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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.