Opposition Brief — Pavey v. Conley (No. 08-886)

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Supreme Court. U.S

FILED

9 @ FEB 16 2009

‘ |

IN THE

Supreme Court of the Gnited States

CHRISTOPHER PAVEY,

Petitioner,

Vv.

PATRICK CONLEY, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF

IN OPPOSITION TO THE PETITION

GREGORY F.. ZOELLER

Office of the Indiana Attorney General

Attorney General THOMAS M. FISHER*

IGC South, Fifth Floor Solicitor General

302 W. Washington St. HEATHER L. HAGAN

Indianapolis, IN 46204 JAMES E. PORTER

(317) 232-6255 Deputy Attorneys General

*Counsel of Record Counsel for Respondents

rn eT

QUESTION PRESENTED

In a civil rights case brought by a prisoner and

subject to the Prison Litigation Reform Act, 42

U.S.C. § 1997e (““PLRA”), is the affirmative defense

of failure to exhaust administrative remedies a

threshold matter that may be resolved by the judge

before the presentation of any other evidence at

trial?

TABLE OF CONTENTS

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STATEMENT OF THE CASE....................cceeeee eee 1

REASONS FOR DENYING THE PETITION.......... 4

I. There is No “Disarray” in the Lower

Courts Regarding Procedures for

Adjudicating the PLRA Exhaustion

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II. There is No Conflict Between the

Decision Below and Jones v. Bock or

Other Precedents Governing

Adjudication of Affirmative Defenses

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TABLE OF AUTHORITIES

CASES

American Dredging Co. v. Miller,

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Arbaugh v. Y & H Corp.,

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Beacon Theatres, Inc. v. Westover,

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Brownwell v. Krom,

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Bryant v. Rich,

BOG FS BBG. CE UGE Car, BO ions cscicecscccscccecsacescoscacs 4

Byrd v. Blue Ridge Rural Elec. Coop., Inc.,

Oe Fe. By CE ovis viicescncsssanccsiecsens oS) a 9

Curtis v. Loether,

S20 TAs Be te iitit sc ene 12

Dairy Queen, Inc. v. Wood,

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Delany v. Padgett,

1903 F.2eh BOG (BGR Cam. 1GZ).......0cccccecccsccscoccsecccosess 1]

Fields v. Okla. State Penitentiary,

S21 F.De L1OD (IO Civ. BOOT)... 03. ..cccccccossesssvssevenscs 5

Foulk v. Charrier,

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CASES (CONT’D)

Hinojosa v. Johnson,

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Jones v. Bock,

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Kaplan v. Exxon Corp.,

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Nieman v. NLO, Inc.,

106 FSG TGG6 CE -CAP. TOGT)......cccevsescccccccncssconsssers 11

Pearson v. Callahan,

Bs Ge Be Ca nash ncn sdntas ticoseecesteseccscnetonces 10

Siler-Khodr v. Univ. of Texas Health Sci. Ctr. San

Antonio,

DEL FG GAR Cs Car. BOG vscsicavisccsviccctsentsvcicces 10

Sinochem Int'l Co. Lid. v. Malaysia Int'l Shipping

Corp.,

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U.S. v. Duncan,

SED F.26 1106 (GE Cir. TOSGS).....0...ccscccccsscsacscecossssne 10

Vermont Agency of Natural Resources v. U.S. ex rel.

Stevens,

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Williams v. Beard,

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Woodford v. Ngo,

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CASES (CONT’D)

Wyatt v. Terhune,

315 F.3d 1108 (9th Cir. 2003)..........ccccccccscesseeseceseeaes 4

STATUTES

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RULES

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STATEMENT OF THE CASE

Petitioner Christopher Pavey, a state prisoner,

brought this action pursuant to 42 U.S.C. § 1983

against several current or former officers employed

by the Indiana Department of Correction (“DOC”).

Pet. App. 25a. Pavey claimed that six guards at the

Maximum Control Facility in Westville, Indiana,

used excessive force in violation of the Eighth

Amendment when they broke his arm during a cell

extraction on October 14, 2001. Pet. App. 25a.

The Defendants moved for summary judgment,

claiming that Pavey failed to exhaust his

administrative remedies as required by the Prison

Litigation Reform Act, 42 U.S.C. § 1997e, because he

did not file a timely grievance with the prison

authorities. Pet. Aop. 2a. Pavey responded that due |

to his injury, he was physically unable to prepare a

written grievance until January 15, 2002. Pet. App.

2a, 26a. By that time, he had been transferred to

the Pendleton Correctional Facility. Pet. App. 26a.

Pavey claimed that he attempted to file a grievance

at Pendleton on January 15, but was told the

grievance was untimely, as it should have been filed

at the Westville facility. Pet. App. 26a.

The district court granted summary judgment in

favor of the Defenr ants, holding that Pavey had

failed to exhaust his administrative remedies and

that his inability to write did not excuse him from

properly utilizing the grievance process. Pet. App.

29a. The Seventh Circuit reversed, however, finding

that the record reflected genuine issues of material

fact concerning the exhaustion question. Pet. App.

35a.

Upon remand to the district court, Pavey sought

and was granted the right to a jury trial on his

Section 1983 damages claims. Pet. App. 2la. Ina

discovery order, the district court provided that the

Defendants would present evidence as to the

exhaustion issue to the jury after Pavey had rested

his case in chief on the merits of his claim. Pet. App.

19a-20a. The Defendants moved the court to

reconsider, arguing that exhaustion should be tried

to the court, separately and without a jury, before

the parties addressed the merits of Pavey’s

constitutional claim. Pet. App. 16a. The district

court denied the motion, stating that “[t]he 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.” Pet. App. 16a.

Upon the Defendants’ motion, however, the

district court certified this series of orders for

interlocutory appeal under 28 U.S.C. § 1292(b). Pet.

App. 8a-lla. The Seventh Circuit reversed the

district court’s orders and held that in cases in which

exhaustion is contested, the district court judge—not

the jury—must resolve genuine disputed facts about

exhaustion in a preliminary hearing before the case

proceeds to the merits. Pet. App. 6a. Noting that

“not every factual issue that arises in the course of a

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

court reasoned that “juries do not decide what forum

a dispute is to be resolved in,” but rather, they

“decide cases, not issues of judicial traffic control.”

Pet. App. 3a-4a. The court went on to state that

“trying the merits before exhaustion . . . is

unsatisfactory . . . because it would thwart

Congress’s effort to bar trials of prisoner cases in

which the prisoner has failed to exhaust his

administrative remedies.” Pet. App. 5a.

The court set forth a simple, commonsense

sequence to be followed in cases where exhaustion is

contested, beginning with limited discovery and, if

necessary, a hearing on exhaustion. Pet. App. 6a. If

the judge finds that the prisoner has exhausted his

administrative remedies or that no such remedies

were available, the case proceeds to discovery and

resolution of the merits. Pet. App. 6a. If, on the

other hand, the judge finds that the prisoner failed

to exhaust available administrative remedies, the

course of litigation depends on the cause of that

failure. If the failure was innocent (as where prison

officials prevent a prisoner from exhausting his

remedies), then the prisoner is permitted to go back

and exhaust. Pet. App. 6a. But, if the judge finds

that the failure to exhaust was the prisoner’s fault,

the case is over. Pet. App. 6a.

Pavey filed a petition for rehearing with a

suggestion of rehearing en banc. The court denied

the petition, but amended its earlier opinion to

permit limited discovery on factual issues relating to

both exhaustion and the merits of the claim. Pet.

App. 7a, 36a. On remand, the district court referred

the case to a magistrate judge for an evidentiary

hearing on exhaustion, but stayed the proceedings

pending Pavey © promised petition for review by this

Court.

REASONS FOR DENYING THE PETITION

I. There is No “Disarray” in the Lower

Courts Regarding Procedures for

Adjudicating the PLRA Exhaustion

Defense

Pavey writes of the supposed need to resolve

“widespread conflict and uncertainty in the federal

courts over the proper procedure for adjudicating the

PLRA exhaustion defense.” Pet. 26. There is no

lower-court conflict justifying review, however.

Only two other circuits have addressed whether a

judge or jury should decide exhaustion-related facts,

and both have, like the Seventh Circuit, held that

courts, not juries, should do so as a threshold matter

prior to adjudication of the merits. In both Bryant v.

Rich, 530 F.3d 1368 (11th Cir. 2008), and Wyatt v.

Terhune, 315 F.3d 1108 (9th Cir. 2003), the courts

held that exhaustion should be raised as an

unenumerated Rule 12(b) motion, and that factual

disputes should be resolved in that context by courts

rather than juries. To be sure, the decision below

rejected the Rule 12(b) procedural mechanism, Pet.

App. 3a, but given that the outcome is the same (i.e.,

exhaustion facts are decided by judges, not juries),

that formalistic dispute hardly warrants

intervention by this Court.

None of the remaining five cases cited by Pavey

to illustrate “disarray” among the circuits discusses

the proper method for resolving exhaustion-related

factual disputes under the PLRA. Actually, in four,

there were no disputed factual issues relating to

exhaustion. The only exhaustion issues were

whether a grievance filed by the prisoner was legally

sufficient and, if not, whether the insufficiency was

excusable. See Hinojosa v. Johnson, 277 F. App’x

370, 380 (5th Cir. 2008) (reversing grant of summary

judgment in favor of certain defendants where

grievance was not made part of the record on appeal,

and remanding for district court to determine

whether the grievance provided the defendants a fair

opportunity to address the problems that later

formed the basis of the prisoner’s Section 1983

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

2007) (reversing summary judgment in favor of the

defendant where the prisoner procedurally defaulted

by failing to name the defendant in his initial

grievance, but where such default was found by the

court to be excusable); Fields v. Ohkla. State

Penitentiary, 511 F.3d 1109 (10th Cir. 2007)

(affirming summary judgment in favor of the

defendants where the defendants’ summary

judgment brief pointed out various shortcomings in

the prisoner’s grievance filings and the prisoner

failed to respond to these shortcomings in his

response brief); Brownwell v. Krom, 446 F.3d 305,

311, 313 (2d Cir..2006) (reversing the district court’s

grant of summary judgment in favor of the

defendant officers where the prisoner’s grievance

“did not sufficiently allege intentional misconduct,”

but special circumstances nonetheless justified the

prisoner’s failure to exhaust).

Nor is the fifth case cited by Pavey, Foulk v.

Charrier, 262 F.3d 687 (8th Cir. 2001), instructive.

In that case, the defendants unsuccessfully raised

the exhaustion defense for the first time during trial

in an oral motion to dismiss. /d. at 697. Its holding

says nothing about how the defense is to be handled

when raised prior to trial, so there is no reason to

believe Pavey’s case would have been resolved

differently in the Eighth Circuit.

In short, none of Pavey’s “disarray” cases

precludes judges from resolving factual disputes

related to the PLRA exhaustion defense. Indeed, the

only three circuits to have addressed the issue have

endorsed the procedure. There is simply no PLRA

exhaustion issue warranting the Court’s review.

II. There is No Conflict Between the

Decision Below and Jones v. Bock or

Other Precedents Governing

Adjudication of Affirmative _ Defenses

Generally

Unable to demonstrate a PLRA-specific conflict,

Pavey alternatively suggests that there is a conflict

between the Seventh Circuit’s holding and both

Jones v. Bock, 549 U.S. 199 (2007), and holdings of

lower federal courts governing treatment of

affirmative defenses generally. By asserting that

the decision below stands in conflict with Jones and

cases sending affirmative defenses to _ juries,

however, Pavey is essentially asking the Court to

review whether, under the Seventh Amendment, all

affirmative defenses are created equal and must be

decided by a jury. Not only is that issue far broader

than the question presented, but Pavey does not

demonstrate any serious need for it to be addressed.

When assessing whether to send an issue to a jury,

courts typically do not peg their decisions to whether

the issue is technically part of an affirmative

defense. Instead, they look to other, more precise

factors, such as whether the issue needs to be

decided as a threshold matter or whether instead it

logically can be decided with the merits.

In short, Pavey’s case for certiorari presumes that

all affirmative defenses should be treated the same.

Without a conclusive demonstration as to why that

should be the case, however, there is no basis from

which to argue that lower courts are in “conflict”

over how to handle affirmative defenses generally,

and no justification for review by this Court.

1. Pavey suggests that the opinion § below

conflicts with the Court’s recent holding in Jones v.

Bock, 549 U.S. 199 (2007), that the PLRA’s

requirement that prisoners exhaust administrative

remedies before coming to federal court constitutes

an affirmative defense. See Pet. i, 14-15. The Court

in Jones predicated its holding on the notion that,

absent congressional directive, courts should not

depart from the “usual” procedural practices

outlined in the Federal Rules of Civil Procedure.

Jones, 549 U.S. at 212. Pavey essentially argues

that, by allowing the exhaustion defense to be

decided by a judge rather than a jury, the Seventh

Circuit has departed from the “usual practice”

governing affirmative defenses and has therefore

ignored Jones. Pet. 14-15. This argument stretches

Jones well beyond its limits and insupportably

assumes that all affirmative defenses must be

treated the same.

In Jones, the relevant “usual practice under the

Federal Rules” was that exhaustion must typically

be raised as an affirmative defense—a_ practice

directly at odds with a rule imposing a non-textual

burden on plaintiffs to plead and prove exhaustion.

Jones, 549 U.S. at 212. Such allocation of the

burdens of pleading and proof, however, says

nothing about when and by whom relevant facts are

to be decided. There is nothing inherent in the

notion of “affirmative defense” that demands jury

resolution of disputed facts.

Indeed, unlike in Jones, there is no “usual

practice under the Federal Rules” directing that

affirmative defenses be resolved by juries. Rule 38,

which provides for jury trials, refers only to “[t]he

right of trial by jury as declared by the Seventh

Amendment... or as provided by a federal statute.”

Fed. R. Civ. P. 38(a). Accordingly, any “usual

practice under the Federal Rules” with regard to

trying affirmative defenses turns on the reach of the

Seventh Amendment (and federal statutes affording

jury trials). Without such a link, there is no “usual

practice” of the sort invoked in Jones that has been

thwarted by the decision belew.

2. This case, however, has never really been a

Seventh Amendment case. The Seventh Amendment

was never a focal point below (See Appellee’s Br. at

6), and the question that Pavey presents to this

Court does not frame a Seventh Amendment issue.

Pavey does invoke the Seventh Amendment in Part

I.B. of the Petition, but he makes no attempt to

explain how affirmative defenses must by nature be

subject to jury trials under the Seventh Amendment.

This is significant because PLRA exhaustion is

not unigue as a non-jurisdictional procedural

threshold affirmative defense subject to judicial

factfinding. As the decision below recognized, factual

disputes concerning venue are decided as a threshold

matter by judges, not juries. Pavey dismisses the

Seventh Circuit’s analogy of exhaustion to venue,

citing American Dredging Co. v. Miller, 510 U.S. 443

(1994), for the observation that venue does not go to

a plaintiffs substantive right to recover. See id. at

454. But as a procedural defense, exhaustion is no

more an “essential element of a claim for relief,”

Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006),

and no more “bears directly upon a prisoner’s right

to recover,” Pet. 21, than venue. Indeed, exhaustion

is essentially a subcategory of venue, requiring the

court to answer the question, “has the plaintiff

brought the claim to the right place?”

Accordingly, any attempt to suggest the decision

below conflicts with cases putting other types of

affirmative defenses in the hands of juries requires a

rich and detailed comparative analysis, which Pavey

does not provide. Pavey does, indeed, cite a bevy of

cases directing that a wide variety of affirmative

defenses be tried by juries. However, none of those

cases suggests that affirmative defenses gencrally

must be tried to juries as a matter of Seventh

Amendment doctrine. In fact, Byrd v. Blue Ridge

Rural Electric Cooperative, Inc., 356 U.S. 525, 537

n.10 (1958), expressly disclaims such analysis: “Our

conclusion makes unnecessary the consideration of—

and we intimate no view upon—the constitutional

question whether the right of jury trial protected in

federal courts by the Seventh Amendment embraces

the factual issue of statutory immunity when

asserted, as here, as an affirmative defense in a

common-law negligence action.”

Rather, the cases cited by Pavey stand only for

the unremarkable proposition that sometimes it is

appropriate for a jury to consider certain affirmative

defenses, particularly where those affirmative

defenses go directly to the merits of the case. See,

e.g., Stler-Khodr v. Univ. of Texas Health Sci. Ctr.

San Antonio, 261 F.3d 542, 547-48 (5th Cir. 2001) (in

Title VII equal pay case, defendant university raised

affirmative defenses explaining the wage differential

at issue); Kaplan v. Exxon Corp., 126 F.3d 221, 223

(3d Cir. 1997) (in “slip and fall” negligence case,

defendant raised affirmative defense of assumption

of risk claiming that plaintiff willingly walked across

snowbank, thus causing her fall); U.S. v. Duncan,

850 F.2d 1104, 1105, 1115 (6th Cir. 1988) (defendant

charged with making and preparing a tax return

containing a false statement raised affirmative

defense of reliance upon advice of counsel, claiming

he relied in good faith on the advice of his certified

public accountant).

Pavey specifically compares PLRA exhaustion

with statute of limitations defenses. Pet. 18. But, as

with other affirmative defenses, there is no obvious

reason why exhaustion and limitations defenses

must be decided using the same procedures. Even

though not a jurisdictional issue, Woodford v. Ngo,

548 U.S. 81, 101 (2006), PLRA exhaustion is

nonetheless a _ threshold issue that warrants

treatment analogous to jurisdictional issues.! In

1 The decision below does not conflict with Woodford’s

conclusion that the PLRA allows “a district court to

dismiss plainly meritless claims without first addressing

what may be a much more complex question, namely,

whether the prisoner did in fact properly exhaust

available administrative remedies.” Woodford, 548 U.S.

81, 101 (2006). As the Court recently reinforced in

Pearson v. Callahan, 129 S. Ct. 808, 817 (2009), such

contrast, a statute of limitations defense is not by its

nature a threshold issue, and in many cases merely

limits the measure of damages. See Nieman v. NLO,

Inc., 108 F.3d 1546, 1559 (6th Cir. 1997).

Even where a limitations defense would, if

successful, preclude all liability, the defendant

receives full protection even if the limitations period

is decided by a jury at trial. See Delany v. Padgett,

193 F.2d 806, 811 (5th Cir. 1952). The same is not

true for PLRA exhaustion, which is intended to

prevent premature lawsuits from going to trial at all.

Jones, 549 U.S. at 202. In fact, as the court observed

below, there is much greater potential .or successive

jury trials—with their attendant costs—for PLRA

exhaustion issues than for limitations defenses.

With PLRA exhaustion issues, “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

“order of battle” determinations are fairly predicated on

case-specific circumstances. There are many

circumstances where it is far easier to determine that the

complaint fails to state a claim than it is to determine a

legitimate threshold issue—even a jurisdictional issue—

and the Court’s precedents generally allow for that. See

Vermont Agency of Natural Resources v. U.S. ex rel.

Stevens, 529 U.S. 765, 778-80 (2000); Sinochem Int'l. Co.

Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431

(2007). In the PLRA context, threshold dismissal of a

“plainly meritless claim” is very different from full

adjudication of a colorable claim on the merits prior to

review of exhaustion. The PLRA mandates that

exhaustion must be considered prior to the mz~its of a

claim, and the Court’s opinion in Woodford supports that

mandate.

litigation, and another jury trial on failure to

exhaust.” Pet. App. 4a. In contrast, if a plaintiff

fails to bring an action within the limitations period,

the litigation is over, not merely “shuntled] .. . to

another forum.” Pet. App. 4a-5a. Accordingly, there

is no basis for presuming that these two defenses

should be subject to the same trial procedures.

3. Pavey separately relies on Beacon Theatres,

Inc. v. Westover, 359 U.S. 500 (1959), Dairy Queen,

Inc. v. Wood, 369 U.S. 469 (1962), and Curtis v.

Loether, 415 U.S. 189 (1974), for the principle that

factual issues that overlap between jury and non-

jury issues must be presented to a jury. But the

Seventh Circuit accounted for these cases when it

stated 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.” Pet. App. 5a. This

pragmatic approach effectively permits courts both

to vindicate Congress’ effort to bar trials of prisoner

cases where the prisoner has failed to exhaust his

administrative remedies and to afford jury trials on

disputed fact tssues going to the merits. These

competing interests were not at stake in the lower-

court cases cited by Pavey, see Pet. 23, so the

decision below cannot reasonably be cast in conflict

with them.

The Court decided Jones v. Bock barely two years

ago. Even if procedures for resolving PLRA

exhaustion defenses may eventually warrant further

review by this Court, it is far too early to take

another case on the subject. Especially given that

the only three circuits to address the matter have

agreed that judges are permitted to resolve factual

disputes bearing on exhaustion, the Court should

allow other circuits more time to consider the issue.

That way the Court may, if ultimately it becomes

necessary to explicate further procedures for

resolving PLRA exheustion defenses, have greater

national input by judges who routinely engage the

practical “traffic control” issues at stake.

CONCLUSION

The Petition should be denied.

Respectfully submitted,