Submitted May 4, 2017
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.
Kanne, Sykes, and Hamilton, Circuit Judges.
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 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.
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),
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 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.
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
"[classification ... 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."
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
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
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.
evidentiary support the officers submitted the Return of
Grievance forms and a declaration from the grievance
coordinator. The coordinator's declaration sheds no
further 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.
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