United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued October 3, 2019 

Decided October 11, 2019 

Before 

DIANE P. WOOD, Chief Judge 

AMY C. BARRETT, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-2547 

CARL D. LUSK, 

Plaintiff-Appellant, 

v. 

MICHAEL COLE, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Eastern District of 

Wisconsin. 

No. 16-C-1053 

Lynn Adelman, 

Judge. 

O R D E R 

Carl Lusk, a Wisconsin inmate, appeals the entry of summary judgment for 

defendants based on his purported failure to exhaust administrative remedies. Because 

Lusk undisputedly complied with the available procedures, we vacate and remand with 

instructions to enter summary judgment for Lusk on the exhaustion defense. 

Lusk, who has asthma, seeks to sue prison officials at Green Bay Correctional 

Institute for denying him needed care. According to Lusk’s sworn testimony, after a 

prison officer blasted him with mace to separate him and another inmate, he suffered an 

asthma attack but was denied his inhaler and medical care. 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-2547 Page 2 

Lusk complained about this treatment using the prison’s two-step complaint 

system. He filed a timely grievance, which a complaint examiner dismissed with the 

comment that the staff behaved suitably. Under rules in effect in 2016, Lusk had ten 

days to appeal, and on the second day after the dismissal, he completed and signed his 

name on the “Offender Complaint Appeal” form that the prison provided. Because the 

prison gave him no envelope for his form, and he had no money to buy one before the 

appeal deadline, he used one that belonged to another inmate. On the tenth day after 

dismissal, the prison refused to accept Lusk’s appeal because a disciplinary rule barred 

“the transfer of property between inmates without authorization.” WIS. ADMIN. CODE

DOC § 303.40 (2016). Lusk resubmitted his appeal a month later when he was able to 

obtain his own envelope, but the examiner dismissed it as untimely. The untimeliness 

was not excusable for good cause, she said, because Lusk’s “misconduct” with the first 

appeal caused the second to be late. 

After Lusk sued defendants under 42 U.S.C. § 1983 for deliberate indifference to 

his health in violation of the Eighth Amendment, the district court granted their motion 

for summary judgment, ruling that Lusk had failed to exhaust administrative remedies. 

The court gave two reasons for this conclusion. First, advancing a reason that 

defendants had not proposed, it stated that the prison properly rejected Lusk’s first 

attempted appeal because Lusk violated the requirement that he file his complaint 

“under the name by which the inmate was committed to the department.” WIS. ADMIN.

CODE DOC § 310.09(1)(d) (2016). Second, it said that because Lusk could have applied 

for a legal loan to obtain an envelope and appeal on time, the complaint examiner 

properly found no good cause. 

On appeal, Lusk argues that he should have received summary judgment on the 

exhaustion issue because his administrative appeal complied with the written rules for 

such appeals, and in rejecting his appeal the prison imposed a new, unwritten rule for 

exhaustion. Defendants contend that his administrative appeal was defective because 

he used a fellow inmate’s envelope, in violation of a disciplinary rule against 

unauthorized transfers of property, and his later attempt to appeal was untimely. 

An inmate may not sue about prison conditions under § 1983 “until such 

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A remedy 

is not “available” when its requirements are opaque or prison officials improperly 

prevent a prisoner from pursuing it. Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016). 

Although prison administrators enjoy wide deference to adopt rules needed to preserve 

internal order, see Bell v. Wolfish, 441 U.S. 520, 547 (1979), they may not change those 

rules retroactively or require prisoners to exhaust procedures that the administrators 
No. 18-2547 Page 3 

have not revealed to them. See Thomas v. Reese, 787 F.3d 845, 848 (7th Cir. 2015) (citing 

King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015)). 

Here, the prison’s rules for appeals in 2016 were simple, and Lusk obeyed them. 

They required that he file within 10 days of his dismissed grievance a request for review 

“on forms supplied for that purpose.” See WIS. ADMIN. CODE DOC § 310.13(1) (2016).

The prison is required to make these forms “accessible” to inmates. Id. Lusk used the 

“Offender Complaint Appeal” form that the prison provided to him. He signed and 

submitted it within ten days (indeed, within two days) of the dismissal of his grievance. 

Therefore, he exhausted. 

The prison officials resist this conclusion on two grounds, neither of which 

persuades us. First, they argue that the “forms” required by the rules for exhaustion 

include an envelope belonging to the inmate taking the appeal, and Lusk did not use 

one. But the 2016 rules did not mention envelopes. And any argument that “forms” 

includes envelopes does not help defendants anyway because they did not give him an 

envelope and thus did not “make these forms accessible to” him, as the rules required. 

Defendants reply that the envelopes were “accessible” for purchase through a loan to 

cover the cost. But defendants never told inmates that “accessible” means “accessible 

for purchase”; to the contrary, they made the “Offender Complaint Appeals” forms 

“accessible” to inmates without charge. Thus, defendants may not fault Lusk for failing 

to take out a loan to buy an envelope when no written rule required him to use an 

envelope to take the appeal. 

Second, the prison officials contend that, in using a fellow inmate’s envelope, 

Lusk violated a disciplinary rule barring the unauthorized transfer of property between 

inmates, and so they could reject his appeal for that reason. But the rules for appeals in 

2016 did not specify that an appeal would be rejected if an inmate violates any 

disciplinary rule (such as using another inmate’s pen or envelope) to file the appeal, 

and the prison may not retroactively change its rules for appeals. See Thomas, 787 F.3d 

at 848. Defendants reply that if a grievance officer must accept appeals submitted in 

violation of disciplinary rules, inmates will be encouraged to violate those rules. But the 

disciplinary rules provide many other ways to punish violators. The unauthorized 

transfer of property is a “minor” offense, see WIS. ADMIN. CODE DOC § 303.69, that may 

result in, among other things, a reprimand or loss of privileges. See WIS. ADMIN. CODE 

DOC § 303.70. But those penalties did not include the loss of an appeal. Id. And if the 

prison believes that harsher punishment is needed, it can amend its rules, as it did in 

2018. Those amendments now allow it to reject an appeal submitted in violation of the 

disciplinary rules prohibiting threats or possession of harmful substances. But even the 
No. 18-2547 Page 4 

revised rules do not permit the prison to reject an appeal if an inmate submits it using 

another inmate’s envelope or “property.” See WIS. ADMIN. CODE DOC § 310.09(3) (2018). 

We also reject the district court’s other reason for granting summary judgment in 

favor of the defendants. The court suggested that, by placing his appeals form in 

another’s envelope, Lusk failed to comply with the rule that he file his “complaint” in 

his name. See WIS. ADMIN. CODE. DOC § 310.09(1)(d) (2016). Even if we assume that this 

rule applies to both the “appeal” as well as the “complaint” (a point that the parties 

debate), Lusk complied with this rule. It is undisputed that he signed his name, and his 

name only, to both his initial complaint and his “Offender Complaint Appeal.” 

We thus conclude that Lusk properly exhausted the available administrative 

remedies. Although he did not cross-move for summary judgment on the exhaustion 

defense in the district court, under Federal Rule of Civil Procedure 56(f)(1), a nonmovant may receive summary judgment after notice and a chance to respond. On 

appeal, Lusk has asked for the entry of summary judgment, and defendants have 

responded. Because the facts are undisputed, we VACATE summary judgment for 

defendants and REMAND with instructions to enter summary judgment in Lusk’s 

favor on the defense of exhaustion and proceed with the remainder of the case.