Death row inmate’s falsified document, perjury justified dismissal of sexual assault claim, 7th Circuit affirms

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A district court’s dismissal of a death row inmate’s lawsuit that alleged sexual assault by a prison medical director was an appropriate sanction given the inmate’s litigation misconduct, the 7th Circuit Court of Appeals affirmed Wednesday.

Senior Judge Diane Wood wrote the opinion in Chadrick Fulks v. T.J. Watson, et al., 22-3308.

According to court records, Chadrick Fulks is an inmate on death row at the federal prison in Terre Haute.

Fulks alleged that in September 2018, after his capital defense attorneys complained about the adequacy of the medical care he was receiving for his chronic back issues, Dr. William Wilson, who was then the medical director at the penitentiary, drugged him and, while Fulks was incapacitated, sexually assaulted him.

He also alleged that the other defendants assaulted him and prevented him from getting needed medical care in order to cover up the sexual assault.

Fulks promptly filed grievances against two prison employees, and he alerted a sexual assault reporting service, his attorneys and his spiritual adviser about the alleged incident. He also called a sexual assault hotline and wrote to the U.S. Attorney’s Office.

Later that month, Fulks complained to the Bureau of Prisons that Wilson had failed to treat his back pain and had not provided needed medication for him.

Then-Acting Complex Warden T.J. Watson denied the grievance, and the bureau’s regional director affirmed that decision.

Fulks appealed to the bureau’s central office.

This time, he again sought medication for his back pain, but he also detailed his sexual assault allegation against Wilson.

The office’s administrator of national inmate appeals found no flaw in the doctor’s decision not to prescribe medication and referred the allegation of sexual assault to the appropriate office for review.

In October 2019, Fulks, acting pro se, initiated the instant lawsuit against six prison officials, including Watson, Wilson, Lt. J. Sherman, nurse Michelle Smith, and officers Aaron Johnson and Bradley Hammon.

His complaint raised a number of claims, not all of which were related to one another. He relied for the most part on the private right of action supplied by Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

The defendants moved to dismiss all but his Eighth Amendment claims against Wilson for the alleged assault and failure to treat his chronic back pain.

Specifically, they contended that the following counts failed to state a claim upon which relief could be granted: a claim under the Religious Freedom Restoration Act against the warden; an Eighth Amendment excessive force claim against Hammon; an Eighth Amendment failure-to-protect claim against the warden and Johnson; and Eighth Amendment claims for deficient medical care against the warden, Lt. Sherman and Smith.

The defendants argued they were entitled to summary judgment on those claims because Fulks failed to comply with the exhaustion requirements of the Prison Litigation Reform Act.

In support of their motion, the defendants argued that Fulks’ allegations of retaliation and unconstitutional conditions of confinement lay outside the traditional scope of the Bivens remedy, and that special factors counseled against extending Bivens to cover them.

The court concluded that Fulks had not exhausted the RFRA claim and permitted the Eighth Amendment claims against Wilson for the alleged assault and failure to provide proper medical care to go forward.

The remaining claims required a hearing.

According to the Indiana Southern District Court’s order dismissing Fulks’ action, Fulks alleged the grievance process was unavailable to him and presented as evidence a purported BP-8 form with the words, “This is not a grievable issue,” written on it.

In their reply, the defendants said the purported form “reek[ed] of illegitimacy.”

The court determined that there was a genuine issue of material fact as to whether the administrative remedy program was available to Fulks and ordered a Pavey hearing.

A forensic document examiner called by the defendants at the hearing testified that the purported BP-8 form was created by photocopying a statement that an officer had written on an unrelated blue note.

After the hearing, the district court sustained the defense’s exhaustion defense and concluded the defendants had met their burden of proof by showing that administrative remedies were available to Fulks. The court also concluded Fulks knowingly produced a falsified document and perjured testimony to support his claim that the administrative remedy process was unavailable to him.

It thus found that dismissal of Fulks’ action with prejudice was an appropriate sanction.

The 7th Circuit agreed.

In her opinion, Wood noted that Fulks submitted the forged document in response to a dispositive pretrial motion and, despite ample opportunity to withdraw his unexhausted claims, lied at the Pavey hearing when he insisted that the document was genuine.

“Because of his dishonesty, the district court recruited counsel and the defendants devoted time and energy to a hearing that could have been avoided,” she wrote. “The defendants spent over $8,000 to retain an expert to analyze the purported BP-8 and refute Fulks’s false testimony.”

Further, the district court properly considered other sanctions before settling on dismissal, Wood wrote.

Fulks had proposed three additional sanctions that would have been appropriate.

“But these proposals come too late in the day, and their mere existence does not show that the court abused its discretion in the measure it chose,” Wood concluded.

Judges Michael Scudder and Amy St. Eve concurred.

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