In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-2568

JAMES R. S CHULTZ,
                                             Plaintiff-Appellant,
                               v.

JEFFREY A. P UGH, et al.,
                                           Defendants-Appellees.


           Appeal from the United States District Court
                for the Western District of Wisconsin.
          No. 3:10-cv-00581-bbc—Barbara B. Crabb, Judge.



       S UBMITTED JUNE 26, 2013—D ECIDED JULY 23, 2013




  Before P OSNER, F LAUM, and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. The plaintiff, an inmate at a
Wisconsin state prison, filed this suit under 42 U.S.C.
§ 1983 claiming that prison officials had retaliated
against him for speaking up about an assault that he
alleged had been made upon him by two prison guards.
The retaliation took the form of placing him in segrega-
tion and forbidding him to discuss the alleged as-
sault. The defendants moved to dismiss the suit on the
2                                                   No. 12-2568

ground that he had failed to exhaust his administrative
remedies, by not filing a grievance that conformed to
the prison’s rules. His response (not his only response,
but the only one with sufficient plausibility to be worth
discussing) was that he interpreted the prohibition
against speaking about the alleged assault to extend to
the filing of a grievance, and as a result was afraid to file it.
   The duty to exhaust administrative remedies as a pre-
condition to suing under section 1983 is limited to those
remedies that are “available,” 42 U.S.C. § 1997e(a), and as
we pointed out in Fletcher v. Menard Correctional Center,

, 1173 (7th Cir. 2010), a remedy must, to
be “available,” be available in fact and not merely in
form. See Hurst v. Hantke, 

, 411-12 (7th Cir.
2011); Dillon v. Rogers, 

, 267 (5th Cir. 2010);
Bryant v. Rich, 

, 1373 n. 6 (11th Cir. 2008). A
remedy is not available, therefore, to a prisoner pre-
vented by threats or other intimidation by prison
personnel from seeking an administrative remedy by
filing a grievance in the prescribed form and within
the prescribed deadline. Kaba v. Stepp, 

, 685-
86 (7th Cir. 2006); Tuckel v. Grover, 

, 1252-53
(10th Cir. 2011); Turner v. Burnside, 

, 1084-85
(11th Cir. 2008); Macias v. Zenk, 

, 45 (2d
Cir. 2007). But because the pertinent regulation of the
Wisconsin prison system limits the offense of making
false statements to prison staff to statements made
“outside the complaint review system,” Wis. Admin.
Code § DOC 303.271, the plaintiff had no reason to
fear that his filing a grievance (the complaint to which
the regulation refers) about alleged retaliation for
No. 12-2568                                                3

speaking up about the alleged assault would be pun-
ished. The grievance route was open to him.
  He argues that he was deterred from filing the
grievance by “fear of reprisal.” But he has presented no
evidence to substantiate the claim, though invited to do
so by the district judge before the judge ruled on, and
granted, the defendants’ motion for summary judgment.
Without some specification of what the plaintiff’s fear
was based on, the defendants could not prepare a
response; and so the grant of summary judgment was
proper. Ricci v. DiStefano, 

, 586 (2009).
  But in the course of our research for this case we dis-
covered that the law governing unavailability of prison
remedies on grounds of intimidation is in some disar-
ray. The case law distinguishes between “objective” and
“subjective” availability, and although the different
standards are reasonably well specified it is unclear
whether the prisoner should be required to satisfy both
in every case.
   The “objective” standard, which predominates in the
case law, requires the plaintiff to show that a person of
“ordinary firmness” would have been deterred from
filing a grievance. E.g., Hemphill v. New York, 

, 688 (2d Cir. 2004). The “subjective” standard requires
the plaintiff to show that he was in fact deterred. E.g.,
Turner v. 

, 541 F.3d at 1085. Cases that
embrace the subjective standard add it to the objective
one rather than substituting it, e.g., id.; Tuckel v. 

, 660 F.3d at 1254, with the result that the plaintiff
must show both that a person of ordinary firmness would
4                                                No. 12-2568

be deterred and that he himself was deterred. The addi-
tional test catches the person of more than ordinary
firmness who, not having in fact been deterred, has no
excuse for failing to exhaust administrative remedies;
he was not a victim of intimidation, but only of an
attempt at intimidation that failed.
   The objective standard appears to have originated
in cases in which the issue was not exhaustion of adminis-
trative remedies but whether some wrongful act of
prison personnel had inflicted a compensable injury on
the prisoner plaintiff. See, e.g., Davis v. Goord, 

, 353 (2d Cir. 2003), cited in Hemphill v. New 

,
380 F.3d at 688. In such cases the courts rightly require
that the injury be more than de minimis, that is, more
than trivial; and if a person of “ordinary firmness” would
consider the injury trivial, this can be used as a bench-
mark for whether the particular plaintiff sustained no
more than a trivial injury that the law should ignore.
See, e.g., Bart v. Telford, 

, 625 (7th Cir. 1982);
Hill v. Lappin, 

, 472-73 (6th Cir. 2010); Morris
v. Powell, 

, 685-86 (5th Cir. 2006); Davis v.

, 320 F.3d at 353; Bennett v. Hendrix, 

, 1250-52 (11th Cir. 2005). It is a crude bench-
mark, however, because the plaintiff may be of unusual
susceptibility—what in ordinary tort law is called an
“eggshell skull” tort victim. The common law allows
such a tort victim to recover his full damages even if the
average person, which is to say a person of “ordinary
firmness,” would have sustained no significant injury
from the defendant’s tort. E.g., Stoleson v. United States,

, 1221-22 (7th Cir. 1983). One imagines
No. 12-2568                                               5

there are “eggshell skull” prisoners, and the question
arises why they can’t recover their actual damages
caused by violations of their federal rights by prison
personnel, or, in a case like this, be excused for having
failed to file a grievance that the average person
would realize was available but that an especially
fearful or anxious or mentally limited prisoner would not.
   The objection to such an approach is that idiosyncratic
claims are difficult to verify unless, as in the most
common kind of eggshell-skull case, the claimant has a
readily diagnosable physical impairment. A prisoner
plaintiff who had failed to file a grievance could
always insist that his failure was attributable to a
mental problem that had caused him to exaggerate the
likelihood that he would be punished if he did file a
grievance. And then the issue of exhaustion, meant to
be preliminary to the determination of the plaintiff’s
constitutional tort claim, would require for its resolution
significant factfinding even before the trial on the mer-
its—factfinding that would have to be duplicated
if the case went to trial and retaliation were the constitu-
tional tort alleged as well as the excuse tendered for
failing to file a grievance in advance of suit. Cf. Pavey v.
Conley, 

, 742 (7th Cir. 2008). Expert testi-
mony by psychologists or psychiatrists might be re-
quired. That would complicate and extend the evi-
dentiary hearing required whenever there was a
genuine factual dispute over whether the plaintiff had
exhausted his prison remedies.
  What the cases have not considered, however, is a
situation in which prison personnel, sensing atypical
6                                               No. 12-2568

cognitive or psychological infirmities of the prisoner
plaintiff, deliberately exploit these infirmities to deter
him from filing a grievance. That would be the kind of
misconduct that the doctrine of equitable estoppel
makes a defense to a variety of claims and defenses,
most commonly a statute of limitations defense. See, e.g.,
Arteaga v. United States, 

, 833 (7th Cir. 2013).
In Kaba v. 

, 458 F.3d at 686-87, we left open
the possibility that equitable estoppel might be a
defense to failure to exhaust prison remedies. We
need not decide; the present case is remote from that
hypothetical situation.
                                                 A FFIRMED.




                           7-23-13