James Curtis v. PERCY TIMBERLAKE and CHARLES JEFFERSON

ΠAfter 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).
ŒŒ This opinion was originally issued as an unpublished order on
October 6, 2005. Upon request, the panel has determined that this
decision should now issue as a published opinion.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1239
J AMES C URTIS ,
Plaintiff-Appellant,
v.
P ERCY T IMBERLAKE
and C HARLES J EFFERSON ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 4739—Arlander Keys, Magistrate Judge.
____________
S UBMITTED S EPTEMBER 22, 2005Œ—D ECIDED O CTOBER 6, 2005
P UBLISHED J ANUARY 27, 2006ŒŒ
____________
Before C OFFEY , R OVNER , and W OOD , Circuit Judges.
P ER C URIAM . James Curtis brought suit under 42 U.S.C.
§ 1983 claiming as relevant here that guards Percy

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2 No. 05-1239
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.
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 deposi-
tion 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 griev-
ances “will be placed in the designated locked box” for
collection by the social worker. The defendants also submit-
ted 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

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No. 05-1239 3
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 magis-
trate 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 contra-
dicted his position.
On appeal Curtis makes two arguments. First he con-
tends 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, 423
F.3d 674, 682 (7th Cir. 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 exhaus-
tion issue even when he filed his complaint, and he con-
fronted the defense in responding to the motion for sum-
mary judgment. Accordingly, there was no abuse of discre-
tion in permitting the defense to be raised at summary
judgment.

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4 No. 05-1239
Curtis also contends that whether he exhausted his
administrative remedies is a question that turns on dis-
puted 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, 423 F.3d
at 682; 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, 423 F.3d at
682; 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 “admin-
istrative 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, character-
ize as “improper” the practice of social workers personally
accepting inmate grievances, but they point to no evidence

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No. 05-1239 5
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 consis-
tent 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 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, noncom-
pliance with written procedure. Pozo does not support this
result. That case holds that the rules governing administra-
tive 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 “adminis-
trative 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 argu-
ments 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 proce-

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6 No. 05-1239
dures, prisoner was not required to follow written proce-
dures); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th
Cir. 2005) (stating that information provided to prisoner
concerning operation of grievance procedures was relevant
in deciding whether available remedies had been ex-
hausted).
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 sum-
mary judgment and R EMAND for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-27-06

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