United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 9, 2013*

Decided December 10, 2013

Before

RICHARD D. CUDAHY, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 13-2137

WILLIE J. GRIFFIN, JR.,

Plaintiff-Appellant,

v.

BELINDA AUTERSON, 

Defendant-Appellee.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 11-cv-110-JPG-PMF

J. Phil Gilbert,

Judge.

O R D E R

Willie Griffin, a federal inmate, challenges the dismissal of his civil-rights lawsuit

against a disciplinary hearing officer based on his failure to exhaust his administrative

remedies. See 42 U.S.C. § 1997e(a). Because Griffin did not exhaust those remedies

before he sued, we affirm the judgment.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

 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)(C).
No. 13-2137 Page 2

The timing of Griffin’s disciplinary hearing and administrative appeals in

relation to this suit are not in dispute. Griffin was charged with violating prison rules

by arguing with staff in late 2010 after they turned away two unapproved visitors. The

disciplinary officer who reviewed the charges, Belinda Auterson, held a hearing in

January 2011 and completed her report in April. She concluded that Griffin had been in

an unauthorized area, had refused to obey staff, and had been insolent. Before Auterson

finished her report, Griffin sued the guards for allegedly falsifying the charges against

him. Once Auterson completed her report, Griffin added her as a defendant. (The other

defendants were dismissed at screening, and Griffin does not challenge that dismissal.)

Three months after adding Auterson, Griffin administratively appealed the disciplinary

report, and the charges were remanded for a new hearing. After another round of

appeals, prison staff expunged the charges in December 2011. Three months later,

Auterson answered the complaint in this suit, raising her exhaustion defense.

Although Griffin initially was allowed to proceed in forma pauperis, the district

court revoked that status after correctly determining that Griffin previously had

incurred at least three strikes. 28 U.S.C. § 1915(g); Griffin v. DeRosa, No. 03-5597-RBK

(D. N.J. June 4, 2004) (dismissing entire suit concerning prison blackout for failure to

state claim), aff’d 153 F. App’x 851 (3d Cir. 2005); Griffin v. Florida, No. 03-13769-C (11th

Cir. Nov 26, 2003) (ruling that appeal was frivolous); Griffin v. Escambia Cnty. Sheriff’s

Dep’t, No. 3:03cv30-LAC-MD (N.D. Fl. July 10, 2003) (dismissing entire suit challenging

transfer from state to federal custody for failure to state claim).

Auterson later moved for summary judgment, repeating that Griffin had failed

to exhaust his administrative remedies before suing her, as required by § 1997e(a). She

submitted affidavits showing that Griffin administratively appealed the disciplinary

report three months after adding her as a defendant, leading to his eventual success in

obtaining a new disciplinary hearing. Griffin opposed the motion, arguing that he had

exhausted his administrative appeals before Auterson raised exhaustion as an

affirmative defense in her answer. The magistrate judge in charge of discovery

recommended dismissal based on Griffin’s failure to complete the administrative

grievance process before bringing suit. The district court adopted the recommendation

and dismissed Griffin’s suit without prejudice. After Griffin belatedly objected to the

dismissal, the court reaffirmed its conclusion that dismissal was proper, noting that

Griffin sued Auterson months before finishing the prison’s grievance process, violating

the exhaustion requirement of § 1997e(a). 
No. 13-2137 Page 3

On appeal Griffin maintains that because he had completed the administrative

appeals process before Auterson raised her exhaustion defense, the district judge erred

in dismissing his suit. But Griffin misunderstands § 1997e(a). The provision requires

prisoners to exhaust administrative remedies before they file suit, not just before the

exhaustion defense is raised. See Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005).

Exhausting before suing allows the prison administrators a chance to remedy possible

mistakes before court intervention and ensures that prisoners concentrate on the

grievance process, not litigation. See Woodford v. Ngo, 548 U.S. 81, 89–90 (2006); Ford v.

Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Thus, even though Griffin did eventually

exhaust his administrative remedies while this suit was pending, the court correctly

dismissed his suit without prejudice. See Ford, 362 F.3d at 401 (explaining that “if the

prisoner does exhaust, but files suit early” dismissal without prejudice is correct

response so “the premature action may be followed by a new suit that unquestionably

post-dates the administrative decision”). 

Griffin replies that, if exhaustion bars this suit, the district court would have

dismissed it when the court screened his complaint adding Auterson as a defendant.

But exhaustion is an affirmative defense that inmates need not anticipate and refute in

their complaints. Jones v. Bock, 549 U.S. 199, 216 (2007); Pavey v. Conley, 663 F.3d 899, 903

(7th Cir. 2011). Here, moreover, the court could not have dismissed at screening the

claim against Auterson because Griffin alleged in his amended complaint that he had

completed the grievance procedure at the time of his April 2011 amendments adding

Auterson as a defendant.

Griffin alternatively asserts that the district judge erred in dismissing the suit

because, he says, the administrative appeals process was “unavailable” since it limited

his potential monetary recovery. But the grievance process is available if it can offer any

potential relief, even if it is not the prisoner’s preferred remedy. See Porter v. Nussle, 534

U.S. 516, 524 (2002); Dole v. Chandler, 438 F.3d 804, 808–09 (7th Cir. 2006). Here the

administrative process offered Griffin some relief because it could—and did—expunge

his disciplinary charges.

We have reviewed Griffin’s remaining assertions, and they all lack merit.

AFFIRMED.