FLETCHER v. MENARD CORRECTIONAL CENTER
623 F.3d 1171 (2010)
Anthony L. FLETCHER, Plaintiff-Appellant,
MENARD CORRECTIONAL CENTER, Warden of Security Operations, et al., Defendants-Appellees.
United States Court of Appeals, Seventh Circuit.
Submitted September 8, 2010.
Decided October 28, 2010.
Before BAUER, POSNER and WOOD, Circuit Judges.
POSNER, Circuit Judge.
Anthony Fletcher, an Illinois state prisoner, brought this civil rights suit against prison employees who he claims violated his federal constitutional rights by using excessive force to restrain him and by recklessly disregarding his need for medical attention. His complaint charges that while transferring him on June 29, 2008, from one cell to another prison guards used excessive force to restrain and move him and that as a result he suffered "severe injury and pain to wrists, arms, feet, neck, shoulders, and back." For two days, the complaint continues, he was denied medical treatment for his injuries and for asthma, eczema, and diabetes, and as a result he suffered from "diabetic pain" and asthmatic attacks.
Because he had three "strikes" against him (that is, earlier prisoner suits filed by him that had been dismissed as being frivolous or malicious or failing to state a claim), he could not proceed in the district court in forma pauperis (which would have excused him from having to pay the filing fee up front rather than in installments, 28 U.S.C. § 1915(b)) unless he was "under imminent danger of serious physical injury." § 1915(g). The district court ruled that he didn't come within this exception to the three-strikes rule; and so, because he hadn't paid the filing fee, dismissed the complaint, precipitating this appeal. The district court refused to certify that the appeal was taken in good faith, § 1915(a)(3), but a motions panel of this court, disagreeing, authorized Fletcher to appeal in forma pauperis. Fed. R.App. P. 24(a)(5).
He had the bad luck to have appeared before the same district judge in one of his earlier suits, which was against employees of the county jail in which he had been held before being transferred to Menard. That suit had accused the jail's staff of denying him medicine for his asthma and failing to monitor his diabetes. The defendants had responded by submitting his medical record with their motion for summary judgment and it showed that he had neither asthma nor diabetes. The judge granted the motion for summary judgment, Fletcher v. Deathridge, No.
1:07-cv-1231, 2009 WL 2566971 (C.D.Ill. Aug. 17, 2009), and Fletcher had not appealed. We can take judicial notice of prior proceedings in a case involving the same litigant. Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361-62 (10th Cir.2008); Guaranty Bank v. Chubb Corp., 538 F.3d 587, 591 (7th Cir.2008); Campbell v. Clarke, 481 F.3d 967, 968-69 (7th Cir. 2007); St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979). The judge ruled similarly in the present case that Fletcher had not been in imminent danger of serious physical injury when he sued, and therefore he could not litigate in forma pauperis.
But the judge's reasoning was incomplete because it ignored the alleged beating. Although the beating (if there was a beating) occurred before Fletcher sued, an untreated wound, like an untreated acute illness, could pose an imminent danger of serious physical harm. Ciarpaglini v. Saini, 352 F.3d 328, 329-31 (7th Cir.2003); Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C.Cir.2006); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004); McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir.2002). Interpreted generously, this is what his pro se complaint alleges. There is an alternative ground on which the dismissal of this suit must be affirmed, however: failure to exhaust administrative remedies. Exhaustion is explicitly required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 523-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), and there is no exception for prisoners who allege "imminent danger" in order to be excused from having to pay the entire filing fee at the time the suit is brought. McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir.2004) (per curiam). Imminent danger excuses only that, and not the duty to exhaust as well. Id. Even so, if there are no administrative remedies, then of course there's nothing to exhaust. And we think it's also true that there is no duty to exhaust, in a situation of imminent danger, if there are no administrative remedies for warding off such a danger. Although there is no "futility" exception to a prisoner's duty to exhaust, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Dixon v. Page, 291 F.3d 485, 488 (7th Cir.2002), futility is not the same as unavailability. Massey v. Helman, 196 F.3d 727, 733 (7th Cir.1999). If a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can't be thought available. See Thornton v. Snyder, 428 F.3d 690, 695-96 (7th Cir.2005); Dixon v. Page, supra, 291 F.3d at 491; Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir.2008); Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir.2003). Suppose the prison requires that its officials be allowed two weeks to respond to any prisoner grievance and that before the two weeks are up there can be no action taken to resolve it. An administrative remedy could not be thought available to a prisoner whose grievance was that he had been told that members of the Aryan Brotherhood were planning to kill him within the next 24 hours and the guards were refusing to take the threat seriously. Cf. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (per curiam).