286 F.3d 1022 (7th Cir. 2002), 01-3623, Pozo v. McCaughtry

Docket Nº:01-3623
Citation:286 F.3d 1022
Party Name:Pozo v. McCaughtry
Case Date:April 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 2002)

286 F.3d 1022 (7th Cir. 2002)

Rodosvaldo POZO, Plaintiff-Appellee,


Gary McCAUGHTRY, Randall Gerritson, and David Hautamaki, Defendants-Appellants.

No. 01-3623.

United States Court of Appeals, Seventh Circuit

April 18, 2002

Argued April 8, 2002.

Rehearing and Rehearing En Banc Denied May 13, 2002.

Page 1023

Jerold S. Solovy, Stephen M. Geissler (argued), Jenner & Block, Chicago, IL, for Plaintiff-Appellee.

Jody J. Schmelzer (argued), Karla Z. Keckhaver, Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for Defendants-Appellants.

Before BAUER, EASTERBROOK, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

This interlocutory appeal, by permission under 28 U.S.C. § 1292(b), presents a single question: Whether a prisoner's neglect to take a timely administrative appeal within the state system means that he has failed to exhaust state remedies for purposes of 42 U.S.C. § 1997e(a). The district court, acting through a magistrate judge following consent under 28 U.S.C. § 636(c), answered "no." The magistrate judge reasoned that a prisoner exhausts his state remedies by taking all steps that the state requires, whether or not the prisoner complies with the state's rules for form and timeliness of action. We reach the opposite conclusion: unless the prisoner completes the administrative process by following the rules the state has established for that process, exhaustion has not occurred. Any other approach would allow a prisoner to "exhaust" state remedies by spurning them, which would defeat the

Page 1024

statutory objective of requiring the prisoner to give the prison administration an opportunity to fix the problem--or to reduce the damages and perhaps to shed light on factual disputes that may arise in litigation even if the prison's solution does not fully satisfy the prisoner. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

McCoy v. Gilbert, 270 F.3d 503, 508 (7th Cir. 2001), foreshadows this conclusion. Now we make it definitive. See also Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995); Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999). The argument on the other side is that "exhaustion" carries two senses. One, from administrative law, is that exhaustion means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits). The other, until recently the norm in the law of collateral attack, is that a prisoner exhausts state judicial remedies by using whatever is available at the moment; if no remedies are left, then the challenge may proceed in federal court. See Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The magistrate judge applied to § 1997e(a) the old understanding for collateral attacks, rather than the norm for administrative law. We call it the "old" understanding for collateral attacks because it was jettisoned by O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The Supreme Court held in Boerckel that to "exhaust" state judicial remedies, for purposes of 28 U.S.C. § 2254(b)(1), a prisoner must use all available avenues of review. Thus a prisoner who did not ask the state's highest court to grant discretionary review in his case may well have no state remedies left, but his failure to use those the state had offered means that he did not exhaust those remedies. This holding merges the collateral-attack and administrative-law understandings of exhaustion. After Boerckel, a procedural default also means failure to exhaust one's remedies.

When we accepted the appeal in this case, we directed the parties to brief the question whether the approach of Boerckel applies...

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