United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 31, 2022*

Decided September 6, 2022 

Before

FRANK H. EASTERBROOK, Circuit Judge

AMY J. ST. EVE, Circuit Judge

CANDACE JACKSON-AKIWUMI, Circuit Judge

No. 21-2535 

DANIEL A. SCHILLINGER,

Plaintiff-Appellant, 

v. 

JOSH KILEY, et al., 

Defendants-Appellees.

Appeal from the United States District 

Court for the Western District of Wisconsin.

No. 20-cv-679-wmc

William M. Conley, 

Judge. 

O R D E R

Daniel Schillinger, a Wisconsin inmate, sued guards at his former prison for 

failing to protect him from another inmate who brutally attacked him. The district court 

dismissed his case for failure to exhaust administrative remedies, and we affirmed. He

then initiated this new lawsuit, which repeats the same allegations. The district court

* The appellees were not served with process and are not participating in this 

appeal. We have agreed to decide the case without oral argument because the appeal is 

frivolous. FED. R. APP. P. 34(a)(2)(A). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 21-2535 Page 2 

dismissed the complaint at screening, and we affirm because the decision on exhaustion 

precludes further litigation. 

In September 2015, Schillinger alerted guards that another inmate was planning 

to assault him. Sure enough, that inmate attacked and badly injured him a short time 

later. Schillinger submitted a grievance complaining that it took too long for guards to 

respond to the attack and completed an internal appeal after it was denied. He then 

sued several guards for failing to prevent the assault after he reported the threat. The 

district court entered summary judgment for the defendants after concluding that 

Schillinger’s grievance about the response to the attack was insufficient to exhaust his 

failure-to-protect claim; we agreed and affirmed. Schillinger v. Kiley, No. 16-cv-529-wmc, 

2018 WL 1973151 (W.D. Wis. Apr. 26, 2018), aff’d, 954 F.3d 990 (7th Cir. 2020). 

Months later, Schillinger filed a new complaint about the failure to protect him 

from the attack. The same district judge sua sponte ordered that he would dismiss the 

case as frivolous unless Schillinger could “submit a sworn declaration or 

documentation showing that he: (1) timely filed an administrative grievance concerning 

the September 17, 2015 incident ... and (2) fully exhausted his administrative remedies 

with respect to that grievance.” Schillinger submitted the same grievance from his 

previous case and a declaration arguing that it satisfied the exhaustion requirement. 

After reviewing the submission, the district court dismissed the complaint. 

See 28 U.S.C. § 1915A(a). Having previously determined that the grievance did not 

pertain to a failure-to-protect claim, the court concluded the affirmative defense of 

failure to exhaust was so plain as to make the complaint frivolous. The court ended by 

remarking that the dismissal would not come with a strike under 28 U.S.C. § 1915(g), 

but future attempts to relitigate the 2015 altercation would. The court also denied 

Schillinger’s motion to reconsider the ruling. 

On appeal, Schillinger reasserts that his only grievance about the attack

exhausted his failure-to-protect claim. We review a dismissal under § 1915A(b)(1)

de novo. Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017). Although failure to exhaust is 

an affirmative defense, a district court may dismiss a complaint at screening if the 

complaint, and any documents subject to judicial notice, establish the defense so plainly 

as to make the suit frivolous. Burton v. Ghosh, 961 F.3d 960, 965 (7th Cir. 2020); Gleash v. 

Yuswak, 308 F.3d 758, 760–61 (7th Cir. 2002). 

We agree with the district court that the prior decision on exhaustion is 

dispositive. Though the court concluded that the failure to exhaust was evident from 
No. 21-2535 Page 3 

the pleadings, we would characterize the defense as issue preclusion. Schillinger cannot 

relitigate exhaustion because the same issue was raised against him in the prior case, it 

was actually litigated, and its resolution was essential to the final judgment. See Matrix 

IV, Inc. v. Am. Nat’l Bank & Tr. Co. of Chi., 649 F.3d 539, 547 (7th Cir. 2011). Schillinger 

already lost the argument that he properly exhausted his claim and is barred from 

relitigating it. 

We note that the district court specified that this dismissal would not count as a 

strike against Schillinger. But under § 1915(g), a litigant incurs a strike when, while 

incarcerated, he brings a federal suit that is dismissed because it is frivolous (which is 

how the court characterized Schillinger’s suit). Whether a dismissal counts as a strike is 

up to a later tribunal, if called upon to determine if three strikes have accumulated. Hill 

v. Madison Cnty., 983 F.3d 904, 906 (7th Cir. 2020). Generally, a dismissal of a complaint 

under § 1915A(b)(1) because of an affirmative defense and a meritless appeal of the 

dismissal result in strikes. See Cannon v. Newport, 850 F.3d 303, 305–08 (7th Cir. 2017). 

Finally, although Schillinger apparently had a good-faith misunderstanding 

about the dismissal of his previous case “without prejudice,” we repeat the district 

court’s warning: Further attempts to litigate the 2015 attack in federal court may result 

in additional strikes. 

AFFIRMED