Peter Gakuba v. Karin Pannier

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2022*
Decided June 1, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1961
PETER GAKUBA,
Plaintiff-Appellant,
v.
KARIN PANNIER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 19-cv-1274-NJR
Nancy J. Rosenstengel,
Chief Judge.
O R D E R
Peter Gakuba, a former prisoner at the Vienna Correctional Center, appeals the
entry of summary judgment on his claim that he was denied access to the facility’s law
library, in violation of his constitutional rights. The district court concluded that he
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-1961 Page 2
failed to timely exhaust his administrative remedies before bringing this suit. We
affirm.
On October 4, 2019, Gakuba sued a prison law librarian, Karin Pannier, and
many other prison officials for constitutional violations during his time in custody,
including restrictions on his access to the law library. The district court screened
Gakuba’s complaint, 28 U.S.C. § 1915A; determined that he had improperly joined
several claims and defendants; and severed the complaint into four actions, one of
which is the subject of this appeal. On December 30, 2019, Gakuba amended his
complaint, alleging among other things that Pannier had truncated his access to the
library, to the library’s photocopy machine, and to the internet to conduct legal
research. The court allowed Gakuba to proceed on his claim that Pannier interfered
with his access to the courts by limiting his access to the law library and legal materials.
The defendants moved for summary judgment on grounds that Gakuba failed to
exhaust his administrative remedies before filing this suit. The defendants attached
documents relating to Gakuba’s grievance history, which, they maintained, showed that
he had not properly exhausted any of his three grievances related to his library access
before filing this suit:
1. On September 16, Gakuba submitted an emergency grievance
complaining of inadequate time in the law library. The prison’s chief
administrative officer determined that the grievance was not an
emergency. Gakuba resubmitted the grievance as a non-emergency
grievance, and a grievance officer denied the grievance as moot
(according to the officer, Gakuba had since been placed on a list granting
him priority access to the law library). On October 31, the Administrative
Review Board denied Gakuba’s appeal, stating that what Gakuba had
filed was “a request,” that the request should be directed to prison staff,
and that Gakuba was not being denied access to the law library.
2. On October 2, Gakuba filed his second grievance alleging that he
did not have access to the library or the courts. On January 6, 2020, the
Board denied it as baseless.
3. On October 16, Gakuba filed his third grievance, which
concerned his inability to adequately access online legal resources for four
years (2015 to January 2019), causing, he says, a petition for habeas corpus
relief of his to be denied. On October 31, the Board rejected the grievance

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No. 21-1961 Page 3
as untimely because it was not filed within 60 days of when he claimed he
was denied access to the online legal resources.
The district court granted Pannier’s motion for summary judgment because
Gakuba failed to exhaust his administrative remedies. For two of the grievances—those
of September 16 and October 16—the court found these had not been properly
exhausted because they were returned to him because of procedural deficiencies and
not decided on the merits. The court then proceeded to explain that, even if it assumed
that Gakuba exhausted his administrative remedies with regard to each of the three
grievances, exhaustion would have been untimely because it occurred after he filed his
original complaint on October 4.
On appeal, Gakuba challenges the court’s exhaustion analysis by arguing that the
court applied the wrong filing date. He contends that October 4, 2019, the date he filed
his original complaint, was the wrong date. Rather, the court should have relied on the
date he filed his complaint in his severed case, December 30, 2019. Had the court used
the later date, he argues, all his grievances would be deemed properly exhausted.
The district court was correct to adhere to the date that Gakuba filed his original
complaint—October 4. Under the Prison Litigation Reform Act, prisoners must exhaust
available administrative remedies before bringing suit. 42 U.S.C. § 1997e(a) (“No action
shall be brought with respect to prison conditions … until such administrative remedies
as are available are exhausted.”); Ford v. Johnson, 362 F.3d 395, 398–400 (7th Cir. 2004).
“[A] ‘sue first, exhaust later’ approach is not acceptable.” Chambers v. Sood, 956 F.3d 979,
984 (7th Cir. 2020). A premature suit must be dismissed without prejudice, and a
prisoner must file a new suit after he has fully exhausted administrative remedies. Id.
Because Gakuba did not exhaust his administrative remedies before bringing this
lawsuit, the district court properly granted summary judgment to the defendants.
Gakuba next argues that the district court should not have ruled on exhaustion
without first holding a Pavey hearing to assess the availability of administrative
remedies. But a Pavey hearing is necessary only to resolve factual disputes material to
the exhaustion issue. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). No such hearing
was required because the ruling relied on undisputed facts—the date when Gakuba
filed his original complaint and his failure to exhaust his administrative remedies before
that date.
Gakuba also argues that the district court did not understand that administrative
remedies were unavailable to him with regard to his September 16 grievance. Because

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No. 21-1961 Page 4
the Administrative Review Board construed that grievance as merely a “request,” he
maintains that his attempt to proceed with the grievance process was doomed and that
he should be excused from pursuing further administrative remedies. But here, “the
prison offered a complaint process, which [the prisoner] used, plus an appeal, which
[the prisoner] took. How can it be that administrative procedures actually used … were
‘unavailable’?” Ford, 362 F.3d at 400. Even if we assume that Gakuba could not obtain
his desired remedy through the grievance process, he still was required to exhaust the
process before bringing his suit. See Booth v. Churner, 532 U.S. 731, 738, 741 (2001);
Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir. 2008).
AFFIRMED

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