Witzke, Michael v. Femal, Michelle ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2648
MICHAEL WITZKE,
Plaintiff-Appellant,
v.
MICHELLE FEMAL, DANIEL BENZER,
JIM WEBB, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 487—Lynn Adelman, Judge.
____________
ARGUED JANUARY 9, 2004—DECIDED JULY 22, 2004
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Michael Witzke, a prisoner serving
a sentence imposed by a Wisconsin state court, filed a pro se
complaint under 42 U.S.C. § 1983. He alleged that the
defendants had been deliberately indifferent to his medical
needs. The defendants moved to dismiss Mr. Witzke’s
complaint for failure to exhaust administrative remedies, as
required by the Prison Litigation Reform Act. See 42 U.S.C.
§ 1997e(a). The district court granted the motion. For the
reasons set forth in the following opinion, we affirm in part,
2 No. 02-2648
reverse in part and remand for further proceedings consis-
tent with this opinion.
I
BACKGROUND
A. Facts
In 1996, Michael Witzke pleaded guilty to possession with
intent to deliver cocaine and was sentenced to ten years’
imprisonment by a Wisconsin court. The sentencing court
stayed his prison sentence, and Mr. Witzke was placed on
probation for eight years pending his successful completion
of probation. When he began his probation, Mr. Witzke was
taking prescribed medications to control symptoms of
depression and anxiety. Mr. Witzke also had ongoing
problems controlling his addiction to drugs and alcohol and
had been participating in a methadone treatment program
for about twelve years.
During his probationary period, Mr. Witzke violated
several conditions of his probation. The first violation
occurred on or around September 3, 1999. As a result of this
initial violation, Mr. Witzke was held in Outagamie County
Jail (“OCJ”) from September 3, 1999, until September 10,
1999. Mr. Witzke claims that, during this time, he did not
have access to necessary medication. Furthermore, after this
violation, his probation agent, defendant Michelle Femal,
allegedly ordered Mr. Witzke to “detox from Methadone.”
R.6, App. 007 at 4.
Mr. Witzke again violated his probation on September 22,
1999, and, consequently, again was confined in OCJ from
September 24, 1999, until October 5, 1999. Agent Femal’s
methadone detoxification order was enforced during this
second period of imprisonment.
No. 02-2648 3
After his release from OCJ in October 1999, Mr. Witzke
was placed, as an alternative to revocation of probation, in
the Moorings Program Halfway House (“Moorings”) run by
defendant Jim Webb. Agent Femal, under the supervision of
Agent Daniel Benzer, made the decision to permit Mr.
Witzke to participate in the Moorings program as an
alternative to the revocation of probation. Mr. Witzke
accepted this option, signed a voluntary request for admis-
sion to the program and agreed to comply with all of
Moorings’ rules. The record contains few details of this
program. It is apparent that participants in the program are
free to leave during the day but must return by an estab-
lished curfew.
Mr. Witzke’s complaint alleges that Mr. Webb was aware
that, upon admittance, Mr. Witzke was suffering from
methadone withdrawal. Mr. Witzke further alleges that he
was subject to cruel and unusual punishment due to the
program’s failure to address his drug withdrawal needs.
Specifically, Mr. Witzke alleges that Mr. Webb, who was not
a physician, performed a diagnostic medical evaluation and
determined that Mr. Witzke did not need detoxification for
methadone. Accordingly, Mr. Webb removed Mr. Witzke
from medication necessary to control his depression and
anxiety. After ninety days of such deprivation, Mr. Witzke
was sent to a psychiatrist who ordered the continuation of
the prescribed medicines. Mr. Witzke asserts that Agent
Femal and Agent Benzer either knew or should have known
that he was denied treatment and should have prescribed
medications during his stay at Moorings. Mr. Witzke’s
complaint reveals that he remained in the Moorings pro-
gram until March 19, 2000. On that date, Mr. Witzke was
arrested for operating a motor vehicle while intoxicated and
possessing open intoxicants. Two days later, Mr. Witzke
appeared before the court while he was intoxicated. As a
result, Mr. Witzke was incarcerated at Waukesha County
Jail.
4 No. 02-2648
After this series of violations, Mr. Witzke was again
offered an alternate to revocation of his probation. Agent
Femal recommended placing Mr. Witzke in the Racine
Correction Institution (“RCI”) Choice Program. This
program is an intensive nine-month drug and alcohol
program designed to rehabilitate the drug-addicted crimi-
nal. After admitting to violations of his probation, Mr.
Witzke voluntarily requested admission to this program, his
only alternative to revocation of his probation. He agreed to
follow the rules of the program. Mr. Witzke alleges that,
while participating in the Choice Program, he ran out of his
medications and was unable to fill his prescriptions from
August 15, 2000, until September 22, 2000, the date of his
termination from the program.
Mr. Witzke alleges that, when Agents Femal and Benzer
presented the Choice Program as an option, they knew that
the program could not address his mental health problems
and that he would be denied his prescribed medications.
Mr. Witzke further alleges that Gamail Goines, a social
worker involved with the Choice Program, allowed Mr.
Witzke’s medication to “abruptly run out” and did nothing
after Mr. Witzke spoke to him about his medications.
Appellant’s Br. at 7. Mr. Goines terminated Mr. Witzke from
the Choice Program in part because he thought Mr. Witzke
would use his prescribed medications as “an excuse to not
fully participate.” Id. Mr. Witzke next contends that defen-
1
dant “Mr. Alvarez,” the Assistant Unit Manager at RCI,
“played an administrative and supervisory role in the denial
of Witzke’s proper medical care.” Id. Specifically, Mr.
Witzke asserts that Mr. Alvarez placed him in a program
that was not equipped to deal with his mental health illness
1
Mr. Witzke was unable to determine the full names of two
individuals.
No. 02-2648 5
2
and medical conditions. Defendant “Ms. Finley” was a Unit
Manager for the Choice Program and was in a supervisory
role in the diagnosis and evaluation of Mr. Witzke. Mr.
Witzke claims that Ms. Finley refused to allow him to
communicate with her about his medical problems.
In sum, Mr. Witzke alleges that he had been denied his
prescribed medicine for over a month due to the deliberate
indifference of the defendants. He eventually was termi-
nated from the Choice Program and his probation was
revoked formally in November 2000. That decision was
affirmed in December of 2000. Mr. Witzke was then trans-
ferred to the Wisconsin Dodge Correctional Institute.
Mr. Witzke filed his complaint while he was detained in
RCI. See R.1. He currently is confined at the Waupun
Correctional Institution. Mr. Witzke claims deliberate
indifference to his medical needs by each defendant and
seeks damages and declaratory relief.
B. District Court Proceedings
The district court granted the defendants’ motion to
dismiss Mr. Witzke’s complaint for failure to state a claim
upon which relief could be granted. See Fed. R. Civ. P.
12(b)(6). In granting the motion, the district court first
considered the Prison Litigation Reform Act of 1995
(“PLRA”), which provides that “[n]o action shall be brought
with respect to prison conditions . . . by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a).
The district court then noted that the Wisconsin Adminis-
trative Code provides probationers a “client complaint
2
See supra note 1.
6 No. 02-2648
process” by which they can file a complaint and seek
administrative review. R.62 at 5 (citing Wis. Admin. Code §
DOC 328.11). The court explained that probationers may use
this process to review a decision that personally affects
them. The process permits the filing of a complaint with an
agent; the decision of that agent can be reviewed by the
agent’s supervisor. This decision, in turn, can be reviewed
by the administrator whose decision is final.
Noting that the harm had occurred when he was a
probationer, the district court inquired whether the PLRA’s
exhaustion requirement applied to Mr. Witzke. The court
acknowledged that the PLRA concerned actions “with
respect to prison conditions” but also noted that the PLRA
did not specifically define “prison conditions.” The district
court then referred to the definitions of a “civil action with
respect to prison conditions” and “prison” found in 18
U.S.C. § 3626(g)(2) and (5), respectively, to determine if Mr.
Witzke’s situation could be included in those definitions.
The district court noted that Mr. Witzke was on probation
hold or in an alternative to revocation program while at the
OCJ, Moorings and the Choice Program. “Thus,” the court
concluded, Mr. Witzke “was in a state or local facility that
detains adults accused of violations of criminal law. When
plaintiff’s probation was revoked, he was sent to prison.”
R.62 at 7. The district court determined that, under these
conditions, the PLRA’s exhaustion requirement applied to
Mr. Witzke.
Having concluded that the PLRA applied, the district
court noted that the failure to exhaust administrative
remedies was an affirmative defense and was not required
in a complaint. However, Mr. Witzke had stated that the
prison provided grievance procedures, but that he had not
taken advantage of those internal procedures. The court
therefore held that Mr. Witzke had pleaded himself out of
No. 02-2648 7
court and that dismissal for failure to state a claim upon
which relief can be granted was appropriate. In taking this
action, the court rejected Mr. Witzke’s argument that he
should not be required to exhaust these remedies because he
was “never oriented as a prison inmate” and had no “formal
knowledge” of the procedures. R.62 at 9 (quoting Plaintiff’s
Response to Defendants’ Motion to Dismiss).
II
DISCUSSION
A. Standard of Review
We review the district court’s grant of a motion to dismiss
de novo. Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999).
We accept all well-pleaded allegations as true and shall
affirm the dismissal only “if ‘it is clear that no relief could be
granted under any set of facts that could be proved consis-
tent with the allegations.’ ” Id. (quoting Gossmeyer v. McDon-
ald, 128 F.3d 481, 489 (7th Cir. 1997)). “A copy of any written
instrument which is an exhibit to a pleading is a part thereof
for all purposes.” Fed. R. Civ. P. 10(c). Attachments to the
complaint become a part of the complaint, and the court
may consider those documents in ruling on a motion to
dismiss. See Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002).
B. The Prison Litigation Reform Act
“Ordinarily, plaintiffs pursuing civil rights claims under
42 U.S.C. § 1983 need not exhaust administrative remedies
before filing suit in court.” Porter v. Nussle, 534 U.S. 516, 523
(2002). However, in 1996, Congress enacted the PLRA,
which requires that prisoners exhaust all available remedies
8 No. 02-2648
concerning prison conditions prior to bringing a suit under
federal law. See id. at 523; Booth v. Churner, 532 U.S. 731, 739
(2001). In pertinent part, the statute provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a).
We first must determine whether Mr. Witzke’s suit comes
within § 1997e(a)’s exhaustion requirement. He submits that
the statute prohibits only those suits brought (1) by prison-
ers confined in any jail, prison or other correctional facility;
(2) with respect to prison conditions. He further asserts that
his action is not governed by this provision because his
claim involves his treatment as a probationer participating
in rehabilitation programs.
1.
Under the PLRA, a prisoner is defined as “any person
incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary pro-
gram.” 42 U.S.C. § 1997e(h). Whether Mr. Witzke ought to
be considered a prisoner under the PLRA is governed by
our precedent. In determining whether a plaintiff is a
“prisoner confined in jail,” we must look to the status of the
plaintiff at the time he brings his suit. See Kerr v. Pucket, 138
F.3d 321, 323 (7th Cir. 1998); see also Ahmed v. Dragovich, 297
F.3d 201, 210 n.10 (3d Cir. 2002); Harris v. Garner, 216 F.3d
970, 979-80 (11th Cir. 2000) (en banc); Page v. Torrey, 201 F.3d
No. 02-2648 9
1136 (9th Cir. 2000); Greig v. Goord, 169 F.3d 165 (2d Cir.
1999); Doe v. Washington Co., 150 F.3d 920 (8th Cir. 1998). Mr.
Witzke’s probation was revoked formally in December of
3
2000 for violating its terms and conditions. Mr. Witzke filed
his complaint on May 15, 2001. At that time, Mr. Witzke was
4
a prisoner incarcerated at the RCI. Consequently, the
district court properly considered Mr. Witzke a “prisoner
confined in any jail, prison, or other correctional facility” as
defined by the PLRA.
This focus on the status of the plaintiff at the time of the
filing of the action is compatible with the purpose of the
PLRA. We previously have explained that prisoners encoun-
ter a uniquely low opportunity cost relative to the typical
litigant. See Kerr, 138 F.3d at 323. Prisoners often have an
abundance of time, while facing a restricted number of
enjoyable activities with which to pass the time other than
filing federal suits. “Opportunity costs of litigation rise
following release, diminishing the need for special precau-
tions against weak suits.” Id.
3
Mr. Witzke states that his probation was revoked formally on
November 28, 2000, see Appellant’s Br. at 8, but the actual
revocation order states that his probation was revoked effective
December 20, 2000. This difference in date in no way alters the
disposition of the case.
4
Mr. Witzke concedes that “he is currently a prisoner within the
meaning of § 1997e(h).” Appellant’s Br. at 11 n.7 (brief of
appointed counsel). Further, the RCI qualifies as a prison under
the statute. A prison is defined in 18 U.S.C. § 3626(g)(5) as “any
Federal, State, or local facility that incarcerates or detains
juveniles or adults accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law.”
10 No. 02-2648
2.
Mr. Witzke contends that he is not complaining of prison
conditions. Rather, he maintains that the alleged events took
place while he was a probationer participating in probation-
ary programs; therefore, he continues, he is not complaining
about prison conditions but about his treatment while he
was a probationer. Such allegations are, in his view, pre-
incarceration claims.
Section 1997e does not delineate what qualifies as a prison
condition. Accordingly, we have looked to another section
of the PLRA, which defines a similar term. See Smith v.
Zachary, 255 F.3d 446, 448-49 (7th Cir. 2001). Section
3626(g)(2) defines “civil action with respect to prison
conditions” as “any civil proceeding arising under Federal
law with respect to the conditions of confinement or the
effects of actions by government officials on the lives of
persons confined in prison, but does not include habeas
corpus proceedings challenging the fact or duration of
confinement in prison.” 18 U.S.C. § 3626 (g)(2). In consider-
ing this term from another section of the code, we have
noted that
both [statutes] are part of the same legislation with the
same overreaching 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 the
definition provided by Congress in one statute applies
to another related statute.
Smith, 255 F.3d at 449.
In defining the term “prison conditions” as employed in
the PLRA, the judicial focus up to now has been, under-
standably, on other interpretative problems. For instance,
there was a great deal of litigation on whether an action
No. 02-2648 11
based on a single occurrence of violence or excessive force
could be classified as an action with respect to “prison
5
conditions.” The Supreme Court eventually resolved this
issue in Porter v. Nussle, 534 U.S. 516 (2002), by holding that
“the PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general
circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Id. at 532. It is
now clear that even an action based on a single event can be
considered an action with respect to prison conditions.
More relevant to the present situation, it also is clear, that
“complaints about medical treatment in prison are com-
plaints about ‘prison conditions.’ ” Perez v. Wisconsin Dep’t
6
of Corr., 182 F.3d 532, 534 (7th Cir. 1999); see also Wilson v.
Seiter, 501 U.S. 294, 299 n.1 (1991) (noting that “if an individ-
ual prisoner is deprived of needed medical treatment, that
is a condition of his confinement, whether or not the depri-
vation is inflicted upon everyone else”); Christina A. ex rel.
Jennifer A. v. Bloomberg, 315 F.3d 990 (8th Cir. 2003) (noting
that the physical conditions of the environment and the
nature of services provided to prisoners concerned “condi-
tions of confinement”); Jenkins v. Haubert, 179 F.3d 19, 28 (2d
5
See Larkin v. Galloway, 266 F.3d 718, 722-23 (7th Cir. 2001); Smith
v. Zachary, 255 F.3d 446, 448-49 (7th Cir. 2001); Lawrence v. Goord,
238 F.3d 182, 185-86 (2d Cir. 2001), vacated by 535 U.S. 901 (2002);
Booth v. Churner, 206 F.3d 289, 294-96 (3d Cir. 2000), aff’d, 532 U.S.
731, 739 (2001); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir.
1999).
6
In Perez we dealt with the typical situation where a prisoner
brought claims about treatment received during the time he had
been incarcerated in prison. However, Mr. Witzke is complaining
about medical treatment he received in a prison facility, a
halfway house and other conditions while he was on probation.
12 No. 02-2648
Cir. 1999) (“[The term ‘conditions of confinement’] quite
simply encompasses all conditions under which a prisoner
is confined for his term of imprisonment. These include
terms of disciplinary or administrative segregation such as
keeplock or solitary confinement, as well as more general
conditions affecting a prisoner’s quality of life such as: the
revocation of telephone or mail privileges . . . and the
deprivation of exercise, medical care, adequate food and
shelter, and other conditions that, if improperly imposed,
could violate the Constitution.”); Harris v. New York City
Dep’t of Corr., No. 00 CIV. 7164 (NRB), 2001 WL 845448, at *2
(S.D.N.Y., July 25, 2001) (“[A] consensus has clearly devel-
oped that an action alleging deliberate indifference to
medical needs is an action ‘with respect to prison condi-
tions’ that therefore requires administrative exhaustion
under § 1997e(a).”).
With regard to the precise interpretive task before us, the
obvious limit to the plain wording of the term “prison
conditions” is that only complaints relating to conditions
within a prison or correctional facility are subject to the
exhaustion requirements. Conditions unrelated to that
situation cannot be said to be about prison conditions: Only
complaints about the “conditions of confinement,” 18 U.S.C.
§ 3626, in “any jail, prison, or other correctional facility,” 42
U.S.C. § 1997e(a), can be characterized properly as involving
“prison conditions.” See 18 U.S.C. § 3626(g)(2) (defining a
“civil action with respect to prison conditions” as “any civil
proceeding . . . with respect to the conditions of confinement
or the effects of actions by government officials on the lives
of persons confined in prison”); Porter, 534 U.S. at 532
(“[T]he PLRA’s exhaustion requirement applies to all inmate
suits about prison life . . . .”).
Starting from this basic limitation, we must make two
further assessments: (1) whether Mr. Witzke was confined,
No. 02-2648 13
and (2) whether his confinement was in “any jail, prison, or
other correctional facility.” 42 U.S.C. § 1997e(a). Specifically,
to assess whether the conditions are prison conditions, we
must determine whether Mr. Witzke was “confined” in the
Choice Program at RCI and the Moorings program and
whether these facilities fit within the meaning of “any jail,
prison, or other correctional facility.”
We believe that the restrictions imposed by the Moorings
and Choice Programs sufficiently restricted Mr. Witzke to fit
comfortably within the broad term, “confinement,” as
employed in the PLRA. He entered each program only after
admitting to a violation of his probation, an admission that
could have led to a revocation of his probation. Mr. Witzke
was required to enter the facilities and to abide by their
restrictive rules. The Choice and Moorings programs
imposed even more restrictions than the ordinary travel and
job restrictions that typically accompany probation. He not
only had to attend the programs but had to reside at each
facility. For example, in the Choice Program, Mr. Witzke
was confined in a cell with another “inmate” during his
participation there. Mr. Witzke actually received sentence
credit for his “confinement” in the Choice Program. With
regard to the Moorings program, the record indicates that
Mr. Witzke could leave the premises only during the day
but was required to reside inside the Moorings facilities at
night when they would lock the doors. Accordingly, Mr.
Witzke was confined during the time he was required to
attend the intensive rehabilitation program at the RCI and
Moorings. In the ordinary meaning of the term, Mr. Witzke
was confined during the time he was required to attend
each program.
We now turn to the second part of our inquiry, whether
the facilities fit within the definition of “any jail, prison, or
other correctional facility.” 42 U.S.C. § 1997e(a). The PLRA
does not define “any jail, prison, or other correctional
14 No. 02-2648
facility,” but “ ’[j]ail’ is commonly defined as a ‘place for the
lawful confinement of persons’ or a ‘prison.’ ” Alexander S.
v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997) (quoting Web-
ster’s II New Riverside Dictionary 650 (1988)). “Prison” is
defined as “any Federal, State, or local facility that incarcer-
ates or detains juveniles or adults accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law.” 18 U.S.C. § 3626(g)(5). Our colleagues in the
Fourth Circuit have noted that a “ ’[c]orrectional institution’
is a ‘generic term describing prisons, jails, reformatories,
and other places of correction and detention.’ ” Id. (quoting
Black’s Law Dictionary 344 (6th ed. 1990)). Finally, we point
out that, in defining these terms, Congress did not specify
a narrow list of institutions, but rather employed multiple
generic terms to describe the institutions covered. Indeed,
Congress made this phrase even broader when it chose the
expansive word “any” to precede the list. See United States
v. Gonzales, 520 U.S. 1, 5 (1997).
Applying these terms to the Choice Program, it is evident
that the RCI is a facility that detains people convicted of
violations of criminal law. Neither party disputes that the
RCI is a prison and incarcerates those convicted of viola-
tions of criminal law. The Choice Program was located in a
correctional facility, and Mr. Witzke was confined there due
to the conditions of his probation. Accordingly, Mr. Witzke
was subject to § 1997e(a)’s exhaustion requirement for
injuries that he claims occurred during the time he was in
the Choice Program.
We turn now to the Moorings Halfway House program.
In our view, this facility also comes within the definition of
“any jail, prison, or other correctional facility.” Although the
record provides little detail about the Moorings program,
we can ascertain that Moorings provides drug and alcohol
treatment programs and housing for some attendees. We
No. 02-2648 15
must read a statute to give effect to each word so as to avoid
rendering any words meaningless, redundant, or superflu-
ous. See In re Merchants Grain, Inc., 93 F.3d 1347, 1353-54 (7th
Cir. 1996). Restricting the PLRA’s application to persons
confined in jail or prison would render the term “other
correctional facility” superfluous. An intensive drug
rehabilitation halfway house certainly is the type of refor-
matory or “other correctional facility” that was intended by
that term. A contrary reading would render the term only
surplusage.
Applying the PLRA to Mr. Witzke for injuries while he
was in these facilities gives effect to the manifest intent of
the PLRA. The PLRA was enacted not only to limit frivolous
suits but also to permit the correctional facilities to address
the problem before responding to litigation. See Porter, 534
U.S. at 525 (“Congress afforded corrections officials time
and opportunity to address complaints internally before
allowing the initiation of a federal case.”). Congress’ choice
of broad language makes clear that it intended that a wide
variety of institutions be afforded the opportunity to
address the problems presented in inmate complaints before
the initiation of a federal lawsuit. The fact that the plaintiff
is confined in the program as a probationer does not render
an initial review by correctional officials any less valuable
for correcting potential problems in a facility. Similarly, the
fact that the injuries occurred while the plaintiff was a
probationer does not make the development of an internal
record any less helpful in filtering out frivolous claims.
Moreover, requiring such exhaustion to probationers works
no inequity on the probationers.
3.
Mr. Witzke next claims that the only administrative
remedies potentially available while he was a probationer
16 No. 02-2648
were the Wisconsin probation department’s “client com-
plaint process.” See Wis. Admin. Code § DOC 328.11. He
further contends that when his probation was revoked he
became a prisoner and lost the right to use any remedies
provided to probationers.
The district court deemed fatal Mr. Witzke’s admission
that a grievance procedure existed and that he had not filed
a grievance. The court noted that Mr. Witzke had admitted
that the prison grievance process “may have been a possible
remedy in restraining defendants from further acts of
indifference.” R.62 at 9 (quoting Plaintiff’s Response to
Defendant’s Motion to Dismiss at 2 ¶ 2). It further noted
that he also had said that he was discouraged from making
complaints and that he had no “formal knowledge” of the
complaint process. Id.
This single statement by a pro se plaintiff cannot, in the
context before us, be characterized as an admission suffi-
cient to justify dismissal. Although Mr. Witzke did admit
that there was a prison grievance procedure and that there
“may have been a possible remedy,” Mr. Witzke also stated
that “he exhausted the only administrative remedies that
were available to him as a probationer sent into a prison
setting” as an alternative to revocation of his probation. R.47
at 2. He explained that “[a]s an ATR [Alternative to Revoca-
tion of probation] participant the prison grievance process
was not available to him . . . because he was not actually a
prisoner, but doing a program in a prison setting.” R.52 at
1.
Under these circumstances, instead of dismissing the
complaint at this early stage, the better course would have
been for the trial court to give the pro se litigant a more
complete opportunity to demonstrate whether any adminis-
trative remedy was available. See Kincaid v. Vail, 969 F.2d
594, 598 (7th Cir. 1992) (“Allegations in pro se pleadings are
No. 02-2648 17
to be construed liberally, applying substantially less strin-
gent standards than those applied to pleadings drafted by
professional counsel.”). This issue is best addressed in the
first instance by the district court.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed in part, reversed in part and remanded.
Mr. Witzke may recover his costs in this court.
AFFIRMED in part; REVERSED
and REMANDED in part
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-22-04