                                    PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 19-1929
                    ____________

            STEVEN PATRICK HARDY,
                    Appellant

                        v.

  ARIF SHAIKH; JULIAN GUTTIEREZ-MOLINA;
           THEODOR VOORSTAD;
       JOHN DOES 1-10; JANE DOES 1-10;
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
                 ____________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
               (D.C. No. 1-18-cv-01707)
     Magistrate Judge: Hon. Karoline Mehalchick
                    ____________

              Argued: January 14, 2020

  Before: JORDAN, GREENAWAY, JR., and KRAUSE,
                  Circuit Judges

            (Opinion Filed: May 20, 2020)
Leticia C. Chavez-Freed [Argued]
Chavez-Freed Law
2600 North 3rd Street, 2nd Floor
Harrisburg, PA 17110

      Counsel for Appellant

Michael C. Hamilton
Emily B. Ryan-Fiore
Tiffany R. Temas          [Argued]
Weber Gallagher Simpson Stapleton Fires & Newby
Four PPG Place, 5th Floor
Pittsburgh, PA 15222

      Counsel for Appellees Arif Shaikh, Julian Guttierez-
      Molina, and Theodor Voorstad

J. Bart DeLone
Howard G. Hopkirk          [Argued]
Josh Shapiro
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120

      Counsel for Pennsylvania Department of Corrections

                        ____________

                OPINION OF THE COURT
                     ____________




                              2
   KRAUSE, Circuit Judge.

    This case presents the question of whether and under what
circumstances a misrepresentation renders a grievance process
“unavailable” within the meaning of the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We conclude
that the District Court erred in finding that the second step of
the grievance process here was available to the plaintiff, Steven
Patrick Hardy, even though a prison counselor misled him into
believing that after his grievance was rejected he should file a
new one rather than appeal the rejection. Because that
misrepresentation thwarted Hardy’s use of the grievance
process, we find that he exhausted his available administrative
remedies. Accordingly, we will reverse the District Court’s
grant of summary judgment and remand for further
proceedings.

                 I. FACTUAL BACKGROUND1
   Steven Patrick Hardy entered the Camp Hill State
Correctional Institute (“Camp Hill”) in July 2017 in urgent


   1
     “Although the availability of administrative remedies to a
prisoner is a question of law . . . it necessarily involves a factual
inquiry,” Small v. Camden Cty., 728 F.3d 265, 271 (3d Cir.
2013) (internal citations omitted). “[J]udges may resolve
factual disputes relevant to the exhaustion issue without the
participation of a jury” as long as the parties are given “some
form of notice” and “an opportunity to respond.” Paladino v.
Newsome, 885 F.3d 203, 210, 211 (3d Cir. 2018). Here, the
District Court elected to hold an evidentiary hearing to address
the threshold exhaustion question. The parties do not dispute




                                 3
need of medical care: he had previously had part of his leg
amputated due to diabetes and had developed an infected open
wound as a result of an ill-fitting prosthesis. Typically,
inmates entering Camp Hill were transferred immediately to a
prison block, where they were given a copy of a Camp Hill
inmate handbook explaining, among other things, the inmate
grievance process, where grievance forms could be obtained,
and that the grievance process required inmates to appeal
rejected grievances. But Hardy’s first days at Camp Hill were
not typical. Because of his physical ailments, he was brought
immediately to the infirmary and remained there for his first
week at Camp Hill. And because he was not allowed personal
belongings in the infirmary, he was not given the inmate
handbook but rather was told it would be waiting for him in his
prison block. Relying on this assurance, Hardy signed a form
acknowledging receipt of the handbook despite not yet having
laid eyes on it.

   When Hardy arrived at his block, however, the handbook
was not there. And Hardy’s ensuing efforts to obtain the

that they were given the proper notice and opportunity to
respond.

    This background is adopted from the undisputed evidence
submitted to the District Court in advance of its hearing, the
live testimony credited by the District Court, and the District
Court’s findings of fact in its opinion. See Hardy v. Shaikh,
No. 1:18-CV-1707, 2019 WL 1756535 (M.D. Pa. Apr. 19,
2019). As required on review of summary judgment, we draw
all reasonable inferences in favor of the nonmoving party.
Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).




                              4
handbook or a copy of the Inmate Grievance System Policy
manual (“grievance manual”)—the official policy document
issued to Pennsylvania Department of Corrections staff—were
unavailing. When he asked prison staff in his assigned block
for a handbook, he was told that he “should have already gotten
one” and that obtaining one now was “[his] problem.” App.
179. Hardy also tried twice to go to the Camp Hill library,
which prison officials stated was “the best place to get [a copy
of the grievance manual].” App. 166:1–2. But on both
occasions, he was told the library was full.

    Consequently, while Hardy was aware that a grievance
process existed at Camp Hill, he did not know that at Camp
Hill, like other Pennsylvania state prisons, exhausting that
grievance process requires inmates to complete three steps.
Inmates must first submit a written grievance to the Facility
Grievance Coordinator and must then file two levels of
appeals: first to the Facility Manager and then to the
Secretary’s Office of Inmate Grievances and Appeals.

    As Hardy’s leg wound festered, he complained to medical
staff about his deteriorating condition and was advised to file a
grievance. That much was sound advice, as it directed Hardy
to begin the internal process required to exhaust the prison
grievance procedure.

    Consistent with the first step of that process, Hardy filed a
grievance explaining that a particular medical provider at
Camp Hill had refused to give him bandages and antibiotic
ointment for his wound. This grievance was rejected on
procedural grounds because it was not “legible,
understandable, and presented in a courteous manner.” App.
74. Hardy then submitted a more courteous grievance




                               5
concerning the same incident. Although this grievance
received a review on the merits by Camp Hill’s nurse
supervisor, it too was rejected—this time because the reviewer
lacked “any information that there were any issues not
addressed during [Hardy’s] sick call visit.” App. 77.

    Hardy then filed a grievance responsive to this rejection.
Now, instead of discussing only a single incident during which
he alleged to have been denied proper medical care, his
allegations provided a much fuller picture of how the medical
staff’s failure to properly treat his leg wound in the months
since his arrival at Camp Hill—including declining to follow a
doctor’s recommendation to transfer him to an offsite medical
facility for treatment—had caused his wound to deteriorate.
He also explained how his fear that more of his leg would need
to be amputated was causing him mental distress and that his
request for mental health treatment had been denied.

    Although the grievance process normally required
grievances to be filed within fifteen days of any incident and
Hardy discussed conduct from months ago, his grievance was
not “precluded solely by the fact that [these ongoing issues]
started outside” the normal fifteen-day time limit because it
described a continual pattern of conduct. App. 177. But it was
rejected for a different reason: The grievance process required
“different events [to] be presented separately” and Camp Hill’s
grievance coordinator (the prison staffer responsible for
reviewing and processing grievances) apparently read this rule
to require separate grievances for mental and physical harms.
App. 80.

    Unsure of how next to proceed, Hardy again turned to
prison staff for advice, asking his counselor, the prison staffer




                               6
assigned to provide him support and guidance about the
grievance process, how he should respond to the grievance
rejections. His counselor told him to “fill out another one and
send it in.”2 App. 187. This time, the advice Hardy received
from prison staff was not sound, for merely submitting a new
grievance would not satisfy the appeal requirement. Instead,
Hardy could only have effectuated an appeal using the
grievance form by writing the word “appeal” somewhere on
his new grievance.

    Unaware of this requirement—and doing his best to
interpret the rule that “different events . . . be presented
separately,” App. 80—Hardy submitted eight new grievances,
this time subdividing the pattern of conduct he described in his
third grievance into separate grievances by date. But these
grievances too were rejected, this time largely due to yet
another procedural requirement: now that Hardy had separated
his allegations by date rather than discussing a continual
pattern of conduct, his grievances were rejected as time
barred.3 Several weeks later, Hardy submitted one last
grievance and finally received a review on the merits. This
grievance too was rejected, with the reviewer finding Hardy’s

   2
     Although the record is unclear as to when exactly this
conversation took place, the timing of Hardy’s various
grievances and rejections suggests he must have received this
advice after his third grievance was rejected.
   3
     Of these eight grievances, six were rejected as time-
barred; one was rejected for discussing both mental and
physical harms; and another was rejected for discussing the
same incident as Hardy’s first two grievances.




                               7
request to be transferred to a medical facility “[f]rivolous.”
App. 99.

    In total, between December 27, 2017 and March 30, 2018,
Hardy filed no less than twelve grievances seeking medical
care for his worsening condition, all of which were rejected on
varying grounds. A few months after the last rejection,
Hardy’s fears came to pass and medical staff found it necessary
to amputate more of his leg.

             II. PROCEDURAL BACKGROUND
    Based on these events, Hardy filed a complaint bringing
claims under 42 U.S.C. § 1983, the Americans with
Disabilities Act, and state law against both the Pennsylvania
Department of Corrections (DOC) and several Camp Hill
medical professionals.4 Both sets of defendants moved for
summary judgment on the ground that Hardy failed to appeal
his rejected grievances and his suit was thus barred by the
PLRA’s exhaustion requirement, which requires inmates to
exhaust “available” administrative remedies before
challenging prison conditions in federal court, see 42 U.S.C.
§ 1997e(a).5 Hardy conceded that, by failing to appeal the



   4
     Pursuant to the 28 U.S.C. § 636(c), the parties consented
to proceed before a magistrate judge. We therefore refer to the
Magistrate Judge’s rulings as those of the District Court going
forward.
   5
    The medical defendants also moved, in the alternative, to
dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Pursuant to Federal Rule of Civil




                               8
rejected grievances, he had not exhausted that step of Camp
Hill’s grievance process, but argued his suit could still proceed
because that step was not available to him. Having determined
an evidentiary hearing was necessary to resolve the exhaustion
issue, the District Court heard testimony from Hardy, from
Camp Hill’s grievance coordinator, Tonya Heist, and from an
officer with the Secretary’s Office of Inmate Grievance and
Appeals.

     After the hearing, the District Court granted summary
judgment for the defendants, holding that because the entire
grievance process was available to Hardy, his failure to appeal
his rejected grievances rendered his claims unexhausted. In so
holding, the District Court properly recognized that, under the
Supreme Court’s decision in Ross v. Blake, a prison grievance
process is unavailable—and thus may be deemed exhausted—
in three circumstances: (1) when the remedy “operates as a
simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; (2) when
it is “so opaque that it becomes, practically speaking, incapable
of use”; and (3) “when prison administrators thwart inmates
from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” 136 S. Ct.
1850, 1859–60 (2016). But the District Court determined that
none of these circumstances described Hardy’s experience
with the Camp Hill grievance process.

    The Court based that determination on a number of factual
findings. Although it made no finding as to whether Hardy had

Procedure 12(d), the District Court construed the medical
defendants’ entire motion as one for summary judgment.




                               9
received a handbook, it found that “Hardy was clearly aware a
grievance process existed.” Hardy v. Shaikh, No. 1:18-CV-
1707, 2019 WL 1756535, at *5 (M.D. Pa. Apr. 19, 2019). It
also found that Hardy’s use of this process was not “thwart[ed]
. . . through . . . misrepresentation.” Id. at *3 (quoting Rinaldi
v. United States, 904 F.3d 257, 266 (3d Cir. 2018)). While the
District Court credited Hardy’s testimony that his counselor
instructed him to respond to a rejected grievance by “fill[ing]
out another one and send[ing] it in,” it found that this advice
did not misrepresent Hardy’s duty to appeal because, as a
technical matter, Hardy could have submitted an appeal on the
same form as an initial grievance by simply writing the word
“appeal” somewhere on his submission. Hardy, 2019 WL
1756535, at *5 (quoting App. 187). And because the District
Court assumed that only a “clear misrepresentation” by prison
staff could thwart an inmate’s use of a grievance process, it
found that the prison’s counselor’s advice fell short of this
standard and the process reviewed was “available” to Hardy.
Hardy, 2019 WL 1756535, at *5, *7. This appeal followed.

     III. JURISDICTION AND STANDARD OF REVIEW
   The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343, and 1367(a), and we have jurisdiction under 28
U.S.C. § 1291. We exercise plenary review over both the grant
of summary judgment, Paladino v. Newsome, 885 F.3d 203,
207 n.16 (3d Cir. 2018), and the “determination of a failure to
exhaust,” and we “accept the [District Court’s] factual
conclusions unless clearly erroneous,” Small v. Camden
County, 728 F.3d 265, 268 (3d Cir. 2013).




                               10
                     IV. DISCUSSION
    The District Court’s holding that the grievance process was
available to Hardy was premised on its assumption that only a
“clear misrepresentation” by prison staff may thwart an
inmate’s use of a grievance process. We are therefore called
on to clarify Ross’s third genre of unavailability: when does a
“misrepresentation” render a grievance process unavailable?

   Below, we first consider whether the misrepresentation
must be “clear” or whether a statement that is merely
misleading or deceptive may suffice. Second, we consider
what showing is required to establish that an inmate’s use of
the grievance process was thwarted by misrepresentation.
Finally, we measure Hardy’s showing against that standard to
determine if the grievance process here was available to him
and, accordingly, whether his suit may proceed.

   A. The Meaning of the “Misrepresentation” Under
      Ross
   While the District Court assumed that only a “clear
misrepresentation” by prison staff can render remedies
unavailable, our precedent says otherwise.

    We have long recognized that misleading as well as clearly
erroneous statements can render a grievance process
unavailable, beginning with our 2002 decision in Brown v.
Croak, 312 F.3d 109 (3d Cir. 2002). There, we held that an
inmate who failed to file a formal grievance had nonetheless
sufficiently complied with the PLRA’s exhaustion requirement
because he had received “misleading” instructions from prison
staff: “security officials told [him] to wait for the termination
of [an internal] investigation before commencing a formal




                               11
claim” and then “never informed [him] that the investigation
was completed.” Id. at 112, 113. Because it was technically
correct that the inmate could have waited until after the
resolution of the internal investigation to file a grievance, see
id. at 111 (noting that the inmate “could have filed a grievance”
regardless of the status of the internal investigation), these
instructions did not clearly misrepresent the grievance process.
Yet we found that Brown was “entitled to rely” on these
“misleading” instructions and that by giving the inmate advice
“at odds” with the grievance process (to wait until the
investigation was concluded) and then omitting crucial
information from him (whether the investigation had
concluded), the prison staff so misled him that they thwarted
his ability to pursue relief through the grievance process,
rendering it unavailable. Id. at 112.

   We most recently reiterated this legal standard in Rinaldi v.
United States, where we characterized Brown as finding an
inmate’s use of the grievance process thwarted when “he was
given misleading filing instructions.” 904 F.3d at 267; see also
Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153
(3d Cir. 2016) (relying on Brown to define when a grievance
process is unavailable); Small, 728 F.3d at 271 (same).

     Our sister circuits, too, have uniformly found that
instructions that are merely misleading but not necessarily
clear misrepresentations can thwart an inmate’s use of a
grievance process. For example, in Davis v. Hernandez, the
Fifth Circuit held that administrative remedies were
unavailable to an inmate who was told that the prison’s
grievance process involved only a single step when it in fact
involved two, applying the rule that “[g]rievance procedures




                               12
are unavailable to an inmate if the correctional facility’s staff
misled the inmate as to the existence or rules of the grievance
process so as to cause the inmate to fail to exhaust such
process.” 798 F.3d 290, 291, 295 (5th Cir. 2015) (emphasis
omitted). The Eighth Circuit too has explicitly held that
misleading instructions by prison staff can thwart an inmate’s
use of a grievance process, concluding that administrative
remedies were not available to an inmate who was “misled” by
a prison official’s advice to wait to file a formal grievance until
the prisoner received a response to his informal complaint,
when in fact the inmate was required to file an appeal without
awaiting a response. Townsend v. Murphy, 898 F.3d 780, 783–
84 (8th Cir. 2018). And other circuits are in accord. 6

   Although the Supreme Court has not explicitly defined
what qualifies as a “misrepresentation” that “thwart[s] inmates
from taking advantage of a grievance process,” its reasoning in
   6
      See, e.g., Swisher v. Porter Cty. Sheriff’s Dep’t, 769 F.3d
553, 555 (7th Cir. 2014) (Posner, J.) (citing Brown for the
proposition that “[w]hen jail personnel mislead inmates about
how to invoke the procedure the inmates can’t be blamed for
failing to invoke it”); Pavey v. Conley, 663 F.3d 899, 906 (7th
Cir. 2011) (relying on Brown to find that remedies are
unavailable when “prison officials misle[a]d” a prisoner into
thinking that “the remedy does not exist or inaccurately
describe the steps he needs to take to pursue it”); Nunez v.
Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (finding a
grievance process unavailable to an inmate “misled” about the
steps of that process); cf. Brownell v. Krom, 446 F.3d 305, 312
(2d Cir. 2006) (finding remedies unavailable to an inmate who
relied on a prison official’s misleading advice).




                                13
Ross, 136 S. Ct. at 1860, is consistent with the expansive
definition adopted by the Courts of Appeals. The critical test
under Ross is not whether a misrepresentation is “clear” but
whether that misrepresentation amounts to “interference with
an inmate’s pursuit of relief [that] renders the administrative
process unavailable.” Id. Thus, in explaining that a grievance
process is unavailable “when prison administrators thwart
inmates . . . through . . . misrepresentation,” the Court looked
to appellate court cases “address[ing] a variety of instances in
which officials misled . . . individual inmates so as to prevent
their use of otherwise proper procedures” and held that “such
interference with an inmate’s pursuit of relief renders the
administrative process unavailable.” Id. (emphasis added).
The Court also cited approvingly to the Fifth Circuit’s decision
in Davis v. Hernandez and the Seventh Circuit’s decision in
Pavey v. Conley, quoting language from both about prison staff
“misleading” inmates. Id. at 1860 n.3 (citing Davis, 798 F.3d
at 295, and Pavey v. Conley, 663 F.3d 899, 906 (7th Cir 2011)).

    This approach is also consistent with the statutory purposes
of the PLRA exhaustion requirement. That requirement was
intended to “return control of the inmate grievance process to
prison administrators”; to “encourage development of an
administrative record, and perhaps settlements, within the
inmate grievance process”; and to “reduce the burden on the
federal courts by erecting barriers to frivolous prisoner
lawsuits.” Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004).
But those benefits cannot be realized unless the grievance
process to be exhausted is actually available to inmates and
faithfully followed by the prisons. That is why we require
prisons to “reasonably communicate[]” remedies to prisoners,
Small, 728 F.3d at 271, and—recognizing that just as




                              14
“prisoners [must] comply with the procedural demands of a
system created by their jailors[,]” “[n]o less must prisons
comply with the demands of the system they created”—we
require “strict compliance by prison officials with their own
policies,” Shifflett v. Korszniak, 934 F.3d 356, 365, 367 (3d
Cir. 2019).

    That is also why it is imperative that prisons refrain from
not only clear misrepresentations, but also misleading
statements. If prisoners conclude they cannot trust prison staff
to give them reliable advice and instructions about the
grievance process, they “will be more likely either to bypass
internal procedures entirely and file a complaint in federal
court or use a federal lawsuit to prod prison officials into a
response, thus taxing the judicial resources that Congress
meant to conserve by passing the PLRA.” Robinson, 831 F.3d
at 155. Accurate advice, in contrast, allows for “grievance
systems that provide—and that are perceived by prisoners as
providing—a meaningful opportunity for prisoners to raise
meritorious grievances.” Woodford v. Ngo, 548 U.S. 81, 102
(2006).

    In sum, based on both precedent and the purposes of the
PLRA, it was error for the District Court to premise exhaustion
on a “clear misrepresentation.” Misleading or deceptive
instructions from a prison official can also render a grievance
process unavailable.

   B. The Showing Required to Establish Thwarting of the
      Grievance Process
   Having established that a misleading instruction may
qualify as a “misrepresentation” under Ross, we now consider




                              15
what an inmate must show to establish that the
misrepresentation “thwart[ed] [him] from taking advantage of
a grievance process.” 136 S. Ct. at 1860.

    As we explained in Rinaldi, the burden to plead and prove
that he was thwarted rests on the inmate: “once the defendant
has established that the inmate failed to resort to administrative
remedies, the onus falls on the inmate to show that such
remedies were unavailable to him.” 904 F.3d at 268 (citation
omitted). But while the burden of proof may be clear, the
showing required to meet it is not. To date, no Court of
Appeals has articulated a clear test for when an inmate has
established that a grievance process is unavailable to him
because a misrepresentation thwarted his use of that process.

    Here again, however, Rinaldi paves our way. In that case,
we fashioned a test to establish when another type of prison
conduct identified in Ross—“intimidation”—so thwarted an
inmate’s use of the grievance process as to render it
“unavailable.” Rinaldi, 904 F.3d at 268–69. The inquiry, we
explained, must include an objective and subjective
component. Id. We described “[t]he objective component [as]
of chief importance because it maintains the exhaustion
requirement for the vast majority of claims and allows
otherwise unexhausted claims to proceed only in the
exceptional circumstance where the facts alleged would
reasonably give rise to a substantial fear of serious harm.” Id.
at 268. The subjective requirement, on the other hand, ensures
that an inmate seeking to be relieved of the exhaustion
requirement actually has been thwarted from using the
grievance process. Id. at 269. Thus, we concluded, an inmate
must show both “that the threat was sufficiently serious that it




                               16
would deter a reasonable inmate of ordinary firmness and
fortitude from lodging a grievance” and “that the threat
actually did deter this particular inmate.” Id.

    These same considerations lead us to adopt an analogous
two-part test for when an inmate’s use of a grievance process
is thwarted by misrepresentation. As an objective matter,
taking account of the speaker and context, the instruction must
be of the sort that a reasonable inmate would be “entitled to
rely on,” even though it is “at odds with the wording” of the
grievance process. Brown, 312 F.3d at 112; see also Davis,
798 F.3d at 296 (finding “no reason that [the inmate] should
not be entitled to rely on the representations of his jailers”). It
also must be so misleading to a reasonable inmate as to
interfere with his use of the grievance process. Brown, 312
F.3d at 113; see also Townsend, 898 F.3d at 783–84; Davis,
798 F.3d at 296. These requirements will ensure that
“otherwise unexhausted claims . . . proceed only in . . .
exceptional circumstance[s].” Rinaldi, 904 F.3d at 268.

    As a subjective matter, the inmate must persuade the
district court that he in fact did rely on the misrepresentation to
his detriment. As in the threat context, Rinaldi, 904 F.3d at
268–69, objectively misleading instructions can be
circumstantial evidence that an inmate’s use of the grievance
process has been thwarted, but a further showing—such as
“documents, affidavits, or live testimony if deemed
warranted,” id. at 269—will typically be required. And in any
event, that circumstantial evidence can be overcome by
evidence that an inmate actually knew how to navigate the
grievance process despite the misleading instructions. Id.; cf.
Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (“When a




                                17
prisoner has no means of verifying prison officials’ claims
about the administrative grievance process, incorrect
statements by officials may indeed make remedies
unavailable.”).

    This test for assessing misrepresentations not only provides
an administrable and consistent framework for the third
category of “unavailability” under Ross: It also promotes
Congress’s goals in requiring exhaustion under the PLRA.7 If
the objective prong is the stick, discouraging prison staff from
misleading inmates about the grievance process, the subjective
prong is the carrot, encouraging prisons to impart knowledge
of their grievance process by “reasonably communicat[ing]”

   7
     Our focus here has been on the third category under Ross,
namely, “when prison administrators thwart inmates from
taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” 136 S.Ct. at 1860. But we
would not want, by our silence with respect to the
first Ross factor, to suggest that the misleading comment from
Hardy’s counselor was the only troubling aspect of the prison
grievance process brought to light by this case. It bears
emphasizing that the first Ross category, which deems
exhaustion satisfied when the remedy in question “operates as
a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates[,]” is
aimed at preventing grievance procedures from becoming a
needlessly difficult obstacle to inmates receiving needed
relief. Here, in the face of confusing and evolving grounds for
rejection, Hardy repeatedly requested relief for a manifestly
serious medical complaint. To put it mildly, the present record
does not reflect well on the prison’s handling of it.




                              18
grievance procedures to inmates. Small, 728 F.3d at 271. And
the result will be to encourage resolution of disputes “within
the inmate grievance process,” to weed out “frivolous prisoner
lawsuits,” and ultimately to “reduce the burden [of such
lawsuits] on the federal courts.” Spruill, 372 F.3d at 230.

   C. Application to Hardy
    As we have established today, to defeat a failure-to-exhaust
defense based on a misrepresentation by prison staff, an inmate
must show (1) that the misrepresentation is one which a
reasonable inmate would be entitled to rely on and sufficiently
misleading to interfere with a reasonable inmate’s use of the
grievance process, and (2) that the inmate was actually misled
by the misrepresentation. Applying that test here, Hardy has
met his burden on both prongs.

    First, the prison counselor’s instruction that Hardy respond
to his rejected grievances by “fill[ing] out another one and
send[ing] it in,” App. 187, satisfies the objective prong. It was
made to him by his assigned counselor, the prison staff member
to whom inmates were encouraged to make such inquiries and
who was expected to have accurate information about the
grievance process. It was also sufficiently misleading to
interfere with a reasonable inmate’s ability to navigate the
grievance process. In effect, the counselor advised—just as in
Davis—that the grievance process contained only a single step
when it in fact required more. See 798 F.3d at 296 & n.2
(finding the appeals step of a grievance process unavailable
when “there were [no] factual circumstances such that [the
prisoner] reasonably should have known—despite the jail
staff’s misrepresentation otherwise—that the grievance
process had a second step” (emphasis omitted)). And, while




                               19
not a “clear misrepresentation” because as the District Court
noted, Hardy, 2019 WL 1756535, at *5, it was technically true
that Hardy could have submitted an appeal on the same
grievance form as his original grievance, it was a
misrepresentation nonetheless for it omitted a key piece of
information: that Hardy was required to write the word
“appeal” somewhere on the form. See Brown, 312 F.3d at 111–
12 (finding prison staff’s instructions misleading not only
because they told a prisoner to wait for an investigation to be
completed before filing his grievance, but also because they
withheld the critical information that this investigation had
been completed.)

    Second, Hardy made the requisite showing under the
subjective prong. According to his testimony at the evidentiary
hearing—credited by the District Court—he was “clearly
aware a grievance process existed at Camp Hill,” App. 11, but
he was unaware that this grievance process required him to file
an appeal. As Hardy explained in his testimony, he did not
receive a handbook when he first entered Camp Hill because
he spent his first week in the infirmary where he was not
permitted personal belongings, and he only signed the
acknowledgment that he received the handbook because he
was told it would be left in his prison block. As it turned out,
it was not there; his subsequent requests for it went
unanswered; and his attempts to go to the library, the only place
he could read a copy of the grievance manual, were rebuffed—
twice.8 Accord Townsend, 898 F.3d at 783–84 (noting that a



   8
     Even if Hardy had managed to get his hands on the
grievance manual, this may only have added to his confusion:




                               20
misrepresentation was “magnified” because the prisoner was
denied access to the library and thus had no way to “verify” the
official’s misstatements).

    On the flip side, the defendants produced no evidence that
Hardy was aware of the appeal requirement. The defendants
conceded at oral argument that they have no basis to dispute
Hardy’s representation that Camp Hill does not permit inmates
to have personal belongings in the infirmary and that Hardy did
not receive the handbook when admitted. So unable to impute
knowledge based on Hardy’s access to the handbook or the
grievance manual, defendants instead argue that Hardy should
have known of the appeals requirement because he received
rejections and because he had a duty “to take affirmative action
to ascertain his rights and responsibilities under the grievance
policy” by consulting other inmates and prison staff. Gov’t
Defs.’ Br. 17.

   Whether viewed as relevant to the objective or subjective
prongs, these arguments only lend further support to Hardy.9

The manual states that rejected grievances must be appealed,
but also allows for rejected grievances to be resubmitted.
   9
      As presented, these arguments seem to pertain to the
objective, not the subjective, prong. There are of course cases
where it is so obvious what a reasonable person “should have
known” as to support the inference of actual knowledge, i.e.,
that this party must have known. See Kedra v. Schroeter, 876
F.3d 424, 440, 441–42 (3d Cir. 2017) (citing Hope v. Pelzer,
536 U.S. 730, 738 (2002)). The defendants, however, do not
articulate that argument. Instead, they appear to be arguing
only as an objective matter that a reasonable inmate should




                              21
The grievance rejections provided an array of explanations,
none of which was the failure to appeal, and they included no
information or instruction about the next step an inmate should
take; indeed, they did not even mention the word “appeal.” In
addition, Hardy did take “affirmative action to ascertain his
rights”: he asked his counselor, who misled him. It is no
answer—where a prison has refused to provide an inmate with
access to written information about the grievance process,
provided no guidance in its rejections, and affirmatively misled
the inmate—that the inmate should have sought advice from
fellow prisoners. We will not “allow[] jails and prisons to
play hide-and-seek with administrative remedies” in this
manner, “keep[ing] all remedies under wraps until after a
lawsuit is filed and then uncover[ing] them and proclaim[ing]
that the remedies were available all along.” Goebert v. Lee
County, 510 F.3d 1312, 1323 (11th Cir. 2007).

   In short, the prison had the duty in the first instance to
“reasonably communicate[]” its policies to Hardy. Small, 728
F.3d at 271. Instead, it provided misleading instructions on
which a reasonable inmate would rely and on which the
undisputed record shows Hardy did rely to his detriment. All
“available” remedies were exhausted.



have divined the appeals requirement from the rejections or
from discussions with other inmates and thus would not have
been misled. These arguments do not support an inference of
actual knowledge on this record nor, for the reasons we
explain, do they alter the objectively misleading nature of the
counselor’s statement.




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                               ***

   For these reasons, we will reverse the District Court’s entry
of summary judgment and remand for further proceedings
consistent with this opinion.




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