### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 3503 J ONATHAN C HAMBERS , Plaintiff

- Appellant
,

v.

K UL B. S OOD , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois
, Eastern Division

.

No. 14 C 2545

— John J. Tharp, Jr.
, Judge

.

____________________
A RGUED S EPTEMBER 25, 2019

— D ECIDED A PRIL 28, 2020

____________________

Before F LAUM , S YKES , and S CUDDER , Circuit Judges

. S YKES , Circuit Judge

. Jonathan Chambers , an Illinois prisoner, sued a prison doctor under 42 U.S.C. § 1983 accusing him of deliberate indifferen ce to his medical needs

— specifically, his need for medication to treat a flare

- up of a painful chronic condition

. The doctor had examined him during the intake process at the Stateville Correctional Center , which serves as the reception unit for new Illinois prison ers

. Chambers was housed there for a few weeks2 No. 17

- 3503

when he was processed into state custody , and h e filed a grievance with the Stateville grievance office protesting the doctor’s failure to prescribe medication.

But Chambers was transferred to a different prison before the grievance was investigat ed , so a grievance office r returned it to him unreviewed a nd invited him to take the
matter to the Administrative Review Board (“ARB” or “the Board” ) . Th e ARB normally serves in an appellate capacity review ing decisions of grievance officers , but the operative regulations also specified that grievances pertaining to problems at an earlier

- assigned prison must be filed directly with the Board

. Chambers skipped this step and instead brought this lawsuit in district court

. The judge dismissed the suit for failure to exhaust administrative re medie s , and w e affirm. Under t he Prison Litigation Reform Act ( “ PLRA” or “the Act”)
, prisoner s must p u r sue their complaint s about prison conditions t hrough all levels of the relevant administrative

- review system before bringing a law suit in federal court

. Chambers did not do so. Though h e eventually submit ted a grievance to the AR B after he filed suit , that step did not satisfy the PLRA . T he Act requires pre

- suit exhaustion; pursu ing administrative remedies while litigation is underway does not suffice

. I. Background
On February 27, 2014 , Chambers was processed into the custody of the Illinois Department of Corrections at the Stateville Northern Reception and Classification Center
, located in the Stateville prison

. During h is intake me dical examination, Chambers told the nurse that he was suffering from a herpes outbreak and needed medication . The nurseNo. 17

- 3503 3

told him that a doctor would see him in the next two or three days. On March 1 Chambers was examined by Dr. Kul B. Sood , who reviewed h is medical history

— including his history of herpes outbreaks

— and instructed him to put in a “sick call” request for a follow

- up appointment . Chambers did so but received no response

. In the meantime he continued to suffer pai n from his herpes flare

- up.
O n March 9 Chambers submitted a grievance to his inmate counselor at Stateville protesting the doctor’s failure to give him medication for his herpes . He sought $60,000 for pain and suffering and asked to be “ seen by a D octor as of today.” T he counselor responded to Chambers in writing on March 13 , advising him that she had forwarded the grievance to the healthcare unit and to the Stateville grievance office and that he would receive a decision from that office after the healthcare u nit responded to the inquiry

. Under t he Illinois Administrative Code
, a grievance officer must investigate a grievance and report findings and a recommendation in writing to the Chief Administrative Officer within two months “when reasonably feasible under the circumstances.” I LL

. A DMIN

. C ODE tit. 20, § 504.830(e) (201 4 ) . The Chief Administrative Office r then reviews the findings and recommendation and notifies th e offender of h is decision in writing. Id

. T hat process did not run its course while Chambers remained a t Stateville . O n March 21
, just eight days after his counselor forwarded the grievance to the Stateville grievance office, Chambers was transferred
to the Western Correctional Center. Accordingly, o n April 3 a grievance office r returned the grievance with a memo explaining that it was not re viewed prior to his transfer . The memo advised Chambers that “ [ i ] f4 No. 17

- 3503

you want to appeal, you may forward this grievance along with this memo attached to the ARB.”
Chambers did not submit the issue to the ARB. Instead, on April 7 he filed a pro se complaint in district cou rt a sserting a § 1983 claim and seeking damages for the failure to provide medication for his herpes outbreak while he was at Stateville . The complaint named multiple defendants: “Stateville Medical Staff/Healthcare Services, Nurse Tiffany, Nurse Megan, Unknown Physician #1,” four unknown nurses, and the Stateville counselor

. A week later a district judge screene d and dismissed the complaint, noting that Chambers had not exhausted his administrative remedies as required by the PLRA

. Although t he dismiss al was w ithout prejudice , the judge terminated the case
, explain ing that Chambers “must file a new suit that post dates the full administrative exhaustion procedure.” On June 2 Chambers f iled a grievance with the AR B regarding his medical care for t h e herpes outbreak he suffered while at Stateville . He attached a copy of his March 9 grievance and asked that the culpable Stateville medical staff be suspended without pay

. T he regulations provide that the ARB must issue a final decision within six months “when reasonably feasible under the circumstances.” Id

. § 504.850(e) . On November 10 the ARB issued its decision
, explain ing that Chambers’s complaint about an urgent need for medication for his herpes flare

- up while he was at Stateville “cannot be substantiated as medically necessary .” Meanwhile, o n September 22 Chambers filed a proposed amended complaint in the terminated district

- court case naming an “Unknown Doctor” and “Stateville Medical Staff” as defendants

. On October 23 t he judge provisionallyNo. 17

- 3503 5

determined that the amended complaint adequately pleaded that Chambers had been prevented from exhausting administrative remedies . But the amended complaint did not identif y a suable defendant , so t he judge gave Chambers 30 days to cure the defect . Chambers moved for an extension of time on November 3 and submitt ed with the motion a proposed amended complaint devoid of any substantive claim. Four days later the judge struck the proposed amended complaint and set a firm December 1 deadline for Chambers to file a nondeficient pleading.

C hambers did not comply with the December 1 deadlin e , so the judge dismissed the suit and (again) terminated the

case

. That prompted a flurry of letters and motions from Chambers in January and February 2015 trying to revive the

case. On March 25 the judge issued an order giving him one more chance to file an adequate amended complaint. Chambers filed a proposed amended complaint on April 3 asserting a claim for deliberate indifference against an unknown doctor for failure to prescribe medication for t h e herpes outbreak he suffered while at Stateville

. He a sked the court’s permission to name the warden as a stand

- in defendant until the identity of the unknown doctor could be discovered. T he judge authorized this procedure and accepted the amended complaint.The case moved forward, and the judge eventually recruited pro bono counsel to assist Chambers. Discovery revealed that the unknown Stateville physician was Dr. Sood. On February 8, 2016, pro bono counsel sought leave to dismiss the warden and file a proposed amended complaint naming Dr. Sood , together with the Stateville Correctional Center and the Illinois Department of Correc-6 No. 17

- 3503

tions , as defendants . The judge granted the motion the next day, though the latter two defendants were eventually dismissed by agreement of the parties.
Dr. Sood moved to dismiss for failure to exhaust administrative remedies. The judge granted the motion, explaining
t hat Chambers did not complete the grievance process before bringing suit in federal court
, as required by the PLRA

. Although t he dismiss al was without prejudice , th e judge terminat ed the case , explaining that “ this lawsuit was filed prematurely

. ” The judge also permitted p ro bono counsel to withdraw

. Chambers file d a pro se notice of appeal and sought permission to proceed in forma pauperis . Th e judge denied th at request , finding t hat a n appellate challenge to the exhaustion ruling would be frivolous and thus not brought in good faith

. See 28 U.S.C. § 1915(a)(3). Chambers renewed his application in this court . We authorized him to proceed in forma pauperis and recruited pro bono counsel to assist him on appeal

. 1
II. Discussion
We review de novo a decision dismiss ing a prisoner’s suit for failure to exhaust admini strative remedies. Barnes v. Briley , 420 F.3d 673, 677 (7th Cir. 2005). The PLRA provides 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, p rison, or

1 David R. Fox and Benjamin C. Mizer of Jones Day accepted the representation and have ably discharged their duties. We thank them for their service to their client and the court.No. 17

- 3503 7

other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). To satisfy th e exhaustion requirement, a n inmate must take each of the steps prescribed by the state’s administrative rules gov erning prison grievances

. See Lockett v. Bonson , 937 F.3d 1016, 1025 (7th Cir. 2019). The primary justification for requiring prisoners to exhaust administrative remedies is to give the prison an opportunity to address the problem before burdensome litigat ion is filed. Woodford v. Ngo
, 548 U.S. 81, 93

– 95 (2006) ; Schillinger v. Kiley
, 954 F.3d 990, 99 5

– 96 (7th Cir. 2020)

. Chambers contends that his March 9, 2014 grievance sufficed for exhaustion purposes . He argues that nothing more was required of him after the Stateville grievance office r returned the grievance unreviewed

. Th is argument misreads the grievance procedures outlined in the Illinois Administrative Code

. To recap: an inmate begins the process by submitt ing a written grievance to his institutional counselor within 60 days of the incident or problem in question

. I LL

. A DMIN

. C ODE tit. 20, § 504.810(a) (2014)

. The counselor then refers the matter to the institution’s grievance office, and a grievance officer “shall consider the grievance ” and report his findings and recommendation

“ in writing to the Chief Administrative Office r within twomonths after receipt of the written grievance, when reasonably feasible under the circumstances.” Id

. § 504.830 (e). The Chief Administrative Officer then “ review [s] the findings and recommendation and advise [s] the offender of his or her decision in writing.” Id

. Dis satisfied inmates may app eal to the ARB “ within 30 days after the date of the decision.” Id

. § 504.850(a).8 No. 17

- 3503

Th ese are the generally applicable rules. S ome grievances , however, must be submitted directly to the ARB

. T his category generally includes grievances regarding matter s arising at an earlier

- assigned prison. At the time of these events, the regulations requi red inmates to file their grievances directly with the ARB when grieving “issues except personal property issue s that pertain to a facility other than the facility where the offender is currently assigned.” Id

. § 504.870(a) (4). 2
Chambers’s March 9 grievance sufficed to initiate the grievance process at Stateville

. But the process could not be completed there

. Chambe rs was transferred to the Western Correctional Facility just eight days after his counselor forwarded his grievance to the Stateville grievance office and before that office could co mplete an investigation , much less propose and implement a ny remedy . So th e grievance officer returned the grievance w ith a memo advising Chambers that it had not been reviewed prior to his transfer and if he wanted to appeal
, he should forward the grievance to the ARB with a copy of the memo.
Chambers insists that th is action by th e grievance officer was procedurally improper, relieving him of the duty to comply with any further steps in the grievance process. We disagree. It’s true that the regulations ordinarily call for the grievance officer to consider a grievance an d forward findings and a recommendation to the Chief Administrative

2 This provision was amended in 2017. It now requires inmates to file grievances directly with the ARB when grieving “issue s that pertain to a facility other than the facility where the offender is currently assigned, excluding person al property and medical issue s

. ” I LL

. A DMIN

. C ODE tit. 20, § 504.870(a)(4) (2017).No. 17

- 3503 9

Officer, who issues a decision to the inmate , which the inmate may then appeal. But th e usual process was interrupted when Chambers was tran sfer red to another prison. At that point his pro blem could no longer be remedied atStateville. With Chambers now at another prison, the grievance officer could do no more than refer him to the ARB for relief. Whether by “appeal” or through a fresh grievance raising a problem that occurred at an earlier

- assigned facility, Chambers needed to submit the matter to the ARB. We grant tha t the grievance officer’s use of the word “appeal” was unusual, but the important point is that the regulations required Chambers to take his complaint about his medical care at Stateville to the ARB for decision. He did not do so. Instead, he went to court. That ’s a violat ion of the PLRA’s exhaustion requirement.
Chambers has a fallback argument, raised for the first time on appeal. He argues that because he eventually filed a grievance with the ARB and later amend ed his complaint
, his suit is saved. Setting aside the question of w aiver, th is argument is meritless. By its plain terms, the PLRA requires prisoners to exhaust administrative remedies before filing suit; a “sue first, exhaust later” approach is not acceptable

. See Ford v. Johnson , 362 F.3d 395, 398

– 400 (7th Cir. 2004). A premature law suit must be dismissed witho ut prejudice, and the prisoner must file a new suit after fully exhausting administrative remedies. Id

. at 401.
Our decisions in Cannon v. Washington and Barnes v. Briley are not to the contrary. Those cases addressed amended complaints raising new claims that th e plaintiff had exhausted while litigation was ongoing

. Cannon v. Washington , 418 F.3d 714, 71 7

– 19 (7th Cir. 2005) (per curiam) ; Barnes ,10 No. 17

- 3503

420 F.3d at 678

. Chambers’s claim against Dr. Sood is not

new ; i t’s the same claim he raised in his original pro se complaint, albeit against “Unknown Doctor #1 .” The judge

was right to dismiss this suit.
A FFIRMED