GILMORE v. DECKER et al
ENTRY Discussing Rule 56(f) Notice Regarding Exhaustion - This matter will be set for a Pavey hearing by separate entry. A pre-Pavey conference will also be set and conducted by the Magistrate Judge. The Court will attempt to recruit volunteer counsel to assist Mr. Gilmore with the hearing. If Mr. Gilmore objects to representation by voluntary counsel, he has through May 30, 2017, to notify the Court (See Entry). Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 5/18/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DAVID DECKER, et al.,
Entry Discussing Rule 56(f) Notice Regarding Exhaustion
The Court denied the Individual Defendants’ motion for summary judgment on the issue
of exhaustion because the Individual Defendants failed to carry their burden to prove that the
administrative remedies were available to plaintiff Amar Gilmore. Moreover, the Court concluded
that the Individual Defendants had failed to dispute Mr. Gilmore’s evidence that the administrative
remedy process was indeed unavailable. Therefore, the Court gave the Individual Defendants
notice pursuant to Rule 56(f) of its intent to grant summary judgment on the issue of exhaustion in
Mr. Gilmore’s favor. The Individual Defendants have responded, including by submitting new
evidence to the Court, and Mr. Gilmore has replied.
The Individual Defendants present two arguments as to why summary judgment should
not be entered in Mr. Gilmore’s favor and why, instead, the Court should set this matter for a Pavey
hearing. Mr. Gilmore argues that he is entitled to summary judgment. Ultimately, the Individual
Defendants newly submitted evidence demonstrates that factual disputes regarding exhaustion
must be resolved at a Pavey hearing. But before briefly discussing those factual disputes, the
Individual Defendants’ other argument must be addressed.
The Individual Defendants first argue that summary judgment in Mr. Gilmore’s favor is
inappropriate because “Pavey . . . requires a different procedure than the one proposed by the
Court.” Filing No. 37 at 3. In Pavey v. Conley, the Seventh Circuit set forth the “sequence to be
followed” by the district courts when exhaustion is “contested.” 544 F.3d 739, 742 (7th Cir. 2008).
The Individuals Defendants point out that Pavey requires an evidentiary hearing in every case in
which exhaustion is “contested.” Filing No. 37 at 3-5. The Court’s use of Rule 56(f), in the
Individual Defendants’ view, is contrary to this requirement.
The only way in which the Court’s Rule 56(f) procedure could be contrary to Pavey is if
Pavey required a hearing even when there are no factual disputes to resolve at summary judgment,
as was the case here. But there is no reason for the Court to hold a Pavey hearing unless there are
factual disputes that must be resolved. Neither Pavey nor Seventh Circuit law more generally
requires a Pavey hearing when there are no factual disputes regarding exhaustion. The Seventh
Circuit has repeatedly made this clear. See Wagoner v. Lemmon, 778 F.3d 586, 591 (7th Cir. 2015)
(“The purpose of a Pavey hearing is to resolve disputed factual questions that bear on exhaustion
. . . .”); Thomas v. Reese, 787 F.3d 845, 848 (7th Cir. 2015) (reversing the grant of summary
judgment on exhaustion because the undisputed evidence presented at summary judgment showed
that the administrative remedy process was unavailable to the plaintiff, and ordered the case to
“proceed to the merits” in the district court, not proceed to a Pavey hearing); see also Cooper v.
Chandler, 600 Fed. Appx. 468, 468 (7th Cir. 2015) (“A Pavey hearing was convened to resolve
the fact dispute . . . .”); Golden v. Stutleen, 535 Fed. Appx. 526, 527 (7th Cir. 2013) (“When
exhaustion is in genuine dispute, district courts must conduct an evidentiary hearing to resolve the
dispute.”) (citing Pavey, 544 F.3d at 742); Moore v. Feinerman, 515 Fed. Appx. 596, 598 (7th Cir.
2013) (“In light of the fact dispute over exhaustion, the district court held an evidentiary hearing
required by Pavey.”) (emphasis added).
The Seventh Circuit’s decision in Thomas is instructive. In that case, the Seventh Circuit
reversed the district court’s grant of summary judgment to the defendants on the issue of
exhaustion for “two independent reasons.” 787 F.3d at 847. The evidence at summary judgment
revealed, among other things, the following: “[w]hile in segregation . . . [the plaintiff] had asked
three officers to explain the jail’s [grievance] procedure so he could grieve about ‘how staff
[assaulted him].’ Two gave him no information. The third—whose statement the defendants do
not dispute—told [the plaintiff that,] ‘You can’t file a grievance on that. That’s what you’re in . .
. [segregation] for.’” Id. Based on that evidence, the Seventh Circuit held that the administrative
remedy process was unavailable and that “[t]he case should proceed to the merits.” Id. at 847-48.
Notably, the Seventh Circuit did not state that the defendants were entitled to present further
evidence before the defense was rejected—as the Court’s Rule 56(f) notice did here—let alone
order a Pavey hearing simply because exhaustion is in some sense “contested.”
This case is similar to Thomas. As set forth in the Court’s order denying summary
judgment, the undisputed evidence revealed that the administrative remedy process was
unavailable to Mr. Gilmore. It was the Individual Defendants who invoked Rule 56, and there is
nothing in Pavey that forecloses the Court’s reliance upon any or all of that Rule’s provisions.
Moreover, instead of outright rejecting the exhaustion defense, as Thomas suggests would be
permissible, the Court provided the Individual Defendants the opportunity to present additional
argument and evidence pursuant to Rule 56(f). Thus, far from an improper procedure, this was an
additional opportunity for the Individual Defendants to present evidence showing there was a
factual dispute to resolve at a Pavey hearing. For future reference, this was an opportunity the
Individual Defendants could and should have taken in conjunction with their reply brief. Instead,
they chose the ineffectual course of arguing that Mr. Gilmore’s sworn statements should be
disregarded as self-serving—a legal argument that has been roundly rejected by the Seventh
Circuit on numerous occasions.
In sum, the Individual Defendants’ argument that it is improper for the Court to provide
Rule 56(f) notice when the undisputed evidence showed that the administrative remedy process
was unavailable is inconsistent with Seventh Circuit law, which requires a Pavey hearing only
when there is a factual dispute for the Court to resolve. It was the Individual Defendants’ burden
to prove that the administrative remedy process was available. See Thomas, 787 F.3d at 848; Kaba
v. Stepp, 458 F.3d 678, 686 (7th Cir. 2006). Not only did they fail to establish this as a matter of
law, but they failed in reply to dispute Mr. Gilmore’s evidence that the administrative remedy
process was indeed unavailable. The Court’s Rule 56(f) notice was a second opportunity to do so
and arguably one that was not required. To ensure that the Individual Defendants do not miss this
opportunity in the future, it would be prudent for them to address plaintiffs’ evidence head on,
rather than asking the Court to ignore it on a ground that is inconsistent with well-established
Seventh Circuit law.
The Individual Defendants’ second argument is that genuine issues of material fact
preclude summary judgment in Mr. Gilmore’s favor. The Court agrees, and thus will only briefly
summarize the factual disputes here.
In response to the Individual Defendants’ motion for summary judgment, Mr. Gilmore
presented evidence that the administrative remedy process was unavailable to him because “he
was ‘hospitalized for an extended period of time which made it impossible to file . . . within the
allotted 20 day time limit.’” Filing No. 36 at 6 (quoting Filing No. 30 at 2). Although previously
undisputed, the Individual Defendants now present evidence that the administrative remedy
process was available to Mr. Gilmore during his hospitalization. See, e.g., Filing No. 37-1 at 2.
They also present evidence that the Counselor who allegedly told Mr. Gilmore that he could file
his BP-8 late, did not do so. See Filing No. 37-1 at 3. Mr. Gilmore, in his reply, disputes this
evidence. But, as discussed above, such factual disputes must be resolved at a Pavey hearing.
One final note for the Pavey hearing. In the Court’s order denying summary judgment, the
Court ordered the Individual Defendants, if they filed a Rule 56(f) response, to “explain and
adequately dispute why Mr. Gilmore’s grievance was not timely given his contention that the
deficient medical care was ‘ongoing’ such that his BP-9 was timely.” Filing No. 36 at 8 n.1 (citing
Filing No. 35 at 5; Weiss v. Barribeau, --- F.3d ----, 2017 WL 1291716, *1 (7th Cir. 2017)). As
Mr. Gilmore points out, the Individual Defendants did not do so, despite the Court’s explicit
instructions. Nevertheless, the Court concludes that a Pavey hearing is the most efficient course
at this point in the litigation. The Individual Defendants, however, should ensure that they address
this issue and submit any evidence regarding it at the Pavey hearing in order to have a chance of
carrying their burden on the issue of exhaustion.
This matter will be set for a Pavey hearing by separate entry. A pre-Pavey conference will
also be set and conducted by the Magistrate Judge. The Court will attempt to recruit volunteer
counsel to assist Mr. Gilmore with the hearing. If Mr. Gilmore objects to representation by
voluntary counsel, he has through May 30, 2017, to notify the Court.
The action remains stayed except for activities, including discovery, associated with the
development and resolution of the affirmative defense that Mr. Gilmore failed to exhaust his
administrative remedies as to the Individual Defendants before filing this action, or any other
matter directed by the Court.
IT IS SO ORDERED.
BUTNER - LOW FCI
BUTNER LOW FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 999
BUTNER, NC 27509
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?