Eugene Westmoreland v. Latoya Hughes

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2153
EUGENE WESTMORELAND,
Plaintiff-Appellant,
v.
LATOYA HUGHES ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:23-cv-14044 — John J. Tharp, Jr., Judge.
____________________
A RGUED A PRIL 16, 2025 — DECIDED J ULY 17, 2025
____________________
Before S YKES , Chief Judge, and S T. EVE and JACKSON -
A KIWUMI , Circuit Judges.
JACKSON -A KIWUMI , Circuit Judge. Eugene Westmoreland is
an Illinois inmate who uses a wheelchair. He knew that he
was headed to a prison transfer facility which had showers he
would not be able to access. He filed this putative class action
asking only for prospective relief: that the showers be made
accessible.

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2 No. 24-2153
Westmoreland’s suit faces two major hurdles. One, he
filed suit without first complaining about the showers
through the prison’s internal grievance process as required by
the Prison Litigation Reform Act (PLRA). Two, he lost his per-
sonal stake in this litigation when, six weeks after filing suit,
he was moved from the facility with inaccessible showers to
a prison with accessible showers.
The district court found this second hurdle—West-
moreland’s transfer—made his personal claim moot. And the
court determined no exception to mootness applied that
could save the class action because of the first hurdle: West-
moreland was uniquely subject to an attack by the defense
that he had not filed an internal grievance as required, mak-
ing him an inadequate class representative according to the
law. We agree with the district court’s analysis in full. So we
affirm.
I
In 2023, Westmoreland was sentenced to custody in the Il-
linois Department of Corrections (IDOC). The sentence meant
an imminent transfer from the county jail housing him to a
processing center for new arrivals to the IDOC—the Northern
Reception and Classification Center (NRC). At the NRC, in-
mates undergo a series of medical and security assessments
before receiving a permanent prison placement. The NRC has
two shower stalls in each housing unit. An expert hired by
Westmoreland found that the shower stalls are inaccessible to
individuals using a wheelchair, crutch, or cane because they
lack a seat, are too narrow, and have a half inch lip to enter
and exit.

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No. 24-2153 3
Westmoreland was cognizant of the problem ahead. So,
while awaiting transfer to the NRC, he sued the acting direc-
tor of the IDOC, Latoya Hughes, in her official capacity. West-
moreland’s suit brought a claim under the Americans with
Disabilities Act and the Rehabilitation Act for failing to pro-
vide accessible showers at the NRC. He sought injunctive and
declaratory relief, and to represent a class of similarly situated
individuals who have a prescribed mobility aid and are, or
will be, held at the NRC. Two days after Westmoreland filed
suit, he was moved to the NRC as anticipated. Then, 42 days
after Westmoreland arrived at the NRC, he was transferred to
his permanent placement at Taylorville Correctional Center.
Given that Westmoreland was no longer housed at the
NRC, Hughes moved to dismiss the suit, as relevant here, for
lack of subject matter jurisdiction. The district court granted
the motion. The court reasoned that it lacked jurisdiction be-
cause Westmoreland’s claim for injunctive and declaratory
relief had become moot, and no exception to mootness ap-
plied. Westmoreland now appeals.
II
Article III of the Constitution limits our jurisdiction to ac-
tual cases and controversies. Murthy v. Missouri, 603 U.S. 43,
56 (2024). “[C]ases that do not involve actual, ongoing contro-
versies are moot and must be dismissed for lack of jurisdic-
tion.” Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 490–91
(7th Cir. 2004) (cleaned). The rule applies throughout the liti-
gation, meaning “[i]f an intervening circumstance deprives
the plaintiff of a personal stake in the outcome of the lawsuit,
at any point during litigation, the action can no longer pro-
ceed and must be dismissed as moot.” Genesis Healthcare Corp.
v. Symczyk, 569 U.S. 66, 72 (2013) (cleaned). Mootness is a

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4 No. 24-2153
question of law that we review de novo. Olson v. Brown, 594
F.3d 577, 580 (7th Cir. 2010).
Because Westmoreland only sought prospective relief and
was transferred out of the NRC, his claim is moot unless
saved by an exception. Westmoreland acknowledges that
both his individual and class claims are moot but argues that
his class claim is revived by an exception to mootness—the
inherently transitory exception—which we return to below.
But first, although Westmoreland argues only for the in-
herently transitory exception, we, like the district court, also
considered a different doctrine that would render his claim
not moot: the capable-of-repetition-but-evading-review doc-
trine. Like the district court, we find it inapplicable because
there is no indication that Westmoreland will be returned to
the NRC. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (ex-
plaining the application of the doctrine).
Returning to the mootness exception at issue here: West-
moreland is correct that otherwise moot class claims can be
saved by the inherently transitory exception. U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 399–400 (1980). The excep-
tion applies where “(1) it is uncertain that a claim will remain
live for any individual who could be named as a plaintiff long
enough for a court to certify the class; and (2) there will be a
constant class of persons suffering the deprivation com-
plained of in the complaint.” Olson, 594 F.3d at 581.
But, there must be a possible class action to take advantage
of the exception. And a class action requires an adequate class
representative, who has claims and defenses typical of the
class. Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 373 (7th Cir.
2015) (citing Fed. R. Civ. P. 23(a)). “Where it is predictable that

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No. 24-2153 5
a major focus of the litigation will be on an arguable defense
unique to the named plaintiff … then the named plaintiff is
not a proper class representative.” Koos v. First Nat. Bank of
Peoria, 496 F.2d 1162, 1164 (7th Cir. 1974). So, the question be-
comes: Is Westmoreland subject to a strong defense that
makes him an inadequate class representative? We look to the
PLRA for the answer.
Congress enacted the PLRA to curb the rise in prisoner lit-
igation in the 1990s. The statute includes a strong exhaustion
provision. 42 U.S.C. § 1997e(a). Before filing in federal court,
prisoners must exhaust all available administrative remedies
for all claims, Porter v. Nussle, 534 U.S. 516 (2002), even where
the administrative process cannot grant the relief requested,
Booth v. Churner, 532 U.S. 731, 734 (2001). The Supreme Court
has “reject[ed] every attempt to deviate … from [the PLRA’s]
textual mandate.” Ross v. Blake, 578 U.S. 632, 640–41 (2016).
But the text has embedded flexibility: prisoners “must ex-
haust available remedies, but need not exhaust unavailable
ones.” Id. at 642. An administrative process that is “a simple
dead end” or “incapable of use” is “unavailable” under the
statute. Id. at 643–44.
The IDOC has established procedures for a prisoner to
complain about conditions. A complaint about the correc-
tional facility where the prisoner is housed must be submitted
to that facility. Ill. Admin. Code tit. 20, § 504.810(a). A com-
plaint about any other facility must be submitted directly to
the Administrative Review Board. Id. § 504.870(a)(4). West-
moreland’s argument, that the administrative grievances pro-
cedure was unavailable because he could not file a grievance
with the NRC before being transferred there, is foreclosed by
Woodford v. Ngo, 548 U.S. 81 (2006). In Woodford, the Court

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6 No. 24-2153
rejected the argument that availability under the PLRA
turned on administrative remedies presently available. Id. at
100. The prisoner in Woodford filed a grievance too late and
was then barred from filing the grievance at all, which he ar-
gued made the grievance process unavailable to him. Id. at
87–88. The Court held that because the prisoner failed to com-
ply with the timing requirements of the grievance process, he
failed to exhaust and could not maintain a federal suit. Id. at
93. The Court explained that adopting the prisoner’s position
would allow “a party to bypass deliberately the administra-
tive process by flouting the agency’s procedural rules,” which
cannot have been Congress’s intent in mandating exhaustion
under the PLRA. Id. at 97; see also Kaba v. Stepp, 458 F.3d 678,
684 (7th Cir. 2006) (“[W]hen the prisoner causes the unavaila-
bility of the grievance process by simply not filing a grievance
in a timely manner, the process is not unavailable but rather
forfeited.”).
The same logic applies here. Westmoreland argues the
grievance process was unavailable to him because he could
not file a complaint before being transferred to the NRC. In
the same way that deliberately filing late would bypass the
established process, deliberately filing early would be a loop-
hole to the strict exhaustion requirement. And practically, it
would subvert the PLRA since prisoners could bypass the ex-
haustion requirement by filing a lawsuit before experiencing
conditions about which they would file a grievance. Because
the administrative complaint process was not unavailable un-
der the PLRA, Westmoreland was required to exhaust the
process before filing this suit. 42 U.S.C. § 1997e(a). His failure
to do so means that he, at the very least, is subject to a strong
exhaustion defense for having failed to file a grievance.

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No. 24-2153 7
Westmoreland’s additional arguments that the NRC
grievance process was unavailable to him are unavailing. He
argues that prison officials have a duty to inform individuals
of the grievance process before individuals reach a prison but
points to no authority for this proposition. He also argues that
the district court was wrong to dismiss his suit for failure to
exhaust, but the district court did not—it dismissed due to
mootness. In district court, Hughes’s argument that West-
moreland failed to exhaust was a stand-alone affirmative de-
fense and relevant to the mootness analysis. But since the dis-
trict court only reached the mootness question, the court con-
sidered only if Westmoreland was subject to strong exhaus-
tion defense. In other words, the prospect that Hughes would
mount an affirmative defense based on Westmoreland’s fail-
ure to exhaust was an important part of the mootness analy-
sis, but exhaustion itself was not the grounds for dismissal.
Westmoreland’s misunderstanding of the district court’s de-
cision spoils his remaining arguments, which focus not on
mootness but on Hughes’s burden to prove an affirmative de-
fense.
Because Westmoreland is likely subject to a strong exhaus-
tion defense, he is an inadequate class representative.
Koos, 496 F.2d at 1164. Westmoreland does not appear to con-
test that if subject to a strong exhaustion defense, he cannot
bring a class claim and he does not allege that another ade-
quate class representative exists. (We assume that only one
member of the class action would need to exhaust under the
PLRA. See, e.g., Meisberger v. Donahue, 245 F.R.D. 627, 629 (S.D.
Ind. 2007) (collecting cases).) As such, this suit cannot be cer-
tified as a class action. Without a possible class action, West-
moreland cannot save his class claim via the inherently tran-
sitory exception and this suit is moot. See Trotter v. Klincar, 748

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8 No. 24-2153
F.2d 1177, 1183 (7th Cir. 1984) (explaining the exception al-
lows a certified class to preserve a cognizable interest that ex-
isted at the time of filing).
* * *
We pause to acknowledge that—between the PLRA and
the limits of our subject matter jurisdiction—this type of suit
faces difficult procedural hurdles. Because the median stay at
the NRC is just 24 days, the average prisoner would need to
exhaust or show the grievance process’s unavailability and
file suit in under a month before risking mootness. That is no
easy task. Westmoreland was unable to thread that needle
here, leaving us unable to reach the merits of his claim.
III
Without the inherently transitory exception to mootness,
Westmoreland cannot resurrect his moot claim. Accordingly,
we AFFIRM.

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