### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1396

E LIJAH R EID

, Plaintiff

‐ Appellant

,

v.

M ARC B ALOTA

, Correctional Officer,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:16

‐ cv

‐ 01378

‐ JBM

‐ JEH

— Joe Billy McDade

, Judge

.

____________________

A RGUED A PRIL 28, 2020

— D ECIDED J UNE 16, 2020

____________________

Before E ASTERBROOK

, R IPPLE

, and S CUDDER

, Circuit Judges

.

R IPPLE

, Circuit Judge

. Elijah Reid, an inmate in the Illinois

prison system, brought this action under 42 U.S.C. § 1983

against a correctional officer. He alleged that the officer used

excessive force against him in violation of the Eighth

Amendment of the Constitution of the United States as made2 No. 19

‐ 1396

applicable to the States by the Fourteenth Amendment. 1 The

district court dismissed the action, concluding that Mr. Reid

had not exhausted the prison’s administrative remedies be

‐

fore filing the lawsuit, as required by the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a). We now conclude that the

prison’s communications were so obscure that they made

further steps of its administrative process unknowable and,

thus, unavailable to Mr. Reid. We therefore vacate the judg

‐

ment of the district court and remand the case for further

proceedings consistent with this opinion.

I.

BACKGROUND

A. Facts

We present the facts in the light most favorable to

Mr. Reid. King v. McCarty

, 781 F.3d 889, 895 (7th Cir. 2015).

In his complaint, Mr. Reid, who adheres to a vegan diet for

religious reasons, alleged that when he told Officer

Marc Balota that he had been given the wrong meal, the Of

‐

ficer reacted by slamming a fist full of keys against one of

Mr. Reid’s hands, breaking it. Officer Balota told Mr. Reid,

who is African

‐ American, “you [are] going [to] get w[hat]

the f*** I give you n****r.” 2

Mr. Reid complained about this treatment through the

prison’s grievance process. According to the version of the

Illinois Administrative Code in effect at the time, that pro

‐

cess has three steps: (1) the inmate submits a grievance to a

1 See Rhodes v. Chapman

, 452 U.S. 337, 344–45 (1981) (internal citation

omitted).

2 R.31

‐ 2 at 1.No. 19

‐ 1396 3

counselor and grievance officer; (2) the grievance officer

tenders a report and recommendation to the warden, who

“shall advise the offender of the decision in writing within

two months after receipt of the written grievance, where rea

‐ sonably feasible under the circumstances”; and (3) if unsatis

‐

fied with the warden’s decision, the inmate may appeal to

the Administrative Review Board by providing copies of the

grievance officer’s report and the warden’s decision. I LL

. A DMIN

. C ODE tit. 20, §§ 504.810, 504.830(d), 504.850. Alterna

‐ tively, when there is a risk of imminent or irreparable harm,

an inmate may “request a grievance be handled on an emer

‐

gency basis by forwarding the grievance directly” to the

warden. Id. § 504.840.

On the day of the incident, July 28, 2016, Mr. Reid filed

two grievances. He filed a “standard grievance” (i.e., the first

of the three steps) with the prison’s grievance officer, who

logged it as having been received on August 2. He also filed

a copy of this grievance with the warden on an emergency

basis, the alternative step when a situation involves a risk of

imminent or irreparable harm.

On August 9, Mr. Reid received a communication about

each of his grievances. The warden returned the emergency

grievance with a checked

‐ box response stating that “an

emergency is not substantiated [and Mr. Reid] should sub

‐

mit this grievance in the normal manner.” 3 Mr. Reid also re

‐

ceived a memorandum, which the grievance officer had

completed on a stock form. On the memorandum, the griev

‐

ance officer checked the box to indicate that she was return

‐ ing the grievance to Mr. Reid because the “issue has been

3 R.31

‐ 2 at 4.4 No. 19

‐ 1396

received on 8/02/16. No justification for further considera

‐

tion.” 4 She added two notations, writing that the “[i]ssue

[had been] previously submitted to Internal Affairs for re

‐

view” and “[r]esponse pending per I.A.” 5

Mr. Reid submitted an appeal to the Administrative Re

‐

view Board on August 15. He attached both the grievance

officer’s memorandum and the returned emergency griev

‐

ance. The Board returned the appeal to Mr. Reid, stating

that, in order to appeal, he should have provided two specif

‐

ic documents—a copy of his standard grievance, including

the counselor’s response, if available, and the “Doc. 0047”

form, which the warden issues and which sets forth the re

‐

sponses of the grievance officer and the warden. The Board

did not check the box that stated, “Please return the attached

grievance or correspondence with the additional information

requested.” 6

On August 24, Mr. Reid filed with the warden a second

emergency grievance. In it, he repeated his allegations

against Officer Balota and protested that no one had re

‐ sponded to the standard grievance he previously had sub

‐

mitted. Without ruling on the merits of the grievance, the

warden again denied that there was any emergency.

Three weeks later, on September 15, the Board returned

Mr. Reid’s subsequent appeal. The Board, once again, in

‐

structed Mr. Reid that to appeal, he needed to attach his

standard grievance and a Doc. 0047 form bearing responses

4 Id. at 7.

5 Id.

6 Id. at 8.No. 19

‐ 1396 5

from both the grievance officer and warden. As before, the

Board did not check the box that directed Mr. Reid to “re

‐

turn the attached

... correspondence with the additional in

‐

formation requested.” 7 The Board added a note informing

Mr. Reid that “if [he had] not forwarded [his] grievance

to

... grievance officer, [his] grievance [would] be considered

untimely.” 8

B. Procedural History

In October 2016, Mr. Reid brought this action against Of

‐

ficer Balota and several other prison officials. Because

Mr. Reid is a prisoner, the district court screened his com

‐ plaint under 28 U.S.C. § 1915A and dismissed it for failing to

state a claim upon which relief could be granted. Mr. Reid

appealed, and we vacated the dismissal of his Eighth

Amendment claim against Officer Balota on the ground that

Mr. Reid stated a claim by alleging that the officer had in

‐

flicted pain without any penological justification. Reid v.

Melvin

, 695 F. App’x 982, 984 (7th Cir. 2017) (unpublished).

On remand, Officer Balota moved for summary judg

‐

ment. He asserted the affirmative defense that Mr. Reid had

failed to exhaust the prison’s administrative remedies before

filing suit, as required by the Prison Litigation Reform Act,

42 U.S.C. § 1997e(a). Mr. Reid, through counsel, countered

that administrative remedies were unavailable because the

absence of any response from the grievance officer and war

‐

den prevented him from completing the administrative pro

‐

cess.

7 Id. at 3.

8 Id.6 No. 19

‐ 1396

The district court entered summary judgment for Of

‐

ficer Balota, ruling that Mr. Reid had failed to exhaust his

administrative remedies. Regarding the standard grievance,

the court explained that the prison had responded to it

through the grievance officer’s memorandum, but Mr. Reid

“abandoned any further efforts at exhaustion” because it

was “not clear whether he included this [memorandum] in

his appeal to the [Administrative Review Board].” 9 The court

also determined that Mr. Reid, who filed suit “only nine

weeks after submitt[ing] the standard

... grievance,” acted

too soon because an Internal Affairs “investigation was

pending,” and the warden had “two months to make a deci

‐

sion” after receiving a recommendation from the grievance

officer. 10 As for the emergency grievances, the court ruled

that the Board gave Mr. Reid “an opportunity to exhaust”

when it told him to attach specific documents to his appeal,

and he “failed to take advantage” of that procedure. 11

Mr. Reid filed a motion to alter the judgment under Fed

‐

eral Rule of Civil Procedure 59(e). He argued that (1) he at

‐ tempted to appeal the grievance officer’s memorandum, but

the Administrative Review Board returned that appeal to

him as insufficient because it did not include a Doc. 0047

form with the grievance officer’s and the warden’s respons

‐

9 R.37 at 3.

10 Id. at 5–6. Illinois law provides that the warden should respond to a

written grievance within two months “after receipt of the written griev

‐

ance.” I LL

. A DMIN

. C ODE tit. 20, § 504.830(d). The district court misstated

the deadline as arising two months from the grievance officer’s recom

‐

mendation.

11 Id. at 8 (internal quotation marks omitted) (internal citations omitted).No. 19

‐ 1396 7

es; and (2) he was prevented from moving forward in the

administrative process by the warden’s failure to communi

‐

cate a final decision about his standard grievance—a re

‐

sponse that should have appeared on a Doc. 0047 form. The

district court denied the motion, reiterating that Mr. Reid

did not wait long enough for the warden to respond. This

appeal followed.

II.

DISCUSSION

The sole issue before us is whether Mr. Reid exhausted

the prison’s available administrative remedies before bring

‐ ing this action. Specifically, we must consider whether any

further administrative avenue was open to Mr. Reid, given

the prison’s confusing responses and its failure to resolve his

standard grievance. Because exhaustion is an affirmative de

‐

fense, Officer Balota bears the burden to show that remedies

were available and that Mr. Reid failed to use them. Hernan

‐

dez v. Dart

, 814 F.3d 836, 840 (7th Cir. 2016). We review de

novo the grant of summary judgment for failure to exhaust.

Id.

The Prison Litigation Reform Act prohibits an inmate

from suing over prison conditions under § 1983 “until such

administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). To exhaust available remedies, a prisoner

must comply strictly with the prison’s administrative rules

by filing grievances and appeals as the rules dictate.

See Woodford v. Ngo

, 548 U.S. 81, 90–91 (2006); Pozo v.

McCaughtry

, 286 F.3d 1022, 1024 (7th Cir. 2002).

The exhaustion requirement, however, “hinges on the

‘availab[ility]’ of administrative remedies: An inmate, that is,8 No. 19

‐ 1396

must exhaust available remedies, but need not exhaust una

‐

vailable ones.” Ross v. Blake

, 136 S. Ct. 1850, 1858 (2016) (al

‐

teration in original). An administrative scheme can be “una

‐

vailable” to a prisoner when a prison fails to respond to a

prisoner’s grievance and, in so doing, prevents that prisoner

from exhausting administrative remedies. Dole v. Chandler

,

438 F.3d 804, 809 (7th Cir. 2006) (internal quotation marks

omitted). An administrative scheme also can be “so opaque

that it becomes, practically speaking, incapable of use.” Ross

,

136 S. Ct. at 1859

. Mere ambiguity might not make the ad

‐

ministrative process unavailable; “[w]hen an administrative

process is susceptible of multiple reasonable interpretations,

... the inmate should err on the side of exhaustion.” Id. But if

“no ordinary prisoner can make sense of what it demands,”

the process is “unknowable” and thus unavailable. Id

. (in

‐

ternal quotation marks omitted).

Recently, in Williams v. Wexford Health Sources, Inc.

, 957

F.3d 828 (7th Cir. 2020), we emphasized the importance of

clear administrative schemes for processing prison grievanc

‐

es. “Grievance procedures must be transparent. This helps

everyone: the institution is better able to investigate and re

‐

solve grievances if they are presented under a

well

‐ understood system, and inmates are better able to com

‐ ply with institutional expectations if the rules are clear.” Id.

at 834. In Williams

, an Illinois prisoner appealed the denial of

his emergency grievance, and the Administrative Review

Board returned the appeal in the same manner it did

Mr. Reid’s: the Board checked the box stating that the appeal

was missing specific documents, but not the one stating that

the prisoner should resubmit the appeal with those docu

‐

ments. We concluded that the prisoner, who did not resub

‐No. 19

‐ 1396 9

mit the appeal (or file a new standard grievance) had ex

‐

hausted the remedies that were available to him. Id.

In the present case, we conclude that the prison’s re

‐

sponses so obscured the process that there was no conceiva

‐

ble next step for Mr. Reid to take. First, the grievance of

‐

ficer’s memorandum gave him conflicting messages—that

there was “[n]o justification for further consideration” of his

issue and that the issue had been “submitted to Internal Af

‐

fairs for review.” 12 Yet Mr. Reid “err[ed] on the side of ex

‐

haustion”—as required of a prisoner who receives an am

‐ biguous response to his grievance—and appealed that mem

‐

orandum to the Administrative Review Board. Ross

,

136 S. Ct. at 1859.

When he did so, the Board’s response further obscured

the next steps Mr. Reid was supposed to take. The Board

told him that his appeal was missing specific documents but,

like the Board in Williams

, did not check the box specifying

that those documents needed to be provided or that some

explanation needed to be given for their absence. If, as Of

‐

ficer Balota contends, exhaustion required that Mr. Reid ex

‐ plain to the Board why certain documents were missing

from his appeal, nothing in the record shows that Mr. Reid

could have known about that requirement. See Williams

, 957

F.3d at 833–34 (holding that an Illinois prisoner exhausted

“all the steps the prison offer[ed]” when the Board returned

the appeal as insufficient but did not check the box directing

the prisoner to provide missing documents).

12 R.31

‐ 2 at 7.10 No. 19

‐ 1396

Even so, Mr. Reid submitted yet another grievance via

the only channel that had drawn a response from the prison.

He filed an emergency grievance, this time explaining that

no one had responded to his standard grievance. When the

warden and the Administrative Review Board returned that

grievance to him, neither mentioned a pending standard

grievance or an ongoing Internal Affairs investigation. Based

on those responses, it would have been impossible for

Mr. Reid to know whether the grievance officer was still

processing his standard grievance. Confusing matters fur

‐

ther, the Board told Mr. Reid that if he had not yet submitted

a grievance through the normal channels, any newly submit

‐

ted grievance would be considered untimely. That directive

ignored the substance of Mr. Reid’s grievance, which com

‐ plained about the handling of his previously filed standard

grievance. It also conveyed to Mr. Reid that no further step

was available to him: his appeals had been returned to him,

he was told not to file a new grievance, and—as far as he

could tell—his standard grievance had been either lost in the

shuffle or resolved against him.

Officer Balota submits that Mr. Reid simply did not wait

long enough for the warden to respond to his standard

grievance. He relies on Ford v. Johnson

, 362 F.3d 395, 400

(7th Cir. 2004), in which we ruled that a grievance process

with a similar aspirational timeline—there, it was sixty days,

“whenever possible”—does not necessarily trigger an in

‐

mate’s right to sue once that period had passed. Because the

regulation governing Mr. Reid’s process, I LL

. A DMIN

. C ODE

tit. 20, § 504.830(d), stipulates that the warden must respond

“within 2 months

... where reasonably feasible,” Of

‐

ficer Balota argues that Mr. Reid needed to give the griev

‐

ance officer (and, relatedly, the warden) more than twoNo. 19

‐ 1396 11

months to review the merits of his grievance and provide

her recommendation.

However, unlike Ford

, in which the inmate sued upon the

passage of the “aspirational” deadline despite knowing that

the prison was investigating his appeal, 362 F.3d at 400,

Mr. Reid had no reason to believe that anyone was looking

into his grievance. As we have already discussed, the re

‐

sponses from the Administrative Review Board suggested

that no one was. In any case, Officer Balota cannot overcome

the fact that no prison official ever responded with an an

‐

swer to Mr. Reid’s standard grievance. See Dole

, 438 F.3d at

809; see also Lewis v. Washington

, 300 F.3d 829, 833 (7th Cir.

2002) (“[W]e refuse to interpret the PLRA ‘so narrowly as to

... permit [prison officials] to exploit the exhaustion re

‐ quirement through indefinite delay in responding to griev

‐

ances.’”) (second and third alterations in original) (quoting

Goodman v. Carter

, 2001 WL 755137, at *3 (N.D. Ill. July 2,

2001)). Without that response, no further administrative av

‐

enue was opened to Mr. Reid.

Conclusion

The prison’s communications with Mr. Reid so obscured

the administrative process that it became unknowable and,

thus, unavailable to him. Therefore, having concluded that

Mr. Reid satisfied the exhaustion requirement under the

Prison Litigation Reform Act, we VACATE the judgment

and REMAND for additional proceedings.

VACATED and REMANDED