NONPRECEDENTIAL DISPOSITION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 November 17, 2010*
Decided November 18, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 09‐3043
JAMES W. WORTHEM, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 07 C 6589
JOSEPH BOYLE, Harry D. Leinenweber,
Defendant‐Appellee. Judge.
O R D E R
James Worthem claims in this suit under
42 U.S.C. § 1983 that Joseph Boyle, a bailiff
at the courthouse in Skokie, Illinois, assaulted him without provocation during a courtroom
proceeding. On September 26, 2007, Worthem had been transported from the Cook County
Correctional Center, where he was a pretrial detainee, for a status hearing in his criminal
case. During the hearing Boyle allegedly punched Worthem in the back of the head and
lower back. Boyle then grabbed Worthem’s arm, pulled him from the courtroom, and
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐3043 Page 2
continued to strike him. The district court granted summary judgment for Boyle on the
ground that Worthem filed suit before exhausting his available administrative remedies.
Before filing his § 1983 complaint on November 21, 2007, Worthem had submitted
two administrative grievances about the alleged assault. Worthem first submitted a
grievance to the Cook County Department of Corrections on September 27. On October 15,
Worthem received a written response stating that his grievance had been forwarded to the
Internal Affairs Division of the Court Services Department, a part of the sheriff’s office. A
note on the response told Worthem he had 14 days to appeal; Worthem ultimately waited
until November 30 to do so. That appeal was rejected on December 6 with the explanation
that Internal Affairs was handling the matter. Meanwhile, Worthem had submitted a
second grievance directly to Internal Affairs on November 15. Months later in February
2008, Internal Affairs concluded that Worthem’s allegations were “not sustained.”
Because this appeal concerns only the grant of summary judgment on the ground of
failure to exhaust administrative remedies, we forgo discussion of Worthem’s arguments
that are unrelated to that issue. We also assume, for purposes of this appeal, that the
exhaustion mandate of the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a), applies to
this litigation. Section 1997e(a) literally provides that prisoners cannot bring a lawsuit
“with respect to prison conditions” without first exhausting available administrative
remedies. Id. At summary judgment neither Boyle nor the district court analyzed whether
Worthem’s claim that he was assaulted in a courtroom concerns “prison conditions.”
Though failure to exhaust is an affirmative defense that must be pleaded and proved by the
defendant, Jones v. Bock,
549 U.S. 199, 216 (2007), Worthem has waived any argument
concerning the application of § 1997e(a) to these specific facts by failing to raise the question
in his appellate brief. See Local 15, Int’l Bhd. of Elec. Workers, AFL‐CIO v. Exelon Corp.,
495
F.3d 779, 783 (7th Cir. 2007).
Worthem does raise three arguments relevant to § 1997e(a). First, he contends that
the phrase “prison conditions” does not include the use of excessive force. The Supreme
Court in Porter v. Nussle,
534 U.S. 516, 532 (2002), rejected that contention and held that “the
PLRAʹs exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” See also Smith v. Zachary,
255 F.3d 446, 449‐50 (7th Cir. 2001).
Second, Worthem contends that the exhaustion requirement was satisfied when
officials at the county jail forwarded his grievance to Internal Affairs, a step that occurred
before he filed his § 1983 action. We disagree. Administrative remedies have not been
exhausted unless the inmate has given the process a chance to work and followed through
with administrative appeals. See Ford v. Johnson,
362 F.3d 395, 398‐400 (7th Cir. 2004); Dixon
No. 09‐3043 Page 3
v. Page ,
291 F.3d 485, 490‐91 (7th Cir. 2002). The review process did not end when
Worthem’s grievance was forwarded to Internal Affairs. If he was displeased with the
decision to pass the matter on to Internal Affairs for investigation, Worthem could have
filed—and did file—an administrative appeal, but that step had to come before he filed his
lawsuit, not after. Moreover, Worthem complained directly to Internal Affairs, but he did
not wait to file suit until after Internal Affairs had completed its investigation.
Third, Worthem misreads Perez v. Wisconsin Department of Corrections,
182 F.3d 532,
535‐36 (7th Cir. 1999), as support for his argument that a failure to exhaust can be ignored
because it does not deprive the district court of subject‐matter jurisdiction. In fact, however,
we observed in Perez that district courts cannot ignore § 1997e(a) even though compliance is
not jurisdictional. Id. at 536. A defendant may opt to overlook a failure to exhaust and seek
instead a decision on the merits, but if the affirmative defense is raised, the district court
must respect that choice. Id. The court did so here, and its judgment is AFFIRMED.
