In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1414

Donald Larkin,

Plaintiff-Appellant,

v.

Richard Galloway and Jerry Bowling,

Defendants-Appellees.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 96-C-607--David R. Herndon, Judge. 

Argued September 21, 2000--Decided September 21, 2001 

 Before Rovner, Diane P. Wood, and Williams,

Circuit Judges.

 Diane P. Wood, Circuit Judge. While he

was incarcerated at the Federal

Correctional Institution in Greenville,

Illinois (Greenville), Donald Larkin was

allegedly severely beaten by prison

personnel. About nine months later, he

filed a complaint under 42 U.S.C. sec.

1983 against two officers who he charged

were personally responsible, Lt. Richard

Galloway and Lt. Jerry Bowling.

Initially, the answers that Lts. Galloway

and Bowling filed said nothing about

exhaustion of prison remedies. In August

of 1999, however, shortly before trial

was to commence, they asked for and

received permission to amend their

pleadings to add the defense that Larkin

had failed to exhaust his administrative

remedies prior to filing suit, as

required by 42 U.S.C. sec. 1997e(a). The

district court concluded that the

exhaustion requirement indeed applied to

Larkin’s case and it accordingly

dismissed his suit without prejudice.

Larkin now appeals, claiming that the

district court should never have allowed

the eleventh-hour amendment, and that the

exhaustion requirement does not apply to

him in any event. Recognizing the likely

pertinence of the Supreme Court’s thenforthcoming decision in Booth v. Churner,

121 S. Ct. 1819 (2001), we postponed

resolving Larkin’s claim until that case
was decided. In light of Booth, as well

as our decisions in Smith v. Zachary, 255

F.3d 446 (7th Cir. 2001), and Johnson v.

Litscher, 2001 WL 915376 (7th Cir., Aug.

15, 2001), we now affirm.

I

 As Larkin presents the facts, and as we

take them for present purposes, the

trouble started when, on October 26, 1995

(a time when the atmosphere in the prison

was tense because of riots in other

institutions), he was falsely accused of

damaging the locks on his cell. As

punishment, he was dragged by special

Disturbance Control Team (DCT) officers,

in full riot gear, to Greenville’s

Special Housing Unit. Upon his arrival

there, Lt. Galloway confronted him. After

a brief verbal exchange with Larkin, Lt.

Galloway directed the DCT officers to

take Larkin to the recreation area and

"teach him some manners." They did. As

Larkin reports it, he was "thrown into

the walls and beaten with night sticks;

kicked, punched, and thrown head first

into the walls." After this initial

beating (which stopped when Larkin

suffered an asthma attack), the officers

took Larkin to the Special Housing Unit’s

"strip room" and beat him again. While

this second beating was taking place, Lt.

Bowling arrived. Rather than commanding

the guards to stop, however, he told them

to "hurry up" and directed Larkin to

strip naked if he wanted to avoid yet

another beating. Larkin did, but his act

of compliance did not help. The officers

cuffed him, raked his face against the

walls as they moved him, and threw him

into a cell on top of another nude

inmate. Before they left, they kicked and

beat both inmates (who were still

handcuffed at that point) with batons.

 Greenville has an administrative

grievance process, but Larkin did not try

to use it in conjunction with this

episode--a fact he acknowledges in his

complaint. As he put it, "I was afraid to

complain. I threw the grievance procedure

away because I did not want to provoke

this administration." With respect to

relief, Larkin sought "to be Compensated

for Mental, Emotional, and Physical

distress. Also awarded for

Unconstitutional Confinement, because of

5 mo. in segregation, do [sic] to the

violation of my Constitutional Due
Process." 

 Lts. Galloway and Bowling filed their

answers to Larkin’s complaint on December

8, 1997 and May 27, 1998, respectively,

but neither one mentioned this crucial

omission on Larkin’s part. In time, they

filed a motion for summary judgment, but

it was denied. The case moved along

toward trial, as the district court

granted Larkin’s motion for a jury trial,

appointed counsel for him, and granted in

part counsel’s motion for leave to reopen

discovery. With respect to the latter

motion, the district court decided to

permit one deposition and to grant

counsel’s requests for videotapes,

photographs, and certain prison records. 

 It was not until August of 1999 that

Lts. Bowling and Galloway filed motions

for leave to amend their answers to raise

the affirmative defense that Larkin

failed to exhaust his prison

administrative remedies prior to filing

suit. They also argued that, if they were

permitted to amend, Larkin’s suit should

be dismissed because he conceded in his

complaint that he had not used the prison

grievance procedure. The magistrate judge

denied the motion to amend as untimely

under the scheduling order the court had

entered on January 4, 1999, but the

district court granted both the motion to

amend and the motion to dismiss. Finally,

Larkin filed a Rule 59(e) motion to amend

the judgment, which the district court

denied.

 On appeal, Larkin argues that the

district court abused its discretion in

permitting Galloway and Bowling to amend

their complaints at such a late date.

Furthermore, he argues, even if the

amendment was proper, the Prison

Litigation Reform Act’s (PLRA)

administrative exhaustion requirement,

which is found in 42 U.S.C. sec.

1997e(a), does not cover excessive force

complaints or, if it does, his particular

complaint comes under a narrow exception

to the requirement. Larkin also

challenges the district court’s refusal

to fully grant his motion to reopen

discovery.

II

 Although the parties do not raise the

issue, we begin by considering our
subject matter jurisdiction. The district

court dismissed Larkin’s claim without

prejudice, and in the usual case, such a

dismissal does not qualify as an

appealable final judgment because the

plaintiff is free to re-file the case.

See Furnace v. Board of Trustees, 218

F.3d 666 (7th Cir. 2000). Nonetheless,

under certain circumstances a dismissal

without prejudice will be sufficiently

final to permit appellate review. If it

is clear, for example, that the plaintiff

will not be able to amend her complaint,

the dismissal is final for purposes of

appellate review. Id. at 670. That, we

conclude, is the case here. It is

apparent from the record that there is no

amendment Larkin could make to his

complaint that would permit it to go

forward: amendment cannot change his

argument about the district court’s

decision to allow the guards to raise the

exhaustion point, nor can it alter the

grounds on which we must consider that

issue on its merits. It is even possible,

though we express no definitive view on

the subject, that a newly filed complaint

would be barred by the statute of

limitations. In Elmore v. Henderson, 227

F.3d 1009, 1011 (7th Cir. 2000), we held

that "a suit dismissed without prejudice

is treated for statute of limitations

purposes as if it had never been filed."

If that principle applies, then the twoyear period expired long before the

district court dismissed Larkin’s claim;

if instead the limitations period is

measured from the time when exhaustion

occurs and it is still possible for

Larkin to do something, then perhaps a

new suit might be timely. In any event,

these are not points that are pertinent

to the present litigation. We are

satisfied that the district court’s

judgment on the present record is final

for purposes of 28 U.S.C. sec. 1291.

 A. Motions to Amend

 Whether or not to grant a defendant’s

motion to amend her answer is a decision

committed to the discretion of the

district court. Jackson v. Rockford

Housing Authority, 213 F.3d 389, 390 (7th

Cir. 2000). Although it was certainly not

necessary for the district court to grant

the guards’ motion, we cannot say that

the court’s decision amounted to an abuse

of discretion. First, the district court
was entitled to conclude that a new look

at the exhaustion question was warranted

by this court’s intervening decision in

Perez v. Wisconsin Dep’t of Corrections,

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

that exhaustion is required under sec.

1997e(a) even where a plaintiff seeks

only money damages and the prison

administrative process cannot award such

damages, id. at 537. Second, under Rule

15(a) of the Federal Rules of Civil

Procedure, the district court may grant

leave to amend pleadings and such leave

"shall be freely given when justice so

requires." Fed. R. Civ. P. 15(a). Even

though Rule 15(a) also acknowledges that

leave to amend is "inappropriate where

there is undue delay, bad faith, dilatory

motive on the part of the movant . . .

[or] undue prejudice to the opposing

party by virtue of allowance of the

amendment," Perrian v. O’Grady, 958 F.2d

192, 194 (7th Cir. 1992), the district

court was entitled to reject Larkin’s

arguments that undue delay and bad faith

existed here. 

 We also find no merit in Larkin’s

argument that the defendants’ delay cost

him his case because the statute of

limitations has now run. (This argument

is probably late in any event, as it

appears most clearly only in his reply

brief, but glimmers of it are present in

earlier papers, so we address it for the

sake of completeness.) As we noted above,

it is not even clear that this is the

case, and Larkin himself has equivocated

on that point. Larkin never hinted that

he erred in representing that he has, up

until now, failed to exhaust. If that

omission could somehow survive Booth, we

might have a bigger problem. But, as we

now explain, it cannot. The district

court did not abuse its discretion in

permitting the amendment, and even if it

did, we would find the error to be

harmless.

 B. A Claim "With Respect to Prison

Conditions"

 The PLRA requires administrative

exhaustion of any prisoner claim "with

respect to prison conditions." 42 U.S.C.

sec. 1997e(a). Larkin argues that the

phrase "with respect to prison

conditions" should not be interpreted to

include complaints about individual acts
of excessive force. This argument,

unfortunately, runs headlong into our

recent decision in Smith, which applied

Booth to exactly this kind of claim.

Booth itself took a broad view of the

exhaustion requirement set forth in sec.

1997e(a), insofar as it held that

exhaustion is required even if the

prison’s administrative process is

incapable of giving the inmate the kind

of remedial measure he or she has

requested--in particular, monetary

damages. See Booth, 121 S. Ct. at 1825.

And while the parties in Booth both

agreed that exhaustion would not be

required if "the relevant administrative

procedure lacks authority to provide any

relief or to take any action whatsoever

in response to a complaint," id. at 1822,

the Court went on to discuss approvingly

the government’s argument that "the very

fact of being heard and prompting

administrative change can mollify

passions even when nothing ends up in the

pocket." Id. at 1823. 

 Larkin’s argument, like that of the

inmate in Smith, focuses less on the type

of relief that might be granted and more

on the difference between a single

violent act or incident and the broader

concept of "prison conditions." We do not

disagree that this is a possible

distinction, but for now it is one that

this circuit has rejected in Smith. To

similar effect, our later decision in

Johnson rejects the idea that the PLRA’s

exhaustion requirement does not apply to

acts of individual officers. Johnson,

[slip op. at 4]. This may or may not be

the ultimate conclusion the Supreme Court

reaches: we acknowledge that the Court

has granted certiorari in Porter v.

Nussle, 121 S. Ct. 2213 (2001), to review

the Second Circuit’s decision in Nussle

v. Willette, 224 F.3d 95 (2d Cir. 2000),

which held that the PLRA’s exhaustion

requirement does not apply to allegations

of particular instances of excessive

force or assault by prison employees. 224

F.3d at 97. But, just as we said in

Johnson, until the Supreme Court speaks

we are bound in this circuit to follow

Smith. 

 C. Perez 

 After Booth, Larkin’s alternative

argument--that his case fits into a
narrow exception to the PLRA’s

administrative exhaustion requirement

created by Perez--is also unavailing.

Perez held that there is no futility

exception to the administrative

exhaustion requirement but it went on to

reserve judgment on the proper way to

resolve "a case in which the harm is done

and no further administrative action

could supply any ’remedy’. . . . [I]f the

administrative process cannot provide

compensation then there is no

administrative remedy to exhaust." 182

F.3d at 538. Although some opinions have

referred to this as an "exception" to the

exhaustion requirement Perez recognized,

see, e.g., Massey v. Helman, 196 F.3d

727, 734 (7th Cir. 2000), Brazelton v.

Myatt, No. 99 C 1169, 1999 WL 966435

(N.D. Ill. Oct. 19, 1999); Rodriguez v.

Oakley, No. 98 C 4152, 1999 WL 618840

(N.D. Ill. Aug. 9, 1999), it is more

accurate to describe it as an issue Perez

simply did not resolve. 

 The district court in this case,

however, rejected the notion that Perez

created an exception to the PLRA’s

exhaustion requirement. Larkin disagrees,

claiming that Perez recognized a

necessary exception to the exhaustion

requirement, and that based on the facts

pled in his complaint, he fits within it.

He contends that once the beatings were

over and his injuries had healed, "the

harm was done and no further

administrative action" could alter the

amount of monetary damages to which he

was entitled.

 Even if Larkin is correct that his

complaint is not the same as a prison

condition complaint about poor heating,

or unqualified medical staff, for which

one could envision effective prospective

relief, Perez is no longer the last word

on the point. Booth, as we have already

noted, took a broader view of the utility

of prison administrative processes. It

requires the exhaustion of all

administrative procedures that have

"authority to take some action in

response to a complaint," even if the

procedure cannot provide the only relief

that the prisoner is seeking, e.g., money

damages. 121 S. Ct. at 1823. In Larkin’s

case, this means that under sec. 1997e(a)

Larkin had to exhaust any prison

administrative process that (1) was

empowered to consider his complaint and
(2) could take some action in response to

it. Larkin does not contend that his

excessive force complaint against Lts.

Galloway and Bowling somehow lay beyond

the authorized jurisdiction of the

Greenville administrative process. And

there is no question that some action

could have been taken in response to the

complaint, even after Larkin’s wounds had

healed; the officers might have been

disciplined, he might have been moved to

a unit or facility not under the

defendants’ supervision, and, at a

minimum, he would have received a hearing

on his grievances. 

 It cannot be said in Larkin’s case that

the "relevant administrative procedure

lack[ed] authority to provide any relief

or to take any action whatsoever in

response to [his] complaint." 121 S. Ct.

at 1822. The district court therefore

properly dismissed Larkin’s complaint for

his admitted failure to exhaust as

required by sec. 1997e(a).

III

 Because Larkin’s complaint was properly

dismissed, we need not address his

challenge to the district court’s partial

denial of his motion for additional

discovery. The judgment of the district

court is Affirmed.