Rivera v. Drake
| Citation | 767 F.3d 685 |
| Decision Date | 03 September 2014 |
| Docket Number | No. 14–1458.,14–1458. |
| Parties | Natanael RIVERA, Plaintiff–Appellant, v. Michael DRAKE, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Natanael Rivera, Columbia Correctional Institution, Portage, WI, for Plaintiff–Appellant.
Karla Z. Keckhaver, Attorney, Office of the Attorney General, Madison, WI, for Defendant–Appellee.
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.
Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under 42 U.S.C. § 1983 seeking damages. Michael Drake, the guard, asked the court to dismiss the suit because Rivera had failed to exhaust administrative remedies, as 42 U.S.C. § 1997e(a) requires. Rivera responded with an affidavit asserting that he had filed an administrative complaint on December 16, 2008, the day after the alleged assault. Without deciding whether exhaustion had occurred, a question on which the judge thought that a dispute of fact made a hearing essential, the judge granted summary judgment to the guard, deeming the events too trivial to justify damages. We reversed, holding that Rivera's claim of sexual assault could not be dismissed as de minimis. Rivera v. Drake, 497 Fed.Appx. 635 (7th Cir.2012).
On remand, and now before a different judge, Drake again contended that Rivera had failed to exhaust his intra-prison remedies. The judge held a hearing, see Pavey v. Conley, 544 F.3d 739 (7th Cir.2008), at which Rivera testified that he had filed a written grievance on December 16, 2008. The judge concluded, by clear and convincing evidence, that both the affidavit and the testimony were false. Rivera v. Drake, 2013 WL 2405441, 2013 U.S. Dist. Lexis 76825 . The prison's records contained more than 100 of Rivera's grievances, but none relating to assault during a pat-down other than one filed in August 2009—and Rivera conceded in that grievance (which did not mention Drake) that it was untimely and had been filed only “for exhaustion purposes”. Officials at Rivera's prison testified about how grievances are collected and recorded; the judge concluded that there is very little chance that a written grievance would be lost. Moreover, the judge observed that Rivera's initial allegation had been that he made an oral complaint and did not file a written grievance; the judge concluded that Rivera's first story was true and his second one a lie designed to avoid dismissal once he recognized the problem.
Later the court concluded that, by not protesting when the first judge directed the parties to file briefs on the merits, Drake had waived his affirmative defense of failure to exhaust. But still later the court concluded that by committing perjury Rivera had forfeited his claim; it dismissed the suit as a sanction for misconduct. Rivera attempted as part of that proceeding to have the judge reconsider his decision of May 31, 2013. The judge did revisit the issue—and he concluded that Rivera was still lying in continuing to maintain that he had filed a written grievance in December 2008. Rivera appeals again—his third appeal in this case. (His second, from the order scheduling a hearing under Pavey, was dismissed because it was not a final decision.)
A litigant's misconduct can justify default judgment, see National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), and perjury is among the worst kinds of misconduct. Rivera's lies put the judicial system through more than three years of unnecessary work, including an unnecessary appeal; it caused the defense unnecessary expense and delay; it undermined the function of § 1997e(a) in promoting alternative dispute resolution. These considerations show that the district court did not abuse its discretion. See also Hoskins v. Dart, 633 F.3d 541, 544 (7th Cir.2011) (); Ridge Chrysler Jeep, LLC v. DaimlerChrysler Financial Services Americas LLC, 516 F.3d 623, 626–27 (7th Cir.2008) (); Greviskes v. Universities Research Association, Inc., 417 F.3d 752, 759 (7th Cir.2005) (); Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir.2002) ().
We require district judges to consider other sanctions before resorting to dismissal. The district judge did that and thought other options inadequate. Rivera is litigating in forma pauperis, so financial sanctions under Fed.R.Civ.P. 56(h) could not work. See Williams v. Adams, 660 F.3d 263, 266 (7th Cir.2011). Excluding evidence, one of the sanctions mentioned in Fed.R.Civ.P. 37(b), also does not seem a good prospect; the only evidence Rivera has on the merits is his own say-so, and to exclude that would be to decide the case as surely as an immediate dismissal. (Rule 37 addresses problems in discovery, but its list of potential sanctions is worth consulting for other purposes as well.)
This conclusion means that we need not consider whether the district judge was right to believe that, in order to preserve a defense of failure to exhaust administrative remedies, a litigant must protest a judge's decision to bypass exhaustion and consider the merits. For current purposes, it is enough to say that Rivera's perjury imposed such substantial costs on the judiciary and the defense that dismissal is an appropriate response whether or not Drake should have invoked the exhaustion defense even more...
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