In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1973

Marcus Dixon,

Plaintiff-Appellant,

v.

Thomas Page, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-323-GPM--G. Patrick Murphy, Chief Judge.

Argued December 6, 2001--Decided May 28, 2002


  Before Cudahy, Easterbrook and Evans,
Circuit Judges.

  Cudahy, Circuit Judge. In this appeal,
Marcus Dixon argues that the district
court erred in dismissing without
prejudice Counts II and III of his
complaint because he failed to exhaust
his administrative remedies. We affirm.

I.

  Because Dixon’s complaint was dismissed
under Rule 12(b)(6), all statements of
fact in the complaint are taken as true
and all reasonable inferences must be
drawn in favor of Dixon. Massey v.
Wheeler, 221 F.3d 1030, 1034 (7th Cir.
2000). Dixon, a former Illinois prisoner,
now released, was an inmate at Menard
Correctional Center ("Menard"). Upon
arriving at Menard on December 13, 1995,
he immediately asked to be placed in
segregation because of a "hit" placed
upon him by a gang called the Vice Lords.
On January 8, 1996, Dixon was beaten up
by three members of the Vice Lords after
the prison ended a lockdown that had
prevented prisoners from moving about
outside their cells. The failure of
prison officials to prevent this beating
formed the basis of Count I of Dixon’s
complaint.

  In Count II of his complaint, Dixon
asserts that prison officials failed to
protect him from assault and harassment
by several inmates. He alleged that after
the January 8, 1995 incident, he asked
for protection again and was moved to the
protective custody unit on Gallery 7.
However, Dixon found that he was also in
danger in Gallery 7 because there were
Vice Lords there, who frequently
threatened him. Despite repeatedly asking
for assistance from prison officials, he
received none. On February 22, 1996,
Dixon was stabbed by Tyrone Jackson, a
Vice Lord who had been placed in the cell
with him. Dixon wrote several more
letters asking for help but continued to
receive no assistance. On May 28, 1996,
Dixon was attacked and struck by another
inmate, and he continued to be harassed
by various inmates. He filed written
grievances after each incident. In July,
in response to his grievances, the
Administrative Review Board told Dixon to
contact his counselor. Dixon made
repeated attempts to obtain a transfer to
another prison through his counselor and
through the other defendants but was told
that he was ineligible at that time.

  In Count III of his complaint, Dixon
alleged that he had been beaten by prison
officials in retaliation for his filing
of an administrative complaint against
these same officials. He filed several
more grievances and was subsequently
granted a transfer to another prison.
However, he was never transferred.

  On April 16, 1997, Dixon filed an
initial two-count complaint in federal
court under sec. 1983. He filed an
amended complaint on February 23, 1998,
adding Count III, and the case was
assigned to Magistrate Judge Proud. The
defendants moved for dismissal on the
ground that Dixon had failed to exhaust
his administrative remedies. Dixon then
filed a second amended complaint adding
that he had filed written grievances on
specified dates. Magistrate Judge Proud
issued an order and recommendation that
the motion to dismiss be denied. This
order and recommendation was approved and
adopted by the district court in March
1999.

  In August 1999, the defendants asked the
district court (and by implication,
Magistrate Judge Proud) to reconsider the
order in light of Perez v. Wisconsin
Dep’t of Corrections, 182 F.3d 532 (7th
Cir. 1999), which held that
administrative exhaustion was a
precondition even for a suit seeking
money damages. Upon reconsideration,
Magistrate Judge Proud recommended that
the defendants’ motion to reconsider be
granted. Specifically, Judge Proud
recommended the dismissal of most of
Count II and all of Count III for failure
to exhaust administrative remedies. The
district court then adopted this new
order and recommendation, and most of
Count II and all of Count III were
dismissed without prejudice. In October
2000, a trial was held on all of the
remaining claims. At the close of Dixon’s
case-in- chief, the defendants moved for
judgment as a matter of law under Rule 50
of the Federal Rules of Civil Procedure.
The court granted the motion from the
bench and later issued a written order
outlining its reasoning. Dixon now
appeals from the dismissal of most of
Count II and all of Count III of his
second amended complaint.

II.

  Dixon argues that we have appellate
jurisdiction under 28 U.S.C. sec.
636(c)(3). However, that provision
applies only to appeals from a final
judgment of a magistrate judge, not to
appeals from a final judgment of a
district court. Here, the dismissal was
by a district court, and sec. 636(c)(3)
does not apply. Instead, we have
appellate jurisdiction over final
judgments of a district court under 28
U.S.C. sec. 1291. Although the counts in
question were dismissed without
prejudice, and on that basis, narrowly
viewed, the dismissals would not be
appealable, it is clear that there is
nothing that Dixon can do to amend his
complaint "that would permit it to go
forward." Larkin v. Galloway, 266 F.3d
718, 721 (7th Cir. 2001). The reason is
that since Dixon is not currently a
prisoner, the prison grievance system is
not available to him, and he cannot
exhaust his administrative remedies. He
therefore cannot cure the defect in his
complaint on which the district court
based its dismissal of Counts II and III.
Thus, under the circumstances, the
dismissal of his claims is final for
purposes of appellate review. See id.
("If it is clear, for example, that the
plaintiff will not be able to amend her
complaint, the dismissal [without
prejudice] is final for purposes of
appellate review."); see also Ray v.
Kertes, 285 F.3d 287, 291 (3d Cir. 2002)
(exercising appellate jurisdiction when
"both parties agree that the time is long
past for [the inmate-appellant] to pursue
his normal administrative remedies
[preventing him from] curing the defect
in his complaint on which the District
Court based its dismissal")./1 This
court reviews a dismissal of a com-plaint
under Rule 12(b)(6) de novo. Massey v.
Helman, 259 F.3d 641, 645 (7th Cir.
2001).

A.

  The Prison Litigation Reform Act of 1995
("PLRA"), Pub. L. 104-134, 110 Stat. 1321
(1996), provides in pertinent part that

[n]o action shall be brought with respect
to prison conditions under section 1983
of this title, 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) (1996).
Exhaustion of administrative remedies, as
required by sec. 1997e, is a condition
precedent to suit. See Perez v. Wisconsin
Dep’t of Corrections, 182 F.3d 532, 535
(7th Cir. 1999). sec. 1997e applies to
"all inmate suits, whether they involve
general circumstances or particular
episodes, and whether they allege
excessive force or some other wrong."
Porter v. Nussle, 534 U.S. 516, 122 S.
Ct. 983, 992 (2002).

  Dixon first argues that he does not have
to exhaust his administrative remedies
because it would be futile for him to do
so when he is seeking money damages, and
he cannot be awarded money damages in the
administrative system. However, this
precise argument has been rejected by the
Supreme Court in its recent decision in
Booth v. Churner, 532 U.S. 731, 121 S.
Ct. 1819 (2001), which was issued the day
before Dixon filed his appeal. Booth held
that administrative exhaustion was
required even if the process could not
result in a prisoner’s desired form of
relief.

B.
  Dixon also argues that sec. 1997e does
not apply to him because he is no longer
a prisoner within the meaning of sec.
1997e. sec. 1997e applies only to
prisoners, and a plaintiff’s status as a
"prisoner" is to be determined as of the
time he brought the lawsuit. Kerr v.
Puckett, 138 F.3d 321, 323 (7th Cir.
1998). Thus, when Dixon filed his
complaint, he was a prisoner, who had
access to Menard’s administrative
grievance system. That he is no longer a
prisoner at the time of this appeal does
not excuse him from the exhaustion
requirement since exhaustion is a
precondition to the filing of a complaint
in federal court. See Perez, 185 F.3d at
535. Therefore, sec. 1997e still applies
to this lawsuit.

C.

  Finally, Dixon argues that he properly
exhausted his administrative remedies
when he filed his many grievances in the
administrative system. But, in reviewing
the record, we conclude that Dixon did
not exhaust his administrative remedies.

  The Illinois Department of Corrections
has a three-step grievance procedure. See
20 Ill. Admin. Code sec. 504.800 et seq.
(1998) (detailing grievance procedure).
If a prisoner has a grievance or
complaint, he should first go to a
counselor. 20 Ill. Admin Code sec.
504.810 (1998). If no relief is provided
by the counselor, a prisoner can then
file a written grievance. Id. Finally, if
the written grievance is dismissed, he
can appeal to the Director of the
Department. Id. There is also a statute
of limitations requiring that written
grievances be filed within six months of
the incident or problem complained of.
Id. If a written grievance is not filed
within that period, it will be dismissed
as untimely. Id. However, an untimely
grievance can still be considered if the
inmate can show that there is good cause
for the delay. Id.

  Dixon had complained to his counselor
and filed four written grievances in
connection with the dismissed claims in
Count II of his complaint, but he was
denied relief with respect to all four
grievances. With respect to three of
those grievances, Dixon never appealed
the denial of relief to the Director (the
next step in the grievance process). As
to the fourth grievance, although Dixon
eventually exhausted his administrative
remedies, he did not exhaust them until
after he had filed his complaint in
federal court. This fourth grievance thus
does not support his federal
complaintbecause exhaustion of
administrative remedies is a precondition
to the filing of a sec. 1983 suit by a
prisoner. See Perez, 185 F.3d at 535
(holding that exhaustion of
administrative remedies is a precondition
to suit). Therefore, three of his claims
relating to Count II were not pursued to
the final step of the administrative
process and, as to the fourth, the
process was not completed before the sec.
1983 complaint was filed. The
requirements of sec. 1997e were therefore
not met and those claims were properly
dismissed.

  Because Dixon exhausted his
administrative remedies with respect to
his claims in Count I and also exhausted
his administrative remedies with respect
to one claim in Count II, Dixon received
a trial on those claims. Now, he presents
a sort of single source theory--that the
exhaustion of those claims preserves the
unexhausted claims in Count II because
all of his claims arise ultimately from
the failure of the prison system to
protect him from the Vice Lords.
Essentially, Dixon is arguing that all of
his claims were really one claim. This
argument was raised for the first time in
Dixon’s reply brief. As a general rule,
we do not consider arguments raised for
the first time in a reply brief. See
Coffey v. Van Dorn Iron Works, 796 F.2d
217, 221 (7th Cir. 1987) ("We will not
consider argument raised for the first
time in the appellant’s reply brief.").
Even if we were to consider the argument,
it has no merit. If all of the claims in
Count I and Count II were one claim, then
that one claim was decided against Dixon
at the trial on the exhausted claims in
his complaint. Hence, Dixon is not
entitled to another trial on the
unexhausted claims in Count II. On the
other hand, if the unexhausted claims
were separate claims, then Dixon failed
to meet the requirements of sec. 1997e as
to those claims. In either case, the
dismissal of the unexhausted claims in
Count II of his complaint may be
affirmed.
  With respect to his claims in Count III
that prison officials beat him, Dixon
filed two grievances. He did not appeal
the dismissal of the first grievance to
the Director. Thus, as we have indicated,
Dixon failed to exhaust his
administrative remedies with respect to
that grievance and that claim was
properly dismissed under sec. 1997e.
Dixon was granted relief of sorts on his
second grievance, in which he sought a
transfer. However, although he was
granted a transfer, Dixon was never in
fact transferred. The state argues that
Dixon did not exhaust this second
grievance because he should have done
something administratively to compel the
prison to meet its obligation to transfer
him. The state suggested that Dixon could
have filed another grievance requesting
the transfer. The state asserts that,
even if the grievance were deemed
untimely, Dixon could have shown good
cause for his delay in filing the
grievance.

  Requiring a prisoner who has won his
grievance in principle to file another
grievance to win in fact is certainly
problematic. Although the time spent in
exhausting administrative remedies is
tolled for purposes of limitations on
filing a federal complaint, see Johnson
v. Rivera, 272 F.2d 519, 522 (7th Cir.
2001) (holding that "in the ordinary
case, a federal court relying on the
Illinois statute of limitations in a sec.
1983 case must toll the limitations
period while a prisoner completes the
administrative grievance process"), this
would be cold comfort to a prisoner
caught in some never-ending cycle of
grievances. For, if a prisoner who wins
on his initial grievance must file one
further grievance to get practical
relief, what is to prevent the prison
system from repeatedly failing to follow
through and requiring the prisoner to
endlessly seek a real resolution? During
oral argument, counsel for the state
conceded that any intentional pursuit of
such a scenario by state officials with
the aim of frustrating the process could
not be tolerated. But counsel represented
that under the grievance process in
Illinois, Dixon could appeal directly to
the Director after waiting for thirty
days to be transferred, thus bypassing
the initial steps required for the filing
of a new grievance. See 20 Ill. Admin.
Code sec. 504.850(a) (1998) (stating that
"if after receiving a response . . ., the
committed person still feels that the
problem, complaint or grievance has not
been resolved to his or her satisfaction,
he or she may appeal in writing to the
Director within 30 days after receipt of
the response"). If state counsel’s
representation is reliable, sec. 1997e
requires that Dixon continue to pursue
the grievance process and appeal to the
Director the prison system’s failure to
transfer him.

  In Pozo v. McCaughtry, 286 F.3d 1022,
2002 WL 596190 (7th Cir. 2002), we held
that a prisoner, in order to satisfy the
exhaustion requirement of sec. 1997e,
must complete the administrative process
"by following the rules the state has
established for that process." Literally,
this language might seem to control the
present case since the state rules
governing the grievance process may be
construed to require a direct appeal to
the Director if relief was granted in
theory but not promptly translated into
practice. Under Pozo, sec. 1997e may
require that this course be pursued,
provided the ultimate result is not
practical frustration of Dixon’s remedy.
For present purposes, we will adopt this
approach, subject to the reservations
that we have noted. Therefore,
interpreting sec. 1997e in the manner
generally indicated by Pozo seems
appropriate, provided that there is a
"possibility of some relief for the
action complained of" by Dixon. Booth v.
Churner, 532 U.S. at 731, 121 S. Ct. at
1824.

  In addition, requiring Dixon to appeal
directly to the Director would furnish
the Director with an opportunity to learn
of possible infirmities in the prison
grievance system and to correct any such
infirmities--one of the purposes of sec.
1997e. See Porter v. Nussle, 534 U.S.
516, 122 S. Ct. at 988 (stating that the
exhaustion requirement might lead to
improvement in the prison administrative
system). On the other hand, if counsel’s
representation does not point accurately
to an avenue of prompt relief (for
example, if even a direct appeal to the
Director would prove futile), Dixon would
have shown that administrative remedies
were not really available in the Illinois
prison system. This would follow from the
fact that there was no "possibility of relief"
in a situation in which practical
resolution of a grievance was
indefinitely deferred. But that has not
yet been shown to be the situation here,
and we have been assured that prompt
relief in fact as well as in principle
would have been available by appeal to
the Director. Therefore, the dismissal of
Dixon’s claims in Count III for failure
to exhaust his administrative remedies
may be affirmed.

III.

  For the foregoing reasons, we AFFIRM the
judgment of the district court dismissing
Dixon’s claims for failure to exhaust
administrative remedies.


FOOTNOTES

/1 This, of course, is not to say that (if the
statute of limitations and other potential obsta-
cles permit) Dixon might not file a new complaint
under sec. 1983, with respect to which adminis-
trative exhaustion presumably would not be re-
quired since Dixon is no longer a prisoner. See
Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998)
(holding that sec. 1997e(e) applies only to
prisoners).
