In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4084

TERRENCE SMITH,

Plaintiff-Appellant,

v.

ROBERT ZACHARY, JAMES P. NICKERSON,

Lieutenant, HERMAN S. NELSON, GRACIANO

ARROYO, JAMES A. PHILLIPS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 96 C 507--Gerald B. Cohn, Magistrate Judge.

Argued April 9, 2001--Decided June 28, 2001

 Before POSNER, EVANS, and WILLIAMS, Circuit

Judges.

 EVANS, Circuit Judge. The issue

presented in this case is whether a

federal prisoner must satisfy the

exhaustion requirement of the Prisoner

Litigation Reform Act (PLRA) when he

claims he was beaten by prison guards.

The prisoner, Terrence Smith, argues that

his claim--the result of an alleged act

of excessive force against him--is exempt

from the PLRA’s exhaustion requirement

because it’s outside the scope of the

phrase "prison conditions" under the Act.

 In 1996 Smith filed this suit pro se/1

seeking $3.5 million in damages for

allegedly being beaten, in 1995, by

prison guards in retaliation for

participating in a prison riot. The

federal prison system has an

administrative review process which

requires prisoners to notify the prison

staff of a complaint within 20 days. If

the prisoner is not satisfied with the

warden’s response, he can appeal on a

formal basis to the regional and then to

the central office of the Bureau of

Prisons. Smith filed an informal

complaint 55 days late and failed to

appeal the warden’s response through the

various tiers of administrative review.
 The amended version of the PLRA sec.

1997e(a) provides: "No action shall be

brought with respect to prison conditions

under section 1983 of this title, or any

other Federal law . . . ." 42 U.S.C. sec.

1997e(a) (1996). Because the word

"conditions" is plural, Smith argues that

the plain meaning of the term "prison

conditions" can only refer to on-going

circumstances that affect the prison

population as a whole. It was not

intended, he says, to include an isolated

event, such as an assault in which a

specific inmate is singled out and

harmed. Moreover, he contends it would

not be cricket to look to a related

statute--Title 18 U.S.C. sec. 3626--as an

aid in determining the meaning of "prison

conditions" in sec. 1997e.

 We do not interpret statutes in a

vacuum. The plain meaning rule is

applicable when the statutory language is

clear, unambiguous, and not controlled by

other parts of the act or other acts on

the same subject. 2A Norman J. Singer,

Sutherland Statutory Construction sec.

46:01 (rev. 6th ed. 2000). Thus, "the

meaning of statutory language, plain or

not, depends on context." Holloway v.

United States, 526 U.S. 1, ___, 119 S.

Ct. 966, 970 (1999) (quoting King v. St.

Vincent’s Hosp., 502 U.S. 215, 221

(1991)). "It is a fundamental canon of

statutory construction that the words of

a statute must be read in their context

and with a view to their place in the

overall statutory scheme." FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120,

___, 120 S. Ct. 1291, 1301 (2000)

(quoting Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809, 109 S. Ct.

1500 (1989)). Thus, the meaning of a

statute may be affected by a related act,

especially if that act provides greater

specificity on the issue at hand. Id.

 Here, although sec. 1997e does not

define the term "prison conditions,"

another section of the PLRA does. Amended

on the same day, Title 18 U.S.C. sec.

3626 is part of the same legislation as

sec. 1997e and addresses the same

subject--the appropriate remedies for and

limitations on prisoner litigation. Smith

argues that the two statutes have

entirely different objectives; that sec.

3626 limits prospective relief while sec.

1997e prevents prisoners from bringing
frivolous suits. We think Smith’s reading

of both statutes is a tad too narrow.

Both sections are devoted to various

aspects of prison litigation, including:

settlement agreements, the appointment of

special masters, attorneys’ fees awards,

the use of telephonic hearings, waiver,

and limitations on recovery. Neither

statute is a one-issue act and both are

tailored to address problems unique to

incarcerated litigants. More importantly,

both are part of the same legislation

with the same overarching objectives--to

enable prison officials to resolve

complaints internally and to limit

judicial intervention in the management

of state and federal prisons. Thus, it

makes good sense to assume that a

definition provided by Congress in one

statute applies to another related

statute. On this point, three of our

sister circuits are in agreement. See

Higginbottom v. Carter, 223 F.3d 1259

(11th Cir. 2000); Booth v. Churner, 206

F.3d 289 (3d Cir. 2000), cert. granted,

121 S. Ct. 377 (Oct. 20, 2000) (No. 99-

1964);/2 Freeman v. Francis, 196 F.3d

641 (6th Cir. 1999).

 In sec. 3626, Congress defines the term

"a civil action with respect to prison

conditions" to mean either "an action

with respect to the conditions of

confinement" or a suit arising from the

"effects of actions by government

officials on the lives of persons

confined in prison." 18 U.S.C. sec.

3626(g)(2). Smith’s claim falls within

the second half of this definition. He

was affected by an action, allegedly an

assault, by government officials, viz.,

prison guards. However, Smith argues that

the designation "government official"

does not apply to prison guards, but

rather refers only to "senior policymaking and administrative officials." We

find no basis for adding these qualifiers

to the plain language of the statute.

 Even were we to disregard the guidance

provided by Congress in sec. 3626(g)(2)

and to look only to the term "prison

conditions" to determine the scope of

sec. 1997e, we would reach the same

result. Smith asks us to apply the plainmeaning rule concluding that the plural

word "conditions" cannot include a single

or momentary matter such as an assault.

First, the distinction between plural and

singular words is not scrupulously
observed in legislative language. 2A

Sutherland Statutory Construction sec.

47:34. For instance, the opening section

of the United States Code, of which sec.

1997e(a) is a part, contains the

following rule of construction: "In

determining the meaning of any Act of

Congress, unless the context indicates

otherwise . . . words importing the

plural include the singular." With this

guidance, we assume Congress intended the

plural word "conditions" to include a

singular event.

 Second, Smith crafts his claim as an

isolated event, a freak occurrence that

will not be repeated. However, the nature

of the event is open to interpretation.

An assault by a prison guard could be a

by-product of systemic problems,

including poor hiring procedures,

insufficient training and supervision, or

an inadequate procedure for responding to

prison riots or insubordinate behavior by

prisoners. Given that part of a prison

guard’s job is to control inmates, the

use of excessive force in achieving this

end can be viewed as a management

failure, not only as a random act of

violence. We read the term "prison

conditions" in context--not only as it

relates to other statutory provisions,

but with regard to the real-world

environment in which sec. 1997e applies.

Matter of Handy Andy Home Improvement

Ctrs., Inc., 144 F.3d 1125, 1128 (7th

Cir. 1998) ("When context is disregarded,

silliness results"). In the context of

prisons, harassment from correctional

officers or government officials is not

equivalent to an unsolicited attack on

the street; rather, the harassment is

made possible by the correctional

environment. Thus, a remedy lies in

addressing prison conditions that

facilities or tolerates aberrant behavior

by guards.

 Finally, we note the obvious: no canon

of statutory interpretation requires us

to abandon common sense. Here, Smith

hangs his hat not on a single word, but

on a single letter. Based on this, he

asks us to create an exception allowing

for speedy review of factually rich,

excessive force claims affecting a single

inmate, while requiring claims concerning

prison policies affecting the entire

prison population to proceed through

administrative review. This is
counterintuitive. Not only would claims

affecting the least number of people be

addressed first, but judges would be

required to review these factually

intense claims of assault and harassment

without the benefit of the administrative

review process, where, at a minimum, the

basics of who-did-what-to-whom are at

least given some initial consideration.

Again, the plain meaning rule does not

strap us to every word and letter if, in

animating such words, we would reach an

absurd result. See Johnson v. United

States, 529 U.S. 694, 707, 120 S. Ct.

1795, 1804 (2000); United States v.

Balint, 201 F.3d 928, 932 (7th Cir. 2000)

("[O]ur interpretation is guided not just

by a single sentence or sentence

fragment, but by the language of the

whole law . . . .").

 Next, Smith argues that regardless of

the statutory language, the legislative

history and purpose of the PLRA supports

his position. He contends that the only

purpose of sec. 1997e is to ferret out

frivolous claims and implies that

excessive force claims are never

frivolous. Smith views the addition of

the words "with respect to prison

conditions" to the amended version of

sec. 1997e as a signal that Congress

wanted to create a narrow exhaustion

requirement that would not apply to

claims involving particularized instances

of force. He looks to a recent decision

of the Second Circuit for support. Nussle

v. Willette, 224 F.3d 95, 101 (2d Cir.

2000), cert. granted, 2001 WL 589145

(June 4, 2001) (No. 00-853) (term "prison

conditions" does not refer to single or

momentary matters directed at particular

individuals)./3 

 While we will concede that restricting

frivolous claims was one of the

objectives served by sec. 1997e, it was

not the only purpose, nor is it the only

benefit garnered from requiring litigants

to utilize the prison grievance process

before filing suit in court. The

exhaustion requirement provides the

prison system with prompt notice of

problems. This, of course, is preferable

to a system where the prison might get

its first notice of a claim in a lawsuit

filed several years later just before the

running of a statute of limitations.

 Requiring prompt notice and exhaustion
also gives prison officials an

opportunity to address a situation

internally, which in a case like this

could involve relocating Smith, firing

guards, hiring new ones, or providing

additional training and supervision to

staff. The process also helps develop the

factual record, before the prisoner moves

to the courtroom. In fact, the

administrative process may make

negotiation more effective and may serve

to reduce the scope of litigation should

some, if not all, of the inmate’s

grievances be resolved internally. Perez

v. Wisconsin Dep’t of Corr., 182 F.3d

532, 535 (7th Cir. 1999) ("negotiation

may be more effective if a lawsuit is not

on file").

 Next, we note that deterring frivolous

suits could not have been the only issue

Congress had in mind. In 1996 Congress

did create a subsection of sec. 1997e

which specifically addressed frivolous

suits--subsection c. This subsection

gives courts the power to dismiss suits

that are frivolous, malicious, or fail to

state a claim. 42 U.S.C. sec. 1997e(c)

(1996). If the only purpose of sec. 1997e

was to bar frivolous suits, then Congress

need not have done more. Yet, the 1996

amendment added several other provisions

to sec. 1997e concerning attorneys’ fees,

telephonic hearings, and waiver.

Moreover, Congress specifically

strengthened the exhaustion requirement

of sec. 1997e in three ways: (1) by

making exhaustion mandatory rather than

discretionary, (2) by extending the reach

of the requirement to all federal claims,

not only sec. 1983 actions, and (3) by

removing the prior restriction that

exhaustion was required only if the

prison system had an adequate

administrative review process which

complied with some minimum procedural

standards. See 42 U.S.C. sec. 1997e

(1994). Given this flurry of activity, we

must conclude that Congress intended to

create a comprehensive exhaustion

requirement for all federal claims.

 Nonetheless, citing sound-bites from the

pre-passage floor debates, Smith argues

that Congress intended to create a

subject matter exception to the

exhaustion requirement for excessive

force claims because these are

particularized attacks. First, the PLRA

already contains a subject matter
exception, suggesting that Congress had

already considered which class of cases

should be exempt from this legislation.

Walker v. O’Brien, 216 F.3d 626, 633-37

(7th Cir. 2000) (PLRA does not apply to

petition for writ of habeas corpus

properly filed under either 28 U.S.C.

sec. 2241 or sec. 2254); 2A Sutherland

Statutory Construction sec. 47.23 (The

general rule of statutory construction is

that the enumeration of specific

exclusions from the operation of a

statute is an indication that the statute

should apply to all cases not

specifically excluded.).

 Second, Smith mischaracterizes the

effect of the exhaustion requirement.

Requiring administrative review does not

foreclose a prisoner’s ability to file

suit, it merely creates a necessary

precondition. The requirement is not

designed to stop prisoners from filing

suits, but rather to facilitate the

litigation process. In particular, the

development of the factual record may

help rather than hinder prisoners,

enabling them to succinctly present their

cases.

 More importantly, the standard Smith

urges us to accept--an exception for

particularized instances of force

directed at a specific inmate--is a

cumbersome test to apply. Following this

standard would validate the old cliche of

the exception swallowing the rule. Any

claim could be fashioned to fit this

requirement, not merely claims of

excessive force. In fact, applying this

standard, the Second Circuit has recently

extended the scope of the exception it

recognized in Nussle by holding that

particularized instances of retaliatory

conduct, like particularized instances of

force, are not subject to the PLRA’s

administrative exhaustion requirements.

Lawrence v. Goord, 238 F.3d 182, 185 (2d

Cir. 2001). The Second Circuit, it seems

to us, is traveling down a slippery

slope. The better view, we think, is that

of the Third, Sixth, and Eleventh

Circuits, which agree with the view we

express in this opinion. See Booth, 206

F.3d at 295; Freeman, 196 F.3d at 644;

and Higginbottom, 223 F.3d at 1260.

 In addition, even were we to accept

Smith’s argument that the only purpose

Congress had in passing sec. 1997e was to
bar frivolous lawsuits, even this limited

objective would not be served by creating

the exception he urges. Were we to create

either a subject matter exception for

excessive force claims or a more flexible

exception for particularized instances of

force, we would open the doors to

frivolous suits. Excessive force claims

can be frivolous. Inmates can allege they

were subject to vicious nudges. Or, to

stretch the case, a dirty look by a

prison guard could be characterized as a

particularized instance of harassment

singling out one inmate. The

possibilities are limitless and the end

result would be to undermine the steps

Congress took in 1996 to strengthen the

administrative review process in prisons,

both state and federal.

 Finally, the recent decision in Booth

adds further to the view that the PLRA’s

exhaustion requirement is indeed very

broad. There the Supreme Court held that

administrative exhaustion was required

despite the fact that the only remedy

sought--money damages wwas not available

as an award in Pennsylvania’s prison

grievance system. It is also interesting

to note that the Supreme Court, although

not discussing the point, required

exhaustion in Booth even though the

prisoner’s claim grew, like here, out of

an alleged assault of a prisoner by

corrections officers.

 We now turn to Smith’s two final

arguments, futility and substantial

compliance. Citing dicta in Perez v.

Wisconsin Department of Corrections, 182

F.3d 532, 538 (7th Cir. 1999) ("It is

possible to imagine cases in which the

harm is done and no further

administrative action could supply any

remedy."), Smith argues that he was not

required to exhaust his administrative

remedies because his injury was complete

and the remedy he sought was monetary

damages, which the administrative review

process does not provide. Booth, as we

just noted, ends this argument. Moreover,

we do not accept Smith’s characterization

of his claim as complete. When the

incident occurred, Smith was still

serving his term and was still subject to

the supervision of his alleged abusers.

Had he filed an administrative claim

there were several remedies available to

him, including transferring him to

another facility or disciplining or
retraining the guards.

 Finally, Smith argues that the incident

occurred in 1995 before the passage of

the PLRA amendments, and thus by filing

several complaints he substantially

complied with the exhaustion requirement.

The substantial compliance doctrine

arises only when a prisoner’s claim arose

before April 26, 1996, the effective date

of the PLRA amendment. In such cases, a

prisoner may show that he substantially

complied with the exhaustion requirement

by making a good faith attempt to reach

the appropriate prison official. See

Wolff v. Moore, 199 F.3d 324, 327 (6th

Cir. 1999). In response to the

government’s motion to dismiss based on

Smith’s failure to exhaust administrative

remedies, Smith argued only that he was

not required to exhaust. Thus, by failing

to raise the issue of substantial

compliance before the district court, he

waived this argument. Schoenfeld v.

Apfel, 237 F.3d 788, 793 (7th Cir. 2001).

AFFIRMED.

FOOTNOTES

/1 We express our appreciation to Sunil R. Harjani,

an attorney with the Chicago firm of Jenner &

Block, who, acting pro bono at the request of the

court, has very ably represented Mr. Smith on

this appeal.

/2 After oral argument on this appeal, just several

days ago on May 29, the Supreme Court affirmed

the Third Circuit in Booth (see 2001 WL 567712),

an opinion we will comment on in a few moments.

/3 Nussle begins the discussion of when administrative review should be required by noting that

exhaustion is not a prerequisite for maintaining

an action under sec. 1983. Nussle v. Willette,

224 F.3d 95, 97-98 (2d Cir. 2000). We note that

in 1996 Congress extended the scope of the PLRA

exhaustion requirement to claims arising under

any federal law. Because the exhaustion requirement is no longer restricted to civil rights

cases, the rationale for exempting these suits

from administrative review is even less compelling.

 Williams, Circuit Judge, dissenting. I do not

believe that the plain meaning of "prison conditions" under sec. 1997e(a), or the definition in
sec. 3626(g)(2), includes the random, violent

assault alleged in this case./1 As that is the

only question we need to resolve today, I will

not reach the issue whether a categorical exemption exists for claims of excessive force, except

to note that my analysis is consistent with

opinions that conclude that a categorical exemption does exist. See Nussle v. Willette, 224 F.3d

95, 99-106 (2d Cir. 2000), cert. granted, Porter

v. Nussle, No. 00-853, 2001 WL 589145 (U.S. June

4, 2001); Booth v. Churner, C.O., 206 F.3d 289,

300-03 (3d Cir. 2000) (Noonan, J., concurring and

dissenting). Nor do I believe that a reasonable

consideration of the context, object, and policy

of sec. 1997e and the Prison Litigation Reform

Act ("PLRA") as a whole warrants concluding

otherwise. I therefore respectfully dissent.

 When the language of a statute is plain and

unambiguous, we apply the plain meaning (period).

Connecticut Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992); United States v. Hayward, 6 F.3d

1241, 1245 (7th Cir. 1993). In ascertaining the

plain meaning of the language, however, we should

not read with blinders on--context matters.

Robinson v. Shell Oil Co., 519 U.S. 337, 340-41

(1997). But that latter principle has limits;

invoking "context," we may not redraft language

Congress enacted simply because the language may

fail to achieve Congress’s entire purpose as we

perceive it. See Dunn v. Commodity Futures Trading Comm’n, 519 U.S. 465, 470 (1997) ("[A]bsent

any indication that doing so would frustrate

Congress’s clear intention or yield patent absurdity, our obligation is to apply the statute as

Congress wrote it." (alteration in original)

(internal quotation marks omitted)); see also

Smith v. United States, 508 U.S. 223, 247 n.4

(1993) (Scalia, J., dissenting) ("Stretching

language in order to write a more effective

statute than Congress devised is not an exercise

we should indulge in."); Pavelic & LeFlore v.

Marvel Entm’t Group, 493 U.S. 120, 126 (1989)

("Our task is to apply the text, not to improve

upon it."); United States v. Locke, 471 U.S. 84,

95 (1985) ("[T]he fact that Congress might have

acted with greater clarity or foresight does not

give courts a carte blanche to redraft statutes

in an effort to achieve that which Congress is

perceived to have failed to do."). In this case,

the majority appears to be fixing the language of

sec. 1997e(a), more than truly interpreting it

according to its plain meaning, context considered. 

 To the language of the statute, then. The

statute itself does not define "prison conditions." If only as a preliminary, working definition, Webster’s Dictionary defines "conditions"

as "attendant circumstances: existing state of

affairs." Webster’s Third New International
Dictionary 473 (1986). As examples, Webster’s

lists "living conditions," "playing conditions,"

and "adverse weather conditions." Id. Conditions,

as the definition suggests, does not refer to

random events. Accord Nussle, 224 F.3d at 101.

For instance, a rotted tree that happens to fall

on an unsuspecting golfer while playing on a golf

course is not a "playing condition"/2 of that

course. Furthermore, when the random event is an

action (i.e., conduct by a person), the description seems to evoke more discord than sense. For

instance, and closer to the facts of our case,

one would not say that a teacher’s sexual abuse

of a student is part of "elementary school conditions." 

 In common parlance, conditions--circumstances or

states, under our definition--largely refer to

the physical environment or surroundings in which

something is situated. When applied to conduct

specifically, the term implies, and seemingly

requires, that the conduct occur with regularity,

meaning that it is common and usual--which, when

applied to conduct of officials part of an institution, suggests a policy or routine practice in

the institution. As an example, in a high crime

area a robbery (though not always frequent) is a

"condition," because it is common and usual in

such an area. Or, taking the first of the two

earlier examples, if rotted trees are widespread

on a golf course and frequently fall (even if on

the same hapless golfer), then falling trees

could be said to be a "condition," because common

and usual to that course./3 But it is strange,

if not strained, to refer to a random, violent

assault by prison officials as conditions, or as

a condition./4 

 But I do not understand my colleagues to quibble with the plain meaning of the statute we are

asked to interpret. Instead, the majority borrows

the definition of prison conditions contained in

18 U.S.C. sec. 3626(g)(2)--another provision of

the PLRA passed along with sec. 1997e(a)--which

defines a "civil action with respect to prison

conditions" as "the conditions of confinement or

the effects of actions by government officials on

the lives of persons confined in prison." I must,

however, take issue with the conclusion that the

random, violent assault in this case fits within

that definition. 

 Apparently the majority concedes that excessive

force is not included within the first clause of

the definition. Ante, at 4; see also, e.g., Booth

v. Churner, C.O., 206 F.3d 289, 294 (3d Cir.

2000) aff’d on other grounds, Booth v. C. O.

Churner, 121 S. Ct. 1819 (2001). Indeed, excessive force fits no better in that definition

(conditions of confinement) than the language of
sec. 1997e(a) (prison conditions) for essentially

the same reasons, which is hardly a surprise

because the language is virtually the same. The

majority concludes that excessive force is included within the second clause. Ante, at 4. But

the language of the second clause addresses only

claims relating to the "effects of actions." 

 Claims of excessive force are not claims relating to effects; they are claims relating to

actions. See Hudson v. McMillian, 503 U.S. 1, 7-

11 (1992). Hudson recognizes this difference,

excluding excessive force claims from the "extreme deprivation" requirement applicable to

conditions of confinement claims under the Eighth

Amendment. Id. For claims of excessive force, the

action itself violates the Eighth Amendment. Id.

at 9 ("When prison officials maliciously and

sadistically use force to cause harm, contemporary standards of decency always are violated.

This is true whether or not significant injury is

evident." (citations omitted)). But for conditions-of-confinement-type claims, the extreme

deprivation--i.e., the effects--creates an Eighth

Amendment violation, not the actions themselves.

See Rhodes v. Chapman, 452 U.S. 337, 345-47

(1981). Therefore, the second clause definition,

addressing claims relating to the "effects of

actions," cannot necessarily be said to include

excessive force.

 So it cannot be the language of the statute

that is driving the majority to conclude that

claims of excessive force are included within

"prison conditions" under sec. 1997e(a). Rather,

the majority relies on the context, object, and

policy of the statute to conclude that claims of

excessive force should be included within the

exhaustion requirement of sec. 1997e(a). Ante, at

4-9. But equally persuasive arguments have been

advanced by others that they should not be included. See Nussle, 224 F.3d at 103-06; Booth,

206 F.3d at 301-02 (Noonan, J., concurring and

dissenting). We are simply not in the business of

deciding what statutes should or should not say,

but deciding what they in fact do say. And, this

statute certainly does not say that the random,

violent assault involved in this case must be

exhausted in administrative proceedings./5

 It may be that Congress really did want to

include this kind of claim in sec. 1997e(a)’s

"prison conditions" exhaustion requirement. The

problem is that Congress did not write language

in this statute to accomplish that objective. In

the end, I am not convinced that we have a

justifiable reason to strain the language Congress wrote to accomplish an intent we can only

speculate exists. I do not believe that the plain

meaning of prison conditions under sec. 1997e(a)
includes the random, violent assault involved in

this case, and therefore I respectfully dissent.

FOOTNOTES

/1 Smith alleges that several prison guards entered

his cell, ordered him to walk out, and immediately after he complied, beat him in the face,

buttocks, and groin. According to Smith, the

guards handcuffed him, beat him while cuffed, and

took him to prison showers where they continued

to hit, stomp, and jab him with batons. Smith was

next taken outside to a special housing unit

where the guards slammed his head into a metal

plate, stripped him naked, and beat him repeatedly over the span of an unspecified length of

time. The guards finally locked him in a segregation cell, naked and bleeding, releasing him the

next day and denying him medical treatment until

approximately one week later.

/2 Note, whether one uses the singular "condition"

or the plural "conditions," the incongruity

remains the same.

/3 One would not say that falling trees are a

"playing condition," however, because dodging

falling trees has nothing to do with the game of

golf. 

/4 Worse yet, it seems unreasonable to refer to such

conduct as prison conditions. Accord Booth, 206

F.3d at 301 (Noonan, J., concurring and dissenting) ("That [the plaintiff’s] alleged blow took

place in a prison does not make it ’prison

conditions.’"); cf. Farmer v. Brennan, 511 U.S.

825, 834 (1994) ("Being violently assaulted in

prison is simply not ’part of the penalty that

criminal offenders pay for their offenses against

society.’"). 

/5 I express no opinion whether the context, object,

and policy of sec. 3626 (a very different statute) warrants including in that section claims of

excessive force, or the random, violent assault

in this case.