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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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