Christopher Pavey v. Patrick Conley, et al
Filing
Filed opinion of the court by Judge Sykes. AFFIRMED. Diane P. Wood, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6354150-3] [6354150] [10-3878]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3878
C HRISTOPHER R. P AVEY,
Plaintiff-Appellant,
v.
P ATRICK C ONLEY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:03-CV-662—Robert L. Miller, Jr., Judge.
A RGUED A UGUST 2, 2011—D ECIDED N OVEMBER 22, 2011
Before W OOD , S YKES, and H AMILTON, Circuit Judges.
S YKES, 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
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issues of material fact. Pavey v. Conley, 170 F. App’x 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.
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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 Nalls, a correctional
sergeant. He summoned Sergeant Nalls 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 Nalls 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
Nalls 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,
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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
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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 Nalls 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.
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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 (2002); Napier v. Laurel Cnty.,
Ky., 636 F.3d 218, 222 (6th Cir. 2011); Cruz Berríos 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 (2006); Harvey v. Jordan, 605 F.3d 681,
683 (9th Cir. 2010); Hernández 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 (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
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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 Nalls; 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. C IV. 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 testified that
they could not remember what had happened. But this
assertion is not borne out by the record. To the contrary,
Sergeant Nalls, the first prison official Pavey claims to
have spoken to about the incident, testified that she did
remember their conversation but that it did not happen
the way Pavey said it did. She was certain that Pavey
had just been idly complaining, as usual, and that in
any event she did not offer to contact Lieutenant Surney
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on his behalf. Pavey does not develop any argument
showing the judge clearly erred by crediting Sergeant
Nalls’s account over his own. And while it is true that
neither Lieutenant Surney nor Major Payne could recall
much about their interactions with Pavey, there is no
reason why the judge had to believe Pavey’s testimony
that each of them had interviewed him about the incident. Pavey insisted that the chain of events was set
into motion when he asked Sergeant Nalls to do “something” to redress what had happened to him. Because
the judge was permitted to conclude that Pavey had not
made this request of Sergeant Nalls, there was no
clear error in the judge’s finding that none of the subsequent events had happened either. See, e.g., Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 575 (1985)
(“[W]hen a trial judge’s finding is based on his decision
to credit the testimony of one of two or more witnesses,
each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence,
that finding, if not internally inconsistent, can virtually
never be clear error.”); United States v. Norris, 640 F.3d
295, 297 n.1 (7th Cir. 2011) (explaining that a credibility
determination may be disturbed only if “completely
without foundation”).
Pavey’s remaining arguments assume the magistrate
judge should have credited his testimony. Not
only is this assumption wrong, but his contentions are
unavailing even if his version of the facts ought to have
been believed. He insists that his testimony shows he
“literally” complied with the procedures for initiating the
prison’s grievance process. It does not. It is undisputed
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that Pavey did not submit a timely written complaint, and
there is no evidence that Pavey asked anyone to help
him fill out the proper form. He did not testify that
he asked for assistance from Sergeant Nalls or Lieutenant
Sarney. His testimony about soliciting assistance from
Major Payne was inconsistent. To make sense of Pavey’s
wavering account, the magistrate judge looked to Major
Payne’s testimony that he would have immediately
summoned the grievance specialist had Pavey requested help—an event that undisputedly did not occur.
The judge did not err by refusing to believe that Pavey
actually had put the request to the major. Whatever
Pavey may have done, he did not “literally” file a complaint or ask for assistance in filling out the form.
Pavey challenges this reasoning, insisting that
prisoners need not use “magic words” to exhaust their
administrative remedies. Because the prison’s administrative procedures are “silent as to what an inmate
must do to properly initiate the grievance process when
he seeks staff assistance in filing a grievance,” Pavey
maintains that complaining about the incident to prison
officials was enough to alert them to his concerns and
to initiate the grievance process. This argument finds
no support in either the facts or the caselaw. The administrative procedures are not “silent” on this topic; they
provide unambiguously that an inmate must file a complaint form with the grievance specialist within 48
hours. If the inmate is unable to write, he may ask for
help filling out the form. But he still must file the proper
form with the proper person within the proper time. No
plausible reading even hints that if an inmate cannot
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write, he may abandon the requirement of filing a written
form with the grievance specialist so long as he has told
someone in the prison about his ailments. And Pavey’s
argument about “magic words” is simply misplaced.
When administrative procedures are clearly laid out, as
in this case, an inmate must comply with them in order
to exhaust his remedies. Woodford, 548 U.S. at 95; Sapp
v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010); Thomas v.
Parker, 609 F.3d 1114, 1118 (10th Cir. 2010), cert. denied, 131
S. Ct. 1691 (2011); Bridges v. Gilbert, 557 F.3d 541, 555
n.4 (7th Cir. 2009).
Perhaps what Pavey means to say is not that he
complied with the procedures for initiating the
grievance process, but rather that he accomplished
the same objective by participating in an internalaffairs investigation. This argument raises a question
this circuit has not addressed. Does participating in an
internal-affairs investigation exhaust a prisoner’s available administrative remedies under § 1997e(a)? The
Sixth Circuit and the Ninth Circuit have held that an
internal-affairs investigation is no substitute for an available grievance process. Panaro v. City of N. Las Vegas, 432
F.3d 949, 953 (9th Cir. 2005); Thomas v. Woolum, 337 F.3d
720, 734 (6th Cir. 2003), abrogated on other grounds by
Woodford, 548 U.S. at 87. Their reasoning is persuasive.
Section 1997e(a) is concerned with the “remedies” that
have been made available to prisoners. An internalaffairs investigation may lead to disciplinary proceedings targeting the wayward employee but ordinarily
does not offer a remedy to the prisoner who was on the
receiving end of the employee’s malfeasance. Panaro, 432
F.3d at 953; Thomas, 337 F.3d at 734.
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And even if the internal-affairs investigation could
result in some relief for the prisoner, the Supreme Court
has rejected any suggestion that prisoners are permitted
to pick and choose how to present their concerns to
prison officials. “The benefits of exhaustion can be
realized only if the prison grievance system is given a
fair opportunity to consider the grievance. The prison
grievance system will not have such an opportunity
unless the grievant complies with the system’s critical
procedural rules.” Woodford, 548 U.S. at 95; see also Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). If a
prisoner can be required to submit his grievance in the
particular manner and within the precise period of time
designated by the prison’s administrative procedures,
then he must also be required to present his grievance
in the proper forum.
But what if prison officials misled Pavey into thinking
that by participating in the internal-affairs investigation,
he had done all he needed to initiate the grievance process? An administrative remedy is not “available,” and
therefore need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not
exist or inaccurately describe the steps he needs to take
to pursue it. E.g., Dillon v. Rogers, 596 F.3d 260, 268
(5th Cir. 2010); Curtis v. Timberlake, 436 F.3d 709, 712 (7th
Cir. 2005); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.
2002). This is Pavey’s final argument: If he did not “literally” file a complaint or ask for assistance in filling out
the form, it was only because “he did not think that he
had to based on the assurances he received from prison
staff, and particularly from [Major Payne], that he had
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done all that was necessary to comply with the grievance
process.” Pavey’s testimony does not support this assertion. Every step of the way his own version of events
negated any notion that he was given the wrong idea
by prison officials. Pavey did not claim that any prison
official said anything at all to him about the grievance
process. Instead, Pavey testified that Sergeant Nalls told
him she would refer his concerns to Lieutenant Surney
because he “had previously worked on internal affairs
investigation[s] and . . . would know more about how to
go about dealing with it.” Pavey’s testimony was that
Lieutenant Surney then told him that he was passing the
matter on to Major Payne, who Pavey knew wasn’t involved in the grievance process. And Pavey conceded
that Major Payne didn’t mention the grievance process
at all during the meeting he claims took place. Finally,
Pavey acknowledged that he was quite familiar with
the administrative procedures governing the grievance
process because he had filed at least ten complaints in
the past. So even in Pavey’s version of the story, no
one gave him a reason to think that the internal-affairs
investigation was intertwined with or a substitute for
the grievance process, much less that he could initiate
the latter by participating in the former. To the contrary,
Pavey’s own experience offered him plenty of reason
to think that this was not the case.
A FFIRMED.
11-22-11
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