NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 21, 2010*
Decided January 29, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09‐1980
ROY AUSTIN SMITH, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:07‐CV‐207 PPS
DAWN BUSS, et al.
Defendants‐Appellees. Philip P. Simon,
Judge.
O R D E R
Roy Austin Smith, an inmate in the custody of the Indiana Department of Correction
(“IDOC”), claims in this suit under 42 U.S.C. § 1983 that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment. The district court granted
summary judgment for the defendants, reasoning that Smith had failed to exhaust his
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐1980 Page 2
administrative remedies. See 42 U.S.C. § 1997e(a). Smith appeals. We vacate the judgment
and remand for further proceedings.
Smith’s complaint alleges that in 2004 the defendants—the acting superintendent
and two guards at the Wabash Valley Correctional Facility—falsely labeled him a “snitch”
in documents that were distributed to other inmates, leading another prisoner to attack and
seriously injure him on November 25, 2005. Smith claims that the defendants were
deliberately indifferent to his safety and security. If Smith’s allegations are true, the
defendants could be liable under § 1983.
The defendants dispute Smith’s version of events, but this appeal concerns only their
motion for summary judgment, in which they narrowly contended that Smith had not
exhausted all available administrative remedies before filing his § 1983 suit, as required by
§ 1997e(a). The defendants presented evidence—in the form of a declaration from the
secretary to an executive assistant at the prison—that a grievance procedure was in effect
when Smith was allegedly attacked; that Smith’s claims were grievable; that her search of
prison records had uncovered two grievances filed six months and more than a year after
the alleged attack, far outside the time limit of 20 working days set forth in the manual of
grievance policies and procedures; that the time limit was enforced because Smith had not
shown good cause for waiting so long to file his grievances; and that she had found no
record of any other properly filed grievance from Smith about the attack. Smith countered
the secretary’s declaration with his own declaration and two more from other inmates, but
the district court reasoned that his submission was not enough to demonstrate a disputed
issue of material fact. In the court’s view, Smith’s evidence did not establish that he filed a
timely grievance or that he had a valid reason for that omission; the court’s decision implies
that Smith’s unwillingness to follow instructions was the root of his difficulty with the
exhaustion requirement.
We review a district court’s grant of summary judgment de novo. Salas v. Wisc. Dept.
of Corr., 493 F.3d 913, 921 (7th Cir. 2007). Summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter of
law. Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). Failure to exhaust administrative
remedies is an affirmative defense; prison officials bear the burden of proof. Obriecht v.
Raemisch, 517 F.3d 489, 492 (7th Cir. 2008).
Smith argues on appeal that the district court erred by failing to recognize that the
defendants put up “barriers” that kept him from filing a timely grievance. If prison officials
prevent an inmate from exhausting administrative remedies by ignoring properly filed
grievances or by impeding the use of the grievance system through actions such as
withholding necessary forms, destroying inmate submissions, or announcing additional
No. 09‐1980 Page 3
steps not mandated by regulation or rule, those remedies are not “available” to the prisoner
and he has not forfeited his ability to file suit. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.
2008); Kaba v. Stepp, 458 F.3d 678, 684‐85 (7th Cir. 2006); Dale v. Lappin, 376 F.3d 652, 656 (7th
Cir. 2004); Strong v. David, 297 F.3d 646, 649‐50 (7th Cir. 2002).
Smith provided sufficient evidence at summary judgment to create a genuine issue
of material fact as to whether remedies were available to him. He stated under oath in his
response to the defendants’ motion for summary judgment that immediately after the
altercation on November 25 he was placed in the prison’s Special Management Unit and
refused access to pencils, paper, and grievance forms, and told that those materials would
be provided to him only with the shift captain’s permission, after Smith had been in the unit
for seven days. IDOC grievance procedures, however, required the prison to maintain a
supply of grievance forms in each unit and called for inmates to be given forms within one
working day of a request. When prison officials fail to provide inmates with forms
necessary to file a grievance, administrative remedies are not available. Kaba, 458 F.3d at
684; Dale, 376 F.3d at 656.
On November 29, Smith was transferred to a pre‐segregation unit where, according
to his declaration, a guard told him that his issue was not grievable because he was going to
face criminal charges stemming from the November 25 incident. He also asserts that his
requests for grievance forms were ignored or returned with instructions to informally
resolve his grievances. IDOC policy did require prisoners to attempt to informally resolve
grievances before filing formal grievances, but administrative remedies are unavailable if
prison officials simply do not respond to grievances. Lewis v. Washington, 300 F.3d 829, 833
(7th Cir. 2002).
Smith was transferred on December 12 to the prison’s disciplinary segregation unit,
where, he says, he did submit grievance forms beginning in December—he does not
provide specific dates, so it is not clear whether he attempted to submit the forms within 20
working days of November 25—but that the forms were returned to him, unfiled, because
they did not bear the approval and signature of the officer in charge of the unit. The
defendants did not offer additional evidence contradicting either point, nor did they
produce any evidence that IDOC grievance procedures in effect at that time imposed a
requirement that the supervising officer approve or sign a grievance. If prison officials
erroneously impose requirements on the grievance process, administrative remedies are not
available. See Kaba, 458 F.3d at 684; Brown v. Croak, 312 F.3d 109, 111‐12 (3d. Cir. 2002)
(remedies unavailable when officials told prisoner he had to wait until investigation was
complete before filing grievance); Strong, 297 F.2d 646, 649‐50.
Finally, Smith asserts that he filed two grievances regarding the November 25
incident in early April 2006, but that they were returned to him because he had not shown
No. 09‐1980 Page 4
that he had attempted to resolve his grievance informally. (The defendants agree that those
grievances were not returned for being untimely.) Smith asserts in his declaration that on
April 12 he handed the grievance forms and all of his documentation about his attempts to
informally resolve his grievance to his unit counselor, but that he received no response until
he contacted the secretary to the executive assistant on May 2. According to Smith, she
informed him on May 3 that his grievances had been closed because the executive assistant
had not received the grievances or information about his attempts to resolve things
informally—all of that material had apparently been lost, misplaced, or thrown away.
When a prisoner follows proper procedures and prison officials are responsible for
mishandling his grievance, we cannot say that the prisoner has failed to exhaust his
remedies. Dole v. Chandler, 438 F.3d 804, 811 (7th Cir. 2004).
The defendants argue that Smith did not exhaust available remedies because the
grievances he did file were untimely, but they do not deny or refute his allegations of
actions—the denial of grievance forms, the ignoring of grievances he attempted to file, the
imposition of an unwritten requirement that his grievances be signed and approved by the
officer in charge of his unit, the mishandling of his grievances—that would have prevented
him from exhausting. Because we must, at this stage, accept Smith’s version of these events
as true, Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009), the defendants have not met their
burden of establishing that administrative remedies were available to Smith, see Kaba, 458
F.3d at 686.
Accordingly, we VACATE the judgment and REMAND for the court to hold an
evidentiary hearing, as outlined in Pavey, 544 F.3d at 742, to resolve the issue of exhaustion.