In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2568

JAMES R. SCHULTZ,

Plaintiff-Appellant,

v.

JEFFREY A. PUGH, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:10-cv-00581-bbc—Barbara B. Crabb, Judge.

SUBMITTED JUNE 26, 2013—DECIDED JULY 23, 2013

Before POSNER, FLAUM, and TINDER, Circuit Judges.

POSNER, Circuit Judge. The plaintiff, an inmate at a

Wisconsin state prison, filed this suit under 42 U.S.C.

§ 1983 claiming that prison officials had retaliated

against him for speaking up about an assault that he

alleged had been made upon him by two prison guards.

The retaliation took the form of placing him in segregation and forbidding him to discuss the alleged assault. The defendants moved to dismiss the suit on the
2 No. 12-2568

ground that he had failed to exhaust his administrative

remedies, by not filing a grievance that conformed to

the prison’s rules. His response (not his only response,

but the only one with sufficient plausibility to be worth

discussing) was that he interpreted the prohibition

against speaking about the alleged assault to extend to

the filing of a grievance, and as a result was afraid to file it.

The duty to exhaust administrative remedies as a precondition to suing under section 1983 is limited to those

remedies that are “available,” 42 U.S.C. § 1997e(a), and as

we pointed out in Fletcher v. Menard Correctional Center,

623 F.3d 1171, 1173 (7th Cir. 2010), a remedy must, to

be “available,” be available in fact and not merely in

form. See Hurst v. Hantke, 634 F.3d 409, 411-12 (7th Cir.

2011); Dillon v. Rogers, 596 F.3d 260, 267 (5th Cir. 2010);

Bryant v. Rich, 530 F.3d 1368, 1373 n. 6 (11th Cir. 2008). A

remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison

personnel from seeking an administrative remedy by

filing a grievance in the prescribed form and within

the prescribed deadline. Kaba v. Stepp, 458 F.3d 678, 685-

86 (7th Cir. 2006); Tuckel v. Grover, 660 F.3d 1249, 1252-53

(10th Cir. 2011); Turner v. Burnside, 541 F.3d 1077, 1084-85

(11th Cir. 2008); Macias v. Zenk, 495 F.3d 37, 45 (2d

Cir. 2007). But because the pertinent regulation of the

Wisconsin prison system limits the offense of making

false statements to prison staff to statements made

“outside the complaint review system,” Wis. Admin.

Code § DOC 303.271, the plaintiff had no reason to

fear that his filing a grievance (the complaint to which

the regulation refers) about alleged retaliation for
No. 12-2568 3

speaking up about the alleged assault would be punished. The grievance route was open to him.

He argues that he was deterred from filing the

grievance by “fear of reprisal.” But he has presented no

evidence to substantiate the claim, though invited to do

so by the district judge before the judge ruled on, and

granted, the defendants’ motion for summary judgment.

Without some specification of what the plaintiff’s fear

was based on, the defendants could not prepare a

response; and so the grant of summary judgment was

proper. Ricci v. DiStefano, 557 U.S. 557, 586 (2009).

But in the course of our research for this case we discovered that the law governing unavailability of prison

remedies on grounds of intimidation is in some disarray. The case law distinguishes between “objective” and

“subjective” availability, and although the different

standards are reasonably well specified it is unclear

whether the prisoner should be required to satisfy both

in every case.

The “objective” standard, which predominates in the

case law, requires the plaintiff to show that a person of

“ordinary firmness” would have been deterred from

filing a grievance. E.g., Hemphill v. New York, 380 F.3d

680, 688 (2d Cir. 2004). The “subjective” standard requires

the plaintiff to show that he was in fact deterred. E.g.,

Turner v. Burnside, supra, 541 F.3d at 1085. Cases that

embrace the subjective standard add it to the objective

one rather than substituting it, e.g., id.; Tuckel v. Grover,

supra, 660 F.3d at 1254, with the result that the plaintiff

must show both that a person of ordinary firmness would
4 No. 12-2568

be deterred and that he himself was deterred. The additional test catches the person of more than ordinary

firmness who, not having in fact been deterred, has no

excuse for failing to exhaust administrative remedies;

he was not a victim of intimidation, but only of an

attempt at intimidation that failed.

The objective standard appears to have originated

in cases in which the issue was not exhaustion of administrative remedies but whether some wrongful act of

prison personnel had inflicted a compensable injury on

the prisoner plaintiff. See, e.g., Davis v. Goord, 320 F.3d

346, 353 (2d Cir. 2003), cited in Hemphill v. New York, supra,

380 F.3d at 688. In such cases the courts rightly require

that the injury be more than de minimis, that is, more

than trivial; and if a person of “ordinary firmness” would

consider the injury trivial, this can be used as a benchmark for whether the particular plaintiff sustained no

more than a trivial injury that the law should ignore.

See, e.g., Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982);

Hill v. Lappin, 630 F.3d 468, 472-73 (6th Cir. 2010); Morris

v. Powell, 449 F.3d 682, 685-86 (5th Cir. 2006); Davis v.

Goord, supra, 320 F.3d at 353; Bennett v. Hendrix, 423

F.3d 1247, 1250-52 (11th Cir. 2005). It is a crude benchmark, however, because the plaintiff may be of unusual

susceptibility—what in ordinary tort law is called an

“eggshell skull” tort victim. The common law allows

such a tort victim to recover his full damages even if the

average person, which is to say a person of “ordinary

firmness,” would have sustained no significant injury

from the defendant’s tort. E.g., Stoleson v. United States,

708 F.2d 1217, 1221-22 (7th Cir. 1983). One imagines
No. 12-2568 5

there are “eggshell skull” prisoners, and the question

arises why they can’t recover their actual damages

caused by violations of their federal rights by prison

personnel, or, in a case like this, be excused for having

failed to file a grievance that the average person

would realize was available but that an especially

fearful or anxious or mentally limited prisoner would not.

The objection to such an approach is that idiosyncratic

claims are difficult to verify unless, as in the most

common kind of eggshell-skull case, the claimant has a

readily diagnosable physical impairment. A prisoner

plaintiff who had failed to file a grievance could

always insist that his failure was attributable to a

mental problem that had caused him to exaggerate the

likelihood that he would be punished if he did file a

grievance. And then the issue of exhaustion, meant to

be preliminary to the determination of the plaintiff’s

constitutional tort claim, would require for its resolution

significant factfinding even before the trial on the merits—factfinding that would have to be duplicated

if the case went to trial and retaliation were the constitutional tort alleged as well as the excuse tendered for

failing to file a grievance in advance of suit. Cf. Pavey v.

Conley, 544 F.3d 739, 742 (7th Cir. 2008). Expert testimony by psychologists or psychiatrists might be required. That would complicate and extend the evidentiary hearing required whenever there was a

genuine factual dispute over whether the plaintiff had

exhausted his prison remedies.

What the cases have not considered, however, is a

situation in which prison personnel, sensing atypical
6 No. 12-2568

cognitive or psychological infirmities of the prisoner

plaintiff, deliberately exploit these infirmities to deter

him from filing a grievance. That would be the kind of

misconduct that the doctrine of equitable estoppel

makes a defense to a variety of claims and defenses,

most commonly a statute of limitations defense. See, e.g.,

Arteaga v. United States, 711 F.3d 828, 833 (7th Cir. 2013).

In Kaba v. Stepp, supra, 458 F.3d at 686-87, we left open

the possibility that equitable estoppel might be a

defense to failure to exhaust prison remedies. We

need not decide; the present case is remote from that

hypothetical situation.

AFFIRMED.

7-23-13