Syris Birkley v. Liam Nitz

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 17, 2025 *
Decided July 17, 2025
Before
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-2176
SYRIS BIRKLEY,
Plaintiff-Appellant,
v.
LIAM NITZ, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 23-cv-110-pp
Pamela Pepper,
Chief Judge.
O R D E R
Syris Birkley, a Wisconsin pretrial detainee, appeals the summary judgment
entered against him for failing to exhaust his administrative remedies before filing this
suit, as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Because
Birkley did not present evidence that rebuts the defendants’ exhaustion defense, we
affirm.
* We have agreed to decide the case without oral argument because the briefs and record
adequately present the facts and legal arguments, and oral argument would not significantly aid the
court. FED . R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-2176 Page 2
We construe the facts and draw all reasonable inferences in favor of Birkley, the
nonmoving party. Williams v. Ortiz, 937 F.3d 936, 941 (7th Cir. 2019). Birkley maintains
that he was falsely accused of spitting on a corrections officer’s face in December 2019.
At his disciplinary hearing, Birkley says, the presiding officers denied him the
opportunity to be heard or to present witnesses, and they predetermined the outcome.
Birkley submitted grievances respectively in September, October, November,
and December 2020. All four grievances were denied.† He did not appeal the September
or October decisions. Birkley appealed the November denial, but the reviewing officer
denied the appeal because Birkley directed his allegations against the wrong officer.
Birkley also appealed the December denial, but this appeal too was denied because he
disregarded a directive to supply supporting information. For these latter two rulings,
Birkley did not take the necessary next step of appealing to the jail commander.
Birkley then filed this lawsuit alleging, as relevant here, that two officers
deprived him of due process at his disciplinary hearing. The defendants later moved for
summary judgment on the ground that Birkley had failed to exhaust administrative
remedies. The district court agreed with the defendants, rejecting Birkley’s argument
that the grievance process was unavailable to him.
On appeal, Birkley argues that the district court overlooked evidence showing
that prison administrators ignored his complaints—in effect rendering unavailable to
him any administrative remedies. We review de novo the grant of summary judgment
based on a failure to exhaust. Williams, 937 F.3d at 941.
To properly exhaust administrative requirements under the Prison Litigation
Reform Act, a prisoner must complete every step of the prison’s grievance process.
42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81,
93 (2006). But exhaustion is not required when there is no “available” remedy, 42 U.S.C.
§ 1997e(a), such as when (1) the system is so opaque that no ordinary prisoner can
discern or navigate it; (2) prison staff actively thwart prisoners from taking advantage
of a grievance process; or (3) the procedures are a guaranteed “dead end.” Ross v. Blake,
578 U.S. 632, 642–44 (2016).
† The handbook at the Milwaukee County Jail defines the relevant grievance process, see W IS .
A DMIN . CODE DOC § 350.26, which essentially has three steps: (1) place a completed, written grievance
form into one of several grievance boxes or hand it to an officer; (2) submit an appeal with supporting
documents to the lieutenant; and (3) submit a second appeal and any new evidence to the commander or
their designee. (Doc. 22.9, Inmate Handbook, at 3.) The commander’s decision is the last step in
completing the grievance process.

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No. 24-2176 Page 3
Birkley did not exhaust his available remedies. The record shows that he did not
take the necessary final step of appealing to the commander any of his four grievances.
He asserts—without pointing to anything in the record in support—that administrative
remedies were not available to him because administrators were unwilling to hear his
complaints. But the record shows that Birkley refused to speak with a corrections officer
who tried to ask him for more information about the December grievance. And he cites
no evidence to show that the process was a “dead end” or that he had to contend with
unknowable procedures or intentional obstruction. See Ross, 578 U.S. at 643–44.
In his reply brief Birkley argues for the first time that (1) the handbook’s
language requiring a second appeal was ambiguous, and (2) jail staff either did not
provide him with a handbook or incorrectly told him that a second appeal was
unnecessary. But he waived these arguments by not presenting them in his opening
brief. See Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir. 2023).
Lastly, we have considered Birkley’s remaining arguments (e.g., that exhaustion
is not required), but none is sufficiently developed to permit review. See FED. R. A PP.
P. 28(a)(8); Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001).
AFFIRMED

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