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00-2017 Lewis v. Washington

By: dmc-admin//August 19, 2002//

00-2017 Lewis v. Washington

By: dmc-admin//August 19, 2002//

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“Although we have held that exhaustion is not a jurisdictional requirement, Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000), we have yet to conclude that the exhaustion defense is subject to equitable estoppel. The Fifth Circuit is the only circuit to hold that equitable estoppel can apply to the PLRA exhaustion requirement. Wright v. Hollingsworth, 260 F.3d 357, 358 n.2 (5th Cir. 2001); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). Although the Fifth Circuit’s ruling on this matter is persuasive because nonjurisdictional prerequisites to suit in federal court are typically subject to equitable estoppel, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Ameritech Benefit Plan Comm. v. Communication Workers of America, 220 F.3d 814, 819 (7th Cir. 2000), cert. denied, 531 U.S. 1127 (2001), we need not decide the issue because Lewis cannot satisfy the requirements for equitable estoppel…. Lewis cannot prevail on his equitable estoppel theory because his allegations concerning the prison officials’ actions do not amount to affirmative misconduct. Lewis urges this court to conclude that the prison officials’ failure to respond to many of his grievances and requests amounts to affirmative misconduct rather than merely a failure to discharge an affirmative obligation. Lewis likens the failure to respond to ‘a pattern of false promises,’ which the Ninth Circuit has concluded amounts to affirmative misconduct. Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc) (quoting Mukherjee v. I.N.S., 793 F.2d 1006, 1009 (9th Cir. 1986)). But the prison officials made no promises to Lewis that he could have reasonably interpreted as an assurance that he did not have to appeal his ‘Staff Conduct’ grievance within the required 30 days. Lewis, however, argues that he waited to appeal because an appeal would have been unnecessary if his grievance against Carlos had been granted. Nevertheless, the time for appeal was clearly marked on the grievance form, and it made no exception for the outcome of other pending grievances. Because the prison officials did nothing to affirmatively misguide Lewis into thinking that his other grievances and requests altered the time for appeal, we will not estop the government from raising the exhaustion defense.

“The district court did not separately address the conspiracy claim or determine whether Lewis had exhausted those administrative remedies. Thus, we remand the claim to the district court to determine whether Lewis exhausted his administrative remedies. In analyzing Lewis’s exhaustion on this claim, the district court should consider whether Lewis’s administrative remedies were available in light of the prison officials’ failure to respond to some of his grievances and requests.”

Affirmed and remanded.

Appeal from the United States District Court for the Central District of Illinois, Baker, J., Kanne, J.

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