### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16

- 2707

T ERRY D A VIS , Plaintiff

- Appellant
,

v.

D AVID M ASON and B LAKE T HRASHER , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Southern District of Indiana
, Indianapolis Division. No. 1:15

- cv

- 01206

- TWP

- TAB

— Tanya Walton Pratt
, Judge

.

____________________
S UBMITTED M AY 4, 2017

— D ECIDED F EBRUARY 6, 2018

____________________

Before K ANNE , S YKES , and H AMILTON , Circuit Judges

. S YKES , Circuit Judge

. Terry Davis, an Indiana prisoner,

su ed two prison guards alleging that they punched him repeatedly, put him in a chokehold, and placed a plastic bag over his head

— all gratuitously and thus in violation of his rights under the Eighth Amendment. A distr ict judge entered summary judgment for the defendants, holding that Davis had not exhausted his administrative remedies as2 No. 16

- 2707

required by the Prison Litigation Reform Act

. See 42 U.S.C. § 1997e(a). We vacate and remand for further proceedings. T he evidence in the summary

- judgment record does not clearly show that Davis failed to exhaust available administrative remed ies

. I. Background

G rievances by Indiana prisoners proce ed in t hree steps

. The inmate must (1) attempt informal resolution ; (2) file a formal grievance ; and (3) file an administrative appeal. I ND

. D EP ’ T OF C ORR ., M ANUAL OF P OLICIES & P ROCEDURES (“ IDOC M ANUAL OF P OLICIES & P ROCEDURES ”), No. 00

- 02

- 301 , §§ V, XIII , XIV (J uly 2012 ) , http://www.in.gov/idoc/files/00

- 02

- 301__Grievance_ Procedure _1

- 01

- 10.pdf

. 1 The first step requires the inmate to raise his co mplaint with an appropriate staff member as defined in the written policy. Id. § XIII(A). If the matter cannot be resolved informally, the inmate must submit a formal grievance. A g rievance may be returned unprocessed if it do es not comply with certain criteria in the written policy , including a rule against using the regular grievance process to avoid specialized procedures for disputing disciplinary sanctions or

“ classification ” decisions like facility transfers, bed assignments, and changes in security levels. See id. §§ V(B)(5

– 6) , XIV(A), (B)(5

– 6). If a grievance is returned unproce ssed, however, the inmate must be told “ why the form was returned and how it may be corrected. ” Id. § XIV(B). The prisoner then has five working days to correct the identified deficiencies and resubmit the form. Id. As relevant here, the

1 This policy was updated effective April 5, 2015, but the older policy governs this case.No. 16

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grievance policy m akes no mention of a requirement to notify Internal Affairs and does not authoriz e an administrative appeal of a refusal to process a grievance.

Davis filed this suit under 42 U.S.C. § 1983 alleg ing that two corrections officers

— David Mason and Blake Thra sher

— assaulted him , unprovoked, on January 5, 2014, leaving him with two black eyes, broken teeth, and possibly a broken nose. In the days immediately following the alleged assault, Da vis tried several times to submit grievanc es complaining about th is incident, but n one were processed. He filed the first one on January 10, five days after the incident . T he grievance coordinator received this filing on January 15 and that same day sent Davis a “ Return of Grievance ” form saying that she would not process it

. The return form contains a list of boilerplate re asons for refusing to process a grievance . T he coordina tor checked two boxes : (1) the grievance could not be processed because it raised a

“ [c] lassification

... issue or action ” and (2) was “ not completel y filled out. ” The grievance coordinator did not identify the “ classification ” issue or explain what was missing from Davis ’ s filing

. Rather, she instructed Davis “ to contact Internal Affairs in this matt er. ”

Davis promptly resubmitted his grievance, but o n Janu ary 23 the coordinator again sent him a Return of Grievance form. This time she did not check the box rejecting th e grievance as incomplete. A s before , however, she checked the box indicating that the grievance concerned an unidentified “ classification ” issue . And she again wrote that Davis needed to contact Internal Affairs “ for an investigation

. ” Finally, t he coordinator cryptically instructed him to contact his “ unit team for the separate[] issue. ”4 No. 16

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On March 7 Davis tried a third time to submit a formal griev ance regarding the assault

. T he grievance coordinator

sen t him a nother Return of Grievance form , this one indicating that the grievance was “ too late ” and a gain assertin g that Davis needed to contact Internal Affairs. Davis resubmitte d th e grievance a few days later with the same outcome, except this time the return form omitted the instruction to
contact Internal Affairs . Instead, the coordinator indicated that although she was returning Davis ’ s latest grievance because he “ failed to file it in a timely manner, ” she would forward a copy to Inter nal Affairs “ because of t he seriousness of your complaint

. ”

T he administrative trail ends there. Davis thereafter filed suit against Mason, Thrash er, and 12 other corrections officials

. The judge screened the complaint and dismissed the claims against the other 12 defendants
, see 28 U.S.C. § 1915A, and Davis does not challenge that decision. Mason and Thrasher answered the complaint, asserting (among other defenses) that Davis failed to exhau st administrative remedies. At the judge ’ s invit ation, they moved for summary judgment on t he exhaustion defense. The y did not object to Davis ’ s f ail ure to seek an informal resolution before submitting his formal grievanc es. Nor did they assert that Davis could have, but did not, pursue an administrative appeal after the grievance coordina tor refused to process each of his grievances . Rather, the y a rgued that Davis did not file a proper grievance and , when given the chance, did not remedy the shortcomings i n his submissions. As evidentiary support t he officers submitted the Return of Grievance forms and a declaration from the grievance coordinator . T he coordinator ’ s declaration sheds no furtherNo. 16

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light on what was missing from Davis ’ s grievances . Nor does it i dentify the “ classification ” issue or explain why talking to Internal Affairs was a precondition to having a grievance processed. The officers did not introduce Davis ’ s four grievances to give context to the coordinator ’ s return forms, and the y have not contradicted Davis ’ s contention that his grie vances

— his only copies, he says

— were not sent back to h im with the return forms.

Davis countered that the return forms themselves confirm that he made a good

- faith effort to submit a grievance. He also argued t hat Internal Affairs “ refused to take the matter at hand seriously, ” but he did not say when he first contacted Internal Affairs. The judge accepted the officers ’ contention that Davis ’ s grievances were inadequate and entered judgment in their favor on non exhaustion grounds

. This appeal followed.
II. DiscussionDavis argues that the grievance process was made unavailable to him by the grievance coordinator ’ s refusal to process his grievances. He points out that she gave him scant or no explanation of the pe rceived shortcomings in his grievances, and she did not tell him how to fix them. And she inexplicably insisted that he should talk to Internal Affairs instead

. The officers respond by arguing that Davis waived any claim that the grievance process was made unavailable to him by the mixed or unexplained signals from the grievance coordinator . Waiver aside, they insist that administrativeremedies remained available to him. Finally, in a new argument on appeal, the defendants contend that the grievance6 No. 16

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coordi nator ’ s instruction to contact Internal Affairs was

“ simply one step in the administrative grievance process, ” i.e., part of the initial step of trying to informally resolve an issue. To begin, we reject the officers ’ assertion that Davis waived any argum ent about the unavailability of the grievance procedure. I t was not Davis ’ s burden to establish that the grievance process was unavailable; it was the officers ’burden to show that Davis did not exhaust available remedies. See Pyles v. Nwaobasi , 829 F.3d 8 60, 864 (7th Cir. 2016); King v. McCarty , 781 F.3d 889, 89 3 (7th Cir. 2015).

T he officers did not meet th eir burden. First, t o the extent that the y now argue that contacting Internal Affairs was a normal part of the informal

- resolution step, the record sh ows otherwise. The grievance coordinator never marked the checkbox on the return form identifying a f ail ure to attempt an informal resolution as one of the reason s she
return ed Davis ’ s grievance

. Nor did she attest in her declaration that she rejected Davis ’ s grievances because he did not try to resolve th e matter informally. So this argument is both

new on appeal and lacks evidentiary support.

Moreover , the grievance policy makes no mention of Internal Affairs in describing the informal

- resolution proc ess. I t says only that the inmate should discuss the issue with the “ staff member responsible for the situation ”

— here
, the two officers

— or other specifically identified staff members

. S ee IDOC M ANUAL OF P OLICIES & P ROCEDURES , § XIII(A). The procedure also explains that an “ Executive Assistant ” may “ require the offender to talk to several people to attempt an informal resolution, ” id. , but the grievance coordinator has never claimed that she was invoking this author-No. 16

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ity. In fact, she attests that her role was limited to screening grievances at the second step of the grievance process. If her role was broader than she states, or if an authorized executive assistant told Davis to speak with Internal Affairs, the officers made no effort to establish this at summa ry judgment. Second, the grievance coordinator kept rejecting Davis ’ s grievances based on his purported noncompliance with unannounced or unexplained requirements. See Hill v. Snyder , 817 F.3d 1037, 1040 (7th Cir. 2016). A dministrative remedies may be effectively unavailable if prison officials

“ erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it. ” Pavey v. Conley , 663 F.3d 899, 906 (7th Cir. 2011) (recognizing that the grie vance process may be unavailable if prison authorities mislead a prisoner into believing that participating in an internal

- affairs investigation will fulfill the grievance requirement); see also Ross v. Blake , 136 S. Ct. 1850, 1860 & n.3 (2016) (explaining that interference with a prisoner ’ s use of the proper grievance procedure by misleading a prisoner makes the administrative process unavailable).
As we ’ ve explained , the evidence at summary judgment does not support a conclusion that the grievance coordi nator was authorized to demand that Davis contact Internal Affairs . B y doing so, she was imposing on him a completely new rule. Adding to the confusion, her unexplained insistence that his grievance involved a classification issue sent mixed signals about which course Davis should take. See Swisher v. Porter C ty. Sheriff ’ s Dep ’ t , 769 F.3d 553, 555 (7th Cir. 2014). Checking the “ classification ” box might have meant that Davis needed to take another step to fil e a formal griev-8 No. 16

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ance or that he was using the wro ng process. And the grievance coordinator did not elaborate on how Davis could fix any of these perceived shortcomings . The grievance policy specifically required her to explain “ how [the form] may be corrected. ” See IDOC M ANUAL OF P OLICIES & P ROCEDURES , § XIV(B).
When the record is viewed in the light most favorable to Davis, a reasonable fact finder could conclude that he did all that was required of him yet was prevented from filing his grievance because of the mixed or improper instructions from the gri evance coordinator. It ’ s worth repeating that h e had no way to contest her refusal to process his grievance

. The policy specifies that staff should “ deny ” grievances that

concern a “ non

- grievable ” issue. See id. § V(B). Inmates may appeal the denial of a g rievance. S ee id. § XIV(E). But the policy does not provide for an appeal from a refusal to process a grievance. S ee Hill , 817 F.3d at 1040 ( explaining that the Indiana grievance policy does not provide for appeals of unprocessed grievances); see also Small v. Camden County
, 728 F.3d 265, 273 (3d Cir. 2013) (exhaustion did not require appealing a “ non

- decision ” where such an appeal was not provided in the prison ’ s procedures).
Because the record permit s the conclusion that Davis did as much as the griev a nce policy required of him, s ummary judgment on none xhaust ion grounds was improper. W e V ACATE the judg ment and R EMAND for further proceedings.