                        NONPRECEDENTIAL DISPOSITION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 September 7, 2016 *
                              Decided September 19, 2016

                                        Before

                      DIANE P. WOOD, Chief Judge

                      RICHARD A. POSNER, Circuit Judge

                      FRANK H. EASTERBROOK, Circuit Judge

No. 16-1710

ANTHONY BOYCE,                                 Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Central District of Illinois.

      v.                                       No. 16-1028

ILLINOIS DEPARTMENT OF                         Harold A. Baker,
CORRECTIONS, et al.,                           Judge.
     Defendants-Appellees.


                                      ORDER

       Anthony Boyce, an Illinois prisoner, suffered nerve damage from a gunshot
wound to his neck. A specialist investigating Boyce’s complaints of chronic pain from
that condition and from persistent dry mouth (which, Boyce alleges, makes eating,
drinking, and swallowing difficult and causes tooth decay) prescribed a drug for nerve
pain and recommended that Boyce use a nonprescription, medicated mouthwash. The


      * We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16-1710                                                                          Page 2

specialist also recommended that Boyce return in a year if his symptoms did not
improve. According to Boyce, doctors and administrators at the Pontiac Correctional
Center initially approved this course of treatment but then, in an effort to save money,
stopped supplying the mouthwash and refused to send him back to the specialist despite
intensifying pain. Boyce alleges in this suit under 42 U.S.C. § 1983 that these actions
denied him appropriate medical care in violation of the Eighth Amendment. The district
court dismissed the complaint at screening, see 28 U.S.C. § 1915A, reasoning that Boyce
had filed suit without first exhausting available administrative remedies as required by
the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a). Because an exhaustion defense
is not evident from Boyce’s complaint, we vacate the judgment and remand.

       The PLRA bars any federal action challenging conditions of confinement unless
the inmate has exhausted available administrative remedies. See id.; Wagoner v. Lemmon,
778 F.3d 586, 588 (7th Cir. 2015). The normal process through which an Illinois prisoner
must attempt to resolve issues includes first talking to his grievance counselor and, if an
informal resolution is not reached, submitting to a grievance officer within 60 days a
formal written grievance. ILL. ADMIN. CODE tit. 20, § 504.810(a), (b). The grievance officer
reviews the submission and makes a written recommendation to the warden for final
decision. Id. § 504.830(d); see Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014).
Alternatively, in a genuine emergency an inmate may request that a grievance be
handled swiftly by submitting it directly to the warden, who will expedite the matter if
the warden finds that it raises a substantial risk of imminent injury or serious harm. ILL.
ADMIN. CODE tit. 20, § 504.840. A prisoner dissatisfied with the warden’s decision has 30
days to appeal to the statewide Administrative Review Board, which reviews the
warden’s denial and issues a written recommendation to the Director of the Illinois
Department of Corrections for a final determination within 6 months. Id. § 504.850;
Roberts, 745 F.3d at 235.

        We know from attachments to Boyce’s complaint that he went directly to the
warden with numerous “emergency” grievances demanding resumption of his
mouthwash and a return visit to the specialist to further investigate his pain. In several
of these grievances Boyce complained of severe pain that often rendered him incapable
of swallowing. Each time the warden responded that “an emergency is not
substantiated” and, instead of forwarding the grievance to a grievance officer, simply
returned it to Boyce with instructions to resubmit it in the normal manner. Twice Boyce
tried to appeal to the ARB, and both times the ARB refused to review the warden’s
determination that the grievance did not concern an emergency. Boyce was told by the
No. 16-1710                                                                          Page 3

ARB to follow the regular grievance procedure and, if his issue remained unresolved, to
appeal the results of that process.

        If Boyce pursued other administrative relief before filing suit, those steps are not
disclosed in his complaint or attachments. In screening his complaint, the district court
mentioned only the last two of Boyce’s many emergency grievances and only the second
of his appeals to the ARB. And concerning that appeal, the district court reasoned that,
because the Director has six months in which to act on a recommendation from the ARB,
Boyce had failed to “perfect” his grievance because he filed suit only four months after
submitting the appeal. The court did not acknowledge that the ARB had itself refused to
consider Boyce’s appeal and in fact made explicit that no recommendation for further
action would be sent to the Director until he completed the normal grievance process.
Nor did the district court say why Boyce’s first appeal to the ARB was not “perfected”
since it had been filed 18 months earlier.

        The district court’s reasoning is unsound. True, § 504.850 requires the Director to
reach a final decision on an appeal within six months “where reasonably feasible under
the circumstances.” But that doesn’t mean that a prisoner whose appeal is rejected
outright must wait six months for the process to “perfect” before filing suit, and the
district court’s inference that Boyce would have exhausted his administrative remedies
simply by waiting a few more months is illogical; the Director was not going to address
Boyce’s grievances no matter how long he waited.

       Moreover, exhaustion is an affirmative defense that ordinarily should be
raised—and must be proven—by the defendant. See Jones v. Bock, 549 U.S. 199, 216 (2007);
Turley v. Rednour, 729 F.3d 645, 649–50 (7th Cir. 2013). A district court may dismiss a
complaint where “the existence of a valid affirmative defense, such as the failure to
exhaust, is so plain from the face of the complaint that the suit can be regarded as
frivolous,” Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010). But the defense must be
unmistakable, Walker v. Thomson, 288 F.3d 1005, 1009–10 (7th Cir. 2002), which here it is
not. Boyce submitted grievances directly to the warden as emergencies, and our decision
in Thornton v. Snyder implies that this may have been enough. See 428 F.3d 690, 694
(7th Cir. 2005) (noting absence from “current regulatory text” of any requirement that
inmate in Illinois “file a new grievance after learning only that it will not be considered
on an emergency basis”). We also have emphasized that prison officials may not
demand that an inmate do more than administrative rules require in order to avoid an
exhaustion defense, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), and the Illinois
No. 16-1710                                                                          Page 4

Code includes no obvious requirement that a prisoner resubmit a rejected emergency
grievance that the warden did not hand off to a grievance officer.

       The judgment is VACATED and the case is REMANDED. We express no opinion
on the merits of Boyce’s lawsuit or whether he did, in fact, exhaust available remedies;
we conclude only that it should not have been dismissed sua sponte at screening. We
also note that the district court was incorrect to assert that Boyce incurred a strike for a
dismissal without prejudice.
