NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2011*
Decided October 26, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1113
JESSE C. PHILLIPS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 10‐034‐GPM
ROGER E. WALKER, JR., et al., G. Patrick Murphy,
Defendants‐Appellees. Judge.
O R D E R
Jesse Phillips, an inmate at the Lawrence Correctional Center in Illinois, claims in this
action under 42 U.S.C. § 1983 that Department of Corrections employees and a private
physician have been deliberately indifferent to his need for medical attention for
cholesteatoma, a type of cyst in the middle ear. The district court dismissed the suit with
prejudice on the ground that Phillips had filed it before exhausting his administrative
remedies. We affirm the judgment, but modify the dismissal to be without prejudice.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐1113 Page 2
Phillips commenced this action in 2007, but after the district court recruited a lawyer
to assist, he twice amended his complaint to substitute the current defendants for those
named originally. All of the principal events occurred in the first half of 2006. In their
answers and motions for summary judgment, the defendants argued, in part, that Phillips
had not exhausted his administrative remedies before filing suit as required by 42 U.S.C.
§ 1997e(a). See ILL. ADMIN. CODE tit. 20, § 504.810; Perez v. Wis. Dep’t of Corrs., 182 F.3d 532,
535 (7th Cir. 1999). (Phillips has not disputed the private physician’s assumption that the
exhaustion requirement applies equally when prison administrators have selected an
outside consultant or specialist to provide medical care, so we do not take up that question
here.) According to the defendants, Phillips had submitted just one grievance about the
medical care received for his ear, but that grievance, from July 2008, was still working its
way through the administrative process when Phillips filed his second amended complaint
in February 2009. Phillips responded that in August 2006 he had submitted a grievance that
an assistant warden and the healthcare administrator at Lawrence returned unprocessed
while threatening him with segregation if he presented any more grievances. Therefore, he
argued, he was prevented by the defendants from exhausting his administrative remedies.
See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Dale v. Lappin, 376 F.3d 652, 656 (7th
Cir. 2004).
The district court conducted an evidentiary hearing, see Pavey, 544 F.3d at 742, to
determine whether Phillips in fact had been thwarted from using the grievance process. At
that hearing, the healthcare administrator testified that she had no knowledge of anyone
interfering with, refusing to process, or even seeing the grievance Phillips supposedly had
submitted in 2006. And she flatly contradicted Phillips’s testimony that the assistant warden
had threatened him with segregation in her presence. The district court credited the
testimony of the healthcare administrator and concluded that Phillips was lying about the
2006 grievance. And since Phillips conceded that his 2008 grievance had not been resolved
by the time his second amended complaint was filed, the district court found that he had
not exhausted his administrative remedies. The court thus dismissed the case with
prejudice.
On appeal Phillips first contends that the district court should have accepted his
contention that the defendants waived the affirmative defense of nonexhaustion by waiting
to raise it in their answers to his complaint instead of in their earlier motions to dismiss. We
disagree. Phillips is correct that failure to exhaust administrative remedies is an affirmative
defense. See Jones v. Bock, 549 U.S. 199, 216 (2007). Affirmative defenses ordinarily are raised
in a defendant’s answer, FED. R. CIV. P. 8(c); Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir.
2010), though nonexhaustion can be asserted even in a motion for summary judgment if the
plaintiff is not harmed by the delay, see Hess v. Reg‐Ellen Mach. Tool Corp. Emp. Stock
Ownership Plan, 502 F.3d 725, 729–30 (7th Cir. 2007); Curtis v. Timberlake, 436 F.3d 709, 711
(7th Cir. 2006). Here the defendants raised the nonexhaustion defense in their answers and
No. 11‐1113 Page 3
pressed it in their motions for summary judgment, so the defense could not have been
waived.
Phillips next argues that the district court erred in dismissing this action with
prejudice. Dismissals for failure to exhaust under § 1997e(a) are without prejudice and do
not bar refiling the suit unless it is too late to exhaust. Ford v. Johnson, 362 F.3d 395, 401 (7th
Cir. 2004); Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). If a prisoner has
exhausted a grievance but filed suit before the administrative process had concluded, “then
dismissal of the premature action may be followed by a new suit that unquestionably
post‐dates the administrative decision.” Ford, 362 F.3d at 401. Even if the statute of
limitations would provide a good defense to a new suit, the premature action should not be
dismissed with prejudice. Id. Here, although the district court concluded that Phillips had
lied about submitting a grievance in 2006, his legitimate 2008 grievance became fully
exhausted after the § 1983 suit was filed. That grievance does not name all the parties to this
action but does name one current defendant and makes reference to the Lawrence medical
staff in general. See ILL. ADMIN. CODE tit. 20, § 504.810. So while many of these same
defendants might have valid defenses about nonexhaustion or the statute of limitations if
Phillips brings a new suit, those are questions to be resolved in the new litigation. Thus,
Phillips is correct that his action should have been dismissed without prejudice.
Finally, Phillips argues in his reply brief that the district court should have believed
him and not the healthcare administrator at the Pavey hearing. Arguments raised for the
first time in a reply brief are waived, see, e.g., Harper v. Vigilant Ins. Co., 433 F.3d 521, 528 (7th
Cir. 2005), though even if this contention was properly before us, we would not conclude
that the court’s credibility finding was clearly erroneous, e.g. Gant v. United States,
627 F.3d 677, 681–82 (7th Cir. 2010).
The judgment is MODIFIED to be without prejudice and, as modified, AFFIRMED.
