In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 15-2607
`ASHER B. HILL,
`
`JERRY SNYDER, et al.,
`
`Plaintiff-Appellant,
`
`v.
`
`Defendants-Appellees.
`____________________
`
`Appeal from the United States District Court for the
`Southern District of Indiana, Indianapolis Division
`No. 1:13-cv-68-RLY-MJD — Richard L. Young, Chief Judge.
`____________________
`
`SUBMITTED MARCH 18, 2016* — DECIDED APRIL 5, 2016
`____________________
`
`Before BAUER, EASTERBROOK, and HAMILTON, Circuit
`Judges.
`HAMILTON, Circuit Judge. Asher Hill, an Indiana inmate,
`sued prison staff under 42 U.S.C. § 1983, alleging that they
`had violated the Eighth Amendment by failing to protect him
`
`* 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)(C).
`
`
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 15-2607
`ASHER B. HILL,
`
`JERRY SNYDER, et al.,
`
`Plaintiff-Appellant,
`
`v.
`
`Defendants-Appellees.
`____________________
`
`Appeal from the United States District Court for the
`Southern District of Indiana, Indianapolis Division
`No. 1:13-cv-68-RLY-MJD — Richard L. Young, Chief Judge.
`____________________
`
`SUBMITTED MARCH 18, 2016* — DECIDED APRIL 5, 2016
`____________________
`
`Before BAUER, EASTERBROOK, and HAMILTON, Circuit
`Judges.
`HAMILTON, Circuit Judge. Asher Hill, an Indiana inmate,
`sued prison staff under 42 U.S.C. § 1983, alleging that they
`had violated the Eighth Amendment by failing to protect him
`
`* 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)(C).
`
`
`
`2
`
`No. 15-2607
`
`from inmates who threw feces at him on four occasions. The
`district court granted summary judgment for defendants on
`the ground that Hill had not exhausted administrative reme-
`dies as required by the Prison Litigation Reform Act,
`42 U.S.C. § 1997e(a). We conclude that summary judgment
`was improper for three of the incidents, so we vacate the judg-
`ment in part and remand the case for further proceedings.
`Indiana’s grievance policy instructs prisoners to exhaust
`administrative remedies in three steps: (1) seek informal res-
`olution; (2) if dissatisfied, submit a formal grievance; and
`(3) if dissatisfied with the response to the processed griev-
`ance, appeal. See Ind. Dep’t of Corr., Admin. P. No. 00–02–301,
`§§ XIII, XIV. The grievance policy lists 21 criteria, such as writ-
`ing legibly in English and addressing only one issue per griev-
`ance, that must be satisfied before the prison will process a
`formal grievance. See § XIV.A–B. The prison’s executive assis-
`tant may return a formal grievance unprocessed if the pris-
`oner does not meet any of these criteria. § XIV.B. When that
`happens the executive assistant “shall” explain “why the form
`was returned and how it may be corrected.” Id. A prisoner has
`five days to correct the grievance. The policy does not state
`that a prisoner can appeal an unprocessed grievance.
`Hill alleges that prison staff failed to stop prisoners from
`throwing feces at him through the “cuff ports” in his cell door
`on four dates in 2011 and 2012. We describe the evidence of
`Hill’s efforts to grieve these four incidents in the light most
`favorable to Hill, the non-moving party. See Tradesman Int’l,
`Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013).
`The first incident occurred in February 2011. Hill filed a
`formal grievance, but it was returned to him unprocessed be-
`cause he had failed to pursue first an informal resolution of
`
`
`
`No. 15-2607
`
`3
`
`the problem. Hill then wrote a letter to prison staff seeking an
`informal resolution. After receiving no response, he resubmit-
`ted the formal grievance. It was again returned unprocessed.
`This time, Hill received no advice about correcting the form.
`The only information he received was a notation that a prison
`staff member had “viewed the video and is not able to verify
`this occurred.” Hill did nothing further about that incident
`before filing suit.
`The second incident occurred in May 2011. Hill again at-
`tempted to resolve the issue informally. After receiving no re-
`sponse, he submitted a formal grievance. This grievance was
`also returned to Hill unprocessed. The explanation this time
`was that the issue had already been resolved informally. Hill
`believed it had not been resolved, but he took no further steps
`about this incident before filing suit.
`The third and fourth incidents took place in June and Au-
`gust 2012. According to Hill’s affidavit, for both incidents he
`never received a grievance form. After informal efforts did
`not resolve his complaint about the June incident, his prison
`counselor refused to give Hill the form to file a formal griev-
`ance. After the August incident, Hill was also stymied. Before
`he could file a formal grievance, his unit manager insisted that
`Hill provide the exact time of the feces-throwing incidents,
`which he did not know, thereby preventing any further griev-
`ance efforts.
`Hill then filed suit in state court against prison staff over
`the attacks. Defendants removed the case to federal court un-
`der 28 U.S.C. § 1441. The district court screened the complaint
`pursuant to 28 U.S.C. § 1915A(b) and dismissed and severed
`some unrelated claims in an order that Hill does not chal-
`lenge.
`
`
`
`4
`
`No. 15-2607
`
`The remaining defendants, Jerry Snyder and Brian Butler,
`quickly moved for summary judgment. They asserted that
`Hill had not complied with the prison’s grievance policy be-
`cause he did not submit any formal grievances about any of
`the incidents. Hill responded that prison staff had prevented
`him from filing formal grievances. For the first two incidents,
`they had improperly refused to process grievance forms. For
`the third and fourth incidents, they prevented him from filing
`formal grievances. His counselor refused to give him a griev-
`ance form after the third incident, and after the fourth inci-
`dent, defendant Snyder demanded to know its exact time.
`The district judge ruled that Hill had not exhausted ad-
`ministrative remedies and granted summary judgment. For
`the first two incidents, the judge concluded that Hill could
`have fixed and resubmitted the unprocessed grievances. For
`the last two incidents, the judge reasoned that Hill could have
`obtained grievance forms from other prison staff.
`In the district court’s final judgment, Hill’s claims were dis-
`missed without prejudice. A dismissal without prejudice is
`not ordinarily appealable because it is not final. But because
`Hill is now time-barred by the prison’s grievance policy from
`further pursuing administrative remedies for these events, he
`could do nothing to cure the failure to exhaust. The dismissal
`is thus final for purposes of appellate review. See Dixon v.
`Page, 291 F.3d 485, 488 (7th Cir. 2002).
`Hill contends that he exhausted his claims for all four in-
`cidents. We agree with him as to three of the four. We begin
`with the first incident and conclude that defendants are not
`entitled to summary judgment for failure to exhaust on that
`incident from February 2011. After prison staff told him to at-
`tempt an informal resolution, Hill did so and then submitted
`
`
`
`No. 15-2607
`
`5
`
`his formal grievance. But the staff returned it unprocessed,
`with only the notation that a staff member “had viewed the
`video and is not able to verify this occurred.” The grievance
`policy’s 21 requirements for processing grievances do not in-
`clude the ability of staff to “verify” an alleged incident. See
`Admin. P. No. 00–02–301 § XIV.A–B. And the notation did
`not, as the policy requires, tell Hill what “correction” he
`needed to make to have the grievance processed. See id.
`§ XIV.B. Beyond that, the grievance policy did not tell Hill that
`he could appeal a refusal to process.
`“Prisoners are required to exhaust grievance procedures
`they have been told about, but not procedures they have not
`been told about.” King v. McCarty, 781 F.3d 889, 896 (7th Cir.
`2015); see also Small v. Camden County, 728 F.3d 265, 273
`(3d Cir. 2013) (exhaustion did not require appealing a “non-
`decision” where such appeal was not provided in prison’s
`procedures). Because the record permits a finding that Hill
`did as much as the grievance policy required of him before he
`hit a roadblock to further consideration, summary judgment
`on this claim for failure to exhaust was improper.
`The defendants respond that Hill should have figured out
`how to enable its staff to process his grievance. By telling Hill
`that a staff member “had viewed the video” but was unable
`to confirm his allegations, defendants say, the prison staff im-
`plied that Hill had written the wrong time or date of the inci-
`dent on his grievance and needed to fix that detail. We are not
`persuaded. The administrative exhaustion requirement of
`§ 1997e(a) serves important purposes but does not invite
`prison and jail staff to pose guessing games for prisoners.
`In any event, even if Hill could have solved the implicit
`riddle suggested by defendants, the prison staff improperly
`
`
`
`6
`
`No. 15-2607
`
`required that, as a condition for processing his grievance, he
`comply with a rule that the prison had never published be-
`fore. See King, 781 F.3d at 896. Under the prison’s grievance
`policy, a mistake in the date and time of an incident is simply
`not a ground for refusing to decide a grievance. Because the
`prison refused to process Hill’s grievance based on his devia-
`tion from an unannounced rule, no further administrative
`remedies were available to Hill. See Sapp v. Kimbrell, 623 F.3d
`813, 823 (9th Cir. 2010) (concluding that further remedies are
`unavailable when prison officials screen out grievances for
`improper reasons). Defendants were not entitled to summary
`judgment on this defense.
`The district court’s exhaustion ruling regarding the second
`incident, however, was correct. The prison again returned
`Hill’s formal grievance unprocessed—this time asserting that
`it had already addressed the grievance informally. One reason
`that a grievance officer may return a grievance unprocessed
`is if “[t]he matter addressed in the grievance has been raised
`and addressed….” See Admin. P. No. 00–02–301 § XIV.B.10. If
`Hill disagreed with this assertion, as he says he did, the griev-
`ance policy gave him five days to resubmit his formal griev-
`ance form. In this way, he could have corrected the assertion
`that he had accepted an informal resolution, but he did not.
`Because Hill failed to pursue an administrative remedy that
`was available to him, this claim was not exhausted and sum-
`mary judgment was proper.
`For the third and fourth incidents, Hill asserts that prison
`staff refused to provide him with a grievance form, so he is
`excused from exhausting administrative remedies. Hill is cor-
`rect that exhaustion is not required when the prison officials
`responsible for providing grievance forms refuse to give a
`
`
`
`No. 15-2607
`
`7
`
`prisoner the forms necessary to file an administrative griev-
`ance. See Dale v. Lappin, 376 F.3d 652, 655–56 (7th Cir. 2004).
`The defendants, citing Dale, contend that a prisoner in this
`situation must pursue all available alternatives to obtain a
`grievance form and show they were all unavailable. Defend-
`ants suggest that under the grievance policy Hill could have
`asked several staff members for a grievance form: his housing
`unit manager, the law librarian, counselor, and executive as-
`sistant. See Admin. P. No. 00–02–301 § XIV.A. But the defend-
`ants propose an unworkable rule and read too much into Dale.
`Under defendants’ proposed rule, there would be no way
`for a prisoner to know when he had truly tried all available
`alternatives at the very first step—just obtaining the right
`form. The exhaustion requirement would invite prison staff
`to require prisoners to go on scavenger hunts just to take the
`first step toward filing a grievance. The PLRA does not im-
`pose such a requirement. And although the prisoner in Dale
`had in fact asked several members of the prison staff for a
`grievance form (all had refused him), nothing in our opinion
`suggested he was required to pursue all conceivable alterna-
`tive sources to obtain a form.
`In this case, Hill sought the required form not from a ran-
`domly chosen staff member but from his counselor and unit
`manager. Each of those officials was responsible under the
`grievance policy for giving Hill an available grievance form
`upon request. Hill’s affidavit shows that they refused to do so
`for the third incident and, construed at this juncture in his fa-
`vor, permits an inference they refused to do so for the fourth.
`The record also does not indicate that either had any legiti-
`mate reason for refusing his request. The evidence of their re-
`fusals to give Hill an available form is sufficient to permit a
`
`
`
`8
`
`No. 15-2607
`
`finding that Hill was prevented from grieving these incidents.
`The administrative remedies were not available to him. He
`was not required to hunt for a form from other staff members.
`Defendants are not entitled to summary judgment based on
`this defense.
`Accordingly, we VACATE the judgment of the district
`court in part, with respect to the exhaustion ruling on the
`claim regarding the first incident of February 2011 and the
`third and fourth incidents of June and August 2012, and
`REMAND for further proceedings on those claims. In all other
`respects, the judgment is AFFIRMED.
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