                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                           Submitted September 22, 2005*
                              Decided October 6, 2005

                                      Before

                Hon. JOHN L. COFFEY, Circuit Judge

                 Hon. ILANA DIAMOND ROVNER, Circuit Judge

                Hon. DIANE P. WOOD, Circuit Judge

No. 05-1239

JAMES CURTIS,                                Appeal from the United States
    Plaintiff-Appellant,                     District Court for the Northern
                                             District of Illinois, Eastern Division
      v.
                                             No. 03 C 4739
PERCY TIMBERLAKE and
CHARLES JEFFERSON,                           Arlander Keys,
    Defendants-Appellees.                    Magistrate Judge.

                                    ORDER

      James Curtis brought suit under 42 U.S.C. § 1983 claiming as relevant here
that guards Percy Timberlake and Charles Jefferson violated his right to due
process by assaulting him without provocation while he was a pretrial detainee at
the Cook County jail in Chicago. A magistrate judge, presiding by consent, granted
summary judgment for the guards, reasoning that Curtis filed his complaint
without first exhausting his administrative remedies as required by 42 U.S.C.
§ 1997e(a). We vacate and remand.



      *
        After an examination of 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).
No. 05-1239                                                                    Page 2

       Curtis alleged in his complaint that Timberlake and Jefferson mistakenly
concluded that he tried to take extra T-shirts from the jail’s clothing desk, and so
they hit him several times and threw him against a wall. Curtis added that he gave
a grievance to a jail social worker the next day but never received a response to the
grievance or to any of the inquiries he made over the next several months. The two
guards filed separate answers denying that they beat Curtis, and both responded at
the time that they did not know whether Curtis filed a grievance.

       Several months later Timberlake and Jefferson moved for summary judgment
on the sole basis that Curtis failed to exhaust his administrative remedies as
required by § 1997e(a). The defendants pointed to Curtis’s deposition testimony
that he hand-delivered his grievance to Sister Rosemary Dowd, the social worker
assigned to his housing unit at the time of the alleged assault, rather than
depositing it in a lockbox provided for that purpose. In their motion the defendants
cited section III.B.2 of the Detainee Grievance Procedures providing that grievances
“will be placed in the designated locked box” for collection by the social worker. The
defendants also submitted Sister Dowd’s affidavit testimony that she could not find
a record of this particular grievance and did not recall receiving it. She added,
however, that she had “received several request slips and grievances” from Curtis
“on previous occasions,” and that if Curtis had given her a grievance after this
incident, she would have followed her standard practice of noting it in a master
tracking log, assigning a control number, and returning a copy with the control
number to Curtis. Moreover, Sister Dowd did not deny that she would accept hand-
delivered grievances from inmates rather than insisting on use of the lockbox. In
his verified response, Curtis insisted that he wrote a grievance and gave it to Sister
Dowd in a sealed envelope, and that the procedure for use of the lockbox “did not
limit social workers from accepting grievances by hand.” The magistrate judge,
although assuming that the question of whether Curtis in fact gave a grievance to
Sister Dowd was disputed, reasoned that summary judgment for the guards was
nonetheless warranted because Curtis admittedly failed to use the designated
lockbox. The court did not address Curtis’s contention that use of the lockbox had
become optional, reasoning that his own evidence contradicted his position.

       On appeal Curtis makes two arguments. First he contends that the
magistrate judge erred in granting summary judgment because the guards failed to
assert lack of exhaustion in their answers and therefore waived this affirmative
defense. We disagree. Noncompliance with § 1997e(a) is an affirmative defense,
Brengettcy v. Horton, ___ F.3d ___, 2005 WL 2155656, at *6 (7th Cir. Sept. 8, 2005);
Massey v. Helman, 196 F.3d 727, 734-35 (7th Cir. 1999), and Curtis is correct that
Fed. R. Civ. P. 8(c) requires affirmative defenses to be raised in the pleadings.
Nonetheless, we have held that a delay in asserting an affirmative defense waives
the defense only if the plaintiff was harmed as a result. Williams v. Lampe, 399
F.3d 867, 870-71 (7th Cir. 2005) (per curiam); Carter v. United States, 333 F.3d
791, 796 (7th Cir. 2003). Curtis was not prejudiced; he was aware of the exhaustion
No. 05-1239                                                                     Page 3

issue even when he filed his complaint, and he confronted the defense in responding
to the motion for summary judgment. Accordingly, there was no abuse of discretion
in permitting the defense to be raised at summary judgment.

       Curtis also contends that whether he exhausted his administrative remedies
is a question that turns on disputed issues of material fact. According to Curtis, the
evidence at summary judgment supports a finding that the written procedures
providing for use of a lockbox are not exclusive, and that handing grievances to a
social worker is also an accepted means of submitting a grievance. The defendants
do not directly confront this contention; rather, they simply insist that at summary
judgment Curtis admitted that he failed to submit his grievance in the prescribed
“place and manner” because he did not use the lockbox. According to the
defendants, “Curtis merely alleged that Sister Dowd often accepted improper
grievances.”

        We review the application of § 1997e(a) de novo. Conyers v. Abitz, 416 F.3d
580, 584 (7th Cir. 2005). In Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002), we held that “[t]o exhaust remedies, a prisoner must file complaints and
appeals in the place, and at the time, the prison’s administrative rules require.”
Accord Brengettcy, 2005 WL 2155656, at *6; Cannon v. Washington, 418 F.3d 714,
718 (7th Cir. 2005). We have also emphasized, however, that failure to exhaust is
an affirmative defense that a defendant must establish by competent evidence.
Brengettcy, 2005 WL 2155656, at *6; Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.
2004) (per curiam). And in this case we agree with Curtis that whether he
submitted a grievance “in the place” required by “administrative rules” is a
disputed issue of fact.

       The defendants tell us that Curtis only “alleged” that Sister Dowd “often
accepted improper grievances,” but this contention misstates both Curtis’s position
and the defendants’ own evidence. Curtis averred that he hand-delivered his
grievance to Sister Dowd, and that the written procedures do not “limit social
workers from accepting grievances by hand.” The defendants, not Curtis,
characterize as “improper” the practice of social workers personally accepting
inmate grievances, but they point to no evidence supporting this view. Neither
Sister Dowd, a 25-year employee of the jail, nor any other witness at summary
judgment disputed Curtis’s testimony that hand-delivery was an acceptable
alternative to the lockbox. Neither did the defendants offer any evidence that the
practice of social workers collecting grievances in person, even if not consistent with
the letter of the written policy, was forbidden, “improper,” or even discouraged.
Indeed, Sister Dowd’s testimony that she “received several . . . grievances from
Curtis” before the incident in question, and that she would have processed this one
if she had received it, supports Curtis’s contention that an alternate filing
procedure exists. That an informal practice might have developed would not be
No. 05-1239                                                                   Page 4

surprising given that the written procedures specify that the social worker is the
one who retrieves grievances from the lockbox.

       What the defendants really contend, then, is that, no matter what the facts
may show as to accepted practice, an inmate will have failed to exhaust as a matter
of law any time prison officials decide to assert noncompliance with a written
grievance procedure that effectively has been modified with staff acquiescence or
participation. In the view of the defendants, moreover, it makes no difference
whether prison officials encourage, or even invite, noncompliance with written
procedure. Pozo does not support this result. That case holds that the rules
governing administrative exhaustion under § 1997e(a) “come from the prison
grievance systems themselves,” Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002),
but we did not define the “administrative rules” that a prisoner must follow, see
Pozo, 286 F.3d at 1025, as those reduced to writing whether or not followed in
practice. Other courts have specifically rejected arguments similar to the one
presented by the defendants. See, e.g., Brown v. Croak, 312 F.3d 109, 112 (3d Cir.
2002) (holding that when prison officials told prisoner that grievance procedures
were different than official procedures, prisoner was not required to follow written
procedures); see also Brown v. Valoff, ___ F.3d ___, 2005 WL 2129069, at *7 (9th
Cir. Sept. 6, 2005) (stating that information provided to prisoner concerning
operation of grievance procedures was relevant in deciding whether available
remedies had been exhausted).

       The defendants did not provide sufficient evidence to establish the absence of
a material dispute concerning Curtis’s method of filing a grievance at the jail. That
question remains to be decided, as does the question whether Curtis in fact hand-
delivered the grievance to Sister Dowd as he maintains. As such, material issues of
fact still remain. We therefore VACATE the grant of summary judgment and
REMAND for further proceedings.
