Pavey v. Conley

• Decision Date: 22 November 2011
• Docket Number: No. 10–3878.,10–3878.
• Citation: 663 F.3d 899
• Parties: Christopher R. PAVEY, Plaintiff–Appellant, v. Patrick CONLEY, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

663 F.3d 899

Christopher R. PAVEY, Plaintiff–Appellant,

v.Patrick CONLEY, et al., Defendants–Appellees.

No. 10–3878.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 2, 2011.Decided Nov. 22, 2011.

Rebecca S. Bradley (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Plaintiff–Appellant.

Kathy Bradley (argued), Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants–Appellees.

Before WOOD, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge.

In this suit under 42 U.S.C. § 1983, Christopher Pavey claims Indiana prison officials violently roused him from his cell and in the process broke his arm. The defendants insist Pavey's suit must be dismissed because he failed to exhaust his administrative remedies for the incident. 42 U.S.C. § 1997e(a). This is the third time the case has been before this court. We first held that the question whether Pavey had exhausted his administrative remedies was clouded by disputed issues of material fact. Pavey v. Conley, 170 Fed.Appx. 4 (7th Cir.2006). Then we held that those disputed facts ought to be resolved by a judge, not a jury. Pavey v. Conley, 544 F.3d 739 (7th Cir.2008). The district court has since conducted an evidentiary hearing, resolved the factual disputes in favor of the defendants and, accordingly, dismissed Pavey's suit for failure to exhaust. The question on appeal is whether those findings are clearly erroneous.

We affirm. Pavey has not convinced us that it was clear error for the district court to disbelieve his account of events. And even if his story should have been credited, his own words belie any suggestion that he exhausted his administrative remedies.

I. Background

Pavey's left arm was broken when prison officials removed him from his cell in October 2001. Because he writes with his left hand, his injury prevented him from initiating the prison's grievance process, which requires written notification using a specific complaint form detailing his concerns about the incident. Ind. Dep't of Corr. Admin. Procedure No. 00–02–301 ¶¶ I(C), XIV. A prisoner who cannot write, for whatever reason, may ask a prison official or fellow inmate to help him with this task, and the complaint must be submitted within 48 hours. Id. ¶ XIV. It is undisputed, though, that Pavey did not submit a complaint about this incident until January 2002, well after the 48–hour deadline. Nor did anyone else submit a complaint on Pavey's behalf.

The question explored at the evidentiary hearing on remand was whether Pavey had been led astray by prison officials who promised assistance but did not follow through. Pavey testified that he was well-acquainted with the prison's grievance process. He had successfully filed at least 10 previous complaints, and in fact he suspected that the violent outburst resulting in his broken arm had been precipitated by a vengeful guard seeking to punish him for initiating a past grievance. Pavey said about 12 hours passed after the incident before he complained to Barbara Nails, a correctional sergeant. He summoned Sergeant Nails to his cell around midnight to tell her that what had happened to him “wasn't right” and to suggest that “something should be done about it.” Pavey recalled Sergeant Nails promising to notify Duane Surney, a correctional lieutenant, and explaining that Lieutenant Surney “had previously worked on internal affairs investigation[s] and ... would know more about how to go about dealing with it.” Sergeant Nails remembered things differently. She testified that she and Pavey engaged in some idle “chitchatting” that evening as she made her rounds. He did complain to her about his broken arm, but she often had these sorts of conversations with Pavey. She explained there was “nothing unusual about it.” She was certain she did not tell Pavey that she would put him in touch with Lieutenant Surney.

But Pavey testified that Lieutenant Surney did show up at his cell, unannounced, about four hours later. The lieutenant wanted to know everything about the incident, and Pavey was happy to oblige. According to Pavey, Lieutenant Surney said that “he was going to write up a report and turn it over to” George Payne, the correctional major who was in charge of custody operations. Lieutenant Surney testified that because of the passage of time (this was almost nine years after the events in question), he was unable to recall whether or not he had spoken to Pavey about the incident.

Pavey testified he was called into Major Payne's office for an audience the morning after the incident. He said Major Payne told him that he wanted to “interview” him to get his “side of the story.” According to Pavey, Payne took copious notes throughout the 45–minute meeting, and at the end he took photographs of Pavey's injuries with a Polaroid camera. Payne told Pavey “that he was going to write up a report and that he would look into it and keep [Pavey] informed of what was going on.” Pavey did not testify consistently about whether he had asked Major Payne to help him fill out a complaint form. At one point Pavey said that he had made this affirmative request and the major had assured him he would “look into” that too. But later Pavey explained that he simply assumed the major was going to initiate the grievance process on his behalf. He acknowledged knowing that Major Payne wasn't normally involved in the grievance process, and in fact the major had not mentioned the grievance process at all during their encounter.

For his part, Major Payne testified that he could not remember whether he had met with Pavey. He did say, however, it was his practice to immediately summon the grievance specialist when an inmate asked for help filling out a complaint form. Payne said he was confident he would have done that if Pavey had asked him for assistance.

Pavey also introduced evidence that prison officials conducted an internal-affairs investigation in response to the incident. The probe uncovered no evidence of staff misconduct. In fact Pavey was disciplined for his role in the altercation.

The magistrate judge concluded that most of Pavey's “testimony was fabricated after the fact in an effort to survive summary judgment.” He determined that: (1) the supposed meeting between Pavey and Major Payne never took place; (2) Pavey made up his conversation with Lieutenant Surney; (3) Sergeant Nails was the only prison official Pavey spoke to about the incident, but he had not asked the sergeant for help filling out a complaint form; instead the two “merely chitchatted about what had happened to him”; (4) the prison conducted an internal-affairs investigation of the incident, but this was entirely distinct from the grievance process; and (5) there was no evidence that Pavey was misled to think that the opening of an internal-affairs investigation satisfied his obligation to initiate the grievance process. The magistrate judge issued a report recommending that Pavey's suit be dismissed for failure to exhaust administrative remedies. The district court adopted the magistrate judge's report over Pavey's objections and dismissed the case.

II. Discussion

A prisoner may not bring a federal suit about prison conditions unless he first has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Napier v. Laurel Cnty., Ky., 636 F.3d 218, 222 (6th Cir.2011); Cruz Berrios v. González–Rosario, 630 F.3d 7, 11 (1st Cir.2010); Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir.2010). A remedy is not exhausted if the prisoner has failed to abide by the procedures for pursuing relief. Woodford v. Ngo, 548 U.S. 81, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir.2010); Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir.2009); Burrell v. Powers, 431 F.3d 282, 285 (7th Cir.2005). The exhaustion requirement is an affirmative defense, which the defendants bear the burden of proving. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Turner v. Burnside, 541 F.3d 1077, 1082–83 (11th Cir.2008); Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir.2008); Roberts v. Barreras, 484 F.3d 1236, 1240–41 (10th Cir.2007).

Indiana has designed a comprehensive administrative procedure that implements a grievance process and explains how prisoners may seek this remedy. Ind. Dep't of Corr. Admin. Procedure No. 00–02–301. The prisoner must submit a complaint to the facility's grievance specialist within 48 hours of the incident for which he seeks relief. Id. ¶ XIV. The complaint must be submitted in writing using a specific preprinted form. Id. ¶¶ I(C), XIV. If the prisoner is unable to write, he may ask a prison official or a fellow inmate to complete the complaint for him. Id. ¶ XIV. The grievance specialist is a designated employee who is “empowered sufficiently to review offender and facility records, interview staff and have adequate access to the facility and resources so that problems can be resolved and/or facts established.” Id. ¶ VIII.

In the district court proceedings, the question whether Pavey had complied with these procedures turned largely on the issue of his credibility. The magistrate judge thought Pavey had spun a fantastic yarn. The judge found as a factual matter that all Pavey had done was “chitchat” about his injury with Sergeant Nails; he hadn't spoken about the incident to any other prison official within the 48–hour window, much less requested assistance in initiating the grievance process. We review factual findings and credibility determinations for clear error. Fed.R.Civ.P. 52(a)(6); In re Davis, 638 F.3d 549, 554 (7th Cir.2011); Cavoto v. Hayes, 634 F.3d 921, 924 (7th Cir.2011); Salinger v. Colting, 607 F.3d 68, 83 (2d Cir.2010).

Pavey insists that the judge's finding is unwarranted because the defendants presented no evidence to undermine his account of events; instead they...