In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3400
LEROY N. INGRAM,
Plaintiff-Appellant,
v.
T.J. WATSON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:19-cv-00486-MG-JMS — Mario Garcia, Magistrate Judge.
____________________
SUBMITTED APRIL 13, 2023 — DECIDED MAY 4, 2023
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Before EASTERBROOK, WOOD, and KIRSCH, Circuit Judges.
EASTERBROOK, Circuit Judge. Leroy Ingram contends that,
while confined in the United States Penitentiary at Terre
Haute, he was set upon and beaten by guards, after which the
medical staff denied him access to necessary care. In this suit,
which relies on Bivens v. Six Unknown Named Federal Agents,
403 U.S. 388 (1971), he seeks damages from the prison’s war-
den and several members of the staff. A magistrate judge, pre-
siding by consent under
28 U.S.C. §636(c), concluded that
2 No. 21-3400
Ingram failed to exhaust his administrative remedies, as re-
quired by 42 U.S.C. §1997e(a), and granted summary judg-
ment to all defendants.
2021 U.S. Dist. LEXIS 225730 (S.D. Ind.
Nov. 23, 2021).
Ingram filed three substantive grievances. Two he did not
pursue to conclusion. One of the two, asserting that members
of the staff failed to protect him from harm, was rejected be-
cause it lacked required abachments. Regulations issued by
the Bureau of Prisons require an inmate to resubmit a griev-
ance or appeal from a rejection, but Ingram did neither. He
says that he never received a decision rejecting this grievance,
but the regulations require an appeal from a non-response.
28
C.F.R. §542.18. So whether or not the prison responds to a
grievance, the inmate must appeal within the hierarchy, a
process that ends only when the grievance has been presented
to the General Counsel of the Bureau of Prisons. The district
court did not err in concluding that Ingram failed to exhaust
his opportunities with respect to this issue.
A second grievance asserted that staff retaliated against
him by withholding necessary medical care. The prison re-
jected this grievance because Ingram had not abempted infor-
mal resolution—the first step of the process, which is to be
followed by a formal grievance to the Warden, an appeal to
the Regional Director, and a further appeal to the General
Counsel. Again Ingram could have appealed this decision but
did not. He says that he did not need to appeal it, because he
filed this suit before receiving the response. Yet an inmate can-
not short-circuit the grievance process by running to court
while that process is ongoing. Again summary judgment for
defendants was appropriate.
No. 21-3400 3
But Ingram’s remaining substantive grievance—the first
one he filed, complaining about the aback itself—is a different
maber. He did not appeal this one to the General Counsel, but
it is unclear whether the regulations required or even permit-
ted him to do more than he did.
Ingram filed a grievance with the Warden, who rejected
Ingram’s contentions. Next he appealed to the Regional Di-
rector. Ingram asserts in an affidavit that, after he had waited
several weeks for a response, he asked Officer Gore what was
going on. According to Ingram, Gore replied that the prison
had received the Regional Director’s decision, which would
not be provided to Ingram.
Ingram did two things in response. He filed a grievance
about the operation of the grievance process. And he filed this
suit. Three days after filing the suit, he received the Regional
Director’s response. By the time he received this document, it
was too late to appeal to the General Counsel, for the suit was
already pending—and administrative remedies must be ex-
hausted before filing suit, rather than in parallel with the liti-
gation. Ross v. Blake,
578 U.S. 632, 638–39 (2016).
The district court wrote that Ingram should have treated
the prison’s failure to hand over the Regional Director’s deci-
sion as equivalent to a non-response and appealed to the Gen-
eral Counsel on the authority of §542.18. Yet that regulation
specifies what a prisoner may or must do if the recipient does
not act. Ingram insists that the Regional Director did act. Once
a decision has been made, it must be abached to the papers
appealing to the next level:
Appeals to the General Counsel shall be submiLed on the form
designed for Central Office Appeals (BP–11) and accompanied by
4 No. 21-3400
one complete copy or duplicate original of the institution and re-
gional filings and their responses.
28 C.F.R. §542.15(b)(1) (emphasis added). How was Ingram
supposed to abach a copy of a decision that the prison refused
to give him?
When the Regional Director is silent, an appeal to the Gen-
eral Counsel lies under §542.18 without the need to abach the
nonexistent response. When the Regional Director makes an
adverse decision, however, it must be abached under
§542.15(b)(1). The defendants contend that, when the prison
fails to turn over an extant decision, the prisoner must pro-
ceed as if no such decision had been made. But that’s not what
either §542.18 or §542.15(b)(1) says. These regulations parti-
tion the process into two possibilities: if no decision, appeal
without abaching one; if an adverse decision, abach that de-
cision to the appeal. The regulations do not contemplate what
Ingram says happened to him: a wriben adverse decision
withheld from the inmate.
Prisoners cannot abach what they don’t have, but
§542.15(b)(1) makes abachment mandatory. That brings into
play the statutory rule that inmates must exhaust available
grievance opportunities. (Section 1997e(a) says that inmates
may not sue “until such administrative remedies as are avail-
able are exhausted.”) If appeal to the General Counsel is
blocked by the need to abach a document that the prisoner
does not have, then that appeal is not “available” to the pris-
oner, and the statute allows the prisoner to turn to court. Sev-
eral appellate decisions have reached similar conclusions. See,
e.g., DeBrew v. Atwood,
792 F.3d 118, 127–28 (D.C. Cir. 2015)
(administrative appeal to General Counsel not available to
prisoner because he could not obtain a copy of Regional
No. 21-3400 5
Director’s response); Risher v. Lappin,
639 F.3d 236, 240 (6th
Cir. 2011) (prisoner exhausted available remedies after he did
not receive Regional Director’s response and his appeal to
General Counsel was rejected for lacking the response). Like-
wise an appeal is not “available” when the Bureau of Prisons
creates a wriben response that it declines to share with the
prisoner.
In addition to relying on §542.18, defendants maintain that
the prison was not concealing from Ingram any decision ren-
dered by the Regional Director. (Presumably defendants
mean by this that the prison was going to turn it over, no mat-
ter what Ingram understood Officer Gore to say.) Yet Ingram
filed an affidavit asserting that he was told that he would not
get the document. This statement is admissible as an adverse
party’s concession. Fed. R. Evid. 801(d)(2). A district court
must accept evidence such as this when ruling on a motion
for summary judgment and must consider the record in the
light most favorable to the party opposing the motion. And
because failure to exhaust is an affirmative defense, see Gooch
v. Young,
24 F.4th 624, 627 (7th Cir. 2022), it is doubly inappro-
priate to treat thinly supported statements in a plaintiff’s affi-
davit as determinative. The burdens of production and per-
suasion rest on the defendants.
The question remains whether Ingram is telling the truth
about what Gore said—or perhaps whether Ingram remem-
bers the encounter correctly. Reliance on oral statements often
creates problems; that’s among the reasons why the Bureau’s
system demands that formal grievances and responses be in
writing. More: we doubt that every guard in a prison knows
what documents from the Regional Director are in the War-
den’s possession and what the Warden plans to do with them.
6 No. 21-3400
Prisoners need not accept at face value everything anyone on
the staff tells them; Ingram could have asked for confirmation
whether he was really going to be kept in the dark, but he did
not take that step. Nor need courts accept at face value every-
thing that an inmate says he heard from a guard. But the court
also cannot disbelieve statements in affidavits without hold-
ing a hearing.
The vehicle for deciding what happened during a pris-
oner’s effort to exhaust the grievance process has come to be
called a Pavey hearing, after Pavey v. Conley,
544 F.3d 739 (7th
Cir. 2008). The district court should have held a Pavey hearing
and taken testimony on subjects such as whether the Warden
refused to provide the Regional Director’s statement to In-
gram or whether, instead, there was just bureaucratic delay in
handing it over. After receiving evidence, which might in-
clude finding out exactly what Gore said to Ingram, the dis-
trict court should decide whether §542.15(b)(1) excused In-
gram from appealing to the General Counsel.
The decision of the district court is affirmed, except with
respect to the grievance directed to the asserted physical at-
tack. The case is remanded on that subject for further proceed-
ings consistent with this opinion.
