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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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