Monday, June 9, 2008
Last week, the Seventh Circuit decided Pavey v. Conley, a case worth reading for its analysis of whether judges or juries resolve disputed fact questions. There, a prisoner alleged excessive force in his s1983 claim. Defendants answered, asserting that the prisoner failed to exhaust his administrative remedies. The prisoner countered with an affidavit that stated he had been unable to exhaust those remedies because he was injured and because he was transferred to another prison. Defendants and the prisoner disputed whether the judge or the jury resolved the factual issues relating to the defense of failure to exhaust administrative remedies. The court held and explained (with citations omitted):
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. The same is true of factual issues relating to the defense of lack of personal jurisdiction or venue, 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. A decision to relinquish supplemental jurisdiction to the state courts, see 28 U.S.C. § 1367, is likewise made by the judge even if there are contestable factual questions bearing on the decision.
The generalization that emerges from these 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, 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. 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 (and only to exhaustion) he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, he will then determine whether (a) the plaintiff has unexhausted remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), in which event he will be allowed to go back and exhaust; 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 discovery with respect to the merits must not be begun 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 be thwarted.