                        NONPRECEDENTIAL DISPOSITION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 February 23, 2015 *
                               Decided February 24, 2015

                                         Before

                      DIANE P. WOOD, Chief Judge

                      ILANA DIAMOND ROVNER, Circuit Judge

                      DIANE S. SYKES, Circuit Judge

No. 14-2793

MUSTAFA-EL K.A. AJALA,                          Appeal from the United States District
    Plaintiff-Appellant,                        Court for the Western District of Wisconsin.

      v.                                        No. 13-cv-102-bbc

CRAIG TOM and MATTHEW                           Barbara B. Crabb,
SCULLION,                                       Judge.
     Defendants-Appellees.




                                       ORDER

       Mustafa Ajala, a Wisconsin prisoner, alleges in this lawsuit under 42 U.S.C. § 1983
that two correctional officers violated the Eighth Amendment by overtightening his
handcuffs during a 4-hour prison transfer and permanently damaging his wrists. Ajala


      *
        After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-2793                                                                         Page 2

attempted to file a grievance about the injury, but the prison refused to consider it. The
district court granted summary judgment for the defendants on the ground that Ajala
had failed to exhaust available administrative remedies properly. We conclude that
unresolved facts precluded that ruling and thus vacate and remand.

        Ajala was transferred on February 10, 2007, from Green Bay Correctional
Institution to Wisconsin Secure Program Facility. Before leaving the Green Bay prison,
Officer Matthew Scullion overtightened the handcuffs on Ajala’s wrists; Ajala
immediately complained that the cuffs were pinching his wrists, and he asked Scullion
to adjust them. Scullion replied that he would slacken them once they were in the van,
but he never did, even after Ajala kept protesting about the pain. Ajala then complained
to another officer, Craig Tom, who also refused to loosen the tight squeeze. Despite his
continued pleas for relief throughout the 4-hour drive, both officers ignored him; as a
result, he experienced swelling, numbness, and permanent nerve damage.

        After Ajala arrived at the new prison, he attempted to file five administrative
complaints, including one about the tight cuffs, but prison staff blocked him by invoking
several prison rules. One rule limits prisoners to one issue per complaint. See WIS.
ADMIN. CODE § DOC 310.09(1)(e); a second rule limits prisoners to two complaints per
calendar week. Id. § DOC 310.09(2). Ajala tried to file his first two complaints on
February 12, each grieving an incident that had occurred at the Green Bay prison. Both
complaints were returned to Ajala unprocessed because, according to the complaint
examiner, he did not comply with the one-issue-per-complaint rule. During the
following calendar week, Ajala submitted three more complaints. The first asserted that
his two complaints from the week before were unjustly returned because, he contended,
each contained only one issue. The second asserted that he was being harassed by staff at
the new prison. Ajala’s third complaint was about the cuffs. That complaint was
returned to Ajala because it violated the two-complaints-per-week rule. He resubmitted
it the next day (February 24), but it was received on February 26 and returned because,
although received in a new week, it violated yet another rule: it was untimely since more
than 14 days had passed since his transfer on February 10. See id. § DOC 310.09(6).

      After Ajala filed this lawsuit the defendants moved for summary judgment,
contending that Ajala failed to exhaust his administrative remedies about the cuffs
because he violated the two-complaint-per-week rule and the 14-day rule. Ajala
countered that the prison made his administrative remedies effectively unavailable by
improperly rejecting the first two complaints from the week before. They should not
have been returned unprocessed because, Ajala insisted in an uncontradicted affidavit
No. 14-2793                                                                        Page 3

supplemented with the complaints themselves, they identified only a single issue in
each. Except for some immaterial words, the first complaint says that Green Bay “staff
on 2-5-07 threw me in segregation for” drafting a complaint about conditions of
confinement “to prevent me from filing it and exhausting administrative remedies.” The
second grievance complains about the prison “administration’s intention to keep me in
seg[regation]” that began on February 5 in retaliation for filing an administrative
complaint, even though the staff will “’allege’ that it’s for something else.” Had those
complaints been processed, Ajala continued, he would not have had to complain in the
following week about their unfounded rejection, and his tight-handcuffs complaint
would have been only the second complaint filed that week, not the third. And it would
have been timely.

        The district court did not address this argument and made no findings about
whether prison staff improperly rejected the first two complaints and thereby effectively
prevented Ajala from timely grieving his complaint about the cuffs. But it did consider
other arguments that Ajala raised. He contended that his claim fell within a “health and
safety” exception to the limits on complaints; an employee told him that he had
exhausted; and he had “good cause” for his late filing. Rejecting those arguments, the
district court granted summary judgment to the defendants for lack of exhaustion.

       We need address only one of Ajala’s arguments on appeal: the prison made the
grievance process unavailable by improperly refusing to process his first two complaints
from the previous week, making it necessary for him to submit three complaints the next
week. The defendants respond that, even if the prison staff should have accepted those
two complaints, the staff did not cause Ajala to file three complaints during the
following calendar week because he did not resubmit the two unprocessed complaints;
he filed three unrelated complaints instead, they contend.

       Prisoners must exhaust all available administrative remedies before suing in
federal court; exhaustion requires that they file a grievance according to the state’s
grievance procedures. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006);
Maddox v. Love, 655 F.3d 709, 720–21 (7th Cir. 2011). But prisons “may not take unfair
advantage of the exhaustion requirement” and “a remedy becomes ‘unavailable’ if
prison employees do not respond to a properly filed grievance or otherwise use
affirmative misconduct to prevent a prisoner from exhausting.” Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006). Thus, when prison officials thwart inmates from exhausting, “the
process that exists on paper becomes unavailable in reality,” Kaba v. Stepp, 458 F.3d 678,
684 (7th Cir. 2006); see also Albino v. Baca, 747 F.3d 1162, 1171–73 (9th Cir. 2014)
No. 14-2793                                                                          Page 4

(en banc); Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011); Brown v. Croak, 312 F.3d
109, 112–13 (3d Cir. 2002).

        Ajala has presented evidence sufficient to support a finding that, by unreasonably
refusing to process his first two complaints, prison officials prevented him from timely
grieving his complaint about the handcuffs. If the district court were to find, based on
the content of the first two complaints and the one-issue rule, that prison officials should
have accepted those two complaints, Ajala would have had one fewer complaint to
submit the following week. His handcuffs complaint would then have been only the
second, and not third, timely complaint filed that calendar week. The defendants are
correct that Ajala never resubmitted his two unprocessed grievances, but they are wrong
to assert that his later submissions were unrelated to the returned grievances. One of his
next three grievances specifically complained about the unprocessed grievances. If, as
Ajala’s evidence suggests, the prison staff improperly refused to process the first two
grievances, they all but drove Ajala to expend one of his two-per-week grievances on
that issue, thereby improperly impeding his access to the prison’s two-per-week
grievance procedure.

       The district court must therefore resolve, through fact-finding under Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), whether prison staff improperly refused under the
one-issue rule to process the first two grievances and thereby impeded Ajala’s access to
his administrative remedies. See Hotel 71 Mezz Lender LLC v. The Nat’l Ret’ Fund, 2015 WL
499571, at *8 (7th Cir. Feb. 6, 2015) (observing that when district judge is fact-finder and
assessment of evidence is disputed, judge may resolve the dispute). Until that resolution
is made, the defendants have not proved their affirmative defense that Ajala had
available administrative remedies that he failed to exhaust. See Dole, 438 F.3d at 809.

       Accordingly, we VACATE the district court’s judgment and REMAND the case for
further proceedings.
