7th Circuit stresses holding Pavey hearing separate from summary judgment hearing

The 7th Circuit Court of Appeals affirmed summary judgment for the Indiana Department of Correction and its commissioner on a disabled inmate’s claims of violations of the Americans with Disabilities Act and the Rehabilitation Act. The judges also suggested that courts do not hold a Pavey hearing at the same time as a hearing on a motion for summary judgment.

Richard Wagoner, who is paraplegic and requires use of a wheelchair, sued the DOC in 2005 alleging it failed to properly accommodate his disability and violated his civil and constitutional rights. His claims included that he was transported in a vehicle that could not be equipped for wheelchairs so he had to crawl out of the vehicle; ongoing problems with his wheelchair and its repair; and inadequate and humiliating toileting arrangements. He later filed an amended complaint in 2011 with the help of counsel. The DOC and the commissioner sought summary judgment, claiming Wagoner failed to exhaust his administrative remedies. Wagoner then requested a Pavey hearing, which would determine whether in fact he had exhausted those remedies and the court is the proper forum for the grievances.

The magistrate judge declined to schedule the hearing but suggested Wagoner file a second motion for a Pavey hearing and include the defendants’ motion for summary judgment to create a record as to whether he exhausted his administrative remedies before filing his court case. Instead, Wagoner filed a brief in opposition of the defendants’ motion and filed a separate Pavey motion more than a month later.

The magistrate granted the defendants’ motion for summary judgment and declined to consider the Pavey motion. It found he had properly exhausted two of his eight grievances.

The judges in Richard Wagoner v. Bruce Lemon, commissioner of the Indiana Department of Corrections, and Indiana Department of Corrections, 13-3839, found the magistrate did not abuse his discretion in refusing to consider materials Wagoner filed in his second Pavey motion because Wagoner did not comply with the order on when and how to submit them.

“All of that said, as a matter of best practices we do not endorse the combining of a Pavey motion with a summary judgment response. The purpose of a Pavey hearing is to resolve disputed factual questions that bear on exhaustion, including what steps were taken and whether the futility exception might apply,” Chief Judge Diane Wood wrote. “Wagoner’s case was far from open-and-shut. The fact that he was able to exhaust two of his claims offers a reason to reject his claim that he was prevented from exhausting his other six. On the other hand, IDOC took five years to get Wagoner a new wheelchair. That strikes us as an extraordinarily long time, and it raises a legitimate question of futility. An evidentiary hearing could have clarified these matters, and we know from Wagoner’s untimely submission that there was more he might have proffered.”

But there was no error in granting summary judgment for the defendants because there is no evidence DOC denied him access to any program or service. Only able to review the two complaints that are not procedurally barred, the judges found those claims don’t quite fit under Title II of the ADA or the Rehabilitation Act.