Benjamin v. Ward County (93 F. Supp. 3d 1106, 2015)

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

CHARLES S. MILLER, JR., United States Magistrate Judge.

Before the court is a renewed motion for summary judgment- by Ward County and nominally “John Doe.” (Doc. No. 92). For reasons discussed later, the court will treat this action as being against Ward County only, and the renewed motion for summary judgment mil be granted. Unless otherwise indicated, the facts relied upon by the court are either undisputed, have not been sufficiently controverted, or favor Benjamin.

I. BACKGROUND

A. Procedural background

Benjamin initiated this action by filing a pro se complaint against Ward County and “John Doe,” in his individual and official capacity, alleging violations of the Eighth and Fourteenth Amendments with respect to his treatment while a pretrial detainee in the Ward County Jail during which he became infected with the MRSA virus. (Doc. No. 8). Initially, the court denied Benjamin’s request for a court-appointed attorney. However, after an initial motion for summary judgment was filed, the court reconsidered and appointed counsel. • (Doc. No. 79). The court then held a telephonic conference with the parties and established new deadlines for completion of discovery, pretrial motions, and the filing of any new or renewed dispositive motions. (Doc. Nos. 87 & 89). Also, at the same time, the court denied without prejudice the blizzard of motions that had been filed by Benjamin and .indicated in its order that new motions could be filed by counsel after separating the wheat from the chaff. (Doc. No. 88). Later, after discovery with respect to the merits, Ward County and “John Doe” renewed their motion for summary judgment. (Doc. No. 92).

Somewhat complicating this matter now is that, even though Ward County alleged the defense of failure to exhaust administrative. remedies in its answer, both parties proceeded to litigate the merits. In fact, Ward County never mentioned the defense in its initial motion for summary judgment and, even now, gives it only perfunctory treatment at the end of its opening brief after addressing at length why there should be a merits dismissal. (Doc. Nos. 51-52 & 92-93).

B. Ward County Jail’s policies covering medical services and communicable diseases

1. Medical Services

During the time of Benjamin’s incarceration in the Ward County Jail, it had a written policy for providing medical services that was approved by the Ward County Commission. (Doc." No. 542). At the beginning of the policy, there is a statement of general provisions that includes:

1. No staff member will deny an inmate’s right to medical services or care.

4. Medication and treatment will be administered as directed by the Health Care Administrator, or his/her des-ignee.

(Id. at p. 3). The policy then goes on to differentiate between “emergency medical procedures” (i.e., those that require immediate care) and “non-emergency medical services.” The former are required in “emergency situations,” which are defined as:

Any health/life threatening condition, such as severe bleeding, unconsciousness, serious breathing difficulties, head injury, severe pain, suicide attempt, onset of bizarre behavior, severe burns, medication reaction or anaphylaxis.

(Id. at p. 6). For non-emergency situations, medical care is limited to a once-a-week sick call. (Id. at pp. 7-8).

The policy further provides that prisoners can request medical care by completing a medical care request form. When an inmate submits a request for medical care, the policy provides that:

4. The shift supervisor will relay medical requests to the Health Care Administrator or his/her designee when they are of an emergency nature. If they are of a non-emergency nature, the shift supervisor will set the inmate up for the next scheduled sick call day.

(Id. at p. 8).

For both emergency and non-emergency care, the policy requires that the shift supervisor must “ensure that the instructions of the physician are followed.” (Id. at p. 8). Also, when a physician requires that the inmate be taken to the emergency room or a specialist, the escorting officer must obtain from the doctor a “Sick/Injured Prisoner Report Form.” (Id. at p. 8).

2. Communicable diseases

Ward County Jail also had a separate policy governing communicable diseases that similarly had been approved by the County Commission. The policy defined communicable diseases to include: “Any virus ... that can be easily transmitted from one person to another.” (Doc. No. 100-1, p. 1).

Under the policy, inmates suspected to have communicable diseases are to be isolated. In addition the policy requires:

5. The cell area will be thoroughly scrubbed with water and a cleaning agent when the inmate is removed. This cleaning will include washing mattresses, bunks, toilets, walls, and floors of the cell occupied by the inmate.

(Id.) (emphasis added). With respect to the cleaning agent, the policy further states:

4. The North Dakota State Health Department recommends that a freshly prepared solution of one part household chlorine bleach and nine parts water be utilized for cleaning contaminated areas.

(Id. at p. 2).

C. Benjamin’s knee becomes infected and the claimed failure to provide medical attention until he was seen on sick call on March 31, 2010

1. What Benjamin claims

Benjamin was admitted to the Ward County Jail on February 3, 2010, as a pretrial detainee. (Doc. No. 93-1, p. 13). In his most recently filed affidavit, Benjamin claims he first noticed a sore on his left knee on or about March 25, 2010, “which had blistered and then busted.” He claims the area was hot and caused him extreme pain, making it difficult for him to walk. He also claims he began experiencing, a fever and chills. (Doc. No. 99, p. 2).

Benjamin further claims in his affidavit that he told Jail staff about his condition on several occasions as it worsened in terms of the pain, heat, swelling, and leaking of puss, but that they refused him medical treatment, stating he had to wait until the scheduled day for sick call, which was Wednesday, March 31. Benjamin claims that, on Sunday March 28, 2010, he submitted both a written request for medical care and a grievance for the Jail’s failure to provide medical attention. (Id. at pp. 2-3).

2. What Ward County claims

Benjamin’s account is disputed by Ward County both as to the claimed severity of his condition prior to his seeing the doctor at sick call and as to whether he ever submitted a grievance. With respect to Benjamin’s condition, Ward County points to his written request for medical care submitted on March 28, which stated merely that he was experiencing sharp pain in his back and legs and had a swollen and red kneecap with no mention of the pain being severe, the wound leaking puss, or that he was experiencing fever and chills. (Doc. No. 54-3). They also point to two medical records from Trinity Hospital that recount what Benjamin later said about the history of his condition. The first is a March 31, 2010, report of the emergency room physician stating that Benjamin had the sore on his knee for about a week and that it had been getting worse, including drainage and chills. (Doc. No. 54-5, p. 1). The second is a report of the doctor who admitted him to the hospital, which states: “He [Benjamin] mentioned that he did have a sore over his right knee for almost a week and for the last 2 days the sore has been getting worse.” (Id. at p. 5) (italics added).

The record also reflects a third report that was made by the surgeon who saw him on the same day as the emergency room physician and the admitting doctor. Although this report was not cited by Ward County, it too is arguably consistent with its version of what transpired. In the history portion of the report, the surgeon states: “He [Benjamin] presented with a 1 week history of left anterior knee pain, swelling, and in the past few days he noticed drainage.” (Id. at p. 8). Then, in the portion of the report entitled “Physical Examination,” the surgeon notes that he was able to move his [Benjamin’s] left knee to flexion/extension “with minimal discomfort.” (Id. at p. 9).

With respect to Benjamin’s claim that he filed a grievance on March 28, 2010, Ward County points to what it contends was contrary testimony by Benjamin in his deposition. The import of that testimony (which is set out in detail later) was that he asked for a grievance form, was told he had to follow the procedure for making a request for medical relief, and was provided a form for that instead.

What Ward County contends actually happened prior to Benjamin being seen by a doctor at sick call was that he submitted a request for medical care on Sunday, March 28, which was reviewed by the shift supervisor to ascertain whether the condition warranted immediate attention. And, since it appeared there was no emergency based on what Benjamin reported, he was added to the sick call list to be seen on the following Wednesday, which was the normal day for sick call. (Doc. No. 53, p. 1). Ward County further contends that Benjamin never advised Jail personnel after he submitted his written request for medical care that his condition changed and, as already discussed, that he did not submit a written grievance.

D. The examination by the doctor during sick call

Benjamin was seen on Wednesday, March 31, 2010, during sick call by Dr. Schmidt. After observing the condition of Benjamin’s left knee, Dr. Schmidt determined he should be taken to the emergency room for knee-draining. (Doc. Nos. 54-1, p. 4; 54-3). Benjamin was transported to the emergency room at Trinity Hospital the same day.

E. Benjamin’s admission to the hospital for debridement of the infection, the positive test for the MRSA virus, and his week long stay in the hospital

Benjamin was first seen by Dr. Olson in the emergency room. In addition to what was noted in his patient history as recounted earlier, Dr. Olson characterized the infected area as cellulitis with pain, swelling, redness, and drainage. He also noted that Benjamin had symptoms of chills/rigors. He then summarized: “The degree of symptoms is severe.” (Doc. No. 54-5, p. 1).

Benjamin was immediately admitted to the inpatient unit of Trinity Hospital where he was seen by Dr. Farah, a Trinity Hospital physician, and scheduled for surgery for debridement of the infected area by Dr. Benaissa, an orthopedic surgeon. (Doc. No. 54-5, pp. 4-8). The surgery was performed the same day. (Doc. No. 54-5, p. 10). A culture taken at that time of the surgery tested positive for MRSA. (Doc. Nos. 54-7; 54-12).

Following the surgery, Benjamin remained in the hospital for approximately a week. The record does not reflect, and the court assumes for purposes of what follows, that Benjamin was not under guard during the time he was in the hospital.

On April 7, 2010, Benjamin was discharged from the hospital and returned to the Ward County Jail. (Doc. No. 54-7).

F. Evidence of violations by the Ward County Jail staff of the doctor’s discharge instructions and its own Jail policies

1. Discharge information and instructions

The medical records reflect that Benjamin was discharged with the following instructions and information: (1) “close outpatient infectious disease and surgical follow up” (Doc. No. 54-6, p. 3); (2) daily return for a change of wound dressings to the surgeon’s office during the week and the emergency room on weekends (Doc. Nos. 54-4, pp. 2-4; 54-7, p. 1; 54-11, p. 2); and (3) written information about MRSA (Doc. No. 54-4, pp. 9-11). The medical records indicate that the discharging physician “discussed with the warden who is currently guarding the patient about my discharge instructions.” (Doc. No. 54-7, p. 2).

In addition to discharge instructions being verbally communicated to whomever from the Jail was there to take custody of Benjamin, the requirement for a daily change of dressing and the reason for it were clearly spelled out on the form that the Jail’s policy required be completed, which was its “Ward County Jail Sick/Injured Prisoner Report.” (Doc. No. 54-11). Also, near the bottom of the form, the following question was posited in bold and capital letters:

IS THERE ANY REASON THAT THIS INMATE’S CONDITION WOULD BE ENDANGERED BY BEING HELD IN WARD COUNTY JAIL?

And, in the space below where the physician was directed to check “yes” or “no,” the discharging physician checked “yes” and handwrote in the following note: “for Bacterial Resistant Infection (MRSA).” (Id. at p. 2).

Further, in addition to the discharge instruction specifically mentioning “infectious disease,” the information sheet provided with the discharge instructions stated, among other things, the following with respect to MRSA:

Staph bacteria and MRSA can spread among people having close contact with infected people. MRSA is almost always spread by direct physical contact, and not through the air. Spread may also occur through indirect contact by touching objects (i.e., towels, sheets, wound dressings, clothes, workout areas, sports equipment) contaminated by the infected skin of a person with MRSA or staph bacteria. It is frequently seen in schools, restaurants, health clubs, cruise ships and anyplace where many people gather together.

(Doc. No. 54-4, p. 10).

In short, there is no question that the Jail was advised verbally and in writing on its own form that Benjamin had a virus that was communicable, i.e., a disease within the definition of its communicable disease policy. How much of the discharge instructions and information was shared with Benjamin may be disputed, however. Benjamin claims the information was given only to Jail personnel. (Doc. No. 99, pp. 3-6).

2. Evidence of violation of the doctor’s discharge instructions and the Jail’s medical services and communicable disease policies

a. Missed daily changes of dressings It is undisputed that the Jail did not return Benjamin for daily changes of his dressing as directed by the discharging physician. Rather, it let two successive days pass without a change of dressing— April 17 and April 18 (which were a Saturday and Sunday) — purportedly due to the lack of staff to transport Benjamin for a dressing change on those days. (Doc. No. 65-7, p. 3). Arguably, this violated that portion of the Jail’s medical service policy requiring that a doctor’s instructions be followed.

b. Lack of compliance with the communicable disease policy

It also appears that Jail personnel made no affirmative effort to clean Benjamin’s cell and bedding before his return following his first surgery and hospital stay per the requirement of the communicable disease policy that this be done after an inmate, who is determined to have such a disease, is removed from his or her cell. In fact, it appears that Jail personnel simply ignored the communicable disease policy altogether and followed its general policy with respect to cell cleaning, which was that it was up to the prisoner to keep the cell clean using ordinary cleaning supplies furnished by the Jail. (Doc. No. 54-2, pp. 25-30). There is some dispute whether these supplies were sufficient for attacking the MRSA virus.

G. Course of treatment following missed days of dressing changes and evidence that the MRSA infection had abated

Although the Jail failed to return Benjamin to either his doctor or the emergency room for dressing changes on April 17 and 18, the Jail did take him back regularly thereafter. And, on April 27, 2010, Benjamin was seen by Dr. Nwaigwe for a check on his condition. According to the history of a later report, Dr. Nwaigwe observed no purulent drainage at that time and concluded the wound was no longer infected. (Doc. No. 54-12, p. 1).

H. Benjamin’s return to the hospital and a second surgery for the MRSA infected area

When Benjamin returned for another examination on April 30, 2010, however, it appeared the MRSA infection had either returned or, perhaps, had never really gone away since by that time he had been off antibiotics for about a week, having been discharged initially with only a two-week course of antibiotics. (Doc. No. 54-12).

Benjamin was readmitted to the hospital and again placed on antibiotics. More cultures were taken that confirmed the presence of a MRSA infection. (Doc. No. 54-13). Because the antibiotics were not relieving the symptoms, another debridement surgery was performed five days later on May 5, 2010. (Doc. No. 54-14).

I. Benjamin’s discharge on electronic monitoring, his state imprisonment, and subsequent surgery for a full knee replacement

Benjamin was discharged from the hospital on May 8, 2010. (Doc. No. 54-15). But, instead of being returned to pretrial detention, he was released to home confinement on electronic monitoring because he again needed to return to the doctor daily for a change of his dressing and this time Ward County officials determined this was too much for the Jail. (Doc. No. 99, p. 6).

There is some indication in the Jail’s booking record that Benjamin may have returned to the Ward County Jail on June 22, 2010, for a couple of days. (Doc. No. 54-1, p. 9). If so, the court suspects it likely was to await transport to a state prison facility to begin service of his sentence. However, neither party has addressed whether he in fact returned to the Jail at any point following his second discharge from hospital.

Following his conviction, Benjamin was incarcerated by the State of North Dakota and remained incarcerated through the filing of this action and at least up to the time of the taking of his deposition. It is not clear, however, whether he is now in custody given that his most recent affidavit was sworn to by a Milwaukee, Wisconsin notary.

Benjamin claims he eventually had to have a full knee replacement and this was necessitated by the degeneration of his knee caused by the MRSA infection. (Doc. No. 99, p. 6).

II. SUMMARY JUDGMENT STANDARDS

The standards for addressing motions for summary judgment are well known to the court and need not be repeated here. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barnhardt v. Open Harvest Co-op., 742 F.3d 365, 369 (8th Cir.2014).

III. CLAIMS AND DEFENDANTS

The only claims Benjamin pleads are for violations of his civil rights pursuant to 42 U.S.C. § 1983. Further, the only defendant is Ward County. Although Benjamin initially pled a “John Doe” defendant, an appropriate motion to add a named defendant was not made, much less service of process on any such individual to effectively sue him or her in an individual capacity. Hence, the court will address the claims only as to Ward County and order that the case be recaptioned to delete the reference to “John Doe.”

Benjamin m’akes two discrete claims for violation of his constitutional rights, which, in this case, arise under the Due Process Clause of the Fourteenth Amendment given his pretrial status. E.g., Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir.2014). The first is for the failure to provide him immediate medical care when he requested it and, instead, making him wait until sick call. Benjamin contends this resulted in his having to endure unnecessary pain and suffering as well as a worsening of his condition that necessitated the first de-bridement surgery and week-long hospital stay. (Doc. No. 93-1, p. 22).

The second claim relates to what Benjamin contends was a reoccurrence of MRSA after he was returned to the Jail and the resulting second debridement surgery, further pain and suffering, and ultimately a later knee replacement. With respect to this claim, he contends the reoccurrence of the MRSA infection was the result of Jail personnel putting him back into his cell without first thoroughly cleaning both it and his bedding and, perhaps also, their failure to take him for a change of dressing on two successive days contrary to the discharge instructions of his doctor that his dressing be changed on a daily basis. (Id.).

IV. THE EXHAUSTION DEFENSE

A. Governing law

' Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”) to address the problems created by the large number of federal prisoner lawsuits. Among other reforms, the PLRA requires that prisoners exhaust prison grievance procedures before filing suit and an early screening of prisoner complaints by the court at the time of filing. 42 U.S.C. § 1997e(a); 28 U.S.C. § 1915A. See Jones v. Bock, 549 U.S. 199, 216-17, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“Jones”). The PLRA’s exhaustion requirement reads as follows:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a).

The Supreme Court has concluded that: (1) § 1997e(a) requires. “proper exhaustion,” ie., prisoners must complete the administrative process in accordance with the procedural rules set forth by the prison before suing, Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (“Ngo”); (2) prisoners must exhaust available administrative remedies even if they do not provide for the exact relief the prisoners want to sue for, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (“Booth”); and (3) failure to exhaust is an affirmative defense that must be pled and proved by the defendant, Jones, 549 U.S. at 216-17, 127 S.Ct. 910.

When the exhaustion defense has been properly raised, the Eighth Circuit has stated that the district court is “obligated” to determine whether or not the administrative remedies have been exhausted. Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.2000). And, if they have not, the court is to dismiss the unexhausted claims without prejudice. See, e.g., Barbee v. Corr. Medical Services, 394 Fed.Appx. 337, 338 (8th Cir.2010) (“Barbee ”) (unpublished per curiam) (concluding the . district court erred in entering summary judgment of dismissal with prejudice on the merits for three defendants where it was clear there had been a failure to exhaust and remanding for dismissal without prejudice as to those defendants); Davis v. Harmon, 389 Fed.Appx. 587, 587-88 (8th Cir.2010) (“Davis”) (unpublished per curiam) (concluding the district court erred in dismissing the complaint on the merits where the record was clear there had been a failure to exhaust and amending the dismissal to be without prejudice). Whether these rules apply in all instances will be addressed later.

B. Ward County’s grievance policy

Because it is the prison’s policy that defines the procedural requirements that the prison and the prisoner are required to follow in terms of the exhaustion of the administrative remedy, Jones, 549 U.S. at 218, 127 S.Ct. 910, it is necessary to consider the following relevant parts of Ward County’s grievance policy:

POLICY: Inmates shall be allowed to file grievances without fear of reprisals to ensure inmates rights in accordance with NDCC and NDJR.

GENERAL INFORMATION:

1. The grievance committee will consist of the Jail Commander, a Shift Supervisor, and a Correctional Officer.

2. The inmate filing the grievance may be allowed to attend the grievance committee’s review of his/her complaint.

PROCEDURE A. INTERNAL GRIEVANCES

1. Inmate complaints will first be acted on informally to resolve a problem or complaint by the duty correctional officer.

2. If the complaint is not resolved to the inmates satisfaction, the inmate may file an INMATE COMPLAINT FORM. The shift supervisor will investigate the circumstances surrounding the inmate’s complaint and file a written answer to the inmate. If the inmate is still not satisfied, he/she may then file an INMATE GRIEVANCE.

3. The on duty correctional officer will provide the inmate with a grievance form when requested by the inmate.

4. The correctional officer will deliver the completed form without alteration, interference, or delay when received, to the shift supervisor.

5. The shift supervisor will ensure that the grievance is investigated personally as soon as possible after receiving the grievance form.

6. The shift supervisor will submit a written report of his/her findings within three (3) days of the receipt of the grievance, to the grievance committee.

7. The shift supervisor will conduct an investigation, immediately, upon receipt of a grievance when it is of an emergency nature in the Ward County Jail.

8. The shift supervisor will submit a written report of findings and/or action taken within twenty-four (24) hours to the jail commander of all emergency classified grievances.

9. The shift supervisor will provide the reporting inmate with a written copy of his/her findings, recommendations, date and time grievance committee will review grievance upon completion of the investigation in the jail facility.

10. The grievance committee will:

(a) Review the investigation and finding;

(b) Hear any information and rebuttal from the inmate;

(c) Discuss corrective plans and action with the shift supervisor and inmate;

(d) Decide on plan of action to be implemented;

(e) Instruct the shift supervisor on what plan to implement for corrective action and have him/her report the results within (30) days.

11. The jail commander will complete the jail facilities grievance form after the committee has made its decision. It shall include:

(a) The review of the complaint;

(b) The decision made by the committee;

(c) Justification for the decision;

(d) The corrective plan of action taken.

12. The jail commander will place the answered grievance in the inmate’s file.

(Doc. No. 54-2, pp. 1-2).

C. Benjamin’s argument that exhaustion was not required because no administrative “process” was available either by its terms or by reason of the conduct of Jail officials

1. The claimed failure to provide prompt medical care and making him wait three days until sick call

Because Benjamin is making separate claims for violation of his due process rights, it is necessary to consider Ward County’s defense of failure to exhaust with respect to each of the claims. See, e.g., Jones, 549 U.S. at 219-24, 127 S.Ct. 910; Abdul-Muhammad v. Kempker, 486 F.3d 444, 445-46 (8th Cir.2007).

Starting first with his claim that Ward County Jail personnel violated his rights by not providing immediate medical care and making him wait until sick call, Benjamin claims in an affidavit submitted following his deposition testimony:

11. On March 28, 2010, I completed a written grievance based on jail’s refusal to provide medical care to me and I also completed a written medical care form. A copy of the medical form was submitted by Ward County.

(Doc. No. 99, p. 3). The most straightforward reading of this statement is that Benjamin is claiming he submitted a request for medical care and a separate written grievance.

Ward County’s response is twofold. The first is the assertion in its brief that there is no evidence a written grievance exists. But, aside from Benjamin’s deposition testimony' that might be read to support this, as discussed in a moment, Ward County has not proffered other evidence to prove the non-existence of a filed grievance, such as an affidavit from a person with knowledge of the Jail’s records stating that it retains copies of grievances going back to the relevant time period and that a diligent search failed to disclose any record of a written grievance by Benjamin.

Ward County’s second response is that Benjamin’s affidavit testimony that he submitted a written grievance is contrary to his earlier deposition testimony. On that score, Benjamin’s complete deposition testimony touching upon the subject of exhaustion is the following:

Q. Okay. This is the first — 3-28 of '10 is the first time that you brought to anyone at Ward County’s attention that your knee hurt; is that correct?

A. Right.

Q. Okay. Now, you gave this to an officer; is that right?

A. Yes.

Q. Tell me how that went.

A. I asked them for a grievance form. They told me I couldn’t fill out a grievance form. I had to go through the steps. They told me — I showed them my knee. They told me in order for me to get help, I have to fill out a request for medical care. So I did that.

Q. Before you filled out this form, you asked for a grievance form?

A. Yes.

Q. Why did you want a grievance form?

A. Because I had talked to them-about my knee before I did this. I showed them my knee.

Q. Who did you talk to?

A. Whoever the lady was or dude wás. I don’t remember.

Q. When was that?

A. I don’t know.

Q. Was it the same day?

A. Probably so, or a day before, something like that. They said there wasn’t nothing they could do. They told me if it busts to let them know right away.

Q. You mean if the—

A. If the little white bump busts, to let them know.

Q. All right. Let me get this straight now. Sometime before you filled out this form, which was on 3-28 of '10, probably the same day, you brought your knee problems to the attention of Ward County for the first time; is that correct?

A. Yes.

* * * *

Q. So then they said you have to fill out this form; is that right?

A. Yes.

Q. And you did that right away?

A. Yes.

Q. And they brought you the form right away; correct?

A. No, they never brought me the form back. When I filled it out, I didn’t see it until—

Q. No, no. They told you you had to fill out a medical request form?

A. Yes.

Q. They brought that form to you to fill out right away?

A. Not right away.

Q. How long was it?

A. They probably did it the same day but not right away.

Q. And then you filled out the form?

A. Yes.

Q. And you turned it back in to them?

A. Yes.

* * * *

Q. You’re familiar with the forms that are used at the Ward County Jail to request medical care or to complain about a condition; am I right?

A. Yes.

Q. Have you ever asked for any forms-have you ever asked Ward County for any forms and have they ever denied you any forms?

A. They denied me a grievance.

Q. And that was when you wanted medical care?

A. Right.

Q. And they gave you the medical care request slip?

A. Right.

Q. Okay. Were you confused about the process that you needed to go through to get medical care? Is that why you asked for the grievance before the medical care slip?

A. I asked for a grievance because I wanted help for my knee. And I had to wait three days, and I didn’t want to suffer for three days.

Q. You asked for a grievance before you filled out the request for medical care slip though; correct?

A. Right.

Q. Other than that, had you ever been refused a form that you asked for from the Ward County Jail?

A. No. I didn’t ask for nothing.

(Doc. No. 93-1, pp. 16-20).

Given the foregoing, there are several possibilities. The most unlikely is that Benjamin submitted a separate written grievance. However, a close reading of his deposition testimony does not absolutely foreclose that possibility. Although Benjamin testified he did not submit a separate written grievance when he first requested medical attention, purportedly because he was not given one and was told he had to fill out the forms requesting medical care instead, the questions and answers having to do with what happened after that focused only on the medical care form leaving open the possibility he later submitted a written grievance.

Another possibility is that Benjamin did not submit a separate written grievance and his later affidavit testimony about having done so was either untruthful or an inartful attempt on his part to suggest that he considered the medical request form to be both a request for medical care and a grievance. Still another possibility, given what may be the conflicting accounts by Benjamin, is that he was untruthful in his affidavit testimony about having submitted a written grievance as well as in his earlier deposition testimony that he requested a grievance form and was denied one.

Without referencing either the affidavit or deposition testimony, Benjamin’s attorneys appear to concede in the briefing that Benjamin did not submit a separate written grievance. Rather, they contend that the reasons why he did not was because he was denied a grievance form and misled into believing that the only thing he could do was make a written request for medical services. (Doc. No. 97, pp. 6-7).

Ward County, on the other hand, while contending that Benjamin did not submit a written grievance, appears to accept his testimony that he raised the subject of filing a grievance with Jail staff. Ward County argues that this amounted to nothing more than Benjamin making an informal complaint under the Jail’s grievance policy and that, when this failed, Benjamin was obligated to properly exhaust the remainder of the process by first submitting a written complaint and then, if necessary, a written grievance. (Doc. No. 103, pp. 10-11).

Benjamin’s possibly inconsistent accounts give cause for concern. However, when construing the present record in his favor, the court cannot eliminate at least the possibility that he attempted to grieve the failure to provide him medical care and was prevented from doing so by the Jail’s correctional officer telling him he could only follow the medical care request procedure and refusing to provide him with the necessary form for making a formal complaint. If so, this may be enough to excuse Benjamin from having to exhaust this claim depending upon how the evidence plays out, including whether the court concludes Benjamin’s deposition account is credible as to whether he asked for a grievance form and was denied one. Compare, e.g., Spada v. Martinez, 579 Fed.Appx. 82, 86 (3d Cir.2014) (“In sum, a factual question exists concerning whether SCI — Graterford officials refused to provide Spada with grievance forms, thereby rendering the grievance process unavailable to him within the meaning of § 1997e.”); Miller v. Norris, 247 F.3d 736, 738-10 (8th Cir.2001) (same); Kantamanto v. King, 651 F.Supp.2d 313, 324 (E.D.Pa.2009) (same); with Gibson v. Weber, 431 F.3d 339, 341 (8th Cir.2005) (“An inmate’s subjective belief that the procedures were not applicable to medical grievances ‘does not matter’ and is not determinative.”).

Consequently, the court concludes further proceedings would be required to resolve the issue of whether Benjamin properly exhausted his claim that he should have been provided immediate medical care and not forced to wait until sick call. See Miller v. Norris, supra.

2. The misconduct allegedly causing a return of the MRSA infection, a second hospitalization and debridement surgery, and much later a full knee replacement

a. Failure to clean Benjamin’s cell and bedding

Benjamin claims that the Ward County Jail officials were deliberately indifferent when they failed to clean his cell and bedding properly (that is a cleaning by persons who knew what they were doing and using the proper cleaning agents) and pri- or to his being returned to the cell, thereby subjecting him to the very real possibility of reinfection of the MRSA virus— assuming he had it before he was taken to the emergency room following sick call. Benjamin claims he was unaware that this needed to be done in part due to his lack of understanding at the time about how MRSA acted and also in part because the information provided by the discharging physician about MRSA was given only to the Jail officials and not him. (Doc. Nos. 93-1, pp. 19-22; 99, pp. 3-5). He also claims he reasonably relied upon what the Ward County Jail insisted be done at that point, which was making him responsible for his own cell cleaning. (Doc. No. 93-1, p. 22). Assuming these facts to be true, Benjamin appears to have a good argument that he could not have been expected to grieve what he did not know about either in terms of the Jail’s problematic conduct or his having suffered an injury. Cf. White v. Garrison, 70 F.3d 1276 (8th Cir.1995) (unpublished table opinion) (accrual of civil rights action is governed by federal law and determined by when plaintiff knew or had reason to know of harm constituting a basis for an action).

Obviously, at some point Benjamin knew or should have known, but when that would have been appears to be a fact question that needs to be resolved. And, the reason why this is significant in this case is because, if Benjamin could not have been expected to grieve the Jail’s questionable conduct while he was in custody prior to being taken to the hospital a second time (where he learned the MRSA virus was back or had not been abated), this raises the further question of whether the Jail’s grievance procedure was available to a person who no longer was a prisoner in the Jail, given the uncertainty whether Benjamin ever returned, or if he did for a day or so just prior to being sent to prison, whether he knew or should have known enough at that point to have been expected to implement the grievance policy. Notably, the Jail’s policy generally makes mention only of “inmates” being able to avail themselves of the grievance policy and does not say the process would have been available to a person who is no longer a prisoner in the Jail. See Parks v. Dooley, No. 09-8514, 2011 WL 847011, at *17 (D.Minn. Feb. 11, 2011) (concluding that similar language indicated the grievance procedure was not available to • a person who no longer was an inmate). Also, it appears that seeking informal resolution of a problem with a “duty correctional officer” is a mandatory step prior to being able to proceed further, and it is not clear how this would have been accomplished by a person who was not in the Jail. Finally, even after an attempt at informal resolution, the policy requires the use of the Jail’s forms, first for making the required written complaint and then later filing a grievance, and there is no indication that these would have been made available to a person who no longer is a prisoner in the Jail much less that they would have been acted upon.

In short, the court concludes there are disputed facts with respect to whether Benjamin was required to grieve the Jail’s failure to take affirmative action with respect to his MRSA infection after he was returned to his cell following his first surgery, including following its own communicable disease policy by cleaning his cell and bedding prior to his return.

b. The failure to change the wound dressing

A much closer question is presented, however, with respect to Benjamin’s claim that Jail personnel acted with deliberate indifference in failing to take him for a change of the dressing on his ‘knee on two successive days despite the instruction of the discharging physician that this had to be done daily. While Benjamin professes that he was ignorant of the discharge instructions (and this contention appears to be plausible with respect to the claim just discussed), it seems less probable that he was unaware of the doctor’s instruction that the dressing be changed daily. And, if he was aware, he certainly knew when he was not taken for a change of dressing this was not right, even if he was not fully aware of the potential consequences, either in terms of the MRSA returning or, more simply, the wound not healing properly. Nevertheless, since further proceedings are required to resolve the exhaustion issues with respect to the other interrelated claims, the court will not make a ruling now based on the present record.

D. Benjamin’s argument that exhaustion was not required because no “remedy” was available 1. Failure to clean Benjamin’s cell and bedding

Separate from contending there was no process available to exhaust his claims, Benjamin also claims that there was no remedial relief available — damages or otherwise. With respect to his claim that Jail personnel violated his rights by putting him back into what may very well have been a MRSA-infected environment without a proper-cleaning, Benjamin may have a point.

There is nothing in the Jail’s grievance policy that empowers its officials to award monetary damages. In fact, the policy suggests that only “corrective action” would be available. Further, the actual policy language aside, it is improbable that Jail officials could obligate Ward County to. pay money absent explicit action by the County Commissioners, who are not part of the grievance process.

The mere fact that the monetary damages Benjamin now seeks were not available, however, does not excuse him from exhausting the Jail’s administrative remedies. As noted earlier, this was the holding of the Supreme Court’s decision in Booth. But Benjamin’s point here is that, if damages were not available, then what relief was? As noted earlier, Benjamin’s contention with respect to the failure of the Jail to have cleaned his cell prior to his return is that by the time that he figured out he had something to complain about, it was too late in terms of any remedial “corrective action” since the damage had been done, ie., he had already suffered the reoccurrence of the MRSA infection and was being provided medical treatment. Benjamin cites Booth as authority for his not having to exhaust if no remedial relief was available.

In Booth, the petitioner was a prisoner who filed a civil rights action claiming he had been assaulted by correctional officers and then denied treatment for his ensuing injuries. In his complaint, the petitioner sought money damages along with various forms of injunctive relief, including transfer to another prison. For purposes of the case, the Supreme Court assumed that only the demand for money damages remained, noting there was some confusion as to whether the other requests for relief had been mooted by his subsequent transfer to another facility. 532 U.S. at 734-35 & n. 2, 121 S.Ct. 1819. The Court then stated that the question to be decided was “whether an inmate seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money.” Id. at 734, 121 S.Ct. 1819 (italics added).

It appears the reason why the Court framed the question in this manner was because of how it construed the language of § 1997e(a). Later in its opinion, the Court stated the following with respect to the concession of the parties that some relief would have to be possible before exhaustion would be required:

The meaning of the phrase “administrative remedies ... available” [in § 1997e(a) ] is the crux of the case, and up to a point the parties approach it with agreement. Neither of them denies that some redress for a wrong is presupposed by the statute’s requirement of an “available” “remed[y]”; neither argues that exhaustion is required where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint.4 The dispute here, then, comes down to whether or not a remedial scheme is “available” where, as in Pennsylvania, the administrative process has authority to take some action in response to a complaint, but not the remedial action an inmate demands to the exclusion of all other forms of redress.

532 U.S. at 736, 121 S.Ct. 1819. The Court then added in the accompanying footnote:

4. Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust. The parties do not dispute that the state grievance system at issue in this case has authority to take some responsive action with respect to the type of allegations Booth raises.

Id. at n. 4.

A number of lower federal courts have pointed to the foregoing language in Booth as requiring that some remedy be available for exhaustion to be required, albeit in eases involving circumstances different than this one. See, e.g., Fletcher v. Menard Corr. Center, 623 F.3d 1171, 1174 (7th Cir.2010) {“Booth ... in any event distinguished between a case in which there are remedies but none to the prisoner’s liking (which was the Booth case) and a case in which there is no remedy; for the Court said that ‘without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust.’[citation omitted]”); Kaemmerling v. Lappin, 553 F.3d 669, 675-76 (D.C.Cir.2008) (citing the foregoing language from Booth and concluding that exhaustion was not required because the federal Bureau of Prisons in that instance lacked the authority to provide any relief as part of its grievance process); Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005) (“Booth made quite clear that the statutory language does not require exhaustion when no pertinent relief can be obtained through the internal process.”)

There are, however, Third Circuit cases which appear to suggest that exhaustion is required if there remains any procedure that is available, even though no relief could be granted. See, e.g., Williamson v. Wexford Health Sources, Inc., 131 Fed.Appx. 888, 890 (3d Cir.2005) (noting the position of the Seventh Circuit that exhaustion would not be required if the harm is done and no further relief was available, but suggesting that this would not be true in the Third Circuit given its position with respect to futility not being an exception to exhaustion and citing the pre-Booth case of Nyhuis v. Reno, 204 F.3d 65 (3d Cir.2000)). The reasons for this position (assuming it is in fact the Third Circuit’s position) appear to include that: (1) it is in keeping with the statutory language; (2) it promotes the collateral benefits of exhaustion, including creating a better record for subsequent proceedings, discouraging frivolous lawsuits, promoting the prison grievance process as the primary dispute resolution mechanism, etc.; and (3) it draws a bright-line rule so that the courts do not have to enmesh themselves in the details of the prison administrative process in terms of trying to decide what relief may be available. See Nyhuis, 204 F.3d at 72-78.

The parties have not cited to any Eighth Circuit case that is directly on point. However, in the en banc decision in Lyon v. Vande Krol, the Majority did state:

It is true that we have held that inmates cannot be held to the exhaustion requirement of the PLRA when prison officials have prevented them from exhausting their administrative remedies. For instance, in Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir.2001), we concluded that the district court lacked a sufficient factual basis to find that an inmate had failed to exhaust his administrative remedies when prison officials had refused to respond to his informal resolution request that he completed to satisfy the requirements of the first part of the prison’s three-part grievance process. In Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001), we similarly held that an inmate was prevented from exhausting his administrative remedies when prison officials failed to respond to his requests for grievance forms, and that the inmate’s failure to exhaust those remedies was not a bar to suit because they were not “available” to him.

Though it is the burden of the defendant in a case such as this to show that a plaintiff prisoner failed to exhaust all available administrative remedies under the PLRA, it is not disputed in this case that Mr. Lyon did not exhaust them. Under the PLRA, Booth, 532 U.S. at 737-41, 121 S.Ct. 1819, and all other applicable law, the question is a simple one: Was there a procedure available? There is no question in this case that there was, that Mr. Lyon was aware of it, and that he chose not to follow the steps that the procedure outlined. Mr. Lyon was never told that there was not a procedure, moreover, so there is no basis for the application of an estoppel principle here, even if one might otherwise be available.

305 F.3d 806, 808-09 (8th Cir.2002) (en banc). And, in response, two dissenting judges chastised the Majority for what they perceived to be a misreading of Booth and the adoption of an approach, which, if their characterization of the Majority’s decision was correct, would arguably require exhaustion in any case in which the administrative process was available, even though no practical remedial relief could be granted. Id. at 811 (Bright and McMillian, J.J., dissenting).

While the court’s dicta .in Lyon does raise some question, the case was not on point -with respect to the situation here and there was no in depth discussion of Booth, much less an express statement that exhaustion is required in cases where no remedial relief would be available. Consequently, in the absence of something more definitive, the court will follow what the Supreme Court stated in Booth. And, with respect to Benjamin’s claim that the Jail should have cleaned his cell and bedding prior to his return from his first surgery, the court concludes there are fact issues with respect to whether any remedial relief was available at a time when Benjamin - knew or should have known about the Jail personnel’s problematic conduct.

2. Benjamin’s other claims

The same cannot be said for Benjamin’s other claims, however. While there may be no remedy available now, there presumably was at the time when Benjamin could have initiated the grievance process. With respect to his claim that he was not provided treatment soon enough after his infection first started and was made to wait until sick call, assuming the grievance process was available and he had not been blocked from implementing it, an obvious remedy would have been taking him to see a doctor sooner. Likewise, with respect to the failure to take him to the doctor on the two days he was not taken for a change of the dressing on his knee, the remedy would have been taking him to the emergency room even if it meant calling in off-duty personnel and paying overtime.

E. Benjamin’s argument that he did not need to exhaust because it was permissive and not mandatory under the Jail’s policy

A final argument that Benjamin makes for why exhaustion was not required was because the language of the Jail’s policy made the filing of the written complaint permissive and not mandatory with its use of the word “may.” The same is true for the latter step in the process of filing a written grievance.

Putting aside the fact that the first step of informal resolution appears to be mandatory, the fact that any of the steps may be permissive does not excuse exhaustion. Rather, the obligation under § 1997e(a) is to exhaust the remedies that are available and the mere fact they are permissive does not render them unavailable. E.g., Johnson v. Thyng, 369 Fed. Appx. 144, 147-48 (1st Cir.2010) (unpublished per curiam); Owens v. Keeling, 461 F.3d 763, 770 n. 4 (6th Cir.2006); Davis v. Warman, 49 Fed.Appx. 365, 367-68 (3d Cir.2002) (unpublished); Warren v. Fort Dodge Corr. Facility, No. 08-CV-3038, 2009 WL 1473955, at *3 (N.D.Iowa May 27, 2009); Braimah v. Shelton, No. 4:03CV3135, 2005 WL 1331147, at *3 (D.Neb. May 20, 2005).

F. Must the court resolve the exhaustion issues in this case before proceeding to address and dismiss the case on the merits?

The Eighth Circuit in Chelette stated that once the issue of failure to exhaust was raised in that case, the court “was obligated to proceed to determine whether in fact [the prisoner] had exhausted his administrative remedies.” 229 F.3d at 688. Whether Chelette in so stating laid down a rule that applies in all cases will be returned to later. However, to frame the issue, it is important to note that the court in making that statement cited the Seventh Circuit’s decision in Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532 (7th Cir.1999) (“Perez ”), where the Seventh Circuit stated that, for the exhaustion requirements of § 1997e(a) to operate properly, a district court must address and resolve disputes about its application before turning to other, issues. The Perez court stated:

But it does not follow from treating § 1997e(a) like a statute of limitations that courts may choose to ignore it. Judges can’t ignore statutes of limitations, either. When there are multiple grounds for dismissing a suit (as opposed to deciding it on the merits), courts may select from among them. Cf. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Thus a court might properly dismiss a suit such as this to the extent it seeks relief against the Wisconsin Department of Corrections by observing that § 1983 does not authorize litigation against states and their agencies. See Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). But the court must not proceed to render a substantive decision until it has first considered § 1997e(a). The statute gives prisons and their officials a valuable entitlement — the right not to face a decision on the merits — which courts' must respect if a defendant chooses to invoke it. That’s the point of Hallstrom [v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) ] and McNeil [v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ], neither of which the fifth circuit mentioned in Underwood [v. Wilson, 151 F.3d 292 (5th Cir.1998) ]. Congress did not authorize bypass along the lines of 28 U.S.C. § 2254(b)(2), which says that “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” Courts should not act as if every exhaustion requirement had its own § 2254(b)(2). Section 1997e(a) has a very different structure, as a ban on the bringing of suit (a structure the exhaustion requirement in the law of collateral attacks never had, see Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)), which fortifies the conclusion that judges must place enforcement of the statute over a concern for efficient docket management.' Defendants may waive or forfeit reliance on § 1997e(a), just as they may waive or forfeit the benefit of a statute of limitations. When they assert their rights — as the defendants in this case did — then the judge must address the subject immediately. Otherwise the benefit is likely to be lost, as it was here, for administrative and judicial claims went forward simultaneously and . at the end of the judicial proceeding the judge disdained § 1997e(a). The statute can function properly only if the judge resolves disputes about its application before turning to any other issue in the suit.

Perez, 182 F.3d at 536.

Obviously, a broad reading of Perez would foreclose a court from bypassing the exhaustion issue and proceeding to dismiss on the merits, comparable to what is often done in the habeas context. And, in addition to Perez, there are other eases, that may suggest the same thing. See, e.g., Snyder v. Harris, 406 Fed.Appx. 313, 316-17 (10th Cir.2011).

More recently, the Seventh Circuit in Fluker v. County of Kankakee clarified that Perez does not prohibit a district court from reaching the merits after it has considered the exhaustion question if to do so would be in “in the interests of judicial economy and finality[.]” 741 F.3d 787, 793-94 (7th Cir.2013) (“Fluker”). In that case, the district court concluded that the prisoner had failed to exhaust, but then, rather than dismissing the ease without prejudice, the court also addressed the merits and dismissed with prejudice on that ground.

The Eighth Circuit appears to have rejected the approach taken by the Seventh Circuit in Fluker. As noted earlier, the court in at least two unpublished cases has held that dismissal with prejudice on the merits is inappropriate if it is clear there has been no exhaustion. Nevertheless, much of the reasoning that the Seventh Circuit gave for why it was appropriate in that case for the district court to proceed to the merits applies to the situation here, where further proceedings are required to resolve the exhaustion issues, the parties have litigated the merits, and the merits clearly support dismissal — a situation not addressed by the Eighth Circuit in Che-lette or in the two unpublished cases of Barbee and Davis. Notably, the Seventh Circuit stated:

The Flukers, directing us to Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir.1999), contend the district court was precluded from rendering a decision on the merits once the Defendants raised § 1997e(a) as an affirmative defense and the court chose to grant summary judgment on that ground. In Perez, we explained that “[f]ailure to exhaust administrative remedies does not deprive a court of jurisdiction.” Id. at 535. A district court can therefore decide a suit on the merits if a defendant does not raise failure to exhaust as an affirmative defense, even if the defense could have been asserted. See id. at 536. Both parties agree with that statement. A district court, however,

must not proceed to render a substantive decision until it has first considered § 1997e(a).... Defendants may waive or forfeit reliance on § 1997e(a), just as they may waive or forfeit the benefit of a statute of limitations. [But] [w]hen they assert their rights — as the defendants in this case did — then the judge must address the subject immediately.”

Id. (emphasis added). The Flukers argue that this language establishes that the district court’s opinion on the merits was an improper “advisory opinion.” See generally id. (“Examining the merits first and then ordering a case dismissed on exhaustion grounds only if the plaintiff is apt to prevail ... would border on (if it would not transgress) the rule against issuing advisory opinions.”). If their contention is true, the court should not have addressed the merits, the suit should have been dismissed without prejudice, and Roy could still attempt to exhaust remedies and later re-file the case. Conversely, the Defendants contend the district court followed the quoted language and the requirements of Perez: the court first addressed the PLRA defense, as required, and then moved to the merits of the case.

As an initial matter, our holding in Perez was not that a court is always prohibited from addressing the merits of a suit if § 1997e(a) is raised as an affirmative defense. Rather, we simply said that § 1997e(a) “can function properly only if the judge resolves disputes about its application before turning to any other issue in the suit.” Perez, 182 F.3d at 536 (emphasis added). The district court below did just that. And nothing in Perez, or any other case in this Circuit dealing with the PLRA or § 1997e(a), prohibits a district court’s progression from the PLRA defense to the merits if the situation properly calls for it.

Here, the Defendants’ summary judgment motion was fully briefed on the merits, and the Flukers had a full and fair opportunity to respond to the substance of the motions. At the time of dismissal, discovery was closed, and the court had a complete factual record and all the information needed to resolve the case on the merits. This is different than cases we have encountered where the district court did not consider the PLRA defense first or where the parties had not yet completed discovery when judgment on the merits was entered. Cf. Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir.2005); Delgado-Brunett v. Lappin, 32 Fed.Appx. 766, 766-67 (7th Cir.2003[2002]) (unpublished).

Accordingly, in the interests of judicial economy and finality, it made perfect sense for the district court to address the merits of the case here. See RWJ Mgmt. Co. v. BP Prods. N. Am., 672 F.3d 476, 481 (7th Cir.2012) (“Evaluating considerations of judicial efficiency and duplication of judicial effort is not just a matter of toting up months or motions or the page counts of judicial orders. Rather, concerns about judicial economy have their greatest force when significant federal judicial resources have already been expended to decide the ... claims, or when there is no doubt about how tho