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SCOTUS denies cert in Indiana case

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The nation's highest court has declined to take an Indiana case asking whether a prisoner suing under the Prison Litigation Reform Act has the right to a jury trial on any debatable factual issue relating to a failure to exhaust administrative remedies.

In a June 2008 ruling, the 7th Circuit Court of Appeals in Chicago decided in Christopher Pavey v. Patrick Conley, et al., No. 07-1426, that prisoner Pavey didn't have that right. The panel had reversed a ruling from U.S. District Judge Robert Miller in the Northern District of Indiana's South Bend Division, who'd decided that the answer to that question was yes.

The Supreme Court of the United States considered the case during its private conference March 20 and issued a denial in its order list released today. Therefore the 7th Circuit's decision stands.

Pavey sued under 42 U.S.C. §1983 against a prison guard who he claimed, in removing him from his cell, used excessive force and broke his arm. Defendants claimed Pavey hadn't exhausted his administrative remedies because he hadn't filed a timely grievance with prison authorities; Pavey responded that his injury and subsequent transfer to another prison prevented him from doing that. He argued any factual issues should be resolved by a judge without a jury, unless that jurist decided to convene an advisory jury.

But in rejecting his claim, the 7th Circuit noted the generalization that emerges from such examples is that juries do not decide what forum a dispute should be resolved in.

"Juries decide cases, not issues of judicial traffic control," authoring Judge Richard Posner wrote. "Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to."

Only one appellate court has weighed in on the question of whether a prisoner has a right to a jury trial if genuine issues of material fact exist about compliance with the duty to exhaust, the panel wrote. In Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), the 9th Circuit held that because previous cases had held that a failure to exhaust remedies is a "matter in abatement," properly raised not by a motion for summary judgment but by a motion under Fed. R. Civ. P. 12(b), the judge must decide exhaustion even if that requires him to make findings of fact.

Not finding that approach persuasive, Judge Posner wrote that the panel also agreed with the result from its appellate colleagues because Rule 12(b) doesn't say anything about who finds the facts. Defendants are also correct in noting that not every factual issue is triable to a jury as a matter of right.

"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."

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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