Administrative remedies must be exhausted

Prisoners who file suits for damages before exhausting all administrative remedies are not entitled to a jury trial to debate factual issues relating to the exhaustion under the Seventh Amendment, the 7th Circuit Court of Appeals ruled today. The opinion outlines the steps a U.S. District Court judge should take to determine whether a suit may go to trial.

The federal appellate court overturned the U.S. District Court, Northern District of Indiana, South Bend Division's ruling in the case Christopher Pavey v. Patrick Conley, et al., No. 07-1426. Pavey filed a suit under the Prisoner Litigation Reform Act against guards he claimed broke his arm using excessive force to remove him from his cell.

The defendants argued Pavey failed to exhaust all his administrative remedies prior to filing the suit. Pavey countered he couldn't use those remedies because his left arm was broken and he is left-handed and unable to write, and that he was transferred to another prison before an investigation was conducted.

Under the Prison Litigation Reform Act, actions can't be brought under federal law until all administrative remedies available are exhausted. Trying the merits before exhaustion is unsatisfactory because it would thwart Congress' effort to bar trials of prisoner cases before the prisoner has used all administrative remedies, wrote Judge Posner.

As a result, a jury may decide the merits of a case that never should have gotten to that stage because a judge should have found the prisoner had failed to use all available administrative remedies.

The 7th Circuit decision outlines a sequence to be followed in contested exhaustion cases: first, a U.S. District Court judge conducts a hearing on exhaustion and allows discovery only related to exhaustion; next, if the judge decides the prisoner didn't exhaust all remedies, then the plaintiff can attempt to exhaust the available remedies.

If the plaintiff exhausted all remedies, but the failure to exhaust was innocent, such as the plaintiff was presented by prison officials to proceed, he would be allowed to go back and exhaust. If the failure to exhaust is the prisoner's fault, then the case is over, Judge Posner wrote.

Finally, if a U.S. District Court judge determines the plaintiff has correctly exhausted all remedies, the case can proceed to pretrial discovery and possibly a trial on the merits. The jury wouldn't be bound by any findings made previously by the judge during the exhaustion proceedings.

"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," he wrote.