Messa v. Goord

10-1019-cv

Messa v. Goord

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2010

(Argued: June 17, 2011 Decided: July 26, 2011)

Docket No. 10-1019-pr

RAFAEL MESSA,

Plaintiff-Appellant,

v.

GLENN GOORD, Commissioner, Department of Correctional

Services, LESTER N. WRIGHT, Deputy Commissioner/Chief Medical

Officer, Department of Correctional Services, M ARC F. STERN,

Regional Medical Director, Department of Correctional

Services, STEVEN VANBUREN, Regional Health Services

Administration, L UCIEN J. LECLAIRE, JR., Deputy Commissioner,

CHARLES R. GREINER, Superintendent, GHCF, GEORGE B. DUNCAN,

Superintendent, GHCF, A LBERT PAOLANO, Facility Health Service

Director, CMCF, HOWARD SILVERBERG, DR. BENDHEIN, Medical Doctor,

GHCF, DR. NUNEZ, MS. RODAS, Physician's Assistant, M R. NESMITH,

PAUL BURNDRICK, Nurse Administrator, C. MARTUSCELLO,

Defendants,

V. BLAESTZ, Senior Correctional Counselor, J OHN TIERNEY,

Correctional Sergeant, S. ULLRICH, Correctional Sergeant,

GERALD TILLOTSON, DAVID MAZZELLA, CHARLES V. AUSTIN, W. R. KELLY, C.

MITCHELL, J. ERNS, M. MILLER, M. MRZYGLOD,

Defendants-Appellees.*

Before:

B.D. PARKER and CHIN, Circuit Judges, and

KORMAN, District Judge.**

*

The Clerk of the Court is directed to revise the

official caption to conform to the above.

**

The Honorable Edward R. Korman, of the United States

District Court for the Eastern District of New York, sitting by

designation.

Appeal from a February 17, 2010, judgment of the

United States District Court for the Northern District of

New York (Suddaby, J.), dismissing plaintiff-appellant's

suit for failure to exhaust administrative remedies as

required by the Prison Litigation Reform Act of 1995.

AFFIRMED.

DAVID J. MARCK and JEFFREY ROSE-

STEINBERG,*** Seton Hall University

School of Law Center for Social

Justice, Newark, New Jersey, for

Plaintiff-Appellant.

MARTIN HOTVET, Assistant Solicitor

General (Barbara D. Underwood,

Solicitor General, and Michael

S. Belohlavek, Senior Counsel,

on the brief), for Eric T.

Schneiderman, Attorney General

of the State of New York,

Albany, New York, for

Defendants-Appellees.

PER CURIAM:

In this appeal, we consider whether a plaintiff in

a lawsuit governed by the Prison Litigation Reform Act of

1995 (the "PLRA") is entitled to a jury trial on disputed

factual issues relating to his exhaustion of administrative

remedies. The district court held that he is not. We

agree.

***

Appearing pursuant to 2d Cir. R. 46.1(e).

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BACKGROUND

On March 25, 2001, plaintiff-appellant Rafael

Messa, an inmate in the custody of the New York State

Department of Correctional Services ("DOCS") at Green Haven

Correctional Facility, was injured during a prison yard

altercation with defendants-appellees, a group of

correctional officers ("defendants"). As a consequence,

Messa was hospitalized in the prison infirmary for more than

a week.

On November 17, 2003, he brought this pro se

action under 42 U.S.C. § 1983 against defendants and other

DOCS employees, alleging excessive force and other Eighth

Amendment and due process violations in connection with the

prison yard incident. The parties requested a jury trial.

By mid-2007, only the excessive force claim

remained. Defendants moved for summary judgment, arguing

that Messa had not complied with the PLRA's exhaustion

provision, which provides that "[n]o action shall be brought

with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner . . . until

such administrative remedies as are available are

exhausted." 42 U.S.C. § 1997e(a).

Messa acknowledged that he had failed to file a

grievance or otherwise pursue relief through DOCS's Inmate

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Grievance Procedure (the "IGP"), but he argued that his

failure should be excused. 1 Specifically, he argued that

(1) defendants should be estopped from asserting non-

exhaustion because they and other prison staff had

threatened him with further violence if he filed a

grievance; and (2) prison staff had refused him translation

and processing assistance, effectively preventing him from

utilizing the IGP because he could not speak English and was

illiterate in his native Spanish.

The district court denied the summary judgment

motion and scheduled trial for January 11, 2010. The Friday

before trial was to begin, the district court announced its

plan to conduct an evidentiary hearing on exhaustion before

impaneling a jury. On Monday, it denied Messa's request for

an adjournment and heard testimony from both sides. Ruling

from the bench, the court rejected Messa's excuses as

contrary to the evidence. For example, the district court

held that Messa's facility with the IGP was evident from the

numerous grievances he had filed between 2000 and 2003.

Moreover, he had successfully appealed disciplinary

proceedings brought against him in April 2001 that arose out

of the same prison yard altercation. Hence, the district

1

The specifics of the IGP are discussed in Espinal v.

Goord, 558 F.3d 119, 125-27 (2d Cir. 2009).

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court dismissed the remainder of the complaint without

prejudice to refiling upon exhaustion. The trial never took

place. This appeal followed.

DISCUSSION

On appeal, Messa challenges the district court's

(1) denial of a jury trial on the factual disputes regarding

his excuses for non-exhaustion; (2) rejection of his excuses

for non-exhaustion; and (3) denial of his request to adjourn

the January 11 hearing.

The right to a jury trial is a legal question that

we review de novo. See Brown v. Sandino Materials, 250 F.3d

120, 125 (2d Cir. 2001). The Seventh Amendment provides

that "[i]n suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial

by jury shall be preserved." U.S. CONST. amend. VII. In an

action under 42 U.S.C. § 1983, the parties have a right to a

jury trial on the merits, City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999), but

whether the right applies to other aspects of the action

depends upon "the nature of the issue . . . rather than the

character of the overall action," see Ross v. Bernhard, 396

U.S. 531, 538 (1970).

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This Court has not addressed whether there is a

right to a jury trial on factual disputes regarding an

inmate's failure to exhaust administrative remedies as

required by the PLRA, 42 U.S.C. § 1997e(a). Five of our

sister circuits have addressed the issue, however, and all

five have held that there is no such right. See Drippe v.

Tobelinski, 604 F.3d 778, 782, 785 (3d Cir. 2010); Dillon v.

Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Bryant v. Rich,

530 F.3d 1368, 1375-77 & n.15 (11th Cir. 2008); Pavey v.

Conley, 544 F.3d 739, 741 (7th Cir. 2008); Wyatt v. Terhune,

315 F.3d 1108, 1119-20 (9th Cir. 2003). We agree.

The PLRA provides that "unexhausted claims cannot

be brought in [federal] court." Jones v. Bock, 549 U.S.

199, 211 (2007); Perez v. Wisc. Dep't of Corr., 182 F.3d

532, 535 (7th Cir. 1999) (describing satisfaction of §

1997e(a) as "a precondition" to bringing suit). Like

administrative exhaustion generally, PLRA exhaustion

"govern[s] the timing of federal-court decisionmaking."

McCarthy v. Madigan, 503 U.S. 140, 144 (1992); see Woodford

v. Ngo, 548 U.S. 81, 93-103 (2006); Myers v. Bethlehem

Shipbuilding Corp., 303 U.S. 41, 50-51 & n.9 (1938). It is

a matter of judicial administration in the sense that

"[u]ntil the issue of exhaustion is resolved, the court

cannot know whether it is to decide the case or the prison

authorities are to [do so]." Pavey, 544 F.3d at 741.

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An inmate's failure to comply with this

requirement may be excused where: (1) administrative

remedies were not in fact "'available' to the prisoner," (2)

"defendants' own actions inhibit[ed]" exhaustion, or (3)

"'special circumstances' . . . justify" non-exhaustion.

Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004).

Messa argues that, unlike other aspects of exhaustion, which

he concedes are properly resolved by the court, determining

whether an inmate asserts a valid excuse for non-exhaustion

is a task for the jury. We are not persuaded.

First, the Seventh Amendment's guarantee of the

right to "the ultimate determination of issues of fact by

the jury," In re Peterson, 253 U.S. 300, 309-10 (1920), does

not extend to the "threshold issue[s] that courts must

address to determine whether litigation is being conducted

in the right forum at the right time," Dillon, 596 F.3d at

272 (emphasis added). As one of our sister courts put it,

"[j]uries decide cases, not issues of judicial traffic

control." Pavey, 544 F.3d at 741.

Messa is incorrect that the presence of disputed

material facts converts exhaustion into a jury issue.

Matters of judicial administration often require district

judges to decide factual disputes that are not bound up with

the merits of the underlying dispute. In such cases, the

Seventh Amendment is not violated. See Alliance for Envtl.

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Renewal v. Pyramid Crossgates Co., 436 F.3d 82, 87-88 (2d

Cir. 2006); see also Robinson v. Metro-North Commuter R.R.

Co., 267 F.3d 147, 170 n.14 (2d Cir. 2001). Here, the

factual disputes relating to exhaustion are not intertwined

with the merits of Messa's underlying excessive force claim.

Second, Messa's proposal ignores Congress's

reasons for requiring administrative exhaustion, which are

to (1) encourage inmates to pursue administrative steps

"that they might otherwise prefer to skip," Sapp v.

Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); (2) "provide[]

prisons with a fair opportunity to correct their own

errors," Woodford, 548 U.S. at 94; and (3) "reduce the

quantity and improve the quality of prisoner suits," Porter

v. Nussle, 534 U.S. 516, 524 (2002). To require a jury

trial before it is certain that an inmate is entitled to be

in federal court would seriously undercut these goals. See

Bryant, 530 F.3d at 1376. "[O]ne could envision a series of

jury trials before there was a trial on the merits: a jury

trial to decide exhaustion, a verdict finding that the

prisoner had failed to exhuast, an administrative

proceeding, the resumption of the litigation, and another

jury trial on failure to exhaust." Pavey, 544 F.3d at 741.

Third, Messa argues that excuses for PLRA

exhaustion are analogous to a statute of limitations, an

issue that may be tried to a jury as of right, see Katz v.

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Goodyear Tire & Rubber Co., 737 F.2d 238, 242-43 (2d Cir.

1984); Bertha Bldg. Corp. v. Nat'l Theatres Corp., 248 F.2d

833, 840 (2d Cir. 1957). He is wrong. While it is true

that the two are similar in some ways -- e.g., both are non-

jurisdictional affirmative defenses -- they serve very

different functions in our civil justice system.

As discussed, PLRA exhaustion is a condition that

must be satisfied before the courts can act on an inmate-

plaintiff's action. Harris v. Hegmann, 198 F.3d 153, 158

(5th Cir. 1999). A statute of limitations, on the other

hand, "represent[s] a pervasive legislative judgment that it

is unjust to fail to put the adversary on notice to defend

within a specified period of time and that 'the right to be

free of stale claims in time comes to prevail over the right

to prosecute them.'" United States v. Kubrick, 444 U.S.

111, 117 (1979) (quoting R.R. Telegraphers v. Ry. Express

Agency, 321 U.S. 342, 349 (1944)). In other words, one

doctrine opens the courthouse door and the other closes it.

In fact, because these two doctrines play such important --

and distinct -- roles in our system of justice, we recently

held that statutes of limitations "'must be tolled while a

prisoner completes the mandatory exhaustion process.'"

Gonzalez v. Hasty, No. 07-1787-pr, 2011 WL 2463562, at *5

(2d Cir. June 22, 2011) (quoting Brown v. Valoff, 422 F.3d

926, 943 (9th Cir. 2005)).

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Finally, we are not persuaded by the argument that

a jury trial should be permitted if exhaustion is no longer

possible, i.e., if a dismissal for failure to exhaust will

"end litigation rather than shunting it to another forum,"

Pavey, 544 F.3d at 741. The Seventh Amendment does not

promise a jury trial on all issues that might, as a

practical matter, finally dispose of a case. Rather, it

guarantees the right to a jury's resolution of the merits of

the ultimate dispute. See Markman v. Westview Instruments,

517 U.S. 370, 377 (1996); see also In re Peterson, 253 U.S.

at 309-10. There has been no interference with that right

in Messa's case: whether defendants used excessive force in

the prison yard that day has yet to be determined.

We have considered Messa's remaining arguments and

conclude that they are without merit. The district court

did not err in rejecting Messa's excuses after consideration

of the evidence presented at the January 11 hearing. Nor

was the district court's denial of Messa's request for an

adjournment -- after the case had been pending almost seven

years -- an abuse of discretion. See Dow Chem. Pac. Ltd. v.

Rascator Maritime S.A., 782 F.2d 329, 341 (2d Cir. 1986).

CONCLUSION

For the foregoing reasons, we hold that the

Seventh Amendment does not guarantee a jury trial on factual

disputes regarding administrative exhaustion under the PLRA.

Accordingly, the judgment of the district court is AFFIRMED.

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