Keller v. Walton et al

Filing 106

MEMORANDUM AND ORDER, The Court GRANTS the Government's appeal of Magistrate Judge Wilkerson's decision (Doc. 101 ), OVERRULES Magistrate Judge Wilkerson's order (Doc. 100 ), and DIRECTS Magistrate Judge Wilkerson to both hold a Pavey hearing and take any other necessary action to comply with the terms of this order. Signed by Judge J. Phil Gilbert on 4/18/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DERRICK KELLER,
Plaintiff,
v.

Case No. 3:16-cv-00565-JPG-DGW

J.S. WALTON, et al.,
Defendants.
MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This is a prisoner case arising out of United States Penitentiary, Marion (USP Marion).
The defendants, represented by and through the United States, have appealed Magistrate Judge
Donald G. Wilkerson’s order denying the Government’s motion for an evidentiary hearing
pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). (Doc. 101.) For the following
reasons, the Court GRANTS the appeal.
I.

BACKGROUND
Charles Derrick Keller is serving a 180-month sentence for possessing a firearm as a

convicted felon. In 2016, he brought this suit pursuant to Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971), alleging that a large number of defendants violated his First and Eighth
Amendment rights while he was incarcerated at USP Marion. (Doc. 1.) But this appeal has
nothing to do with the merits of those claims. Rather, it centers on whether Keller exhausted his
administrative remedies in compliance with 42 U.S.C. § 1997e before filing his complaint. The
defendants have properly raised the exhaustion issue as an affirmative defense in this case. (Doc.
41, p. 11.)

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This case presents an unusual procedural history on the exhaustion matter. Keller
attached a number of detailed exhibits to his complaint that outlined his steps towards exhausting
his administrative remedies. Those exhibits, however, demonstrate that Keller submitted his BP9 form to the appropriate officials about 150 days after the alleged unconstitutional conduct—
even though 28 C.F.R. § 542.14(a) instructs that the deadline is “20 calendar days following the
date on which the basis for the Request occurred.” So the Government, instead of filing the
routine motion for summary judgment on the issue, elected to file a motion to dismiss. The
Government argued:
It is rare to raise the defense of exhaustion of administrative remedies through a
motion to dismiss under Rule 12(b)(6). Here, however, the detailed allegations of
Plaintiff’s exhaustion attempts permit the Court to evaluate the exhaustion
question as a matter of law. Plaintiff’s severely tardy attempt to exhaust his
administrative remedies prior to filing suit is not excusable. Even through his
voluminous pleadings, he fails to present a cogent argument for the 130-day delay
between his release from the “box car cell” and his BP-9 filing. Therefore, he did
not comply with 42 U.S.C. § 1997e(a).
(Doc. 40, p. 8.) The Government submitted their motion on March 3, 2017. About a month later,
Magistrate Judge Wilkerson set a dispositive motions deadline on the issue of exhaustion of
administrative remedies for May 19, 2017, and scheduled a Pavey evidentiary hearing for August
7, 2017. (Doc. 47.)
The Government later moved to continue the Pavey hearing to a different date because of
a scheduling conflict. (Doc. 58.) Following a status conference, Magistrate Judge Wilkerson
granted the motion in part, but cancelled the Pavey hearing. Magistrate Judge Wilkerson never
rescheduled the hearing. It is not clear from the record why the hearing was never rescheduled,
but the plaintiffs assert that it was “because the parties were of the belief that the exhaustion
issue could be resolved, as a matter of law, based solely upon the Plaintiff’s Complaint and
accompanying exhibits.” (Doc. 105, p. 8.)
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But the issue could not be resolved as a matter of law. In November 2017, this Court
adopted Magistrate Judge Wilkerson’s recommendation that Keller could have had a “valid
reason for delay” in filing his BP-9 pursuant to 28 C.F.R. § 542.14(b). (See Docs. 66, 69.)
Accordingly, the issue was not yet ripe at the motion to dismiss stage and required a motion for
summary judgment and Pavey evidentiary hearing. So as expected, the Government moved to
reschedule the Pavey hearing that had originally been cancelled, and in the alternative, to extend
the exhaustion dispositive motions deadline. (Doc. 74.) The Government explained that (1) their
affirmative defense of exhaustion has not been waived or fully litigated yet, and (2) they did not
file a motion for summary judgment on the matter previously because it would have been
duplicative of their motion to dismiss. (Id. at p. 2.)
Magistrate Judge Wilkerson denied the Government’s motion. (Doc. 100.) He explained:
Defendants made the conscious choice to raise their claims regarding failure to
exhaust administrative remedies solely through a 12(b)(6) motion and are now
bound by that decision . . . Defendants chose to pursue only one of the dispositive
motions available to them, and because that was unsuccessful they now ask the
Court for a proverbial second ‘bite of the apple’ . . . the Seventh Circuit has
stated, once an issue is litigated and decided ‘that should be the end of the matter.’
Menzer v. U.S., 200 F.3d 1000, 1004-05 (7th Cir. 2000) (quoting Gertz v. Robert
Welch, Inc., 680 F.2d 527 (7th Cir. 1982)) . . . the issue was decided through the
process chosen by Defendants, and they are not now entitled to a second
opportunity raise the same issue simply because they are unhappy with either their
strategy or the result.
(Id. at pp. 4–6.)
II.

ANALYSIS
Magistrate Judge Wilkerson clearly erred in his decision, so this Court must set it aside.

See FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A); Weeks v. Samsung Heavy Indus. Co., 126
F.3d 926, 943 (7th Cir. 1997). As the Government correctly explains in its appeal, exhaustion of
administrative remedies is an affirmative defense, and the Seventh Circuit has clearly instructed

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that the Court should hold an evidentiary hearing on the exhaustion issue matter “when
necessary” to determine if the prisoner truly exhausted his remedies and case should proceed on
the merits. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Here, the Court determined that
there was an evidentiary dispute as to whether Keller had a valid reason for delay, so a Pavey
evidentiary hearing on the matter is fully necessary. (See Docs. 66, 69.) And contrary to
Magistrate Judge Wilkerson’s order, the exhaustion issue has not yet been decided and the
Government is not “taking a second bite at the apple”—affirmative defenses do not dissipate at
the motion to dismiss stage simply because there is a factual dispute underlying the defense.
Affirmative defenses are pleadings, and the Court does not strike them at the motion to dismiss
stage as long as they “are sufficient as a matter of law or if they present questions of law or fact,”
as here. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989) (internal
citation omitted).
Accordingly, the Court GRANTS the Government’s appeal of Magistrate Judge
Wilkerson’s decision (Doc. 101); OVERRULES Magistrate Judge Wilkerson’s order (Doc.
100); and DIRECTS Magistrate Judge Wilkerson to both hold a Pavey hearing and take any
other necessary action to comply with the terms of this order.
IT IS SO ORDERED.
DATED: APRIL 18, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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