Richard Wagoner v. Indiana Department of Correcti

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-3839

RICHARD WAGONER,

Plaintiff-Appellant,

v.

BRUCE LEMMON, Commissioner of the Indiana Department of

Corrections, and INDIANA DEPARTMENT OF CORRECTIONS,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:05-cv-438 — Christopher A. Nuechterlein, Magistrate Judge.

____________________

ARGUED SEPTEMBER 18, 2014 — DECIDED FEBRUARY 4, 2015

____________________

Before WOOD, Chief Judge, and POSNER and MANION, Cir-

cuit Judges.

WOOD, Chief Judge. This appeal requires us to revisit the

rule imposed by the Prison Litigation Reform Act (PLRA)

requiring a prisoner to exhaust any available administrative

remedies before challenging her conditions of confinement

in a federal court. See 42 U.S.C. § 1997e(a). Often exhaustion

(or its lack) will be apparent, but when it is not, the district

No. 13-3839 Page 2

court must hold an evidentiary hearing to resolve the ques-

tion. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). A Pavey

hearing serves a limited but important role: it helps the

judge decide whether the court or the prison is the proper

forum for the prisoner’s grievance. A proper Pavey hearing

should be conducted before an adjudication on the merits. In

the present case, that did not happen, because the prisoner

failed to submit his renewed motion for a Pavey hearing as

directed by the district court. We must decide whether the

court abused its discretion in denying that hearing and

whether the Commissioner and the Indiana Department of

Corrections were entitled to summary judgment.

I

For twelve years, Richard Wagoner was incarcerated in

various facilities overseen by the Indiana Department of

Corrections (IDOC). Wagoner is paraplegic, as a result of se-

vere injuries he sustained in a car accident in 1996, and thus

he needs a wheelchair. In 2005, five years into his confine-

ment, Wagoner filed a pro se complaint in which he asserted

that IDOC had failed properly to accommodate his disability

and had thus violated his civil and constitutional rights. The

district court eventually recruited counsel for Wagoner, and

counsel submitted the operative third amended complaint

on September 6, 2011. That complaint alleged that IDOC and

its Commissioner (in his official capacity) had committed

various violations of the Eighth and Fourteenth Amend-

ments of the U.S. Constitution, redressable under 42 U.S.C.

§ 1983, and had violated Title II of the Americans with Dis-

abilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504

of the Rehabilitation Act, 29 U.S.C. § 794, as well. The com-

plaint identified eight particular grievances, including 1) in-

No. 13-3839 Page 3

adequate and humiliating toileting arrangements; 2) a cell so

small that Wagoner had to move his wheelchair every time

his cellmate needed to use the toilet; 3) sidewalks that

caused him to tip out of his wheelchair and fall to the

ground; 4) no access to the weight room or the library be-

cause of space constraints; 5) ongoing problems with his

wheelchair and its repair; 6) failures to provide him with

other medical supplies; 7) exclusion from a job training pro-

gram; and 8) transportation in a vehicle not equipped for

wheelchairs—a shortcoming that led once to Wagoner’s

catheter becoming dislodged and that forced him to crawl on

the van’s floor in order to get out of the vehicle.

IDOC, acting for itself and the Commissioner, filed a mo-

tion for summary judgment. IDOC argued it was entitled to

judgment as a matter of law for several reasons, including

that Wagoner had failed to exhaust his administrative reme-

dies as required by the PLRA. On April 18, 2013, Wagoner

filed a motion for a Pavey hearing to determine whether he

had, in fact, exhausted his administrative remedies. On May

20, 2013, the court denied that motion without prejudice,

with this explanation:

The Court acknowledges Plaintiff’s apparent interest

in clarifying the proper timing of a Pavey hearing pre-

sumably to ensure that the opportunity is not lost by

litigating the pending motion for summary judgment.

However, Plaintiff has not yet established that a dis-

pute of fact as to whether Plaintiff exhausted his ad-

ministrative remedies before filing this action exists.

Therefore, the Court has no reason to schedule a

Pavey hearing. Plaintiff may use his response to De-

fendants’ motion for summary judgment to create

No. 13-3839 Page 4

such a record. If he does, the Court will schedule a

Pavey hearing should exhaustion remain an issue after

the Court’s full consideration of the pending motion

for summary judgment.

Rather than follow the court’s order to combine his brief

in opposition to summary judgment with facts supporting

the need for a Pavey hearing, Wagoner filed a brief in opposi-

tion to IDOC’s motion for summary judgment on June 14,

2013. Over a month later, he filed a separate motion request-

ing a Pavey hearing. This second Pavey motion, though simi-

lar to the first, filled in the evidentiary blanks that had exist-

ed. It included a lengthy excerpt of Wagoner’s deposition in

which he recounted with more particularity IDOC’s threats

when he filed grievances and support for his contention that

futility excused any failure to exhaust that existed.

On November 26, 2013, the district court granted IDOC’s

motion for summary judgment. The magistrate judge, acting

with the consent of the parties pursuant to 28 U.S.C. § 636(c),

refused to consider Wagoner’s second Pavey motion “or any

of the accompanying exhibits as part of its exhaustion analy-

sis.” Without those materials, the court concluded that Wag-

oner was not entitled to a Pavey hearing. It found that Wag-

oner had properly exhausted only two grievances (one con-

cerning repair of his wheelchair and the other the improper

transportation to a medical appointment). As to the remain-

ing claims, the district court concluded that IDOC and the

Commissioner were entitled to judgment as a matter of law:

neither IDOC nor the Commissioner was a proper party un-

der Section 1983, Wagoner had not been denied access with-

in the meaning of the Rehabilitation Act or the ADA, and

qualified immunity protects the Commissioner from indi-

No. 13-3839 Page 5

vidual liability under the Rehabilitation Act. (It is not clear

why the court included the last of those points: these were

official-capacity claims, and the doctrine of qualified im-

munity applies to individual persons, not to state agencies or

official-capacity suits. See, e.g., Hafer v. Melo, 502 U.S. 21, 25

(1991).)

Wagoner appeals on two grounds. He argues that the

district court committed reversible error when it denied his

second request for a Pavey hearing. Wagoner also asserts that

the district court erred in granting summary judgment in fa-

vor of IDOC and its Commissioner.

II

We begin with the district court’s handling of Wagoner’s

requests for a Pavey hearing. A word about the standard of

review is in order, since the parties have different views on

the matter. Wagoner asks us to review the denial of a Pavey

hearing de novo because it is a legal interpretation of the

PLRA and not a factual finding. IDOC suggests that the

more appropriate standard is abuse of discretion, since the

district court had to exercise some judgment in coming to its

conclusion. In a sense, they are both correct. We review the

threshold question whether a Pavey hearing is required at all

de novo, as it is ultimately an interpretation of the federal

statute. To the extent we are considering trial management,

however, the standard is abuse of discretion.

Since the passage of the PLRA, exhaustion of remedies is

not optional for a prisoner in cases to which it applies. See 42

U.S.C. § 1997e(a). As the Supreme Court noted, “A center-

piece of the PLRA’s effort to reduce the quantity ... of pris-

oner suits is an invigorated exhaustion provision.” Woodford

No. 13-3839 Page 6

v. Ngo, 548 U.S. 81, 84 (2006) (citations and quotation marks

omitted). In Pavey, we attempted to flesh out the practical

application of this rule. We held that a prisoner is not enti-

tled to a jury trial on contested issues regarding his failure to

exhaust; instead, a hearing before the district court suffices

to resolve any such questions. We then outlined the proce-

dure that the court should follow:

(1) The district judge conducts a hearing on

exhaustion and permits whatever discovery re-

lating to exhaustion he deems appropriate. (2)

If the judge determines that the prisoner did

not exhaust his administrative remedies, the

judge will then determine whether (a) the

plaintiff has failed to exhaust his administra-

tive remedies, and so he must go back and ex-

haust; (b) or, although he has no unexhausted

administrative remedies, the failure to exhaust

was innocent (as where prison officials prevent

a prisoner from exhausting his remedies), and

so he must be given another chance to exhaust

(provided that there exist remedies that he will

be permitted by the prison authorities to ex-

haust, so that he’s not just being given a runa-

round); or (c) the failure to exhaust was the

prisoner’s fault, in which event the case is over.

(3) If and when the judge determines that the

prisoner has properly exhausted his adminis-

trative remedies, the case will proceed to pre-

trial discovery, and if necessary a trial, on the

merits; and if there is a jury trial, the jury will

make all necessary findings of fact without be-

ing bound by (or even informed of) any of the

No. 13-3839 Page 7

findings made by the district judge in deter-

mining that the prisoner had exhausted his

administrative remedies.

Pavey, 544 F.3d at 742.

Wagoner contends that the district court improperly de-

nied his request to conduct the hearing prescribed in Step #1

of Pavey. For support, he cites to two pre-Pavey, but post-

PLRA, cases. In Lewis v. Washington, this court remanded a

PLRA case to the district court to consider whether adminis-

trative remedies for a particular grievance were available

given the prison official’s failure to respond. 300 F.3d 829,

835 (7th Cir. 2002). Wagoner’s case is different, however, be-

cause the court did consider, grievance by grievance, wheth-

er he had exhausted.

In Dale v. Lappin, the other case Wagoner cites for sup-

port, we admonished the district judge for failing to address

any of the prisoner’s exhaustion evidence and instead

“merely describ[ing] his allegations as ‘bald assertions’”

even though the prisoner had specifically identified instanc-

es where prison employees had denied him the grievance

forms he requested. 376 F.3d 652, 655–56 (7th Cir. 2004) (cit-

ing Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“[A]

remedy that prison officials prevent a prisoner from ‘uti-

liz[ing]’ is not an ‘available’ remedy under § 1997e(a).”)).

Most of Wagoner’s assertions about his attempts to pursue

his administrative remedies involve either being unable to

get into the office to voice his complaint because of the steps

or verbal comments from IDOC officials.

But Wagoner’s biggest problem stems from his failure to

follow the court’s order to include his renewed Pavey motion

No. 13-3839 Page 8

(and supporting evidence) in his brief in opposition to

IDOC’s motion for summary judgment. Instead, contrary to

the court’s instructions, he bifurcated the two submissions

and waited a month after submitting his brief in opposition

to summary judgment to file his second Pavey motion.

Wagoner says that he followed this procedure in order to

avoid confusion on the issues. But it was not up to him to

override the court’s considered choice. It is true that the

court’s role is different for the two matters, but we have no

reason to think that the magistrate judge was unaware of

this fact. The judge, not the litigants, is responsible for direct-

ing pretrial traffic, and a party does not get to pick which

court orders to follow. The magistrate judge had granted

Wagoner’s motions for extensions of time to file the proper

briefs. The judge did not abuse his discretion in refusing to

consider those materials, because Wagoner did not comply

with the order on when and how to submit them.

All of that said, as a matter of best practices we do not

endorse the combining of a Pavey motion with a summary

judgment response. The purpose of a Pavey hearing is to re-

solve disputed factual questions that bear on exhaustion, in-

cluding what steps were taken and whether the futility ex-

ception might apply. Wagoner’s case was far from open-

and-shut. The fact that he was able to exhaust two of his

claims offers a reason to reject his claim that he was prevent-

ed from exhausting his other six. On the other hand, IDOC

took five years to get Wagoner a new wheelchair. That strikes

us as an extraordinarily long time, and it raises a legitimate

question of futility. An evidentiary hearing could have clari-

fied these matters, and we know from Wagoner’s untimely

submission that there was more he might have proffered.

No. 13-3839 Page 9

To be clear, we do not regard the court’s initial ruling as

the only one that would have been supportable. Just as the

court did not abuse its discretion in requiring more evidence

before moving to the hearing, it would not have abused its

discretion by holding a Pavey hearing based on Wagoner’s

first motion. Cf. Roberts v. Neal, 745 F.3d 232, 236 (7th Cir.

2014) (holding that it was improper for the court to grant

summary judgment for prison officials without conducting a

Pavey hearing); see also Swisher v. Porter Ctny. Sheriff’s Dep’t,

769 F.3d 553 (7th Cir. 2014). The logic of Pavey is in some ten-

sion with a decision to combine the resolution of facts perti-

nent to exhaustion with the decision whether there are facts

warranting a trial. Pavey’s central holding is that exhaustion

is not a question for the jury at trial, but instead is a prelimi-

nary issue for the court. Summary judgment, in contrast, is

designed to weed out cases that must to go to a trier of fact

from those that present no such issues. Separation of the ex-

haustion inquiry from summary judgment will thus promote

clear decisionmaking.

III

We now turn to the question whether summary judg-

ment in favor of IDOC and the Commissioner was correctly

granted. We review that part of the court’s order under the

familiar standard under which we look at the record in the

light most favorable to the non-moving party, Hayes v.

Snyder, 546 F.3d 516, 522 (7th Cir. 2008), and uphold the

judgment only if there are no genuine issues of material fact

and the movant is entitled to judgment as a matter of law.

FED. R. CIV. P. 56. We address in order Wagoner’s claims

based on Section 1983, Title II of the ADA, and Section 504 of

the Rehabilitation Act.

No. 13-3839 Page 10

Section 1983—The district court properly dismissed Wag-

oner’s Section 1983 claims for violations of his Eighth and

Fourteenth Amendment rights. IDOC and the Commissioner

in his official capacity are not “persons” within the meaning

of the statute. See Dobbey v. Ill. Dep't of Corr., 574 F.3d 443,

444 (7th Cir. 2009) (citing Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989)). And as we have noted, Wagoner did not

raise any claim against the Commissioner in his individual

capacity. Even if he had, it would have gone nowhere, be-

cause individual-capacity claims cannot rest on a respondeat

superior theory. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Title II of the ADA and the Rehabilitation Act—The district

court also properly dismissed Wagoner’s ADA and Rehabili-

tation Act claims. To establish a violation of Title II of the

ADA, “the plaintiff must prove that he is a ‘qualified indi-

vidual with a disability,’ that he was denied ‘the benefits of

the services, programs, or activities of a public entity’ or oth-

erwise subjected to discrimination by such an entity, and

that the denial or discrimination was ‘by reason of’ his disa-

bility.” Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.

1996) (citing 42 U.S.C. § 12132). The Rehabilitation Act claim

is functionally identical: it requires the plaintiff to allege that

“(1) he is a qualified person (2) with a disability and (3) the

[state agency] denied him access to a program or activity be-

cause of his disability.” Jaros v. Ill. Dep't of Corr., 684 F.3d

667, 672 (7th Cir. 2012). For the Rehabilitation Act to apply,

the relevant state agency (here the corrections department)

must accept federal funds, which all states do. Id. at 671

(“[T]he analysis governing each statute is the same except

that the Rehabilitation Act includes as an additional element

the receipt of federal funds, which all states accept for their

prisons”) (citations omitted). Wagoner’s paraplegia qualifies

No. 13-3839 Page 11

as a disability. The only question is whether IDOC denied

him access to any program or service.

Had Wagoner exhausted his administrative remedies for

some of his complaints, such as his exclusion from the De-

partment of Labor program and the law library, he might

have been entitled to pursue his theories under the ADA or

the Rehabilitation Act. As matters stand, however, all but

two of his claims are procedurally barred. The two that sur-

vive are the grievance about the condition of his wheelchair

and its repair and IDOC’s improper transportation of Wag-

oner in that ill-equipped van. But these claims are a poor fit

for the statutes Wagoner has invoked. He does not allege, for

example, that the failure to provide him with an adequate

wheelchair backrest or a wheelchair-ready van (however in-

appropriate those failings might otherwise have been) de-

nied him access to any services or programs.

Wagoner’s strongest argument is that by failing to repair

his wheelchair, IDOC impeded his access to facilities availa-

ble to non-disabled prisoners. But Wagoner has not asserted

as did the prisoner in Love v. Westville Correctional Center,

that he was “denied all access to some programs and activi-

ties, and his access to others was severely limited.” 103 F.3d

at 560. Wagoner says only that he was inconvenienced with

longer waits and humiliation, as when he had to crawl off

the regular van because it did not accommodate his wheel-

chair. These disconcerting allegations do not amount to a

denial of services within the meaning of either statute. Wag-

oner could have claimed that the wheelchair itself is a ser-

vice under either act, because it is necessary to accommodate

his paraplegia, but IDOC provided Wagoner with a new

wheelchair before he filed his grievance about the backrest.

No. 13-3839 Page 12

IV

In closing, we stress that it is better practice to hold a

Pavey hearing separate from and before considering a mo-

tion for summary judgment. Nonetheless, although the

judge did not do so here, we find no reversible error. In ad-

dition, the court correctly concluded that no material facts

were disputed and that the Commissioner and IDOC were

entitled to judgment as a matter of law. We therefore AFFIRM

the judgment of the district court.