In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-2707

TERRY DAVIS,

Plaintiff-Appellant,

v.

DAVID MASON and

BLAKE THRASHER,

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.

____________________

SUBMITTED MAY 4, 2017 — DECIDED FEBRUARY 6, 2018

____________________

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Terry Davis, an Indiana prisoner, 

sued 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 district judge entered summary judgment for the defendants, holding that 

Davis had not exhausted his administrative remedies as 
2 No. 16-2707

required by the Prison Litigation Reform Act. See 42 U.S.C. 

§ 1997e(a). We vacate and remand for further proceedings. 

The evidence in the summary-judgment record does not 

clearly show that Davis failed to exhaust available administrative remedies. 

I. Background

Grievances by Indiana prisoners proceed in three steps. 

The inmate must (1) attempt informal resolution; (2) file a 

formal grievance; and (3) file an administrative appeal. IND.

DEP’T OF CORR., MANUAL OF POLICIES & PROCEDURES (“IDOC

MANUAL OF POLICIES & PROCEDURES”), No. 00-02-301, §§ V, 

XIII, XIV (July 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 complaint

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 grievance may be returned unprocessed if it does 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 unprocessed, 

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. 16-2707 3

grievance policy makes no mention of a requirement to 

notify Internal Affairs and does not authorize an administrative appeal of a refusal to process a grievance. 

Davis filed this suit under 42 U.S.C. § 1983 alleging that 

two corrections officers—David Mason and Blake 

Thrasher—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, Davis tried several times to submit grievances

complaining about this incident, but none were processed.

He filed the first one on January 10, five days after the 

incident. The 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 reasons for refusing to 

process a grievance. The coordinator checked two boxes: 

(1) the grievance could not be processed because it raised a 

“[c]lassification ... issue or action” and (2) was “not completely 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 matter.”

Davis promptly resubmitted his grievance, but on 

January 23 the coordinator again sent him a Return of Grievance form. This time she did not check the box rejecting the 

grievance as incomplete. As 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, the coordinator cryptically instructed him to contact

his “unit team for the separate[] issue.”
4 No. 16-2707

On March 7 Davis tried a third time to submit a formal 

grievance regarding the assault. The grievance coordinator 

sent him another Return of Grievance form, this one indicating that the grievance was “too late” and again asserting that 

Davis needed to contact Internal Affairs. Davis resubmitted 

the 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 Internal Affairs “because of the seriousness of your complaint.”

The administrative trail ends there. Davis thereafter filed 

suit against Mason, Thrasher, 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 exhaust administrative 

remedies. At the judge’s invitation, they moved for summary 

judgment on the exhaustion defense. They did not object to

Davis’s failure to seek an informal resolution before submitting his formal grievances. Nor did they assert that Davis 

could have, but did not, pursue an administrative appeal 

after the grievance coordinator refused to process each of his 

grievances. Rather, they argued that Davis did not file a 

proper grievance and, when given the chance, did not 

remedy the shortcomings in his submissions.

As evidentiary support the officers submitted the Return 

of Grievance forms and a declaration from the grievance 

coordinator. The coordinator’s declaration sheds no further 
No. 16-2707 5

light on what was missing from Davis’s grievances. Nor 

does it identify 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 they have not contradicted Davis’s contention 

that his grievances—his only copies, he says—were not sent 

back to him 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 that 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 nonexhaustion grounds.

This appeal followed.

II. Discussion

Davis 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 perceived 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 administrative 

remedies remained available to him. Finally, in a new argument on appeal, the defendants contend that the grievance 
6 No. 16-2707

coordinator’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 argument about the unavailability of the grievance procedure. It 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 860, 864 (7th Cir. 2016); 

King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). 

The officers did not meet their burden. First, to the extent 

that they now argue that contacting Internal Affairs was a 

normal part of the informal-resolution step, the record 

shows otherwise. The grievance coordinator never marked 

the checkbox on the return form identifying a failure to 

attempt an informal resolution as one of the reasons she 

returned Davis’s grievance. Nor did she attest in her declaration that she rejected Davis’s grievances because he did not 

try to resolve the 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 process. It 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. See IDOC MANUAL OF POLICIES & PROCEDURES, § 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. 16-2707 7

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 summary 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). Administrative 

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 grievance 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 coordinator 

was authorized to demand that Davis contact Internal 

Affairs. By 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 Cty. 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 file a formal griev-
8 No. 16-2707

ance or that he was using the wrong 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 MANUAL OF POLICIES & PROCEDURES,

§ 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 grievance coordinator. It’s worth repeating that he 

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 grievance. See id. § XIV(E). But the 

policy does not provide for an appeal from a refusal to process

a grievance. See 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 permits the conclusion that Davis did 

as much as the grievance policy required of him, summary 

judgment on nonexhaustion grounds was improper. We 

VACATE the judgment and REMAND for further proceedings.