Terry Davis v. DAVID MASON and BLAKE THRASHER

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2707
TERRY DAVIS,
Plaintiff-Appellant,
v.
DAVID M ASON 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.
____________________
S UBMITTED M AY 4, 2017 — DECIDED F EBRUARY 6, 2018
____________________
Before K ANNE, S YKES, and HAMILTON , Circuit Judges.
S YKES, 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 en-
tered summary judgment for the defendants, holding that
Davis had not exhausted his administrative remedies as

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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 adminis-
trative 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. I ND.
DEP ’ T OF C ORR ., M ANUAL OF POLICIES & PROCEDURES (“IDOC
M ANUAL 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 infor-
mally, the inmate must submit a formal grievance. A griev-
ance 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 special-
ized procedures for disputing disciplinary sanctions or
“classification” decisions like facility transfers, bed assign-
ments, 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 re-
turned 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.

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No. 16-2707 3
grievance policy makes no mention of a requirement to
notify Internal Affairs and does not authorize an administra-
tive 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 Griev-
ance” 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 com-
pletely filled out.” The grievance coordinator did not identi-
fy 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 Griev-
ance 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 unidenti-
fied “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.”

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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 indicat-
ing 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 serious-
ness 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 sub-
mitting 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

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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 con-
firm 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 una-
vailable 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 argu-
ment on appeal, the defendants contend that the grievance

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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 griev-
ance 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 reme-
dies. 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 declara-
tion 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 pro-
cess. 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 mem-
bers. See IDOC M ANUAL 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 coor-
dinator has never claimed that she was invoking this author-

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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 mislead-
ing a prisoner makes the administrative process unavaila-
ble).
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 insist-
ence 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-

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8 No. 16-2707
ance or that he was using the wrong process. And the griev-
ance 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 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 R EMAND for further proceedings.

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