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Administrative remedies must be exhausted

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Prisoners who file suits for damages before exhausting all administrative remedies are not entitled to a jury trial to debate factual issues relating to the exhaustion under the Seventh Amendment, the 7th Circuit Court of Appeals ruled today. The opinion outlines the steps a U.S. District Court judge should take to determine whether a suit may go to trial.

The federal appellate court overturned the U.S. District Court, Northern District of Indiana, South Bend Division's ruling in the case Christopher Pavey v. Patrick Conley, et al., No. 07-1426. Pavey filed a suit under the Prisoner Litigation Reform Act against guards he claimed broke his arm using excessive force to remove him from his cell.

The defendants argued Pavey failed to exhaust all his administrative remedies prior to filing the suit. Pavey countered he couldn't use those remedies because his left arm was broken and he is left-handed and unable to write, and that he was transferred to another prison before an investigation was conducted.

Under the Prison Litigation Reform Act, actions can't be brought under federal law until all administrative remedies available are exhausted. Trying the merits before exhaustion is unsatisfactory because it would thwart Congress' effort to bar trials of prisoner cases before the prisoner has used all administrative remedies, wrote Judge Posner.

As a result, a jury may decide the merits of a case that never should have gotten to that stage because a judge should have found the prisoner had failed to use all available administrative remedies.

The 7th Circuit decision outlines a sequence to be followed in contested exhaustion cases: first, a U.S. District Court judge conducts a hearing on exhaustion and allows discovery only related to exhaustion; next, if the judge decides the prisoner didn't exhaust all remedies, then the plaintiff can attempt to exhaust the available remedies.

If the plaintiff exhausted all remedies, but the failure to exhaust was innocent, such as the plaintiff was presented by prison officials to proceed, he would be allowed to go back and exhaust. If the failure to exhaust is the prisoner's fault, then the case is over, Judge Posner wrote.

Finally, if a U.S. District Court judge determines the plaintiff has correctly exhausted all remedies, the case can proceed to pretrial discovery and possibly a trial on the merits. The jury wouldn't be bound by any findings made previously by the judge during the exhaustion proceedings.

"We emphasize that discovery with respect to the merits must not be begun until the issue of exhaustion is resolved. If merits discovery is allowed to begin before that resolution, the statutory goal of sparing federal courts the burden of prisoner litigation until and unless the prisoner has exhausted his administrative remedies will be thwarted," he wrote.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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