                        NONPRECEDENTIAL DISPOSITION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

                               Argued October 3, 2019
                               Decided October 11, 2019

                                        Before

                            DIANE P. WOOD, Chief Judge

                            AMY C. BARRETT, Circuit Judge

                            MICHAEL Y. SCUDDER, Circuit Judge

No. 18-2547

CARL D. LUSK,                                  Appeal from the United States District
     Plaintiff-Appellant,                      Court for the Eastern District of
                                               Wisconsin.
      v.
                                               No. 16-C-1053
MICHAEL COLE, et al.,
    Defendants-Appellees.                      Lynn Adelman,
                                               Judge.


                                      ORDER

       Carl Lusk, a Wisconsin inmate, appeals the entry of summary judgment for
defendants based on his purported failure to exhaust administrative remedies. Because
Lusk undisputedly complied with the available procedures, we vacate and remand with
instructions to enter summary judgment for Lusk on the exhaustion defense.
       Lusk, who has asthma, seeks to sue prison officials at Green Bay Correctional
Institute for denying him needed care. According to Lusk’s sworn testimony, after a
prison officer blasted him with mace to separate him and another inmate, he suffered an
asthma attack but was denied his inhaler and medical care.
No. 18-2547                                                                       Page 2

       Lusk complained about this treatment using the prison’s two-step complaint
system. He filed a timely grievance, which a complaint examiner dismissed with the
comment that the staff behaved suitably. Under rules in effect in 2016, Lusk had ten
days to appeal, and on the second day after the dismissal, he completed and signed his
name on the “Offender Complaint Appeal” form that the prison provided. Because the
prison gave him no envelope for his form, and he had no money to buy one before the
appeal deadline, he used one that belonged to another inmate. On the tenth day after
dismissal, the prison refused to accept Lusk’s appeal because a disciplinary rule barred
“the transfer of property between inmates without authorization.” WIS. ADMIN. CODE
DOC § 303.40 (2016). Lusk resubmitted his appeal a month later when he was able to
obtain his own envelope, but the examiner dismissed it as untimely. The untimeliness
was not excusable for good cause, she said, because Lusk’s “misconduct” with the first
appeal caused the second to be late.
        After Lusk sued defendants under 42 U.S.C. § 1983 for deliberate indifference to
his health in violation of the Eighth Amendment, the district court granted their motion
for summary judgment, ruling that Lusk had failed to exhaust administrative remedies.
The court gave two reasons for this conclusion. First, advancing a reason that
defendants had not proposed, it stated that the prison properly rejected Lusk’s first
attempted appeal because Lusk violated the requirement that he file his complaint
“under the name by which the inmate was committed to the department.” WIS. ADMIN.
CODE DOC § 310.09(1)(d) (2016). Second, it said that because Lusk could have applied
for a legal loan to obtain an envelope and appeal on time, the complaint examiner
properly found no good cause.
      On appeal, Lusk argues that he should have received summary judgment on the
exhaustion issue because his administrative appeal complied with the written rules for
such appeals, and in rejecting his appeal the prison imposed a new, unwritten rule for
exhaustion. Defendants contend that his administrative appeal was defective because
he used a fellow inmate’s envelope, in violation of a disciplinary rule against
unauthorized transfers of property, and his later attempt to appeal was untimely.
        An inmate may not sue about prison conditions under § 1983 “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A remedy
is not “available” when its requirements are opaque or prison officials improperly
prevent a prisoner from pursuing it. Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016).
Although prison administrators enjoy wide deference to adopt rules needed to preserve
internal order, see Bell v. Wolfish, 441 U.S. 520, 547 (1979), they may not change those
rules retroactively or require prisoners to exhaust procedures that the administrators
No. 18-2547                                                                         Page 3

have not revealed to them. See Thomas v. Reese, 787 F.3d 845, 848 (7th Cir. 2015) (citing
King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015)).
       Here, the prison’s rules for appeals in 2016 were simple, and Lusk obeyed them.
They required that he file within 10 days of his dismissed grievance a request for review
“on forms supplied for that purpose.” See WIS. ADMIN. CODE DOC § 310.13(1) (2016).
The prison is required to make these forms “accessible” to inmates. Id. Lusk used the
“Offender Complaint Appeal” form that the prison provided to him. He signed and
submitted it within ten days (indeed, within two days) of the dismissal of his grievance.
Therefore, he exhausted.
       The prison officials resist this conclusion on two grounds, neither of which
persuades us. First, they argue that the “forms” required by the rules for exhaustion
include an envelope belonging to the inmate taking the appeal, and Lusk did not use
one. But the 2016 rules did not mention envelopes. And any argument that “forms”
includes envelopes does not help defendants anyway because they did not give him an
envelope and thus did not “make these forms accessible to” him, as the rules required.
Defendants reply that the envelopes were “accessible” for purchase through a loan to
cover the cost. But defendants never told inmates that “accessible” means “accessible
for purchase”; to the contrary, they made the “Offender Complaint Appeals” forms
“accessible” to inmates without charge. Thus, defendants may not fault Lusk for failing
to take out a loan to buy an envelope when no written rule required him to use an
envelope to take the appeal.
        Second, the prison officials contend that, in using a fellow inmate’s envelope,
Lusk violated a disciplinary rule barring the unauthorized transfer of property between
inmates, and so they could reject his appeal for that reason. But the rules for appeals in
2016 did not specify that an appeal would be rejected if an inmate violates any
disciplinary rule (such as using another inmate’s pen or envelope) to file the appeal,
and the prison may not retroactively change its rules for appeals. See Thomas, 787 F.3d
at 848. Defendants reply that if a grievance officer must accept appeals submitted in
violation of disciplinary rules, inmates will be encouraged to violate those rules. But the
disciplinary rules provide many other ways to punish violators. The unauthorized
transfer of property is a “minor” offense, see WIS. ADMIN. CODE DOC § 303.69, that may
result in, among other things, a reprimand or loss of privileges. See WIS. ADMIN. CODE
DOC § 303.70. But those penalties did not include the loss of an appeal. Id. And if the
prison believes that harsher punishment is needed, it can amend its rules, as it did in
2018. Those amendments now allow it to reject an appeal submitted in violation of the
disciplinary rules prohibiting threats or possession of harmful substances. But even the
No. 18-2547                                                                      Page 4

revised rules do not permit the prison to reject an appeal if an inmate submits it using
another inmate’s envelope or “property.” See WIS. ADMIN. CODE DOC § 310.09(3) (2018).
       We also reject the district court’s other reason for granting summary judgment in
favor of the defendants. The court suggested that, by placing his appeals form in
another’s envelope, Lusk failed to comply with the rule that he file his “complaint” in
his name. See WIS. ADMIN. CODE. DOC § 310.09(1)(d) (2016). Even if we assume that this
rule applies to both the “appeal” as well as the “complaint” (a point that the parties
debate), Lusk complied with this rule. It is undisputed that he signed his name, and his
name only, to both his initial complaint and his “Offender Complaint Appeal.”
       We thus conclude that Lusk properly exhausted the available administrative
remedies. Although he did not cross-move for summary judgment on the exhaustion
defense in the district court, under Federal Rule of Civil Procedure 56(f)(1), a non-
movant may receive summary judgment after notice and a chance to respond. On
appeal, Lusk has asked for the entry of summary judgment, and defendants have
responded. Because the facts are undisputed, we VACATE summary judgment for
defendants and REMAND with instructions to enter summary judgment in Lusk’s
favor on the defense of exhaustion and proceed with the remainder of the case.
