director and
then to BOP’s general counsel. See 28
C.F.R. sec.sec. 542.10 to .19. Only after
completing these steps has a prisoner
exhausted his administrative remedies.

  McCoy failed to follow Greenville’s
procedures. His effort at exhaustion
consisted only of complaining to the
staff in his housing unit and cooperating
with the Justice Department’s subsequent
investigation of the prison riot./2
Although allegations of assault and
excessive force are subject to
exhaustion, see Johnson v. Litscher, 260
F.3d 826, 828 (7th Cir. 2001); Smith v.
Zachary, 255 F.3d 446, 449-50 (7th Cir.
2001), McCoy never filed a formal
Administrative Remedy Request asking for
money damages, nor did he appeal any
decision with which he disagreed./3

  Officers Zachary and Nelson both moved
to dismiss. Nelson attacked the pleading
on its face, while Zachary attached an
affidavit from a Greenville
administrator, who confirmed that McCoy
never "filed any requests for
administrative remedy during his
incarceration with the Federal Bureau of
Prisons." The pleadings were referred to
U.S. Magistrate Judge Philip M. Frazier,
who considered the affidavit when ruling
on Zachary’s motion. After completing his
review, Judge Frazier properly converted
Zachary’s motion to dismiss into one for
summary judgment, Fed. R. Civ. P. 12(c),
and, upon applying the correct standard
of review to Zachary’s motion for summary
judgment and Nelson’s motion to dismiss,
recommended that they be granted. The
district court adopted the recommendation
and dismissed the entire complaint,
finding that all of McCoy’s claims
against every defendant were subject to
exhaustion. We review the rulings de
novo. Massey v. Helman, 259 F.3d 641, 645
(7th Cir. 2001) (dismissal of prisoner’s
complaint); Patrick v. Jasper County, 901
F.2d 561, 564-65 (7th Cir. 1990) (summary
judgment in sec. 1983 case).

II.

  On appeal, McCoy argues that the
district court erred in applying the
PLRA’s exhaustion requirements. McCoy was
injured October 26, 1995, and the PLRA
was signed into law April 26, 1996. Under
Greenville’s grievance resolution policy-
-which has been in effect since at least
1995--an inmate forfeits his right to sue
unless he submits a formal, written
complaint within twenty days of the
alleged offense or demonstrates "a valid
reason for the delay." 28 C.F.R. sec.
542.14(b). Although McCoy never did file
such a complaint, he notes that the law
that existed on the date of his assault
did not mandate the exhaustion procedure.
See, e.g., Neville v. True, 900 F. Supp.
972, 979 (N.D. Ill. 1995). Furthermore,
McCoy claims that BOP’s twenty-day period
for filing formal complaints expired on
November 15, 1995, which was long before
the PLRA took effect. Thus, his
contention is that it was impossible for
him to have exhausted his remedies at the
time when he brought suit. We reject this
argument, because from our review of the
record, we are of the opinion that McCoy
has always had the opportunity to
exhaust, but he simply chose not to.

A.

  "When a case implicates a federal
statute enacted after the events in suit,
the court’s first task is to determine
whether Congress has expressly prescribed
the statute’s proper reach." Lansgraf v.
USI Film Prods., 511 U.S. 244, 280
(1994). If the statute does not clearly
identify the prior events that may be
subject to regulation, then we must
consider whether the application of the
statute to the conduct at issue would
"impair rights a party possessed when he
acted, increase a party’s liability for
past conduct, or impose new duties with
respect to transactions already
completed." Id.

  Of course, almost every new statute
results in some perceptible effect or
impact on countless past or pre-existing
choices, decisions, and interests of the
actors and subjects in the newly-
regulated field. For example, the Court
has held that the PLRA’s attorney fee
limitations, see 42 U.S.C. sec.
1997e(d)(3), apply to any postjudgment
monitoring performed after the PLRA took
effect, even if the underlying case was
filed before then. See Martin v. Hadix,
527 U.S. 343 (1999). The Court concluded
that the statute, "as applied to work
performed after the effective date of the
PLRA . . . has future effect on future
work; this does not raise retroactivity
concerns." Id. at 360. Yet it is apparent
that such a statutory construction
nevertheless disappoints certain
expectations developed by the attorneys
who agreed to begin working on the cases
before 1996 even if the statute is
applied only to work performed after
1996. See id. at 362-63 (Scalia, J.,
concurring in judgment). When the
attorneys decided to file their ambitious
institutional reform cases in the late
1970s, they presumably had calculated
their potential compensation in reliance
on the then-existing legal regime, which
did not cap recovery at less-than-market
rates. By applying the PLRA’s new fee
caps to prospective work on existing
cases, the Court limited the attorneys’
future income stream, effectively reduced
the value of the attorneys’ prior
investment in the litigation, and
frustrated certain aspects of the fee-
sharing relationship into which the
parties had entered. See id. at 369-70
(Ginsburg, J., concurring and dissenting
in part).

  What Martin states is that we cannot
simply ask whether application of the
PLRA would have some imaginable
retroactive effect on the choices McCoy
made before April 26, 1996. Rather, we
must scrutinize "the nature and extent of
the change in the law and the degree of
connection between the operation of the
new rule and a relevant past event,"
Lansgraf, 511 U.S. at 270, i.e., the
exhaustion requirement and McCoy’s
decision not to file a grievance before
bringing suit, and ask whether
application of the requirement would
comport with "familiar considerations of
fair notice, reasonable reliance, and
settled expectations" of the parties at
the time of their conduct. Id. If the
statute’s enforcement would unduly
conflict with these important societal
values, then it will not be applied in
cases like McCoy’s absent a "clear
indication from Congress that it intended
such a result." INS v. St. Cyr, 121 S.Ct.
2271, 2288 (2001).

B.
  Congress never has stated that the
PLRA’s exhaustion requirements should be
applied retroactively. As a result,
courts have permitted non-exhausted
lawsuits to proceed if they were filed
before April 26, 1996. See, e.g.,
Mitchell v. Shomig, 969 F. Supp. 487
(N.D. Ill. 1997). Yet Mitchell is
inapposite, for McCoy filed suit after
the PLRA’s enactment, not before. One of
the PLRA’s primary purposes is to "enable
prison officials to resolve complaints
internally and to limit judicial
intervention in the management of state
and federal prisons." Smith, 255 F.3d at
449. The statute embodies a firm
congressional will that keeps with a
bedrock principle of our jurisprudence:
"Prison administrators . . . should be
accorded wide-ranging deference in the
adoption and execution of policies and
practices that in their judgment are
needed to preserve internal order and
discipline and to maintain institutional
security." Thomas v. Ramos, 130 F.3d 754,
759 (7th Cir. 1997) (quoting Bell v.
Wolfish, 441 U.S. 520, 547 (1979)). While
some prisoner cases have merit--and
McCoy’s does appear to have some merit--
an inordinate number do little more than
drain precious time and resources from an
overburdened judicial system. Thus, we
examine the scope of the exhaustion
requirement, for the administrative
process will allow prisoners to
articulate specific grievances and pursue
reliefoutside of the adversarial confines
of a judicial forum. Ideally, the process
will facilitate negotiation and reduce
the scope of future litigation if any of
the inmate’s grievances are not
internally resolved. Smith, 255 F.3d at
451 (citing Perez v. Wisconsin Dep’t of
Corr., 182 F.3d 532, 535 (7th Cir.
1999)).

  The text of 42 U.S.C. sec. 1997e(a)
states that "[n]o action shall be brought
with respect to prison conditions . . .
until such administrative remedies as are
available are exhausted." The exhaustion
requirement applies whenever there is
some administrative process remaining at
the prisoner’s disposal. See Johnson, 260
F.3d at 829; Massey v. Helman, 196 F.3d
727, 734 (7th Cir. 1999). The statute
plainly served McCoy with notice that he
could not enter federal court after April
26, 1996 until such time as he had
exhausted the prison’s grievance
process./4 McCoy has attempted to make
an end run around the statute by choosing
to sue first, then to expand upon his
complaint with an amendment three years
later. This is precisely the type of
litigious behavior the PLRA was designed
to prevent. McCoy argues, however, that
the statute cannot apply to him, claiming
that Greenville’s administrative remedies
were no longer "available" for
exhaustion, because BOP’s regulations
afforded him only twenty days after he
was beaten to file a grievance. McCoy’s
argument rests on the premise that BOP’s
twenty-day window of opportunity
permanently closed in mid-November 1995.
This premise is faulty; thus, we reject
this argument.

  McCoy overlooks the crucial fact that,
although an inmate must normally submit a
formal grievance within twenty days of
the complained-of events, there is a
hardship exception for inmates who are
able to demonstrate a valid reason for
not meeting the deadline. The pertinent
regulations read as follows:

Where the inmate demonstrates a valid
reason for delay, an extension in filing
time may be allowed. In general, valid
reason for delay means a situation which
prevented the inmate from submitting the
request within the established time
frame. Valid reasons for delay include
the following: an extended period in-
transit during which the inmate was
separated from documents needed to
prepare the Request or Appeal; an
extended period of time during which the
inmate was physically incapable of
preparing a Request or Appeal; an
unusually long period taken for informal
resolution attempts; indication by an
inmate, verified by staff, that a
response to the inmate’s request for
copies ofdispositions requested under
sec. 542.19 of this part was delayed.
28 C.F.R. sec. 542.14(b).

   McCoy speculates that Greenville would
not have excused his failure to file
before November 15, 1995. However, the
record is devoid of any evidence to
substantiate McCoy’s assertion, and we
cannot imagine why the institution would
have construed the regulations in this
fashion. The regulations plainly grant
Greenville the discretion to excuse
untimely grievances if serious
aggravating factors or forces
substantially influence a reasonable
prisoner’s ability or incentive to
comply. On the one hand, the prisoner’s
grievance will be permanently waived, and
the exception will not be available in
the ordinary case of strategic delay,
negligence, ignorance or mistake. But on
the other hand, in this case, the
amendment to sec. 1997e(a) was not
reasonably foreseeable, and it made a
world of difference with respect to
McCoy’s incentive to grieve. Our concern
is not with whether Greenville would have
accepted or rejected the post-PLRA
grievance. Instead, we "merely need to
ask whether the institution has an
internal administrative grievance
procedure by which prisoners can lodge
complaints about prison conditions."
Massey, 196 F.3d at 734. Greenville had
the authority to take some sort of action
with respect to a tardy complaint.
Therefore, we hold that McCoy must
initially have made an attempt to use
Greenville’s administrative process. See
Perez, 182 F.3d at 536 ("[n]o one can
know whether administrative requests will
be futile; the only way to find out is to
try.")

  We have recognized that a procedural
change in the law should rarely be
allowed to extinguish substantive rights
absent an express declaration from the
legislature. This is known as the
"mousetrapping principle." See Burris v.
Parke, 95 F.3d 465, 469 (7th Cir. 1995)
(en banc). In this case, however, we are
not using a new law to penalize McCoy’s
prior actions. We are merely holding
McCoy to the same requirements as any
other prisoner who filed suit after the
enactment of the PLRA on April 26, 1996.

  On appeal, McCoy sought to align his
case with Burris. Burris was convicted
and given the death penalty at a time
when the law permitted multiple
successive habeas petitions. He filed his
first petition in December 1991, and he
elected to challenge only his conviction.
Then in November 1995, he filed a second
petition and challenged only his
sentence. The AEDPA took effect in April
1996, and it barred second or successive
habeas petitions except in limited
factual situations that were not present
in Burris’s case. See id. at 466-67. We
held, however, that the application of
AEDPA to the second petition would have
attached a serious, material, and
tangible new legal consequence to the
first challenge that did not exist when
the challenge occurred. Put another way,
we refused to apply AEDPA’s new rule
because Burris had no way of foreseeing
in 1991 or 1995 that he would be unable
to challenge his conviction in one
petition and his death sentence in
another. If he had, we are convinced,
then he would have brought the challenges
simultaneously, which is what condemned
prisoners customarily do. See id. at 468-
69. In so holding, we expressly
distinguished Felker v. Turpin, 52 F.3d
907 (11th Cir. 1995), aff’d, 518 U.S. 651
(1996), where the courts applied AEDPA’s
"one petition rule" to a successive
petition that was filed after AEDPA was
passed. Because Felker raised a prior
challenge to his conviction and his
sentence, 52 F.3d at 909, we reasoned
that there was no unfairness in applying
the new law to Felker’s second petition.

  Burris and Felker teach that a
procedural rule that governs the filing
of cases can normally be applied to cases
brought after the rule is enacted.
"Application of a new jurisdictional rule
usually takes away no substantive right
but simply changes the tribunal that is
to hear the case." Lansgraf, 511 U.S. at
274. This is not an unusual situation
where, for example, McCoy attempted to
file a grievance and was rebuffed by
Greenville on the grounds that he waited
more than twenty days. If this had
occurred, then McCoy would have been
mousetrapped, because he could not have
foreseen that his prior failure to grieve
would deprive him of legal relief
forever. See Mitchell, 969 F. Supp. at
492 (declining to apply exhaustion
requirement when time for appealing state
official’s decision irrevocably expired
before PLRA’s passage); see also Miller
v. Tanner, 196 F.3d 1190, 1194 (11th Cir.
1999) (discussing exhaustion
requirement’s "futility" exception).

  McCoy had notice of the new rule, and
his reliance interests have not been
unduly trammeled. We see no manifest
injustice in telling a prisoner on a
going-forward basis that he must work
through and exhaust the administrative
processes available to him, even if such
exhaustion was optional under prior law.
Congress has merely regulated future
conduct without adjudicating the past.
Indeed, courts in three other circuits
have all dismissed non-exhausted
complaints that were filed after April
26, 1996, notwithstanding that the
underlying causes of action accrued prior
to that date. See White v. McGinnis, 131
F.3d 593, 595 (10th Cir. 1997); Garrett
v. Hawk, 127 F.3d 1263, 1266 (6th Cir.
1997); Polite v. Barbarin, 1998 U.S.
Dist. LEXIS 3600, 1998 WL 146687 at *3
n.7 (S.D.N.Y. 1998); see also Foulk v.
Charrier, 262 F.3d 687, 696 (8th Cir.
2001) (noting that exhaustion requirement
applies to amended complaints filed after
PLRA’s passage unless complaint relates
back to earlier filing).

  In the event that the complained-of
events transpired before the enactment of
the PLRA, a prisoner can show exhaustion
by demonstrating that he substantially
complied with the institution’s grievance
policy. The prisoner must have clearly
given the institution notice of his
particular demands and reasonably
triggered an attempt to resolve them. See
Smith, 255 F.3d at 452; Wolff v. Moore,
199 F.3d 324, 328 (6th Cir. 1999). In
this case, McCoy spoke informally with
the prison guards in his unit, requested
medical attention, and cooperated with
the Justice Department’s investigation of
the prison riot by recounting the events
over which he had personal knowledge.
Greenville’s medics treated McCoy for his
injuries, and the guards forwarded
McCoy’s concerns to the warden. The
Justice Department’s investigation was
launched independently of McCoy’s casual
discussions, and it was calculated to
effectuate reform on an institutional
level, not to identify and respond to the
particular grievances harbored by
individual inmates. Greenville may have
known that McCoy was angered about the
guards’ conduct, but McCoy failed to
properly and adequately notify the prison
that he sought monetary damages and
intended to file suit. Therefore, the
institution cannot be faulted for failing
to address McCoy’s grievance to his
satisfaction.

  We are aware of two decisions excusing
a prisoner’s failure to exhaust when the
initial time period for bringing a formal
complaint expired before April 26, 1996.
See Lavista v. Beeler, 195 F.3d 254, 258
(6th Cir. 1999); Hitchcock v. Nelson,
1997 U.S. Dist. LEXIS 11487, 1997 WL
433668 at *2 (N.D. Ill. 1997). Lavista
involved a federal prisoner who, like
McCoy, had twenty days to file an
Administrative Remedy Request, and
Hitchcock involved an Illinois state
prisoner who had six months to do the
same. Although there was no evidence that
the prisoners in either case attempted to
invoke the hardship exception for
untimely filings,/5 the courts appear
to have assumed that the grievances would
have been rejected. See Hitchcock, supra
at *2 ("[t]o apply the exhaustion
requirement here would ’mousetrap’
Plaintiff and effectively extinguish his
claim.") For the reasons previously
stated, we disapprove of Hitchcock and
Lavista. "Congress has mandated
exhaustion clearly enough, regardless of
the relief offered through administrative
procedures." Booth v. Churner, 121 S.Ct.
1819, 1825 (2001). Courts may not ignore
the valid dictates of Congress and may
not read exceptions into unambiguous
legislation.

  The judgment of the district court is
AFFIRMED.

FOOTNOTES

/1 A report by the Bureau of Prisons subsequently
attributed these anxieties to the prison’s work
assignments as well as the decision of the U.S.
Congress not to reform the sentencing guidelines
for persons convicted of selling crack and pow-
dered cocaine. See Appellees’ Supp. App. Tab 1
("After-Action Team Report of April 10, 1996").

/2   McCoy’s Amended Complaint alleged as follows:

Plaintiff exhausted his administrative remedies
pursuant to 42 U.S.C. sec. 1997(e)(a). Plaintiff
made a complaint to officials at FCI Greenville
on or about October 30, 1995. That complaint was
eventually reported to defendant Rupert and was
later referred by Warden Seiter to Internal
Affairs for investigation. The complaint was then
investigated by the Bureau of Prisons and the
FBI. As a result of plaintiff’s administrative
complaint, and the subsequent investigation,
defendant Nelson was disciplined, but plaintiff
was not granted any relief.

/3 Contrary to our holdings in Johnson and Smith,
the Second Circuit has concluded that excessive
force claims are not subject to exhaustion. See
Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000),
cert. granted sub nom. Porter v. Nussle, 121
S.Ct. 2213 (2001). On appeal, McCoy has waived
any reliance on Nussle and has raised only his
retroactivity arguments.

/4 The appellees offer stray quotations from
several legislators to support their arguments
concerning mandatory exhaustion. We need never
consider legislative history when interpreting an
unambiguous statute. United States v. Hudspeth,
42 F.3d 1015, 1022 (7th Cir. 1994) (en banc).
Furthermore, we note that the legislative history
offers particularly little insight in this in-
stance. The PLRA was a substantive rider to an
omnibus appropriations bill. Its provisions were
never seriously debated, were never the subject
of a Senate Judiciary Committee mark-up, and were
never explained in any committee report. See
Geoffrey C. Rapp, Note, Low Riding, 110 Yale L.J.
1089, 1092-93 (2001). Cf. Mills v. United States,
713 F.2d 1249, 1251-54 (7th Cir. 1983) (consider-
ing legislative history when bill was subjected
to serious floor debate and committee analysis).

/5 See 28 C.F.R. sec. 542.14(b) (federal prisons);
20 Ill. Admin. Code sec. 504.810(a) (Illinois
prisons).
