Daniel A. Schillinger v. Josh Kiley

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. F ED. R. A PP . P. 34(a)(2)(A).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 3 --

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

-- 2 of 3 --

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

-- 3 of 3 --