                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 13-3602
RANDY M. SWISHER,
                                               Plaintiff-Appellant,

                                v.

PORTER COUNTY SHERIFF’S DEPARTMENT, et al.,
                                     Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
        Northern District of Indiana, South Bend Division.
      No. 3:10-cv-00337-CAN — Christopher A. Nuechterlein,
                         Magistrate Judge.
                    ____________________

SUBMITTED SEPTEMBER 22, 2014 — DECIDED OCTOBER 15, 2014
                ____________________

   Before CUDAHY, POSNER, and KANNE, Circuit Judges.
     POSNER, Circuit Judge. The plaintiff brought this suit un-
der 42 U.S.C. § 1983 complaining that while a pretrial de-
tainee in a jail in Porter County, Indiana, he was denied
medical care for a bullet wound to his abdomen, and other
essential medical care, during his nine-month sojourn at the
jail. He named as defendants the local sheriff plus jail per-
sonnel, including the warden and other officers and the jail’s
2                                                  No. 13-3602


physician and head nurse. The district court, while fully
crediting the plaintiff’s testimony at an evidentiary hearing,
dismissed his suit for failure to exhaust administrative rem-
edies. 42 U.S.C. § 1997e(a).
     There was no record in the jail’s grievance log of the
plaintiff’s having filed a grievance. But at the hearing he tes-
tified that he’d never received, or been given access to, a
copy of the jail’s grievance procedure, though he knew from
other inmates of the jail that there was such a procedure and
knowing this asked a guard for a grievance form but wasn’t
given it.
    Indiana requires every correctional facility to have a
grievance procedure. Indiana Code § 11-11-1-2. The griev-
ance procedure for the jail in which the plaintiff was being
held is set forth in a document entitled “Inmate Grievanc-
es—Standard Operating Procedure.” It is supposed to be
given to all inmates but apparently was not given to the
plaintiff. It states that “All inmates, no matter their custody
classification or disciplinary status, may make a grievance
according to this policy. … Inmates shall get all grievance
and appeal forms from their Pod Officer [the officer in
charge of the particular inmate’s residential unit in the jail].
Jail Personnel must not interfere with or delay an inmate’s
action to file a grievance or an appeal, nor delay a response
without just cause.”
   The plaintiff’s Pod Officer didn’t give him the grievance
form but instead told him to speak to a supervisory officer in
the jail, Captain Taylor, who, the Pod Officer assured the
plaintiff, would speak to the Warden about resolving the
plaintiff’s grievance about the lack of medical care. The
plaintiff asked Taylor whether he should file a grievance and
No. 13-3602                                                   3


Taylor replied by telling him “not to worry about it.” (An-
other prisoner testified that he overheard the plaintiff ask
Taylor for the grievance form.) The plaintiff testified that the
Warden’s son, who was another one of the jail’s officers, also
said he’d speak to the Warden about the plaintiff’s griev-
ance. The plaintiff never got the form but did eventually
meet with the Warden, who promised to speak to the medi-
cal staff and “take care of the problem.” He did not suggest
that the plaintiff file a grievance.
    The jail encourages informal resolution of grievances.
The Standard Operating Procedure states that “both Jail Per-
sonnel and inmates are responsible for trying to resolve
grievances informally … . Informal resolution prevents in-
mates from using the formal grievance process to circum-
vent … having to confront the affected people or the reality
of the conditions of being in Jail that they want to avoid. …
Jail personnel shall not normally allow an inmate to file a
formal grievance until the inmate has tried to resolve the
grievance informally by discussing the matter with a Jail Of-
ficer.” The plaintiff did discuss the matter with several offic-
ers before filing a formal grievance, but without any success,
though assured by them that they would take care of his
grievance. And so he was entitled to file a formal grievance,
but was prevented from doing so by not being given the
form.
   Taylor, the Warden, and the Warden’s son didn’t contra-
dict the plaintiff’s testimony at the evidentiary hearing; they
merely testified that they didn’t remember speaking to him
about his medical complaints. And so the magistrate judge
credited the plaintiff’s testimony in its entirety. Yet surpris-
ingly he ruled that the plaintiff had not exhausted his ad-
4                                                   No. 13-3602


ministrative remedies, because while knowing there was a
grievance procedure he never submitted a written grievance.
He had given up too soon, the magistrate judge reasoned, by
failing to take additional action when his verbal requests for
attention to his medical problems had no effect. The magis-
trate judge thought it enough to require dismissal of the suit
that the plaintiff “was not prevented from obtaining a form,”
was not “told that no grievance system existed,” and was
not told that “he could not ever file a written grievance.”
    A dose of common sense would have led the magistrate
judge to a different conclusion. If you are an inmate and you
speak to senior jail officers up to and including the Warden
of the jail and are told not to file a grievance because the of-
ficers understand your problem and will resolve it without
need for you to invoke the formal grievance procedure and
they don’t tell you how to invoke that procedure, you are
entitled to assume that you don’t have to file a written
grievance. Anyway no one was willing to give the plaintiff a
grievance form or even explain the grievance procedure to
him, so he couldn’t have filed a written grievance even if he
had thought it necessary. And can one imagine the plaintiff’s
telling the warden: “you tell me I don’t need to file a griev-
ance but I know better”?
    Although “when administrative procedures are clearly
laid out … an inmate must comply with them in order to ex-
haust his remedies,” Pavey v. Conley, 663 F.3d 899, 905 (7th
Cir. 2011), we have in this case, as in Roberts v. Neal, 745 F.3d
232 (7th Cir. 2014), a muddle created by the people running
the jail. When a jail official invites noncompliance with a
procedure the prisoner is not required to follow the proce-
dure. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005).
No. 13-3602                                                5


When jail personnel mislead inmates about how to invoke
the procedure the inmates can’t be blamed for failing to in-
voke it. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010);
Nunez v. Duncan, 591 F.3d 1217, 1224–25 (9th Cir. 2010);
Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002).
    The judgment in favor of the defendants is reversed and
the case remanded for further proceedings consistent with
this opinion.
                                  REVERSED AND REMANDED.
