Petition for Writ of Certiorari — Pavey v. Conley (No. 08-886)

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Supreme Court US.

\ Vy ae 08-886 12 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

CHRISTOPHER PAVEY,

Petitioner,

Vv.

PATRICK CONLEY, ef al,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID M. FRIEBUS JONATHAN D. HACKER

BABBITT, LAND, SILVERSTEIN (Counsel of Record)

& WARNER LLP JUSTIN FLORENCE*

332 South Michigan Ave. O’MELVENY & MYERS LLP

Suite 710 1625 Eye Street, N.W.

Chicago, Illinois 60604 Washington, D.C. 20006

(312) 427-5555 (202) 383-5300

*Admitted only in Massachu-

setts

WALTER DELLINGER**

HARVARD LAW SCHOOL

SUPREME COURT AND

APPELLATE PRACTICE

CLINIC

**May be contacted at

O'Melveny & Myers LLP

Attorneys for Petitioner

QUESTION PRESENTED

In Jones v. Bock, 549 U.S. 199 (2007), this Court

held that exhaustion of prison administrative reme-

dies under the Prison Litigation Reform Act

(“PLRA”) is an affirmative defense, which must be

pleaded and proved by the defendant in accordance

with the usual practice under the Federal Rules of

Civil Procedure. In the decision below, the Seventh

Circuit nevertheless held that PLRA exhaustion is

an “issue of judicial traffic control” to be litigated not

under the normal procedural rules, but instead in

accordance with a special preliminary procedure by

which a court resolves the affirmative defense—

including any underlying factual disputes about its

application—before discovery or any other litigation

on the merits of a claim may proceed.

The following question is presented:

When the defendant in an action for damages

governed by the PLRA invokes the statutory af-

firmative defense of exhaustion, is the defense to be

litigated under the usual rules of procedure applica-

ble to affirmative defenses, including trial by jury to

resolve disputed factual issues underlying the de-

fense?

PARTIES TO THE PROCEEDING BELOW

Pursuant to Rule 14.1(b) of the Rules of this

Court, petitioner states as follows:

Petitioner Christopher Pavey was plaintiff in the

district court and appellee in the court of appeals.

Respondents Patrick Conley, Robert Watts,

Laurence Grott, and Javadis Beaty were defendants

in the trial court and appellants in the court of ap-

peals. A fifth defendant in the trial court, Casiano

(first name unknown), was not served with process

and a sixth, Shepard (first name unknown), has not

appeared in this action.

ill

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF CERTIORARI............. 1

CPP BOTY v ves cuieonssisesccevecctsssecscstscvevvmbessseisses 1

i ii oa ics Annes cara sueesen eas 1

RELEVANT CONSTITUTIONAL AND

STATUSORY PROVISIONG.....................ccccccceees. 1

STATEMENT OF THE CASE .................cccccoscesswosssees 2

Pa, FTE Ti ovis ncnes sic ecsnssdsesecccesesenencens 3

> B COIIIIE TIO vivo ice cick ccnssavcdeiscssccosccssemssiecs 4

REASONS FOR GRANTING THE WRIT................ 10

I. THE DECISION BELOW CONFLICTS

WITH MULTIPLE PRECEDENTS

GOVERNING THE ADJUDICATION OF

AFFIRMATIVE DEFENSES ......................ccc00 12

A. Exhaustion Of Prison Remedies Under

The PLRA Is A Substantive Legal De-

fense Subject To Normal Pleading And

BE i iia ins else catiiainns ickccvivens 12

B. Numerous Precedents Hold That Fac-

tually Disputed Affirmative Defenses

Must Be Resolved By The Jury, Not

The Court, Contrary To the Decision

LED RTT OED ELE LI NE CS 16

Il. THE LOWER FEDERAL COURTS ARE

IN DISARRAY OVER THE PROPER

PROCEDURES FOR ADUJUDICATING

THE PLRA EXHAUSTION DEFENSE.........

Ili. THE PROPER ADJUDICATION OF THE

PLRA EXHAUSTION DEFENSE IS AN

IMPORTANT AND RECURRING ISSUE.....

EI sicdhsexhehsxuiercauahenerstsarsestaseatutonenetis

APPENDIX A:

Court of Appeals Opinion

dated September 12, 2008 .................cccceceeeees

APPENDIX B:

District Court Opinion and Order

I acc vives daunacenavancvoces ise

APPENDIX C:

District Court Opinion and Order

BE I SEE, SI ss vavivececedcasicncsisiiannosncidences

APPENDIX D:

District Court Order

CE TH, TG, BIS vvvecssecccsevccsevneccccvcccacsasseces

APPENDIX E:

District Court Order

I I CO cae cscssceicccxeccicesicccdssdcssnnsses

APPENDIX F:

Court of Appeals Order

EE I Oe I vcesevnscesicccscccnsnsvecevsvasnvesss

oboe

APPENDIX G:

Order Denying Rehearing

TABLE OF AUTHORITIES

Page(s)

CASES

Amador v. Superintendents of Dep't. of

Correctional Svcs.,

2007 WL 4326747 (S.D.N.Y. Dec. 4, 2007) ...27, 32

American Dredging Co. v. Miller,

I icc censecanouscsevsupavsesevdseseonse 20

Arbaugh v. Y & H Corp.,

Be ie SI os icicccsivorseensceesecedcdaecessevevecseves 20

Baines v. Maddock,

2007 WL 173948 (S.D. Cal. Jan. 3, 2007)........... 29

Beacon Theatres, Inc. v. Westover,

BI Tre, BS oancnsscesscscssecssiscssnscvesscsecosessees 23

Bertha Building Corp. v. Nat'l Theatres

Corp.,

BOS FBG BO3 (Od Civ. 1OB7) ......0.0.00.00005.scccccrecscees 18

Booth v. Churner,

By PIE MED osesecnscosasecsscevexevucscerversenvvececes 10

Borg v. L & J Energy, Inc.,

1990 WL 122225 (W.D. Mich. May 25,

ae lege. SAE AA ee 23

Brownell v. Krom,

446 F.3d 305 (2d Cir. 2O0G) ............ssesccccessvveseeees 26

Bryant v. Rich,

530 F.3d 1368 (11th Cir. 2008).......... 22, 27, 29, 30

Byrd v. Blue Ridge Rural Elec. Coop.,

Be I RN occas esacsecensesssversscnrascsenesssnsvents 16

Casanova V. Dubois,

Oe a GeO Se) 18, 31

Chambliss v. Sis.mons,

BO Ne Gee OEP, TRIED. voeccccsehscsessevserececvencsevess 18

Chocallo v. IRS,

2007 WL 2071880 (B.D. Pa. July 17,

AEA ee ey ae ee 17

City of Monterey v. Del Monte Dunes, Ltd.,

et i sche sshkneisadaranvsnebianones 7, 16

Curtis v. Loether,

415 U.S. 189 (1974)...............000 Re ene ra a CaS: 22

Dairy Queen, Inc. v. Wood,

sc ossstccscaAiuoisepacenedisenibdonentsi 22

Dale v. Poston,

548 F.8d 568 (7th Cir. 2008)..................ccccc.esseeees 26

DDB Techs., L.L.C. v. MLB Advanced Media,

L.P., 517 F.3d 1284 (Fed. Cir. 2008) ...........0....... 22

Denton v. Hernandez,

I ai iceicda chedisdduacdasntia 14

Europlast, Ltd. v. Oak Switch Sys.,

50 F.Bek THBG CTs Wie. TOD oo. ncccssessc ccc ciscceccncoses 17

Fields v. Okla. State Penitentiary,

611 F.8d 1109 (10th Cir. 2007)..............sccccsseeee 26

Finch v. Servello,

2008 WL 4527758 (N.D.N.Y. Sept. 29,

ER ARS SERRE erat one Pa ee 32

Foulk v. Charrier,

262-F.3d 687 (8th Cir. 2001)................ ccc ceeeeceeeee es 26

Fowler v. Land Mgmt. Groupe, Inc.,

078 F.2d 168 (4th Cir. 1902)................00ccscccsccosree 18

Gilmore v. Stalder,

2008 WL 4155332 (W.D. La. Sept. 8,

RATAN ae Lae Soe Se eo re 32

Granite State Ins. Co. v. Smart Modular

Techs., Inc., 76 F.3d 1023 (9th Cir. 1996)........... 17

Hinojosa v. Johnson,

277 F. App’x 370 (5th Cir. 2008) ................c00000000. 26

vil

Intrastate Gas Gathering Co. v. Dow

Chemical Co., 248 F.3d 1140 (5th Cir.

a eo ei visnansuiie’ 17

Jazzabi v. Allstate Ins. Co.,

278 F.3d 979 (9th Cir. 2002)..............0 ee, rere 16

Johnson v. Johnson,

S85 F.3d G08 (6th Cir. 2004)........cccccccsssccscssscecess 18

Jones v. Bock

tS SED. censsdnsecossorcssveseauinvasi passim

Kaba v. Stepp,

458 F.3d 678 (7th Cir. 2006)................cccccceeeceeeeee 26

Kaplan v. Exxon Corp.,

126 F.90 221 (Sd Cir. 1907) ..........cccccscccccersesessseee 17

Kierulff Assocs. v. Luria Bros. & Co.,

240 F. Supp. 640 (S.D.N.Y. 1965) .......ccccceeeeeeeeee 23

Liberty Oil Co. v. Condon Nat Bank,

ais codsssnddanscnedsbsicecetecsins 17

Lunney v. Brureton,

2007 WL 1544629 (S.D.N.Y. May 29,

a aha detcc ia vigSepar ise savesnsavens 27, 29

Maraglia v. Maloney,

499 F. Supp. 2d 93 (D. Mass. 2007) ................0. 27

Meléndez-Arroyo v. Cutler-Hammer

de P.R. Co.,

Fe Or CRE Te, TE oo chevcocsscesssiccevsescerecvoes 18

Nike, Inc. v. “Just Did It” Enterprises,

6 FSR 1226 (7th Cir. 190GS)...csecccssocssrssevessoccesscees 17

Owens v. Blagojevich,

2008 WL 4792707 (S.D. Ill. Oct. 29, 2008).......... 19

Percival v. Knowles,

2007 WL 2827789 (E.D. Cal. Sept. 27,

sd vddvivaeabans 28

Perez v. “*%sconsin Dep't of Corr.,

182:F.4a 632 (7th Cir. 1999)...............ccccccccrersees 18

Porter vy. Nussile,

ER MR 10

Pruitt v. Mote,

503 F.3d 647 (7th Cir. 2007).........:::cs0s0e1200 4, 35

Ray v. Kertes,

pe eR 18

Ritza v. Int'l Longshoremen’s &

Warehousemen’s Union, 837 F.2d 365

ee | ss = 27, 28

Robinson v. Metro-North Commuter R.R.,

DET FB TAF Ge itiisticsevsscescvessncececsess 16

Rosales v. United States,

B24 F.2d TOS COE Cie, TOBG i oon ccesesccccsscsececscccceccess 23

Schramm v. Oakes,

362 F.2d 143 (10th Cir. 1G08).............................. 23

Suler-Khodr v. Univ. of Texas Health Sci.

Ctr. San Antonio, 261 F.3d 542 (5th Cir.

Singleton v. Johnson,

2008 WL 3887633 (S.D. Ga. Aug. 18,

Stauffer Chem. Co. v. FDA,

GTO F.2d 106 COCR Cie, BI ooccccccccsccccceescecs... 000s: 28

Studio Elec. Technicians Local 728 v. Int]

Photographers of Motion Picture Indus.

Local 659, 598 F.2d 551 (9th Cir. 1979) ....0...00.... 28

Torres-Negron v. J & N Records, LLC,

GO4 F.Sk 2B Ce ce aiaisssennss vse scccsecsccceee, 23

Tri County Indus., Inc. v. District of

Columbia,

200 F.3d G36 GD.C. Cit, BOOD).......scccvescccsscecscvesese 17

United States v. Duncan,

850 F.2d 1104 (6th Cir. 1968)..............cccsccscssessess 17

United States v. Edwards,

968 F.2d 1148 (i lth Cir. 1669).......................2... 18

Vibber v. U.S. Rubber Co.,

255 F. Supp. 47 (S.D.N.Y. 1966) .............ccccceeeee 23

Waco Int], Inc. v. KHK Scaffolding Houston,

Inc., 278 F.8d 6238 (5th Cir. 2002) .................0.0+. 17

Williams v. Beard,

Oe ee le es BED oi vsecceccvencesvesccieaseressadon 26

Woodford v. Ngo,

Pe Rt I II vous vnsidsciachosineside consesvavennccs passim

Wyatt v. Terhune,

315 F.8d 1108 (Oth Cir. 2009)...............cccsscoee 27, 28

STATUTES

Be Ps osns Uiiveccncnececincasascdesiunmbieinciieaiess 4,13

42 U.S.C. § 19976 .......ccccsssesscesssceseceseees 2,5, 10, 13, 34

Be Se Be ei cnsencnecieasessexcntensianrarscenadinedadonteaned 21

Fed. R. Civ. P. 86.............. EN EEA, Ce 21

OTHER AUTHORITIES

3 James Wm. Moore et al., Moore’s Federal

Practice § BB.01(G)E) .....000c00scccscccsccscssecceceeess eundunk 23

5 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1277 (3d

Oe I icktle tain ne acoctintossid nalcttcaateiscansecseucions 21

5C Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1373 (3d

OR aisle a 21

9 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2304 (3d

Oe Fe diacatiniretscnssciininesintinininnicoidlsiaeiumeall 16

PETITION FOR A WRIT OF CERTIORARI

Petitioner Christopher Pavey respectfully peti-

tions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Sev-

enth Circuit in this case.

OPINIONS BELOW

The amended opinion of the United States Court

of Appeals for the Seventh Circuit (App. la) is pub-

lished at 544 F.3d 739 (7th Cir. 2008). The Order

denying rehearing and rehearing en banc (App. 36a)

is unpublished.

JURISDICTION

The judgment of the court of appeals was entered

on June 5, 2008. The court of appeals denied rehear-

ing and rehearing en banc on September 12, 2008.

App. 36a. Justice Stevens granted petitioner’s appli-

cation for an extension of time until January 12,

2009. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATU-

TORY PROVISIONS

The Seventh Amendment to the U.S. Constitu-

tion provides:

In Suits at common law, where the value of the

controversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried by

a jury, shall be otherwise reexamined in any Court of

the United States, than according to the rules of the

common law.

Title 42, § 1997e of the U.S. Code states in perti-

nent part:

§ 1997e. Suits by prisoners

(a) Applicability of administrative remedies

No action shall be brought with respect to

prison conditions under section 1983 of this ti-

tle, or any other Federal law, by a prisoner

confined in any jail, prison, or other correc-

tional facility until such administrative reme-

dies as are available are exhausted.

STATEMENT OF THE CASE

As the district court correctly recognized, this

case presents a recurring question with a “far-

reaching impact on prisoner litigation” (App. 10a):

Is the statutory affirmative defense of exhaustion in

the Prison Litigation Reform Act (“PLRA”) to be liti-

gated like any other legal affirmative defense, under

normal rules of procedure and with disputed facts to

be resolved by a jury at trial? The district court an-

swered that question in the affirmative, but the Sev-

enth Circuit reversed. It held that exhaustion is a

quasi-jurisdictional “issue of judicial traffic control,”

such that judges must resolve the affirmative de-

fense—including any factual disputes about its ap-

plication—in a preliminary fashion before the par-

ties may proceed with discovery and litigation on the

merits of aclaim. App. 4a. To resolve exhaustion on

this threshold basis, the court of appeals mandated

an elaborate special procedure distinct from the

usual Federal Rules governing federal-court litiga-

tion.

The court of appeals’ conclusion cannot be recon-

ciled with this Court’s recent decision in Jones y.

Bock, 549 U.S. 199 (2007), which holds that exhaus-

tion in the PLRA is an affirmative defense to be gov-

erned by the usual practice under the Federal Rules

of Civil Procedure. The decision also conflicts with

multiple decisions of this Court and others concern-

ing the adjudication of affirmative defenses in fed-

eral-court actions at law.

While exacerbating conflicts that are already

wide and spreading, the error in the Seventh Cir-

cuit’s decision is nevertheless so clear, and the reso-

lution so simple, that a summary reversal may be in

order in lieu of plenary review. This Court could

summarily pronounce that, rather than the compli-

cated procedure adopted by the decision below, the

PLRA exhaustion defense is to be tried like any

other legal defense, in accordance with normal rules

of procedure, and ultimately subject to a jury trial

when necessary to resolve disputed factual issues

bearing on exhaustion. If the case warrants consid-

eration beyond that simple resolution, certiorari

should be granted and the case set for full briefing

and argument.

A. Factual Background

Petitioner Christopher Pavey is an Indiana state

prisoner. On October 14, 2001, prison guards at the

Maximum Control Facility in Westville, Indiana

(“MCF”), broke his arm during a cell extraction. Pe-

titioner was isolated in his cell following the extrac-

tion; it was not until the next day that prison staff

responded to his repeated requests to speak about

the incident to a prison official, who told petitioner

that he “would check into it.” App. 25a. Later that

day, petitioner was taken to another prison where he

received medical treatment. When petitioner re-

turned to MCF, two prison officials interviewed him

about the events of the previous day and photo-

graphed his arm. Petitioner was then returned to

his cell and isolated. Four days later, petitioner was

transferred to a hospital in Indianapolis, where a

doctor surgically repaired his broken arm with a

metal plate and screws. A week after the surgery,

petitioner was transferred to Pendleton Correctional

Facility.

During this period, petitioner could not write be-

cause of his broken arm, but he grieved to “anyone

who would listen” about his treatment by respon-

dents. App. 29a. In January 2002, as soon as his

arm healed and he was able to write, petitioner filed

a written grievance about the cell extraction. Jd.

The grievance was rejected on the stated ground that

it should have been filed at MCF, within 48 hours

after the incident.

B. Proceedings Below

1. Petitioner, proceeding pro se, brought this suit

against respondents—the prison guards who broke

his arm—seeking damages under 42 U.S.C. § 1983.

After the initial screening required by the PLRA, see

28 U.S.C. § 1915A(a), (b), the district court allowed

petitioner to proceed on a claim that respondents

used excessive force during the cell extraction. Re-

spondents answered the complaint and admitted

that a forceful extraction took place, but they as-

serted the affirmative defense that petitioner failed

to exhaust his available administrative remedies be-

fore filing suit as required by the PLRA, 42 U.S.C.

§ 1997e(a). Respondents moved for summary judg-

ment on their affirmative defense, asserting that be-

cause there was no grievance on file at MCF, peti-

tioner must not have exhausted his administrative

remedies. The district court agreed and granted

summary judgment.

2. The court of appeals reversed. It held that the

record reflected genuine disputes of material fact

over whether petitioner exhausted his administra-

tive remedies in accordance with prison procedures.

App. 23a-24a. Summary judgment was improper for

three reasons, the court explained.

First, the prison’s grievance procedures “specifi-

cally allowled] inmates who cannot write to get... a

staff member to assist them in preparing griev-

ances.” App. 30a. It was “undisputed” that peti-

tioner could not physically write during the 48-hour

grievance period because of his broken arm and be-

cause he was locked in his cell. App. 3la. Thus, “[ilf

there was to be a written grievance, then it had to be

written for Mr. Pavey by the officers who inter-

viewed him.” /d. Under the prison’s procedures,

“(he] did not have to write it himself; he did not have

to review it; and he did not have to sign it.” Jd. Ac-

cordingly, so long as the officers who interviewed

him “memorialized” his “oral account of the cell ex-

traction,” then petitioner may well have “literally

satisflied]” the required procedure. Jd. And because

respondents failed to show that his complaints were

never reduced to writing, summary judgment was

premature. Jd.

Second, there was a factual dispute as to whether

petitioner “reasonably believed that he had done all

that was necessary to comply’ with the grievance

procedure. “[I]/nmates may rely on the assurances of

prison officials when they are led to believe that sat-

isfactory steps have been taken to exhaust adminis-

trative remedies,” the court held, and there was a

genuine factual dispute over whether petitioner had

reasonably relied on assurances “that his excessive-

force allegations would be investigated.” App. 34a.

Finally, the court of appeals held that a factual

dispute existed concerning the availability of the

grievance procedure. “(WJhen inn:.tes cannot com-

ply with [a] grievance procedure without essential

help from prison officials and that assistance is

withheld, the failure of the officials to facilitate the

grievance process effectively renders administrative

remedies unavailable.” App. 34a. Because peti-

tioner was injured and isolated during the grievance

period, the affirmative defense of failure to exhaust

would be irrelevant if the record showed that re-

spondents gave him “no assistance in creating what

would otherwise qualify as a written grievance.” Jd.

And respondents failed to establish the lack of any

genuine factual question as to their efforts to facili-

tate petitioner’s compliance with the grievance pro-

cedure. Id.

For the foregoing reasons, the court concluded,

respondents “did not establish the absence of mate-

rial issues of fact concerning the exhaustion ques-

tion.” App. 35a. Accordingly, the court of appeals

vacated the summary judgment and remanded the

case “for further proceedings on Mr. Pavey’s exces-

sive-force claim.” Id.

3. Upon remand to the district court, petitioner

sought and was granted a jury trial on his damages

claims under 42 U.S.C. § 1983. See City of Monterey

v. Del Monte Dunes, Ltd., 526 U.S. 687 (1999) (rec-

ognizing right to jury trial on damages claims under

§ 1983). Respondents argued, however, that before

proceeding with discovery on the merits, the court

should hold a hearing to resolve for itself the dis-

puted factual questions concerning respondents’ ex-

haustion affirmative defense. The district court de-

clined to do so. The court acknowledged that re-

spondents “retainled] their exhaustion affirmative

defense (along with any other affirmative defenses

that were properly raised),” but observed that “the

place for presenting those defenses is to the jury, and

the time for doing so is after the plaintiff has rested

his case in chief.” App. 20a.

Respondents sought reconsideration of the ruling,

arguing that the exhaustion affirmative defense was

properly tried to the court rather than the jury, and

that resolution of the exhaustion issue should pre-

cede discovery and trial of the merits. The district

court denied respondents’ motion. The “presumption

is that fact questions are resolved by juries,” the

court held, and nothing in the PLRA deprives a

plaintiff in a § 1983 damages action of his right to a

jury trial on the exhaustion affirmative defense.

App. 14a. And the court reiterated that the “time for

presenting affirmative defenses to the jury is no dif-

ferent in this case than it is in any other: after the

plaintiff has rested his case in chief.” App. 16a.

Respondents then moved the district court to cer-

tify this series of orders for interlocutory appeal un-

der 28 U.S.C. § 1292(b). The district court noted

that the Indiana Attorney General, counsel for re-

spondents, had made the same arguments regarding

exhaustion “unsuccessfully in several cases” but

agreed to certify its orders for interlocutory appeal

because of “the .ar-reaching impact on prisoner liti-

gation that these new interpretations would impose.”

App. 10a.

4. The court of appeals reversed. It held that

whenever exhaustion is contested, a judge must re-

solve genuine disputed facts about the affirmative

defense in a preliminary hearing before litigation

may proceed. The court of appeals explained that

“{jJuries decide cases, not issues of judicial traffic

control,” and that “(uJntil the issue of exhaustion is

resolved, the court cannot know whether it is to de-

cide the case or the prison authorities are to.” App.

4a. Thus, the court of appeals concluded, just as ju-

ries do not decide factual disputes relevant to juris-

diction, they also do not decide factual disputes

about the PLRA’s exhaustion provision. And unless

resolution of exhaustion precedes all discovery and

litigation of the merits, “the statutory goal of sparing

federal courts the burden of prisoner litigation until

and unless the prisoner has exhausted his adminis-

trative remedies will not be achieved.” App. 7a. But

because the “traffic control” theory of exhaustion is

not reflected in any specific rule of federal procedure,

the court of appeals articulated a novel, three-step

“sequence” for resolving an exhaustion defense in a

preliminary proceeding by the court before any liti-

gation on the merits may proceed:

(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 ex-

haust was innocent ... and so he must be

given another chance to exhaust (provided

that there exist remedies that he will be per-

mitted by the prison authorities to exhaust, so

that he’s not just being given a runaround); or

fault, in which event the case is over. (3) If and

when the judge determines that the prisoner

has properly exhausted his administrative

remedies, the case will proceed to pretrial dis-

covery, and if neressary a trial, on the merits;

and if there is a jury trial, the jury will make

all necessary findings of fact without being

bound by (or even informed of) any of the find-

ings made by the district judge in determining

that the prisoner had exhausted his adminis-

trative remedies.

App. 6a. The court of appeals acknowledged that in

cases, like petitioner’s, where the affirmative defense

shares disputed facts with the underlying substan-

tive claim, a preliminary determination of exhaus-

tion by the court might interfere with the jury’s fact-

finding role. But it answered this concern by holding

that whatever factual findings the judge makes

about exhaustion (so long as the judge finds exhaus-

tion), the jury will simply “reexaminel]” at trial any

relevant findings on the merits “without being bound

by (or even informed of) any of the findings made by

the district judge.” App. 5a-6a.

5. Petitioner filed a timely petition for rehearing

with suggestion of rehearing en banc. The court of

appeals denied the petition but amended a portion of

its opinion to permit limited discovery of factual is-

sues related to both exhaustion and the merits. App.

6a. Upon remand, the district court referred the

case to a magistrate judge for an evidentiary hearing

on respondents’ affirmative defense but stayed the

proceedings pending review by this Court. This peti-

tion followed.

REASONS FOR GRANTING THE WRIT

The Prison Litigation Reform Act (“PLRA”) pro-

vides that “[InJo 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). This provision has

been a frequent subject of litigation since its enact

ment, and this Court has granted certiorari on nu-

merous occasions to resolve controversies—and pro-

vide guidance to lower courts—concerning its inter-

pretation and application. See Booth v. Churner,

532 U.S. 731 (2001) (granting review to address

whether exhaustion is mandatory regardless of the

relief sought); Porter v. Nussle, 534 U.S. 516 (2002)

(granting review to address whether exhaustion is

required of all causes of action); Woodford v. Ngo,

548 U.S. 81 (2006) (granting review to address

whether the PLRA requires “proper” exhaustion);

Jones v. Bock, 549 U.S. 199 (2007) (granting review

and reversing several judicially-imposed rules “de-

signed to implement [the] exhaustion requirement

and facilitate early judicial screening” of prisoner

complaints).

This case presents yet another important ques:

tion concerning the PLRA’s exhaustion requirement

meriting review by this Court. As elaborated below,

there is substantial disarray in the lower courts over

the question whether the exhaustion requirement—

which is a mandatory element, albeit one on which

the defendant bears the burden of pleading and

proof—must be adjudicated by a jury in a damages

action, or whether the court can decide the issue for

itself in a preliminary “screening” proceeding. Al-

though the disarray is already broad and continually

deepening, the resolution is so clear and simple that

plenary consideration of the case may not even be

warranted. The decision below is flatly irreconcil-

able with multiple precedents of this Court and oth-

ers holding that a substantive legal defense to a

damages claim, no less than a substantive affirma-

tive element of the claim itself, must be tried accord-

ing to normal rules of procedure and, where factual

disputes remain, resolved by a jury upon proper de-

mand. This Court could summarily reverse the dec-

sion below on the basis of those precedents and hold

that the affirmative defense of exhaustion under the

PLRA is subject to the same prevtrial and trial pro-

cedures as is any other legal defense under the Fed-

eral Rules of Civil Procedure. That result would still

permit summary, threshold adjudication of the ex-

haustion defense where appropriate in accordance

with the usual pleading and summary judgment

rules, but without overriding the Federal Rules and

creating an entirely new procedure for preliminary

adjudication of the defense, as the decision below

mandates.

Whether summary reversal is appropriate or not,

certiorari should be granted.

I. THE DECISION BELOW CONFLICTS WITH

MULTIPLE PRECEDENTS GOVERNING THE

ADJUDICATION OF AFFIRMATIVE DE-

FENSES

A. Exhaustion Of Prison Remedies Under The

PLRA Is A Substantive Legal Defense Sub-

ject To Normal Pleading And Proof Proce-

dures

1. The PLRA was enacted in response to con-

cerns that the federal courts were being swamped by

too many non-meritorious prisoner lawsuits, which

threatened to “submerge and effectively preclude

consideration of [prisoner lawsuits] with merit.”

Jones, 549 U.S. at 203. To ensure that meritorious

claims were not being lost in the flood, the PLRA in-

cluded “reforms designed to filter out the bad claims

and facilitate consideration of the good.” Jd. at 204.

The PLRA accomplishes that objective through

two distinct means. First, the PLRA includes spe-

cific “judicial screening” requirements, which mark a

“fundamental” departure from “the usual procedural

ground rules.” Jd. at 212. The PLRA requires courts

to screen prisoner complaints “before docketing, if

feasible or ... as soon as_ practicable af-

ter docketing,” and to dismiss a complaint if the

court determines that the complaint is “frivolous,

malicious . .. fails to state a claim upon which relief

may be granted” or “seeks monetary relief from a de-

fendant who is immune from such relief.” 28 U.S.C.

§ 1915A(a), (b). All these inquires are conducted by

the court even “before any responsive pleading is

filed—unlike in the typical civil case, defendants do

not have to respond to a complaint covered by the

PLRA until required to do so by the court, and waiv-

ing the right to reply does not constitute an admis-

sion of the allegations in the complaint.” Jones, 549

U.S. at 214 (citing 42 U.S.C. § 1997e(g)(1), (2)).

Second, the PLRA requires plaintiffs to exhaust

their prison grievance procedures before filing an ac-

tion challenging any aspect of prison treatment or

conditions. See 42 U.S.C. § 1997e(a). As this Court

emphasized in Jones, the exhaustion requirement is

not among or akin to the specific “judicial screening”

requirements described above and set forth else-

where in the statute. 549 U.S. at 214. In the PLRA,

Congress “provided for judicial screening and sua

sponte dismissal of prisoner suits” on four specific

grounds, but “failure to exhaust was notably not

added in terms to this enumeration.” Id. (emphasis

added); see id. at 216 (noting “the failure of Congress

to include exhaustion in terms among the enumer-

ated grounds justifying dismissal upon early screen-

ing”). Instead, exhaustion serves several distinct

functions apart from screening out meritless com-

plaints: it “improvels] the quality of suits that are

filed by producing a useful administrative record,”

id. at 204; it “provides prisons with a fair opportu-

nity to correct their own errors,” Woodford, 548 U.S.

at 94; and it “reduces the quantity of prisoner suits

because some prisoners are successful in the admin-

istrative process, and others are persuaded by the

proceedings not to file an action in federal court,” id.

Because exhaustion is not among the specified

grounds for threshold screening and dismissal of a

case, and because it serves important functions

apart from such screening, courts are not allowed to

employ the unusual procedures necessary “to facili-

tate judicial screening of complaints,” but instead

must adjudicate exhaustion under the PLRA accord-

ing to “normal pleading rules.” Jd.; see also Denton

v. Hernandez, 504 U.S. 25, 32 (1992) (in forma pau-

peris screening provisions “cannot serve as a fact-

finding process for the resolution of disputed facts”).

2. In Jones, this Court applied that analysis of

the PLRA’s exhaustion requirement to conclude that

the requirement is an affirmative defense to be

pleaded and proved by the defendant according to

the normal procedures governing affirmative de-

fenses, not an issue to be pleaded by the plaintiff and

reviewed under special screening procedures. Jd. at

213-16. Exhaustion is “typically” regarded as an af-

firmative defense, the Court explained, and nothing

in the PLRA suggested that it was to be treated dif-

ferently in cases falling within its scope. Indeed, the

Court viewed the PLRA’s silence on the question as

“strong evidence that the usual practice should be

followed, and the usual practice under the Federal]

Rules is to regard exhaustion as an affirmative de-

fense.” /d. at 212.

Some courts prior to Jones had held that the

PLRA’s screening mechanism would operate more

effectively if exhaustion were treated as the plain-

tiffs burden so that it could be addressed summarily

by the court; for example, plaintiffs could be required

to attach documentary proof of exhaustion to their

complaints, or to plead facts establishing exhaustion

with specificity. Jd. at 202, 205. The Jones Court,

howeve™, rejected those policy arguments as a basis

for treating exhaustion under the PLRA differently

from exhaustion in any other context. “(Clourts

should generally not depart from the usual practice

under the Federal Rules on the basis of perceived

policy concerns,” the Court emphasized, 7d. at 213,

and “[gliven that the PLRA does not itself require

plaintiffs to plead exhaustion, such a result must be

obtained by the process of amending the Federal

Rules, and not by judicial interpretation,” id. at 217

(quotation omitted). The Court returned to the same

theme in the conclusion of its opinion, admonishing

lower courts construing and applying the PLRA’s

exhaustion affirmative defense:

We are not insensitive to the challenges faced

by the lower federal courts in managing their

dockets and attempting to separate, when it

comes to prisoner suits, not so much wheat

from chaff as needles from haystacks. We once

again reiterate, however ... that adopting dif-

ferent and more onerous pleading rules to deal

with particular categories of cases should be

done through established rulemaking proce-

dures, and not on a case-by-case basis by the

courts.

Id. at 224.

B. Numerous Precedents Hold That Factually

Disputed Affirmative Defenses Must Be Re-

solved By The Jury, Not The Court, Con-

trary To the Decision Below

1. As a general matter, claims—like peti-

tioner’s—-seeking damages under 42 U.S.C. § 1983

are subject to the Seventh Amendment and thus

must be tried by a jury upon proper demand by ei

ther party. City of Monterey v. Del Monte Dunes,

Ltd., 526 U.S. 687 (1999). And it is generally recog-

nized that “once the right to a jury trial attaches to a

claim, it extends to all factual issues necessary to re-

solving that claim.” Robinson v. Metro-North Com-

muter R.R., 267 F.3d 147, 170 (2d Cir. 2001). An af-

firmative defense, in turn, is equivalent to an ele-

ment of a claim, except it is one for which the defen-

dant bears the burden of proof. See Jazzabi v.

Allstate Ins. Co., 278 F.3d 979, 984 (9th Cir. 2002)

(“[E]lements and affirmative defenses are co-equal

components of the jury’s liability determination: Li-

ability cannot be established until after the jurors

unanimously agree that the elements are satisfied

and they unanimously reject the affirmative de-

fenses.”); 9 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2304 (3d ed. 1998)

(“Unfortunately, there is a misconception in some

quarters that the right to a trial by jury attaches be-

cause of the legal nature of a ‘claim,’ and dves not

attach to ‘defenses.”’).

Accordingly, this Court and many others have

held that where a plaintiff's claim is subject to a jury

trial, any legal affirmative defense to that claim

must also be tried to a jury. See, e.g., Byrd v. Blue

Ridge Rural Elec. Coop., 356 U.S. 525, 538 (1958)

(statutory immunity); United States v. Duncan, 850

F.2d 1104, 1117 (6th Cir. 1988) (reliance on the ad-

vice of counsel), overruled on other grounds by Schad

v. Arizona, 501 U.S. 624 (1991); Nike, Inc. v. “Just

Did It” Enterprises, 6 F.3d 1225, 1233 (7th Cir.

1993) (affirmative defense of parody in a trademark

case); Kaplan v. Exxon Corp., 126 F.3d 221, 225 n.2

(3d Cir. 1997) (assumption of risk); Siler-Khodr v.

Univ. of Texas Health Sci. Ctr. San Antonio, 261

F.3d 542, 548-49 (5th Cir. 2001) (defense to Title

VID; Intrastate Gas Gathering Co. v. Dow Chemical

Co., 248 F.3d 1140 (5th Cir. 2001) (per curiam)

(waiver); Waco Int7, Inc. v. KHK Scaffolding Hous-

ton, Inc., 278 F.3d 5238, 534 (5th Cir. 2002) (fair use

affirmative defense to trademark infringement

claim); Tri County Indus., Inc. v. District of Colum-

bia, 200 F.3d 836, 840 (D.C. Cir. 2000) (failure to

mitigate); Huroplast, Ltd. v. Oak Switch Sys., 10

F.3d 1266 (7th Cir. 1993) (insolvency in a contract

and tort case); Chacallo v. IRS, 2007 WL 2071880, at

*5 (E.D. Pa. July 17, 2007) (statute of limitations

and exhaustion requirements under 26 U.S.C. §

7433).1

1 This rule arguably does not apply to affirmative defenses

sounding in equity, but even the cases articulating that caveat

presuppose that affirmative defenses at law must be tried to

the jury. See Liberty Oil Co. v. Condon Nat’ Bank, 260 U.S.

235, 242 (1922) (“Where an equitable defense is interposed to a

suit at law, the equitable issue raised should first be disposed

of as in a court of equity, and then, if an issue at law remains,

it is triable to a jury.”); Granite State Ins. Co. v. Smart Modular

Techs., Inc., 76 F.3d 1023, 1027 (9th Cir. 1996) (“A litigant is

not entitled to have a jury resolve a disputed affirmative de-

fense if the defense is equitable in nature.”). PLRA exhaustion

One of the most common affirmative defenses

that courts have held must be tried to a jury is a

statute of limitations. When there are disputed is-

sues of material fact on a statute of limitations de-

fense, courts have uniformly held that such issues

must be tried to the jury with the rest of the claim.

See Meléndez-Arroyo v. Cutler-Hammer de P.R. Co.,

273 F.3d 30, 38 (Ist Cir. 2001); Bertha Building

Corp. v. Nat! Theatres Corp., 248 F.2d 833, 835-36

(2d Cir. 1957); Fowler v. Land Mgmt. Groupe, Inc.,

978 F.2d 158, 162 (4th Cir. 1992); Chambliss v.

Simmons, 165 F. 419, 423 (5th Cir. 1908); Horn v.

A.O. Smith Corp., 50 F.3d 1365, 1370 (7th Cir. 1995);

United States v. Edwards, 968 F.2d 1148, 1153 (11th

Cir. 1992).

The statute of limitations example is significant

because this Court in Jones specifically analogized

the PLRA exhaustion defense to the typical statute

of limitations defense. As the Jones Court observed,

statutes of limitations “are often introduced by a

variant of the phrase ‘no action shall be brought”—

the same phrase that introduces the PLRA exhaus-

tion requirement. 549 U.S. at 215, 220. Other

courts have emphasized this analogy as well. See

Johnson v. Johnson, 385 F.3d 503, 516 n.7 (5th Cir.

2004); Ray v. Kertes, 285 F.3d 287, 293 (3d Cir.

2002); Casanova v. Dubois, 304 F.3d 75, 78 n.3 (1st

is mandated by statute and thus is resolved solely according to

law and facts; it involves no exercise of equitable discretion by

the Court and requires no weighing of equitable factors. See

Woodford, 548 U.S. at 85 (“Exhaustion is no longer left to the

discretion of the district court, but is mandatory.”).

Cir. 2002); Perez v. Wisconsin Dep’t of Corr., 182

F.3d 532, 536 (7th Cir. 1999).

Under the foregoing precedents, it is perfectly

clear that disputed facts underlying a PLRA exhaus-

tion defense in a § 1983 damages action must be ad-

judicated by the jury, not resolved by the court in a

summary preliminary proceeding.

2. The decision below cannot be reconciled with

the fundamental rules reflected in the foregoing

precedents.

The analytical heart of the Seventh Circuit’s

opinion is its contention that PLRA exhaustion

should not be adjudicated like statutes of limitations

or other typical legal defenses because the PLRA

treats exhaustion as a matter of “judicial traffic con-

trol.” App. 4a. It is thus akin to jurisdiction and

venue, which are matters resolved by the court at

the threshold of the case, not by the jury as it ad-

dresses the merits. App. 3a; see also Owens Vv.

Blagojevich, 2008 WL 4792707, at *1 n.2 (S.D. IH.

Oct. 29, 2008) (Pavey “requirles] the district court to

conduct a hearing to determine whether it has

proper jurisdiction over a prisoner’s claims by resolv-

ing the exhaustion issue before ruling on the mer-

its”). Accordingly, the decision concludes, the court

can and must resolve disputed PLRA exhaustion

disputes for itself, before allowing the parties to pro-

ceed with litigation on the merits of the prisoner’s

claim. This is wrong, and irreconcilable with this

Court’s precedents, in at least three respects.

a. To start, this Court has squarely held that

“the PLRA exhaustion requirement is sot jurisdic-

tional,” and that courts indeed may reach the merits

of claims before addressing potentially difficult ex-

haustion issues. Woodford, 548 U.S. at 101 (empha-

sis added). The Seventh Circuit’s holding that ex-

haustion must be htigated and resolved before litiga-

tion on the mets may proceed conflicts directly with

this holding of Woodford. And the court’s flawed

analogy to jurisdiction—shown to be erroneous by

Woodford—-leads inexorably to the flawed conclusion

that, like disputed facts underlying jurisdictional is-

sues, disputed facts underlying a PLRA exhaustion

defense can be taken from the jury and resolved by

the court. While it is true that, as this Court has ex-

plained, “in some instances, if subject-matter juris-

diction turns on contested facts, the trial judge may

be authorized to review the evidence and resolve the

dispute on her own,” it is equally true that where

“satisfaction of an essential element of a claim for

relief is at issue ... the jury is the proper trier of

contested facts.” Arbaugh v. Y & H Corp., 546 U.S.

500, 514 (2006) (emphasis added). As shown above,

it is the latter rule, not the former, that obtains here:

the PLRA makes exhaustion an essential element of

a claim for relief in a prisoner suit under § 1983, see

Jones, 549 U.S. at 211, though it operates to bar re-

lief only when the defendant carries the burden of

negating the element, jd. at 211-12. Accordingly, the

jury must be “the proper trier of contested facts”

bearing on exhaustion.

The court’s analogy to venue is flawed for the

same reason. A court may resolve disputed facts re-

lated to venue precisely because venue is “unlike...

affirmative defenses such as contributory negli-

gence,” in that venue “does not bear upon the sub-

stantive right to recover.” American Dredging Co. v.

Miller, 510 U.S. 448, 454 (1994) (emphasis added).

Because proof of exhaustion vel non bears directly

upon a prisoner’s right to recover under § 1983, con-

tested facts concerning exhaustion can be resolved

only by the jury.

Unhke jurisdiction and venue, affirmative de-

fenses—including exhaustion—are not subject to

resolution by preliminary procedures. See Fed. R.

Civ. P. 12(i) (limiting preliminary hearings to those

defenses listed in Rule 12(b) and motions under Rule

12(c)); 5C Wright & Miller, supra, § 1373 (“[Rule

12G)] only authorizes a preliminary hearing for the

Rule 12(b) defenses and for a motion under Rule

12(c).... [It] cannot be used .. . to adjudicate other

matters, such as affirmative defenses.”). Unless de-

cided on the pleadings alone—as where, for example,

the complaint’s own allegations establish the de-

fense, see Jones, 549 U.S. at 215—an affirmative de-

fense must be tested at summary judgment, see Fed.

R. Civ. P. 12(d), 56(b), with factual disputes underly-

ing the defense reserved for trial, see 5 Wright &

Miller, supra, § 1277. The decision below departs

dramatically from those basic procedures, contradict-

ing the Federal Rules, this Court’s decisions in Jones

and Woodford, and the Seventh Amendment’s pro-

tection of the right to trial by jury of material factual

disputes ir actions at law.

b. This Court in Jones also squarely rejected the

central premise of the decision below, viz., that the

PLRA exhaustion defense is merely a matter of “ju-

dicial traffic control,” employed by courts solely as a

threshold screen to determine “whether [the court] is

to decide the case or the prison authorities are to.”

App. 4a. In contrast to that analysis, the Court in

Jones repeatedly noted “the failure of Congress to

include exhaustion in terms among the enumerated

grounds justifying dismissal upon early screening.”

Id. at 216 (emphasis added); see id. at 214 (same).

Exhaustion differs from a mere judicial traffic con-

troi device, the Court explained, because it serves

the more substantive purposes of creating an admin-

istrative record useful for litigation. Jd. at 204. For

these reasons, the Court concluded, exhaustion must

be adjudicated according to the “normal pleading

rules,” rather than special preliminary screening

procedures. Jd. And as just shown, the “normal

pleading rules” require that affirmative defenses be

treated like substantive claim elements, to be ana-

lyzed successively on the complaint’s allegations at

the pleading stage, on the record facts viewed most

favorably to the non-movant at summary judgment,

and on the disputed factual record by the jury at

trial. See supra at 16. The Seventh Circuit’s hold-

ing that special preliminary procedures for adjudi-

cating exhaustion are permissible and appropriate to

serve the judicial traffic control function of exhaus-

tion cannot be reconciled with Jones. See Bryant v.

Rich, 530 F.3d 1368, 1380 (11th Cir. 2008) (Wilson,

J., concurring in part, dissenting in part) (stating “I

do not think [a preliminary proceeding to resolve fac-

tual PLRA exhaustion disputes judicially] can be rec-

onciled with the Supreme Court’s recent decision in

Jones’).

c. Finally, the decision below conflicts with deci-

sions of this Court and others holding that the Sev-

enth Amendment requires the jury to resolve dis-

puted facts underlying a legal claim before they are

separately resolved by the court in connection with

an equitable or other judge-determined issue. See

Beacon Theatres, Inc. v. Westover, 359 U.S. 500,

510-11 (1959); Dairy Queen, Inc. v. Wood, 369 U.S.

469, 470-73 (1962); Curtis v. Loether, 415 U.S. 189,

196 n.11 (1974). Consistent with that principle,

other federal circuits have held that when the merits

of a claim involve disputed facts that overlap with

“threshold” issues such as jurisdiction and venue,

the resolution of such common facts must be re-

served for the jury. See DDB Techs., L.L.C. v. MLB

Advanced Media, L.P., 517 F.3d 1284, 1291 (Fed.

Cir. 2008); Torres-Negron v. J & N Records, LLC,

504 F.3d 151, 162-63 (1st Cir. 2007); Rosales v.

United States, 824 F.2d 799, 803 (9th Cir. 1987);

Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir.

1965); Borg v. L & J Energy, Inc., 1990 WL 122225

(W.D. Mich. May 25, 1990); Vibber v. U.S. Rubber

Co., 255 F. Supp. 47, 50 (S.D.N.Y. 1966); Kierulff As-

socs. v. Luria Bros. & Co.,240 F. Supp. 640, 642

(S.D.N.Y. 1965). See generally 3 James Wm. Moore

et al., Moore’s Federal Practice § 22.01(5)(d). The

decision below conflicts with these precedents be-

cause it allows—indeed requires—the court to re-

solve the exhaustion defense, including all underly-

ing factual disputes, prior to any litigation on the

merits, even where, as here, the facts underlying the

exhaustion defense overlap substantially with the

substantive allegations of wrongdoing.

The decision below, in fact, explicitly recognizes

the apparent conflict with these precedents. App.

5a. In an effort to avoid the conflict, the decision

takes the unprecedented step of requiring the court

to make its findings first, then allowing the jury to

“reexamine” the factual findings made in connection

with the affirmative defense: “[I]f there is a jury

trial, the jury will make all necessary findings of fact

without being bound by (or even informed of) any of

the findings made by the district judge in determin-

ing that the prisoner had exhausted his administra-

tive remedies.” App. 6a. According to the decision

below, policy concerns behind the PLRA simply com-

pel this departure from this Court’s established Sev-

enth Amendment precedent: “The alternative of try-

ing the merits before exhaustion, as under the Bea-

con Theatres line of cases, is unsatisfactory in the

present setting because it would thwart Congress’s

effort to bar trials of prisoner cases in which the

prisoner has failed to exhaust his administrative

remedies.” App. 5a.

The resort to PLRA policy as a justification for

disregarding this Court’s Seventh Amendment

precedents is obviously unavailing. It is another

specie of the error committed by the court in invent:

ing a special procedure for handling the exhaustion

defense, rather than abiding by the Federal] Rules,

as this Court unambiguously mandated in Jones.

The asserted policy of the PLRA is no more a justifi-

cation for ignoring this Court’s decisions than it is

for rewriting the Federal Rules of Civil Procedure.

What is more, the novel procedure proposed by

the Seventh Circuit does not even succeed in its

stated objective of protecting jury trial rights secured

by the Seventh Amendment. The procedure does al-

low a jury to decide disputed facts previously re-

solved by the judge in deciding the exhaustion de-

fense, but only if the judge ruled that there was ex-

haustion. Where the judge finds a /ack of exhaustion

and dismisses the case, by contrast, there is m0 op-

portunity for the jury to reexamine the judge’s un-

derlying factual findings that relate to the merits.

The inadequacy of the court’s resolution illus-

trates the consequences of this kind of judicial ad

hockery. Both the Federal Rules and this Court’s

Seventh Amendment precedents already establish

wholly adequate and appropriate procedures for ad-

judicating claims and defenses fairly while protect-

ing jury trial rights. Yet the court disregarded both

and adopted its own flawed procedure for policy rea-

sons that do not even accurately reflect PLRA poli-

cies. As explained in Jones and elaborated above,

the PLRA exhaustion defense is not solely concerned

with screening cases out of court at the earliest pos-

sible hour in litigation. Of course, even a well-

founded grounding in policy provides no justification

for a court to depart from the usual federal proce-

dures governing affirmative defenses, as this Court

expressly held in Jones. It is all the worse to craft

and impose new procedures on the basis of mis-

guided policy perceptions. Either way, the correct

approach to adjudicating the PLRA exhaustion de-

fense is simply to follow the rules and procedures al-

ready in place for resolving any affirmative defense.

Certiorari—if not summary reversal—is warranted

to make that point clear.

Il. THE LOWER FEDERAL COURTS ARE IN

DISARRAY OVER THE PROPER PROCE-

DURES FOR ADUJUDICATING THE PLRA

EXHAUSTION DEFENSE

Certiorari or summary reversal is also appropr:-

ate because of the widespread conflict and uncer-

tainty in the federal courts over the proper proce-

dure for adjudicating the PLRA exhaustion de-

fense—specifically, whether a jury may resolve dis-

puted facts concerning its application. The lower

courts have adopted at least three different proce-

dural approaches, and courts across the country

have expressed confusion and the need for further

guidance.

1. The majority of courts adhere to the “usual

procedure” called for by the Federal Rules to adjudi-

cate the affirmative defense of exhaustion: a Rule

56(c) motion for summary judgment when appropri-

ate on the undisputed record, with factual disputes

reserved for trial. That approach has been followed

by the Second, Third, Fifth, Eighth, and Tenth Cir-

cuits. See Brownell v. Krom, 446 F.3d 305, 310 (2d

Cir. 2006) (addressing exhaustion at summary

judgment); Williams v. Beard, 482 F.3d 637, 639 (3d

Cir. 2007) (reversing grant of summary judgment on

exhaustion and remanding for further proceedings);

Hinojosa v. Johnson, 277 F. App’x 370, 379-80 (5th

Cir. 2008) (addressing exhaustion at summary

judgment); Foulk v. Charrier, 262 F.3d 687, 697-98

(8th Cir. 2001) (reviewing evidence elicited at trial

as to whether prisoner exhausted available reme-

dies); Fields v. Okla. State Penitentiary, 511 F.3d

1109, 1112 (10th Cir. 2007) (addressing exhaustion

at summary judgment). The Seventh Circuit was

counted among this group before the opinion below.

See Dale v. Poston, 548 F.3d 563, 564 (7th Cir. 2008)

(jury trial on exhaustion after remand on appeal

from summary judgment); Kaba v. Stepp, 458 F.3d

678, 686 (7th Cir. 2006) (reversing summary judg-

ment on exhaustion and remanding for further pro-

ceedings).

In addition, district courts in the First and Sec-

ond circuits have expressly held that because failure

to exhaust is an affirmative defense under the

PLRA, disputed factual issues about PLRA exhaus-

tion must be tried to a jury, in the usual course. See

Maraglia v. Maloney, 499 F. Supp. 2d 93, 97-98 (D.

Mass. 2007) (“[Dlisputed issues of fact must be re-

solved by the jury and not the Court.”); Lunney v.

Brureton, 2007 WL 1544629, at *10 n.4 (S.D.N.Y.

May 29, 2007). These courts have rejected decisions

directing factfinding by judges on the ground that

they “pre-date” Jones, do not conform to the stan-

dard procedure of the Federal Rules, and rest on

“perceived policy concerns” instead of the statutory

rules. Maraglia, 499 F. Supp. 2d at 94; see also

Lunney, 2007 WL 1544629, at *10 n.4 (doubting, in

light of Jones, the validity of previous caselaw direct-

ing trial courts to resolve disputed factual issues).?

2. Two circuits—the Ninth and Eleventh—have

expressly declined to follow the “usual practice” un-

der the Federal Rules for adjudicating the PLRA af-

2 Another district court in the Second Circuit has held,

however, that the exhaustion defense should be tried to the

court. See Amador v. Superintendents of Dep't. of Correctional

Svcs., 2007 WL 4326747, at *5 (S.D.N.Y. Dec. 4, 2007).

firmative defense. These courts instead characterize

exhaustion as a “matter in abatement” and hold that

the exhaustion defense must be raised in an “un-

enumerated” Rule 12(b) motion to dismiss. See

Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003);

Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008). Be-

cause a “matter in abatement” does not go to the

merits of a claim, this approach requires judges to

resolve any factual disputes about exhaustion just as

they would with a “jurisdictional or related type of

motion.” See Aitza v. Int’? Longshoremen’s & Ware-

housemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988)

(citation omitted).

The Ninth Circuit actually adopted the “matter in

abatement” approach as a general method for ad-

dressing exhaustion requirements long before Con-

gress enacted the PLRA. See Aitza, 837 F.2d at 368-

69 (failure to exhaust intra-union remedies);

Stauffer Chem. Co. v. FDA, 670 F.2d 106, 108 (9th

Cir. 1982) (failure to exhaust intra-agency review

process); Studio Elec. Technicians Local 728 v. Int'l

Photographers of Motion Picture Indus. Local 659,

598 F.2d 551, 552 n.2 (9th Cir. 1979) (failure to ex-

haust remedies required by the Labor Management

Relations Act). Thus, when confronted in Wyatt

with the question of how to adjudicate the PLRA ex-

haustion requirement, the Ninth Circuit simply ap-

plied its existing precedent to this affirmative de-

fense. See 315 F.3d at 1119-20.

But Wyatt was decided before this Court’s deci-

sion in Jones, and that circuit appears not to have

revisited this issue since. However, in the aftermath

of Jones, courts have expressed doubt that Wyat?s

“matter in abatement” approach remains viable.

See, e.g., Percival v. Knowles, 2007 WL 2827789, at

*5 (E.D. Cal. Sept. 27, 2007) (holding “that a motion

for summary judgment” and not an unenumerated

Rule 12(b) motion “is the proper mechanism for re-

solving the question of whether plaintiff satisfied the

exhaustion requirement”); JZunney, 2007 WL

1544629, at *10 n.4.8

Despite the evident conflict between the Ninth

Circuit’s precedent and this Court’s decision in

Jones, the Eleventh Circuit recently adopted the

Ninth Circuit’s approach and held that PLRA ex-

haustion should be adjudicated as a “matter in

abatement” rather than an affirmative defense.

Bryant, 630 F.3d at 1376. Over a vigorous dissent,

the Eleventh Circuit in Bryant adopted the holding

of the Ninth Circuit that “exhaustion should be de-

cided on a Rule 12(b) motion to dismiss” and that be-

cause “exhaustion .. . is treated as a matter in

abatement and not an adjudication on the merits, it

is proper for a judge to consider facts outside of the

pleadings and to resolve factual disputes.” Jd. No-

tably, the majority’s conclusion was premised on the

policy-driven determination that putting factual] dis-

putes about the affirmative defense of exhaustion to

a jury would “unnecessarily undermine Congress’s

“ Yet another district court in the Ninth Circuit has held

that exhaustion should be tried to a jury, even though that cir-

cuit has adopted a contrury position. See Baines v. Maddock,

2007 WL 173948, at *6 (S.D. Cal. Jan. 3, 2007) (finding “a

genuine issue of material fact as to whether Plaintiff exhausted

his administrative remedies” and noting that “Plaintiff... will

be exercising his right to have a jury try this issue as to ex-

haustion of administrative remedies at trial”).

intent in enacting the PLRA’s exhaustion require:

ment.” Jd.

The dissent in Aryant strongly rejected this view.

It warned that the approach cannot “be reconciled

with the recent Supreme Court decision in -/ones v.

Bock.” 530 F.3d at 1379 (Wilson, J., concurring in

part and dissenting in part). The dissent observed

that the majority’s (and the Ninth Circuit's) ap-

proach conflicts with “usual procedural practice by

directing district courts to treat failure to exhaust

not as an affirmative defense, but to consider it on a

‘motion to dismiss’ not enumerated in Rule 12(b).”

Id. at 1380. “More strikingly,” the dissent continued,

“rather than submitting genuine issues of material

fact to the jury, the majority compels district courts

to decide these factual issues.” /d. “In the context of

failure to exhaust under the PLRA,” the dissent em-

phasized, “the Supreme Court has indicated that de-

viations from the usual procedural practice ‘must be

obtained by the process of amending the Federal

Rules, and not by judicial interpretation.” Jd. at

1380 n.3 (citing 549 U.S. at 213).

3. In the decision below, the Seventh Circuit has

now adopted yet a third position, by characterizing

exhaustion as ah “issue of judicial traffic control.”

The decision below expressly rejects the Ninth and

Eleventh Circuits’ “unenumerated” Rule 12(b) mo-

tion as a procedural vehicle for raising the affirma-

tive defense, conceding that under Jones a defendant

must plead failure to exhaust pursuant to Rule 8(c).

App. 3a. But the decision also rejects the majority

approach of simply adhering to the usual procedure

under the Federal Rules for adjudicating affirmative

defenses. Rather than abide by the standard plead-

ing, summary judgment, and trial procedure man-

dated by the Rules for resolving claims and defenses,

the decision below mandates a distinct procedure

unique to resolving a disputed PLRA defense. Under

the procedure, once a PLRA exhaustion defense is

pleaded by a defendant, a district judge must con-

vene a special evidentiary hearing focusing solely on

the exhaustion defense, before litigation on the mer-

its may proceed. The judge may permit “discovery

relating to exhaustion he deems appropriate.” App.

6a. Then, only “[ilf and when the judge determines

that the prisoner has properly exhausted his admin-

istrative remedies, the case will proceed to pretrial

discovery ...on the merits.” Jd.4

The Seventh Circuit is the only court of appeals

thus far to categorically preclude litigation on the

merits of a suit—including any discovery—pending

the court’s resolution of the exhaustion affirmative

defense.

4. Given the various approaches taken by the

courts of appeals, it can be no surprise that the dis-

4 The Seventh Circuit’s opinion adds that “if there is a jury

trial, the jury will make all necessary findings of fact without

being bound by (or even informed of) any of the findings made

by the district judge in determining that the prisoner had ex-

hausted his administrative remedies.” App. 6a.

° The First Circuit, however, has on at least one occasion,

without discussion, authorized a district court to find facts on

the issue of exhaustion before proceeding with the merits of a

prisoner’s appeal. Casanova v. Dubois, 304 F.3d 75, 77 (1st Cir.

2002) (“We remanded this case to the district court for addi-

tional fact-finding with respect to whether the exhaustion re-

quirement of the [PLRA] precludes the appellants’ lawsuit.”).

trict courts, which bear the brunt of this uncertainty,

have frequently expressed a need for guidance on the

proper method for adjudicating the affirmative de-

fense of failure to exhaust available remedies.

“Courts across the country are divided,” one recently

noted. Singleton v. Johnson, 2008 WL 3887633, at

*1 (S.D. Ga. Aug. 18, 2008). Another court stated

that “there is substantial ground for difference of

opinion,” yet “no guidance” on the issue. Gi/more v.

Stalder, 2008 WL 4155332, at *2-3, *5 (W.D. La.

Sept. 8, 2008); see also Finch v. Servello, 2008 WL

4527758, at *8 (N.D.N.Y. Sept. 29, 2008) (seeking

special briefing on “the question of whether the dis-

puted factual issue can be decided in a hearing or if

it must be decided by a jury”); Amador v. Superin-

tendent of Dept. of Corr. Svcs., 2007 WL 4326747, at

*5 n.7 (S.D.N.Y. Dec. 2, 2007) (recognizing conflict-

ing caselaw and noting that “[i]t is unclear whether

factual disputes regarding the exhaustion defense

should ultimately be decided by the court or by a

jury”). There is no good reason to require the district

courts administering the requirements of the PLRA

to remain mired in such confusion and uncertainty

on such a crucial procedural issue. This Court

should grant review to provide them the guidance

they need.

ltl. THE PROPER ADJUDICATION OF THE PLRA

EXHAUSTION DEFENSE IS AN IMPORTANT

AND RECURRING ISSUE

1. The issue presented here is “important, both

procedurally and substantively and deservels] fur-

ther consideration.” Gi/more, 2008 WL 4155332,

at *3. The cases discussed in the previous section

indicate the frequency with which courts are faced

with the question of when and how to adjudicate the

PLRA exhaustion issue, and the uncertainty they

face in answering it. And this Court itself has rec-

ognized that disputes about exhaustion under the

PLRA “occur frequently.” Woodford, 548 U.S. at 101

n.5.

This Court should not allow the already substan-

tial uncertainty concerning the issue presented here

to continue or, inevitably, broaden further. Although

Jones explicitly held that the PLRA’s exhaustion re-

quirement is an affirmative defense to be adjudi-

cated according to the “usual practice” under the

Federal Rules, see supra at 15, three circuits have

adopted two different types of special procedures to

resolve the defense, neither of which reflects “usual

practice” under the Rules. The district courts are

rightly complaining about the lack of clear guidance

on what is or should be a straightforward issue. The

PLRA is specifically designed to make prisoner liti-

gation more efficient to courts and thus more fair to

all parties—including prisoners with meritorious

claims. The current uncertainty over how to litigate

the exhaustion defense—a crucia] feature of the

PLRA and a major issue in much PLRA litigation—

plainly thwarts that fundamental statutory objec-

tive.

2. Beyond the adverse consequences of general

uncertainty over what approach is lawful and appro-

priate, the specific approach adopted by the Seventh

Circuit will itself have numerous adverse, and un-

necessary, consequences for prisoner litigation in

courts within the Seventh Circuit, and in courts

elsewhere if the approach is adopted more broadly.

First, the decision below will impose costly delays

and further burden district courts. The court of ap-

peals held that courts must immediately stay all

proceedings and hold an evidentiary hearing every

time exhaustion is pleaded by a defendant. App. 6a.

Because a plaintiff need not demonstrate exhaustion

in his complaint, see Jones, 549 U.S. at 212, and be-

cause a defendant must plead the exhaustion de-

fense or risk waiver, id., a defendant has every in-

centive to plead non-exhaustion in each case and

abandon the defense only when it becomes clear that

a plaintiff exhausted his administrative remedies.

But this incentive of notice pleading, coupled with

the Seventh Circuit’s directive to resolve exhaustion

before litigation may proceed, will inevitably require

district courts to hold preliminary hearings on ex-

haustion in virtually every case governed by the

PLRA.

Second, forcing courts to hold preliminary hear-

ings in every case would severely prejudice litigants

with meritorious claims. The screening require-

ments of 42 U.S.C. § 1997e(c) (prisoner cases) and 28

U.S.C. § 1915A Gin forma pauperis filings) already

delay by many months the actual filing of a com-

plaint and the call for an answer. Barring merits-

related litigation until after a preliminary hearing

on exhaustion can easily delay even the most basic

progress on a case for a year or more. And it is mert-

torious claims that will suffer the most under the

Seventh Circuit’s novel scheme, because defendants

now have an incentive to forcefully litigate even

marginal exhaustion defenses in any case that pre-

sents a risk on the merits. This result runs contrary

to Congress’s stated intent in enacting the PLRA to

“improve the quality of prisoner suits,” Woodford,

548 U.S. at 94, without “preventling] inmates from

raising legitimate claims,” fa. at 117 (Stevens, J.,

dissenting).

Finally, the decision below will disrupt usual pro-

cedures for the appointment of counsel. Courts are

often reluctant to appoint counsel for prisoner-

plaintiffs in the early stages of litigation. See Pruitt

v. Mote, 503 F.3d 647, 661 (7th Cir. 2007) (en banc)

(Rovner, J., concurring) (noting that requests for

counsel during pre-trial phases of a case are fre-

quently denied). The usual presumptions that at-

tach to pleadings and the prohibition on fact-finding

at summary judgment allow courts to defer decisions

on appointing counsel until the merits of a claim be-

come apparent. Jd. Forcing courts to decide whether

to appoint counsel for preliminary hearings on ex-

haustion—well before the merits of a case come into

view—will compromise their ability to efficiently de-

ploy scarce resources. Yet without the benefit of

counsel for a fact-finding hearing on exhaustion, pro

se litigants will be at a disadvantage in gathering

and presenting evidence establishing their efforts to

exhaust (or establishing the prison’s efforts to

thwart them from doing so).

The novel procedure invented by the court of ap-

peals might allow lower courts to more quickly dis-

pose of some meritless prisoner claims. But it also

might not. And it might well interfere with litiga-

tion of meritorious claims. What should ultimately

matter most is that “[olur legal system ... remains

committed to guaranteeing that prisoner claims of

illegal conduct by their custodians-are fairly handled

according to the law.” Jones, 549 U.S. at 202 (em-

phasis added). The decision below breaches that

commitment because it does not provide for prisoner

claims to be handled “according to the law,” but in-

stead according to an ad hoc structure—notably, one

not designed by the legislators actually responsible

for fixing the rules governing prisoner litigation.

But as this Court rightly noted in Jones, whether the

PLRA exhaustion defense should be treated differ-

ently from every other affirmative defense is a choice

for Congress to make, not a court of appeals.

CONCLUSION

For the foregoing reasons, the petition should

be granted, or the decision below should be summa-

rily reversed.

Respectfully submitted,

DAVID M. FRIEBUS JONATHAN D. HACKER

BABBITT, LAND, SILVERSTEIN (Counsel of Record)

& WARNER LLP JUSTIN FLORENCE*

332 South Michigan Ave. O’MELVENY & MYERS LLP

Suite 710 1625 Eye Street, N.W.

Chicago, Illinois 60604 Washington, D.C. 20006

(312) 427-5555 (202) 383-5300

*Admitted only in Massachusetts

WALTER DELLINGER**

HARVARD LAW SCHOOL

SUPREME COURT AND

APPELLATE PRACTICE

CLINIC

**May be contacted at

O'Melveny & Mvers LLP

January 12, 2009

APPENDIX

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1426

CHRISTOPHER PAVEY,

Plaintiff-Appellee,

Vv.

PATRICK CONLEY, et al.,

Detendants-Appellants.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:03-CV-0662-RLM-CAN

Robert L. Miller, Jr., Chief Judge.

ARGUED APRIL 9, 2008—DECIDED JUNE 5, 2008

AMENDED SEPTEMBER 12, 2008

Before POSNER. RIPPLE, and MANION.

Circuit Judges.

POSNER, Circuit J:idge. The question presented

by this interlocutory appeal under 28 U.S.C. §

1292(b) is whether a prisoner »!aintiff in a suit for

damages governed by the Prison | itigation Reform

Act is entitled by the Seventh Amendment to a jury

trial on any debatable factual issues relating to the

defense of failure to exhaust administrative

remedies. The district court answered yes.

The prisoner filed this suit under 42 U.S.C. §

1983 against guards who he claimed had used

excessive force in removing him from his cell, as a

result breaking his arm. In their answer the

defendants claimed that the prisoner had failed to

exhaust his administrative remedies because he

hadn't filed a timely grievance with the prison

authorities. He countered with an affidavit which

stated that he had been unable to exhaust those

remedies because he could not prepare the grievance

himself, as he is left-handed and it was his left arm

that was broken; and that he was transferred to

another prison before a promised investigation of the

incident was conducted, which presumably

prevented him from obtaining the facts that he

needed in order to be able to press a grievance

effectively. The defendants respond that any factual

issues relating to the defense of failure to exhaust

administrative remedies should be resolved by the

judge at the outset of the litigation without a jury

unless of course the judge decides to convene an

advisory jury.

The Prison Litigation Reform Act provides that

“no action shall be brought [under federal law! with

respect to prison conditions ... by a prisoner .

until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). The Supreme

Court 'as held that the failure to satisfy this

requirement is an affirmative defense, Jones v. Bock,

549 U.S. 199 (2007), which means that the plaintiff

need not plead that he exhausted his administrative

remedies. Only one appellate court has weighed in

on the question whether there is a right to a jury

trial if genuine issues of material fact concerning

compliance with the duty to exhaust are presented:

in Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th

Cir. 2003), the Ninth Circuit held that because

previous Ninth Circuit cases had held that a failure

to exhaust remedies is a “matter in abatement,”

properly raised not by a motion tor summary

judgment but by a motion under Fed. R. Civ. P. 12(b)

(an “unenumerated Rule 12(b) motion,” the court

called it), the judge must decide exhaustion even if

that requires him to make findings of fact.

The Ninth Circuit’s approach is not persuasive,

although we agree with its result. Rule 12(b) does

not say anything about who finds the facts. It just

permits certain defenses, such as lack of subject-

matter or personal jurisdiction, to be presented by

motion rather than only in the answer to the

complaint. Yet the defendants are right that not

every factual issue that arises in the course of a

litigation is triable to a jury as a matter of right,

even if it is a suit at law (rather than in equity)

within the meaning of the Seventh Amendment. The

clearest example is subject-matter jurisdiction; often

it turns on factual issues that may be genuinely

debatable, but even if so the issues are resolved by

the judge. Eig, McNutt v. General Motors

Acceptance Corp., 298 U.S. 178, 188-90 (1936);

Prizevoits v. Indiana Bell Telephone Co., 76 F.3d

132, 134-35 (7th Cir. 1996). The same is true of

factual issues relating to the defense of lack of

personal jurisdiction or venue, e.g., Hyatt Int’ Corp.

v. Coco, 302 F.3d 707, 712-13 (7th Cir. 2002); Marra

v. Papandreou, 216 F.3d 1119, 1122 (D.C. Cir.

2000)--though these defenses are not jurisdictional

in the sense of requiring the judge to decide them

even if the parties do not make an issue of them—

and to motions to abstain in favor of another court,

or an agency. ¥.g., Ambrosia Coal & Construction

Co. v. Pages Morales, 368 F.3d 1320, 1331-32 (11th

Cir. 2004); cf Mayors v. Engelbrecht, 149 F.3d 709,

711 (7th Cir. 1998). A decision to relinquish

supplemental jurisdiction to the state courts, see 28

U.S.C. § 13867, is likewise made by the judge even if

there are contestable factual questions bearing on

the decision.

The generalization that emerges from thesc

examples and others that might be given is that

juries do not decide what forum a dispute is to be

resolved in. Juries decide cases, not issues of judicial

traffic control. Until the issue of exhaustion is

resolved, the court cannot know whether it is to

decide the case or the prison authorities are to. In

this case, should the defendants’ contention that the

prisoner inexcusably failed to file a timely grievance

be sustained, he would no longer have any

administrative remedies. But in many cases the only

consequence of a failure to exhaust is that the

prisoner must go back to the bottom rung of the

administrative ladder; and in such a case one 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

exhaust, an administrative proceeding, the

resumption of the litigation, and another jury trial

on failure to exhaust. That distinguishes the issue of

exhaustion from deadline issues that juries decide. A

statute of limitations defense if successfully

interposed ends the litigation rather than shunting

it to another forum. If the defense is rejected, the

case proceeds in the court in which it is filed.

A peculiarity of this case is a possible overlap

between the factual issues relating to exhaustion

and those relating to the merits of the excessive-

force claim. The broken arm is of course germane to

both, and while the fact that it was broken is

conceded, the severity of the break could well be an

issue common to both the allegedly inexcusable

failure to exhaust and the excessiveness of the force

that caused the break. By analogy to the cases that

require that claims at law be decided before

equitable claims when both types of claim are

presented, so that the judge’s decision on the latter

does not preclude or otherwise affect the jury’s

determination of the former, e.g., Beacon Theatres,

Inc. v. Westover, 359 U.S. 500, 508-11 (1959);

Wiliams Electronics Games, Inc. v. Garrity, 366

F.3d 569, 577-78 (7th Cir. 2004), we think that any

finding that the judge makes, relating to exhaustion,

that might affect the merits may be reexamined by

the jury if—and only after—the prisoner overcomes

the exhaustion defense and the case proceeds to the

merits. The alternative of trying the merits before

exhaustion, as under the Beacon Theatres line of

cases, is unsatisfactory in the present setting

because it would thwart Congress’s effort to bar

trials of prisoner cases in which the prisoner has

failed to exhaust his administrative remedies. Jones

v. Bock, supra; Porter v. Nussle, 534 U.S. 516, 523-

25 (2002); Pozo v. McCaughtry, 286 F.3d 1022, 1025

(7th Cir. 2002). A jury might decide the merits of a

case that should never have gotten to the merits

stage because the judge should have found that the

prisoner had failed to exhaust his administrative

remedies.

The sequence to be followed in a case in which

exhaustion is contested is therefore as follows: (1)

The district judge conducts a hearing on exhaustion

and permits whatever discovery relating 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 administrative remedies, and so he must

go back and exhaust; (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 exhaust, so

that he’s not just being given a runaround): 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 administrative remedies, the case will proceed to

pretrial 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 being bound by

(or even informed of) any of the findings made by the

district judge in determining that the prisoner had

exhausted his administrative remedies.

We emphasize that in the ordinary case discovery

with respect to the merits should be deferred 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 not be achieved. But we do not want to place the

district courts of this circuit in a straitjacket. There

may be exceptional cases in which expeditious

resolution of the litigation requires that some

discovery be permitted before the issue of exhaustion

is resolved. The present case is one in which the

exhaustion issue and the merits issue share common

facts (the facts relating to the gravity of the injury to

the plaintiffs arm), so that discovery targeted on

exhaustion may well produce evidence or leads

relating to the merits.

The judgment of the district court is reversed and

the case is remanded for further proceedings

consistent with this opinion.

REVERSED AND REMANDED

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SIR CHRISTOPHER R.

PAVEY,

Plaintiff

)

) CAUSE NO.::

) 3:03-CV-66 RM

)

P. CONLEY, et ai, )

)

Defendants

OPINION AND ORDER

The defendants, by counsel, the Indiana

Attorney General, filed a motion asking the court to

amend its orders to permit an interlocutory appeal.

When a district judge, in making in a civil

action an order not otherwise appealable

under this section, shall be of the opinion that

such order involves a controlling question of

law as to which there is substantial ground for

difference of opinion and that an immediate

appea! from the order may materially advance

the ultimate termination of the litigation, he

shall so state in writing in such order.

28 U.S.C. § 1292(b).

This is a civil rights case brought by an inmate

pursuant to 28 U.S.C. § 1983. The defendants assert

that the plaintiff did not exhaust his administrative

remedies as required by 42 U.S.C. § 1997e(a). In

reversing this court’s grant of summary judgment,

the court of appeals found that a genuine issue of

fact existed as to the exhaustion defense, and

remanded the case for further proceedings. This

court entered a scheduling order setting discovery

and dispositive motion deadlines. When _ the

defendants did not answer discovery, the court

granted the plaintiffs motion to compel and denied

the defendants’ motion to reconsider the order

compelling them to answer discovery. The court then

set the case for trial. These three orders give rise to

the defendants’ desire to take an interlocutory

appeal.

Counsel for the defendant has argued

unsuccessfully in several cases that the affirmative

defense of failure to exhaust administrative remedies

must be resolved before a defendant can be

compelled to respond to discovery addressing the

merits of a prisoner plaintiffs claims. They further

contend that when a genuine issue of fact exists as to

the exhaustion defense, that question must be

resolved before the presentation of any other

evidence. Finally, they assert that where a genuine

issue of fact exists as to the exhaustion defense, that

question of fact must be resolved by the judge and

not by a jury.

Counsel for the defendant appears to recognize

that these assertions are not consistent with the

standard procedures for conducting a federal trial

and acknowledges that no controlling authority

10a

exists on these questions. Nevertheless, counsel

argues that these deviations from normal trial

procedure are required by the mandate that “No

action shall be brought with respect to prison

conditions . . . by a prisoner confined in any jail,

prison, or other correctional facility until such

administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a).

These are controlling questions of law. “As

these are questions of first impression, the

application of these statutes to the facts alleged here

is certainly contestable, and the resolution of these

issues will facilitate the conclusion of the litigation.”

Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1007-

1008 (7th Cir. 2002).

But for an _ interlocutory appeal, these

questions (which have been raised in other cases as

well) would almost always escape appellate review.

Because of the far-reaching impact on prisoner

litigation that these new interpretations would

impose, and because of the frequency and

forcefulness with which they have been presented by

the Indiana Attorney General, the court is persuaded

that it is appropriate to permit the defendants to

seek an interlocutory appeal on these questions.

For the foregoing reasons, the court:

(1) GRANTS the motion (Docket No. 85);

(2) AMENDS this court’s orders of November

16, 2006 (Docket No. 80), November 16, 2006 (Docket

No. 81), and November 21, 2006 (Docket No. 84) to

add the following paragraph to each:

lla

Pursuant to 28 U.S.C. § 1292(b), the

court certifies these three questions for

interlocutory appeal:

1. Whether «2 U.S.C. § 1997e(a)

precludes discovery addressing the

merits of a prisoner plaintiffs claims

until after the resolution of the

affirmative defense of failure to exhaust

administrative remedies.

2. Whether 42 U.S.C. § 1997e(a)

requires that genuine issues of fact

related to the affirmative defense of

exhaustion of administrative remedies

must be resolved _ before the

presentation of any other evidence at

trial.

3. Whether 42 U.S.C. § 1997e(a)

requires that genuine issues of fact

related to the affirmative defense of

exhaustion of administrative remedies

must always be resolved by a judge and

not by a jury.

and,

(3) ORDERS that these amended orders be

deemed entered as of this date for purposes of

computing the time for filing a _ petition for

permission to app#al pursuant to 28 U.S.C. § 1292(b).

12a

SO ORDERED.

ENTERED: December 14 , 2006

/s/ Robert L. Miller, Jr.

Chief Judge

United States District Court

13a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SIR CHRISTOPHER R. )

Pz: VEY, )

Plaintiff ) CAUSE NO::

VS. )

) 3:03-CV-66 RM

P. CONLEY, et al, )

Defendants )

OPINION AND ORDER

The defendants, by counsel, move _ to

reconsider two of this court’s prior orders. It is

appropriate for the court to begin where the

defendants’ brief ends. On March 3, 2006, the court

of appeals issued its order reversing this court’s

grant of summary judgment. Nineteen days later, on

March 22, Christopher R. Pavey, a pro se prisoner,

signed an untimely jury demand. More than three

months later, on July 31, the defendants moved to

strike that jury demand arguing that it was more

than two years late. When the Magistrate Judge

denied that motion, they filed a motion to reconsider,

which was also denied. Though the Magistrate

Judge did not cite FED. R. Civ. P. 39(b) in either of

his rulings, it is clear that he exercised the discretion

conferred by that rule to order a jury trial. Though

the defendants did not file an objection pursuant to

FED. R. Civ. P. 72(a), and though they acknowledge

that “they may not now assign error to that ruling as

matter of right” (Docket No. 83 at 15), they

l4a

nevertheless, ask the court to distinguish the

Magistrate Judge’s ruling from a prior ruling by the

undersigned judge in a different case. This court

declines to attempt to render an advisory analysis

distinguishing the discretion exercised by two

different judges in two different cases.

Returning to the primary focus of the

defendants’ brief, they argue that disputed issues of

fact related to their affirmative defense of

exhaustion should be tried to the court rather than

to a jury. They concede that there is no binding

precedent addressing this’ specific affirmative

defense, but such a narrow focus is unnecessary.

Neither their brief nor any of their cited cases

squarely address the fundamental principle of

federal law that “federal policy favorls]) jury

decisions of disputed fact questions... .” Byrd v.

Blue Ridge Rural Elec. Coop., 356 U.S. 525, 538

(1958).

The defendants argue that the judge should

resolve the fact questions related to the affirmative

defense of exhaustion because Congress wanted to

reduce prisoner litigation. It is unnecessary for this

court to address either Congressional intent or even

Congressional authority in regard to depriving

inmates of their right to a jury determination since

the PLRA did not expressly speak to this question.

Without an unequivocal statute clearly denying the

right to a jury, the presumption is that fact

questions are resolved by juries. “Although district

courts are expert in finding facts, at the summary

judgment stage disputed facts must be reserved for

the jury.” Nike, Inc. v. "Just Did It" Enterprises, 6

F.3d 1225, 1233 (7th Cir. 1993) (holding that the

15a

affirmative defense of parody is a jury question in a

trademark case.); see also Europlast, Ltd. v. Oak

Switch Sys., 10 F.3d 1266 (7th Cir. 1993) (holding

that it was proper for the jury to resolve a disputed

issue of fact related to an affirmative defense

involving insolvency in a contract and tort case.),

and Campbell v. Nordco Products, 629 F.2d 1258

(7th Cir. 1980) (holding that the jury should resolve

a disputed issue of fact related to an affirmative

defense involving assumption of the risk.).

Though the defendants question the

applicability of Byrd v. Blue Ridge, that case

demonstrates the strength of the _ federal

presumption of jury adjudications. Byrd involved the

adjudication of a state law statutorily created cause

of action which afforded no jury trial right. Yet

neither an unambiguous precedent, nor principles of

comity were sufficient to overcome the Supreme

Court’s stated presumption of jury determinav.ons of

disputed facts in federal court.

The federal system is an independent

system for administering justice to litigants

who properly invoke its jurisdiction. An

essential characteristic of that system is the

manner in which, in civil common-law actions,

it distributes trial functions between judge

and jury and, under the influence -- if not the

command - of the Seventh Amendment,

assigns the decisions of disputed questions of

fact to the jury.

Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525,

537 (1958) (footnote omitted). Though the defendants

argue that this case is a constitutional, rather than a

statutory or common-law claim, there is no logic in

16a

arguing that constitutional claimants should be

denied the right to a jury trial while lesser claimants

are afforded it.

Further, the defendants argue that the

exhaustion question must be resolved before the

court may proceed any further with this lawsuit.

They argue that because the PLRA states that “No

action shall be brought .. . by a prisoner... until

such administrative remedies as are available are

exhausted” 42 U.S.C. § 1997e(a), that not even

discovery related to the merits of the case can occur.

To the extent possible, that has already happened in

this case. Discovery was stayed and the defendants

filed a summary judgment motion. Because

exhaustion is an affirmative defense, the burden was

on the defendants and it has been determined that

they did not carry their burden because a genuine

issue of fact exists. Now it is time for this case to

proceed because, though it is still necessary to

determine whether the plaintiff exhausted his

administrative remedies, the time for making that

determination shifted when the deferdants lost on

summary judgment. The defendants might yet

prevail on their exhaustion defense, but to do sc they

must convince the fact finder, in this case a jury, to

resolve those disputed issues of fact in their favor.

The time for presenting affirmative defenses to the

jury is no different in this case than it is in any

other: after the plaintiff has rested his case in chief.

Before trial, the plaintiff is entitled to conduct

discovery. In this case the plaintiff has outstanding

discovery that went unanswered for six months. The

motion to compel was granted and the defendants

17a

were ordered to respond to the discovery on or before

December 15, 2006.

For the forgoing reasons, the motion to

reconsider (Docket No. 82) is DENIED.

SO ORDERED.

ENTERED: November 21, 2006

/s/ Robert L. Miller, Jr.

Chief Judge

United States District Court

18a

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SIR CHRISTOPHER R. )

PAVEY, )

Plaintiff } CAUSE NO::

vs. )

) 3:03-CV-66 RM

P. CONLEY, et al, )

Defendants )

ORDER

Christopher Pavey, a pro se prisoner, filed a

motion to compel responses to his discovery filed on

June 21, 2004. Then in 2004, discovery was stayed

pending resolution of a pending a summary

judgment motion that was ultimately granted. The

case was appealed and on March 27, 2006, the

circuit issued its mandate vacating the judgment

and remanding the case. The defendants did not

challenge that ruling and thus ended the discovery

stay. Nevertheless, the defendants did not respond

to the outstanding discovery request.

The defendants’ response to che motion to

compel states that “[t]he plaintiff has not, since then,

contacted the defendants’ counsel with respect to

discovery except to serve counsel with a copy of his

motion to compel.” Docket No. 79 at 1. Nevertheless,

since pro se parties are not required by N.D. Ind.

19a

L.R. 37.1(c) to initiate an informal conference before

filing a motion to compel, this is irrelevant.

The defendants’ note that they have not

abandoned their affirmative defense of exhaustion

and that the court has not set an evidentiary hearing

on that issue. Therefore, they argue that the

justification for a stay is as valid now as it was when

it was entered in 2004. The prior stay

unquestionably expired and the defendants haven't

sought nor obtained another one. More critically

here, a stay is no longer appropriate and there is no

basis for an evidentiary hearing on the affirmative

defense of exhaustion. The court of appeals has

determined that there is 2 genuine issue of fact as to

the exhaustion defense. “[Flederal policy favorls]

jury Cecisions of disputed fact questions... .” Byrd

v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 538

(1958).

The federal system ‘s an independent

system for administering justice to litigants

who properly invoke its jurisdiction. An

essential characteristic of that system is

the manner in which, in civil common-law

actions, it distributes trial functions

between judge and jury and, under the

influence—if not the command-—of_ the

Seventh Amendment, assigns the decisions

of disputed questions of fact to the jury.

Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525,

537 (1958) (footnote omitted). Therefore, while it is

true that the defe.udants retain their exhaustion

affirmative defense (along with any other affirmative

defenses that were properly raised) the place for

20a

presenting those defenses is to the jury, and the time

for doing so is after the plaintiff has rested his case

in chief.

Finally, the defendants ask that the court

deny the motion to compel because they are looking

for some documents. A voluntary effort to respond to

some of the plaintiffs discovery is insufficient. The

discovery stay expired on March 27, 2006 and

counsel should have responded to the outstanding

discovery within 30 days thereafter. Six months have

now passed since this discovery was due. The

plaintiff is entitled to receive a response to his

discovery before proceeding to trial.

For the foregoing reasons, the motion to

compel (Docket No. 78) is GRANTED and the

defendants are ORDERED to respond to the

plaintiff's discovery request (Docket No. 25) on or

before December 15, 2006.

SO ORDERED.

ENTERED: November 16 , 2006

/s/ Robert L. Miller, Jr.

Chief Judge

United States District Court

2la

APPENDIX E

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SIR CHRISTOPHER R. )

PAVEY, )

)

Plaintiff ) CAUSE NO::

vs. )

) 3:03-CV-66 RM

P. CONLEY, et al, )

)

Defendants )

ORDER

All of the scheduling deadlines in this case

having passed, it is time to set this case for a jury

trial. Therefore this court now schedules this case for

a 4 day trial by jury commencing at 9:30 a.m. South

Bend time, on April 2, 2007. The plaintiff shall be

present for the trial with all of his legal paperwork,

but inmate witnesses shall testify by

videoconferencing if such technology is available.

The court schedules the final pretrial

conference for 1:00 o’clock p.m. South Bend time on

March 13, 2007. The final pretrial conference shall

be conducted by videoconferencing if such technology

is available.

22a

Defense Counsel shall prepare and submit the

proposed final pretrial order signed by all counsel of

record and all unrepresented parties on or before

February 20, 2007. The plaintiff and defendants

shall file and exchange their contentions, witness

and exhibit lists on or before January 19, 2007. If the

plaintiff does not file and serve his lists within the

time allowed, the court may dismiss the case. The

lists must include the names and addresses of any

and all witnesses the plaintiff intends to call to

testify at the time of trial (regardless of whether

subpoenas or orders to produce have been requested

for such witnesses), a statement of all the plaintiffs

contentions, and a description of any and all exhibits

which he may seek to introduce into evidence at the

time of trial.

Any motions in limine shall be filed by

February 20, 2007, together with appropriate

memoranda citing points and authorities. The

parties may raise as many issues in a motion in

limine as the case makes appropriate, but may only

file one motion. Oral motions in limine will be

allowed only for good cause shown. Motions should

identify the evidence at issue with specificity

By February 20, 2007, the parties must file

any proposed jury instructions (identifying the

source and/or supporting authority for each proposed

instruction). Any written objections to jury

instructions shall be filed by March 12, 2007. The

court has its own standard instructions on burden of

proof, credibility of witnesses and deliberations.

SO ORDERED.

23a

ENTERED: November 16, 2006

/s/ Robert L. Miller, Jr.

Chief Judge

United States District Court

24a

APPENDIX F

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

Submitted February 1, 2006°

Decided March 3, 2006

BEFORE

Hon. RICHARD A. POSNER, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 05-2004

CHRISTOPHER R. PAVEY, Appeal from the

Plaintiff-Appellant United States

District Court for

the Northern

District of Indiana,

South Bend

Division.

Vs. No. 03 C 662

* After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal

is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

25a

P. CONLEY, R. WATTS, Robert L. Miller, Jr.,

GROTT, et al., Chief Judge

Detendants-Appellees.

ORDER

Indiana inmate Christopher Pavey brought suit

under 42 U.S.C. § 1983. He claimed that six guards

used excessive force in violation of the Eighth

Amendment when they broke his arm during a cell

extraction. The district court granted summary

judgment for the guards on the ground that Mr.

Pavey had failed to exhaust his administrative

remedies as required by 42 U.S.C. § 1997e(a). For the

reasons set forth in this order, we vacate the

judgment of the district court and remand for further

proceedings.

Mr. Pavey alleges that six guards at the

Maximum Control Facility (“MCF”) in Westville,

Indiana, broke his arm on October 14, 2001. Mr.

Pavey outlined the facts surrounding the incident in

his form complaint and attached a “Notice of Tort

Claim.” See R.3. He verified both documents.

According to Mr. Pavey, after he argued with

Sergeant Conley about recreation and shower

privileges, Sergeant Conley summoned a cell

extraction team. At approximately 10:00 a.m., five

guards in riot gear responded and entered Mr.

Pavey’s cell along with Sergeant Conley and two

other guards designated to observe and videotape the

procedure. Mr. Pavey further alleges that once

inside, Sergeant Conley and the members of the

extraction team beat Mr. Pavey and broke his left

arm twice. The nursing staff bandaged Mr. Pavey’s

arm and gave him pain killers immediately following

26a

the altercation, but not until 4:00 a.m. the next

morning did prison staff respond to Mr. Pavey’s

repeated requests to see a lieutenant or captain.

When a licutenant finally arrived, Mr. Pavey

“informed him of the situation” and was told that the

lieutenant “would check into it.” R.3, Attachment at

11. Five hours later, at approximately 9:00 a.m., Mr.

Pavey was transported to another prison where his

arm was x‘rayed and put in a cast. When he

returned to MCF later that day, a major and another

lieutenant interviewed him “about the events of the

previous day” and photographed his injuries. Jd. He

was then returned to his cell and left there until

October 19 when he was transported to a hospital in

Indianapolis for surgery. His arm was repaired

surgically with a metal plate and six screws. On

October 24, he was transferred to Pendleton

Correctional Facility. Mr. Pavey says he filed a

grievance at Pendleton on January 15, 2002, “when

he was able” to write again, but was told that his

grievance was toc late because it should have been

filed at MCF. R.3 at 4.

Mr. Pavey named as defendants a number of

MCF employees, including Sergeant Conley and the

five members of the extraction team. He claimed that

Sergeant Conley and the extraction team used

excessive force and that MCF medical staff were

deliberately indifferent by failing to treat properly

his arm for five days after the break. He also claimed

that the beating was retaliation for filing previous

grievances and that his due process rights were

violated because the guards tasked with observing

the cell extraction did not videotape or otherwise

document what haprened.

27a

At initial screening under 28 U.S.C. §

1915A(a), the district court allowed Mr. Pavey’s

excessive-force claim to go forward against Sergeant

Conley and the members of the extraction team, but

dismissed all other claims and defendants. The court

reasoned that none of Mr. Pavey’s other theories

stated a claim for relief. See 28 U.S.C. 1915A(b)(1).

Four of the remaining defendants (it appears

that the other two never were served properly) later

moved for summary judgment on the sole basis that

Mr. Pavey had failed to exhaust his administrative

remedies as required by § 1997e(a). In support of

this argument, the defendants submitted the

declaration of an administrative assistant to the

MCF grievance officer. The administrative assistant

explains in her declaration that inmates generally

have 48 hours (excluding weekends and holidays) to

submit a grievance. She also states that, if Mr. Pavey

had submitted a grievance about the cell extraction,

copies would have been in both the grievance officer’s

file and in his institutional file; she found no relevant

grievance in either location, and thus she concluded

that none had been submitted at MCF. Finally, she

says, “at the least an investigation would have been

conducted” had Mr. Pavey submitted a grievance.

R.31, Attachment 1 (Declaration of Pam Bane) at 3 4

17.

In response, Mr. Pavey argued that he had

exhausted the administrative remedies available to

him. He maintained that he could not submit a

written grievance until January 15, 2002, because he

is left-handed and was unable to write with his

injured arm. He filed a grievance at Pendleton, he

28a

said, as soon as he was able to write again. Moreover,

Mr. Pavey explained, he verbally complained, which

led to an investigation the day after the incident

during which the major and lieutenant interviewed

him and took photographs of his injuries. Mr. Pavey

noted that he served the defendants with a discovery

demand for their records of this investigation but

was thwarted when the district court granted the

defendants’ motion to stay discovery pending

resoiution of their motion for summary judgment.!

The defendants replied to Mr. Pavey’s

response, attaching the declaration of the MCF

grievance officer. She asserts in her declaration that

Mr. Pavey’s broken arm would not have prevented

him from filing a timely grievance at MCF. This is

so, according to the grievance officer, because

Procedure 00-02-3001, section XIV, of the Indiana

Department of Correction Administrative Procedures

permits inmates to obtain assistance in writing

complaints from other inraates or staff members.

That provision states:

The complaint must be submitted by the

offender on his/her own behalf. One offender

may not submit a complaint on behalf of

another offender nor are “class action”

complaints acceptable. Yowever, staff or

another offender may assist an offender who

1 Two days before the deadline for the defendants to respond to

Mr. Pavey’s document request, they moved to stay discovery

pending a decision on their motion for summary judgment. The

district court granted the requested stay, reasoning that none

of the documents Mr. Pavey sought in discovery were relevant

to whether he had exhausted his administrative remedies.

29a

cannot write a complaint/grievance/appeal

him/herself by writing the

complaint/grievance/appeal for the offender.

The complaint shall explain how the situation

or incident affects the offender personally.

That same section also states: “All complaints,

grievances and appeals shall be signed and dated by

the offender. Signatures may be waived when the

offender has transferred, does not know how to write,

or is physically unable to write either by restraint or

infirmity (disability).” In addition to arguing that Mr.

Pavey’s broken arm did not render the grievance

process unavailable, the defendants also attacked

Mr. Pavey’s assertion that he satisfactorily grieved

the cell extraction because his verbal complaints led

to an investigation. The defendants argued that even

if Mr. Pavey “gainled] the attention of people who

would have reviewed a grievance if he’d grieved, and

[got] a result similar to what he feels he might have

gotten if he grieved,” the exhaustion requirement

demanded that he specifically follow the grievance

procedures in place at MCF, which meant filing a

written grievance. R.41 at 5. The defendants said

nothing about the alleged investigation; they neither

denied that it took place or explained what may have

prompted prison officials to question Mr. Pavey.

The district court granted summary judgment

in favor of all six guards. Although “(tlaking as true

all of the facts given” by Mr. Pavey, the court

accepted the defendants’ reasoning and held that Mr.

Pavey had failed to exhaust the grievance process

and that his inability to write did not excuse that

omissicn. R.42 at 5. Mr. Pavey challenges only this

ruling on appeal and does not contest the § 1915A

30a

dismissal of his other claims. He essentially restates

his position at summary judgment: He could not

write because of his broken arm, so he grieved to

“anyone who would listen” and wrote a complaint as

soon as he could in January 2002.2 Appellant’s Br. at

We review the application of § 1997e(a) de

novo. Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir.

2005). We have held that “{tlo exhaust remedies, a

prisoner must file complaints and appeals in the

place, and at the time, the prison’s administrative

rules require.” Pozo v. McCaughtry, 286 F.3d 1022,

1025 (7th Cir. 2002). Lack of exhaustion, however, zs

an affirmative defense that a defendant has the

burden of proving. Srengettcy v. Horton, 423 F.3d

674, 682 (7th Cir. 2005); Dale v. Lappin, 376 F.3d

652, 655 (7th Cir. 2004) (per curiam). And where the

record establishes disputed issues of fact on the

question, that burden has not been met. See Curtis

2 Because in his brief Mr. Pavey discusses only the dismissal of

his excessive force claim, he has waived any contention that the

district court erred in holding that his complaint does not also

state claims for retaliation, for a denial of due process in

connection with the failure to videotape adequately and

document the cell extraction, and for deliberate indifference to

the injuries he sustained. See Hentosh v. Herman M. Finch

Univ. of Health Scis./The Chicago Med. Sch., 167 F.3d 1170,

1173 (7th Cir. 1999) (arguments not raised in opening brief are

waived); Provident Sav. Bank v. Popovich, 71 F.3d 696, 699-700

(7th Cir. 1995) (pro se appellants are subject to the same

waiver rules as represented parties). Accordingly, we have no

occasion to assess the propriety of the district court’s dismissal

of these other claims at the screening stage. Nor do we consider

whether Mr. Pavey’s argument that he exhausted his excessive-

force claim applics to his other claims.

3la

v. Timberlake, No. 05-1239, 2005 WL 3728794, at *2

(7th Cir. Jan. 27, 2006); Dale, 376 F.3d at 656. We

conclude that this is such a case.

Like the district court, we accept Mr. Pavey’s

declarations as true at this stage of the case. Mr.

Pavey’s evidence establishes that, within 48 hours of

his injury, he verbally complained, first to a

heutenant who promised to investigate, and second

to a major and another lieutenant who summoned

Mr. Pavey, questioned him about the episode and

photographed his injuries. The grievance procedure

cited by the defendants specifically allows inmates

who cannot write to get another inmate or a staff

member to assist them in preparing grievances. The

procedure does not require that the inmate sign his

grievance. Therefore, if the major or the lieutenants

memorialized Mr. Pavey’s complaint in writing and

passed it along for investigation, Mr. Pavey may well

have done all that literally was necessary to comply

with the grievance procedure.

The defendants never have denied that the

incident was investigated, and at summary judgment

they remained silent as to what transpired during

the investigation and what prompted it. Neither

have the defendants ever asserted—and certainly

they offered no evidence—that Mr. Pavey’s

complaints to the major and lieutenants were not

reduced to writing. Instead, the defendants opposed

Mr. Pavey’s efforts to obtain discovery of records

documenting their investigation of his allegations.

Now they offer the unsatisfactory argument that Mr.

Pavey’s complaints could not have met the

exhaustion requirement of § 1997e(a) because, even

if he “gainled] the attention of people who would

32a

have reviewed a grievance” and prompted exactly the

same investigation that a grievance would have

generated, he still did not put his complaint in

writing. R.41 at 5. This contention misses the point.

Mr. Pavey’s inability to write during the allotted two

days was undisputed, as was his declaration that he

was locked in his cell for that entire period except

when he was receiving medical care or was with the

major or lieutenants complaining about the very

events underlying this lawsuit. If there was to be a

written grievance, then it had to be written for Mr.

Pavey by the officers who interviewed him. He did

not have to write it himself; he did not have to review

it; and he did not have to sign it. Thus, as Mr. Pavey

suggests, there may be a writing that would qualify

as a grievance in the documents he demanded but

never obtained during discovery, and the defendants

have yet to explain why his oral account of the cell

extraction, as memorialized by the officers who

interviewed him, would not literally satisfy section

XIV of Procedure 00-02-301. Having left these

questions unresolved, the defendants did not meet

their burden of establishing the absence of a material

dispute concerning their affirmative defense of

failure to exhaust.

Moreover, even if the MCF officers did not

produce a grievance on Mr. Pavey’s behalf by writing

down his account of the cell extraction, there still

remains the question whether Mr. Pavey reasonably

believed that he had done all that was necessary to

comply with Procedure 00-02-301. We have held that

inmates may rely on the assurances of prison

officials when they are led to believe that satisfactory

steps have been taken to exhaust administrative

remedies. See Curtis, 2005 WL 3728794, at *3. In

33a

Curtis the defendant jail guards argued that the

plaintiff inmate had failed to exhaust his

administrative remedies because he hand delivered a

grievance to a jail employee instead of placing it in a

lockbox designated for that purpose. In overturning

the grant of summary judgment for the defendants,

we observed that the defendants had offered no

evidence to dispute the inmate’s testimony that

hand-delivery was an encouraged alternative to use

of the lockbox. As we explained, prison officials who

“encourage, or even invite, noncompliance with

written procedure” cannot then turn around and use

the deviation as evidence of a failure to exhaust. Jd.

In reaching this conclusion, we joined other circuits

which have held that prison officials will be bound by

their oral representations to inmates concerning

compliance with the grievance process. See Brown v.

Valoff, 422 F.3d 926, 937 (9th Cir. 2005) (stating that

information prison officials provided to prisoner

about grievance procedures was relevant in deciding

whether available administrative remedies had been

exhausted); Brown v. Croak, 312 F.3d 109, 112 (3d

Cir. 2002) (holding that prisoner’s noncompliance

with written grievance procedures did not constitute

a failure to exhaust since prison officials had told

him that written procedures were not accurate). Mr.

Pavey's situation is similar; even if the MCF officers

did not generate what they meant to be a grievance

that satisfied section XIV of Procedure 00-01-0083,

they still did not establish that Mr. Pavey, who could

not write his own grievance and did not have access

to help from his fellow inmates, did not reasonably

rely on the assurance that his excessive-force

allegations would be investigated.

34a

We make one final observation. Section

1997e(a) may prove to be irrelevant if further

development of the record shows that prison officials

rendered the established grievance procedures

unavailable to Mr. Pavey by lending him no

assistance in creating what would qualify as a

written grievance while at the same time isolating

him from other inmates who might have assisted

him. Mr. Pavey always has insisted--and the

defendants never have denied--that he was confined

to his cell in pain continuously for several days after

his arm was broken except when he was taken for

medical treatment or was in the presence of the

major or two lieutenants. If so, then he lacked access

to other inmates who might have written a grievance

for him. We have stated that, when inmates cannot

comply with grievance procedure without essential

help from prison officials and that assistance is

withheld, the failure of the officials to facilitate the

grievance process effectively renders administrative

remedies unavailable. See Dale, 376 F.3d at 656

(vacating grant of summary judgment for defendants

on failure-to-exhaust defense where inmate

submitted evidence that prison officials failed to

respond to his requests for required grievance forms);

Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.

2002) (holding that administrative remedies are

unavailable if prison officials fail to respond to

prisoners’ grievances); see also Abney v. MciFinnis,

380 F.3d 663, 667 (2d Cir. 2004) (holding that

defendants are “estopped from raising non:

exhaustion as an affirmative defense when prison

officials inhibit an inmate’s ability to utilize

grievance procedures”); Mitchel] v. Horn, 318 F.3d

523, 529 (3d Cir. 2003) (holding that district court

erred in dismissing inmate’s complaint for failure to

35a

exhaust administrative remedies when court did not

address inmate’s allegation that prison officials

failed to provide necessary grievance forms); Miller v.

Norris, 247 F.3d 736, 740 (8th Cir. 2001) (explaining

that grievance process “is not an ‘available’ remedy

under § 1997e(a)” if prison officials prevent its use).

The defendants, therefore, have not established on

this record that Mr. Pavey had an available

administrative remedy during the relevant period.

Because the defendants did not establish the

absence of material issues of fact concerning the

exhaustion question, we conclude that it was error to

grant summary judgment in their favor.

Accordingly, the judgment is vacated, and the case is

remanded for further proceedings on Mr. Pavey’s

excessive’force claim.

VACATED; REMANDED

36a

APPENDIX G

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 12, 2008

Before

Hon. Richard A. Posner, Circuit Judge

Hon. Kenneth F. Ripple, Circuit Judge

Hon. Daniel A. Manion, Circuit Judge

No. 07-1426

CHRISTOPHER R. Appeal from the United

PAVEY, States District Court for

Plaintiff-Appellee, the Northern District of

V. Indiana, South Bend

PATRICK CONLEY, Division.

ROBERT WATTS, No. 03 C 662

LAURENCE GROTT, et Robert L. Miller, Jr.,

al., Chief Judge.

Detendants-

Appellants.

ORDER

On July 21, 2008, plaintiff-appellee filed a

petition for rehearing with suggestion for rehearing

en banc, and on August 13, 2008, defendants-

appellants filed an answer to the petition. All the

judges on the original panel have voted to deny the

petition, and none of the judges in regular active

service has requested a vote on the petition for

rehearing en banc. The petition is therefore

DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.