despite the fact that he had filed an administrative claim.
However, Sheptin's administrative claim related to
non-disclosure of a hepatitis diagnosis, failure to treat that
hepatitis, improper treatment of his heart condition, and the
claim that he had been given inappropriate prescription drugs.
Sheptin's complaint in federal court alleged, among other
things, failure to treat for a seizure disorder, harassment by
prison employees, filing of a false incident report by prison
officials, failure to comply with a subpoena, and failure to
give him dentures. See id. at *2. The court concluded that
prison officials could not be expected to uncover the
allegations contained in the complaint in an investigation of
the inmate's administrative claim. Id.
In contrast to the facts in Sheptin, all of the elements of
Gomez's claim relate to his dissatisfaction with the treatment
he received for his hepatitis. As the Sheptin court explained:
"A claimant is not required to provide the agency with a preview
of his lawsuit by reciting every possible theory of recovery or
every factual detail that might be relevant. A claim can put an
agency on notice of facts it should discover during its
investigation of the claim." Id. at *3.
2. Scope of the PLRA Exhaustion Requirement
Defendants contend that plaintiff did not take his claims of
inadequate medical care to the highest level of administrative
review possible. Specifically, they argue that plaintiff
abandoned his claim based on defendants' failure to treat his
condition because that aspect of his claim was not mentioned in
his second level of review. Additionally, they claim that Gomez
failed to exhaust his claim based on defendants' failure to
provide him with information about the side effects of the
treatment he was seeking because he did not take his appeal to a
third level of review.
The Supreme Court recently clarified the scope of the PLRA
exhaustion requirement. See Booth v. Churner, 532 U.S. 731,
121 S.Ct. 1819, 1823-24, 149 L.Ed.2d 958 (2001). In Booth, the
Supreme Court held that the PLRA requires administrative
exhaustion even where the grievance process does not permit an
award of the specific relief the aggrieved inmate is seeking.
Id., 532 U.S. 731, 121 S.Ct. at 1823-24, 149 L.Ed.2d 958
(2001). The inmate in Booth argued that it was unreasonable to
require that he exhaust the administrative process when he was
seeking money damages — a form of relief that was unavailable in
Pennsylvania. The court explained that the phrase "such
administrative remedies as are available" requires a prisoner to
exhaust whatever grievance procedures are available, "whether or
not the possible responses cover the specific relief the
prisoner demands." Id., 121 S.Ct. at 1823.
While the Booth court made clear that administrative
remedies must be exhausted despite the fact that the remedy
available to the inmate is not the one being sought, it did not
go so far as to say that administrative appeals must be pursued
when the grievance procedure can provide no remedy at all. The
Booth court's analysis hinged upon the fact that the
Pennsylvania administrative process had authority to take some
action, despite the fact that it was not able to grant the form
of relief the inmate was seeking. The court recognized, though,
that exhaustion would not be required in a situation in which
no relief whatsoever would be available to an inmate through the
administrative process. "Without the possibility of some relief,
the administrative officers would presumably have no authority
to act on the subject of the complaint, leaving the inmate with
nothing to exhaust." Id., 121 S.Ct. at 1823, n. 4.
Furthermore, the court recognized that "the modifier `available'
the possibility of some relief for the action complained
of. . . ." Id., 121 S.Ct. at 1824.
Other courts have recognized that inmates need not exhaust
administrative remedies when doing so would be entirely futile.
The Seventh Circuit, in an opinion written prior to Booth,
recognized that, under some circumstances, exhaustion should not
be required when no remedy at all is available. In dicta, the
It is possible to imagine cases in which the harm is
done and no further administrative action could
supply any `remedy.' . . . Suppose the prisoner
breaks his leg and claims delay in setting the bone
is cruel and unusual punishment. If the injury has
healed by the time suit begins, nothing other than
damages could be a `remedy,' and if the
administrative process cannot provide compensation
then there is no administrative remedy to exhaust.
Perez v. Wisconsin Dept. Of Corrections, 182 F.3d 532, 538
(7th Cir. 1999). In a more recent case, decided after Booth,
an inmate filed suit against a correctional officer for failing
to protect him from an inmate who had been threatening him. See
Nitz v. Correctional Officer French, 2001 WL 747445 (N.D.Ill.
2001). The inmate had filed a grievance seeking relief from the
threatening situation and was subsequently transferred to
another institution. See id. at *3. The defendant sought
dismissal because the inmate had not appealed the grievance to
the highest possible level within the administrative process.
The court, in rejecting that argument, explained that once the
inmate had been transferred from the institution, he had
received all the relief that administrative procedures could
provide. "It would be a strange rule that an inmate who has
received all he expects or reasonably can expect must
nevertheless continue to appeal, even when there is nothing to
In the instant case, plaintiff filed his administrative appeal
after learning of his hepatitis diagnosis because he was
concerned about the treatment, or lack thereof, he was receiving
for the illness. Throughout the administrative appeal process,
his goal was to receive effective treatment for his illness.
During the period between the informal review level and the
formal review level, Gomez was offered treatment for the
hepatitis, something he had been seeking for some time. He filed
a formal level appeal, though, because he was dissatisfied with
the responses he had received from medical staff about his
concerns about potential side effects. While the formal level
review was pending, and after numerous requests by Gomez, PBSP
medical staff assured him that he need not worry about side
effects caused by interferon treatment. In fact, Gomez
apparently told prison officials that his concerns had been
addressed. In the Second Level Response Record, Dr. Winslow
wrote: "During your interview, you indicated most of your
concerns have been addressed and you were now waiting for x-rays
to be taken, before you could begin your interferon treatments."
Second Level Response. The appeal was granted, and treatment
began soon thereafter. Because Gomez's questions related to his
concern about possible side effects of interferon treatment and
he had been unwilling to sign consent forms for the treatment
until those questions were answered, the fact that interferon
treatment was commenced is another indication that his concerns
had been addressed.*fn4
It is unclear what relief defendants believe would have been
available to Gomez had he continued to a higher level of appeal.
His administrative appeal had been granted, and because he was
finally being treated and his questions had been answered, there
was no reason for him to press his appeal to a higher level.
Were it possible to obtain money damages through the
administrative appeal process, there would likely be an argument
that there was an available remedy that required exhaustion, but
there is no evidence that any further remedy was available.
Because Gomez had, in essence, "won" his inmate appeal, it would
be unreasonable to expect him to appeal that victory before he
is allowed to file suit. Indeed, it appears that plaintiff would
have been rebuffed by prison officials had he for some reason
tried to pursue his grievance to another level. At oral argument
on this motion, counsel for plaintiff noted that one of the
grounds for rejecting or canceling an appeal is that the issue
had been resolved at a previous level.
This Court finds that plaintiff adequately exhausted his claim
of inadequate medical treatment under the PLRA exhaustion
requirement as explained in Booth.
For the foregoing reasons, the Court DENIES defendants' motion
for judgment on the pleadings.
IT IS SO ORDERED.