Perez v. Wisconsin Dept.

• Decision Date: 24 June 1999
• Docket Number: No. 98-4012,98-4012
• Parties: (7th Cir. 1999) Eduardo M. Perez, Plaintiff-Appellant, v. Wisconsin Department of Corrections and Michael J. Sullivan, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 532

182 F.3d 532 (7th Cir. 1999)

Eduardo M. Perez, Plaintiff-Appellant, v. Wisconsin Department of Corrections and Michael J. Sullivan, Defendants-Appellees.

No. 98-4012

United States Court of Appeals, Seventh Circuit

Submitted June 8, 1999

Decided June 24, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97-C-1122--Rudolph T. Randa, Judge.

Before Bauer, Easterbrook, and Evans, Circuit Judges.

Easterbrook, Circuit Judge.

After he slipped and fell in a prison shower, Eduardo Perez complained of back pain. Treatment for his condition was complicated because, although his sentence was imposed by Wisconsin, he was being confined by Texas under an agreement between the states. Significant medical expenses could be incurred only with Wisconsin's approval. A physician in Texas diagnosed "a large extruded disc fragment" and recommended surgery; Wisconsin preferred the more conservative approach of exercise, physical therapy, and basic pain control medicine such as Ibuprofen. Now back in Wisconsin's prisons, Perez filed this suit under 42 U.S.C. sec.1983, seeking damages for what he describes as cruel and unusual punishment. The district court observed that Perez has received medical treatment and held that his disagreement with the therapy provided does not entitle him to damages under the eighth amendment. See Estelle v. Gamble, 429 U.S. 97 (1976).

Wisconsin asks us not to decide the merits of the case. Before filing suit, Perez did not obtain administrative review of his treatment. Section 1983 does not contain a comprehensive administrative-exhaustion requirement, but the Prison Litigation Reform Act has one for prisoners:

No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 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). Given McCarthy v. Bronson, 500 U.S. 136 (1991), complaints about medical treatment in prison are complaints about "prison conditions". Wisconsin offers administrative remedies for deficient medical care. Thus sec.1997e(a) applies to Perez, and defendants promptly moved to dismiss the complaint because Perez had not exhausted his administrative remedies. Eight months went by without any ruling on this motion; then the judge granted summary judgment. The final paragraph of the court's opinion has this to say about sec.1997e(a):

Finally, although the Magistrate Judge determined that Perez failed to exhaust his administrative remedies before bringing this action, in violation of 42 U.S.C. sec.1997e(a), he has exhausted his administrative remedies in the meantime. Therefore, a dismissal without prejudice at this point would require Perez to file another claim, which would run counter to the policy of judicial economy. However, the issue is moot in light of the Court's ruling on the merits.

The judge did not explain how a request to dismiss the complaint--a request that, if granted, would end the litigation without prejudice--could be rendered moot by a decision on the merits. There is a big difference between dismissals with and without prejudice. Application of a law designed to prevent decision on the merits cannot be avoided by making the very decision whose propriety is contested, then declaring the decision-avoidance statute "moot." Cf. Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003 (1998).

Although defendants prevailed in the district court, we might view the merits otherwise, and to avoid that risk defendants might prefer a dismissal without prejudice, as their appellate brief says that they do. Because reversal is a possibility, defendants can be aggrieved even by a decision in their favor, and we therefore must decide whether they are entitled to the relief they prefer: dismissal of the complaint. Examining the merits first and then ordering a case dismissed on exhaustion grounds only if the plaintiff is apt to prevail not only would disregard the statutory approach, which puts administrative ahead of judicial inquiry, but also would border on (if it would not transgress) the rule against issuing advisory opinions.

Section 1997e(a) does not say that exhaustion of administrative remedies is required before a case may be decided. It says, rather, that "[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted." Perez violated sec.1997e(a) by filing his action. Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit. Section 1997e(a) is similar in both structure and function to other statutes that take the form "no suit unless . . .". For example, the Federal Tort Claims Act provides that "[a]n action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing" or six months have passed without decision. 28 U.S.C. sec.2675(a). The Resource Conservation and Recovery Act of 1976 provides: "No action may be commenced . . . prior to 60 days after the plaintiff has given notice of the violation" to various persons. 42 U.S.C. sec.6972(b)(1). When plaintiffs jumped the gun by filing suit before giving notice or making an administrative claim, several courts nonetheless proceeded to decision, reasoning that it would waste judicial resources to make the plaintiff start over. But the Supreme Court saw things otherwise, holding that language such as "no action may be commenced" means "no action may be commenced," not "no action may be prosecuted." Likewise "no action shall be brought", the opening language of sec.1997e(a), cannot mean "no action shall be decided on the merits."

Hallstrom v. Tillamook County, 493 U.S. 20 (1989), is the RCRA case, and McNeil v. United States, 508 U.S. 106 (1993), the FTCA case. Hallstrom observes that negotiation may be more effective if a lawsuit is not on file; that observation is no less true of the PLRA than of the RCRA and the FTCA. Indeed, the utility and scope of litigation may depend on the outcome of the administrative process; if the prison accommodates all of the prisoner's requests, no suit will be filed, and even partial success in the administrative process may reduce the dispute to one that can be resolved amicably, or in which damages will be small. But arguments for and against exhaustion do not matter in the end. Judges are not the ones to make the decision; the political branches have made it. Both Hallstrom and McNeil conclude that statutes forbidding the commencement of a suit are too clear to tolerate revisionism in the name of efficient litigation management. Cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). Thus we agree with Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), and Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), that a suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra- prison remedies before judgment.

This is not at all to say that sec.1997e(a) affects the subject-matter jurisdiction of the federal courts. Failure to exhaust administrative remedies does not deprive a court of jurisdiction. See Air Courier Conference v. Postal Workers Union, 498 U.S. 517, 522-23 & n.3 (1991). The fifth circuit, in Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), inquired whether sec.1997e(a) is "jurisdictional" and, after answering no, concluded that the district court may elect to disregard it. This is the wrong question to ask--or at least the answer "not jurisdictional" does not imply "may be disregarded." The fifth circuit relied on cases such as Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), and Irwin v. Veterans Administration, 498 U.S. 89 (1990), which hold that the time limits for making claims of employment discrimination are not jurisdictional. If waiting too long to sue is not a jurisdictional defect, the fifth circuit inquired, why should suing too soon be a jurisdictional problem? Well, it can be a jurisdictional shortcoming, if the step omitted before suit is essential to the existence of the claim, or to ripeness, and therefore to the presence of an Article III case or controversy. See Weinberger v. Salfi, 422 U.S. 749 (1975), which held that in light of 42 U.S.C. sec.405(h) federal jurisdiction does not extend to a suit to secure social security benefits if the plaintiff has never filed an administrative claim. But Perez was injured (if at all) by deficiencies in medical treatment; an administrative claim is not essential to a case or controversy, and 28 U.S.C. sec.sec. 1331, 1343 supply subject-matter jurisdiction. Section 1997e(a) does not affect the jurisdiction established by those statutes. Filing suit before exhausting prison remedies therefore is not the sort of defect that judges must notice even if the defendant is happy to contest the suit on the merits.

But it does not follow from treating sec.1997e(a) like a statute of limitations that courts may choose to ignore it. Judges can't ignore statutes of limitations, either. When there are multiple grounds for dismissing a suit (as opposed to deciding it on the merits), courts may select from among them. Cf. Ruhrgas AG v. Marathon Oil Co., 119 S. Ct. 1653 (1999). Thus a court might properly dismiss a suit such as this to the extent it seeks relief against the Wisconsin Department of Corrections by observing that sec.1983 does not authorize litigation against states and their agencies. See Will v. Michigan Department...