United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
BARBARA A. TEELING, BRAD FRIEND, MELISSA MORAN, ANTHONY LACOMBE, GREGORY BUCHOLTZ, ROBERT A. MASTRONARDI, STEVEN M. CLOPE, and NICOLE L. PETERSEN, Defendants.
STADTMUELLER UNITED STATES DISTRICT JUDGE
February 2018, Defendants filed motions for summary judgment;
Gregory Bucholtz, a Wisconsin state employee, is represented
by the Wisconsin Department of Justice, and all other
Defendants, employees of Racine County, are represented by a
private law firm. (Docket #106 and #110). Among other things,
they assert that Plaintiff failed to exhaust his
administrative remedies for the claims in this lawsuit, and
that the claims must therefore be dismissed on that basis.
See (Docket #107 and #112). Plaintiff disputes the
exhaustion issue. (Docket #122). A great deal of additional
motion practice proceeded during and after the completion of
briefing on the summary judgment motions. See
(Docket #128-#163). It appears that this deluge has subsided;
nothing has been filed in this case in over a month.
are correct that inmates like Plaintiff are not permitted to
file suit over prison conditions until they have exhausted
their administrative remedies. 42 U.S.C. § 1997e(a).
This occurs by the filing of grievances with prison
officials. Exhaustion is an affirmative defense to be pleaded
and proven by Defendants. Jones v. Bock, 549 U.S.
199, 212 (2007). Plaintiff may, of course, oppose
Defendants' assertion of the exhaustion defense with both
factual and legal argument. In Pavey, the Seventh
Circuit outlined the procedure to be used when exhaustion is
(1) The district judge conducts a hearing on exhaustion and
permits whatever discovery relating to exhaustion he deems
appropriate. (2) If the judge determines that the prisoner
did not exhaust his administrative remedies, the judge will
then determine whether (a) the plaintiff has failed to
exhaust his administrative remedies, and so he must go back
and exhaust; (b) or, although he has no unexhausted
administrative remedies, the failure to exhaust was innocent
(as where prison officials prevent a prisoner from exhausting
his remedies), and so he must be given another chance to
exhaust (provided that there exist remedies that he will be
permitted by the prison authorities to exhaust, so that
he's not just being given a runaround); or (c) the
failure to exhaust was the prisoner's fault, in which
event the case is over. (3) If and when the judge determines
that the prisoner has properly exhausted his administrative
remedies, the case will proceed to pretrial discovery, and if
necessary a trial, on the merits; and if there is a jury
trial, the jury will make all necessary findings of fact
without being bound by (or even informed of) any of the
findings made by the district judge in determining that the
prisoner had exhausted his administrative remedies.
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
The Pavey procedure is particularly necessary here,
as the primary dispute between the parties is an allegation
that Plaintiff forged the grievances on which he relies to
prove proper exhaustion. Plaintiff's credibility thus
stands directly opposed to that of Defendants.
Apparently recognizing this, one of the myriad of
Plaintiff's post-summary judgment motions is one seeking
a Pavey hearing. (Docket #152). Bucholtz did not
respond to the request. The Racine County Defendants did so
on May 23, 2018. (Docket #162). They state the following:
In light of the Plaintiff's request for a Pavey
hearing and to the extent that the Honorable Judge J.P.
Stadtmueller finds there are any debatable factual issues
relating to the affirmative defense of failure to exhaust
such that a Pavey hearing is warranted, the RCJ
Defendants hereby withdraw the argument from their motion for
summary judgement. Wagoner v. Lemmon, 778 F.3d 586,
588 (7th Cir. 2015) (“Often exhaustion (or its lack)
will be apparent, but when it is not, the district court must
hold an evidentiary hearing to resolve the
question.”)(citing Pavey v. Conley, 554 F.3d
739 (7th Cir. 2008). The RCJ Defendants do not waive the
failure to exhaust affirmative defense, but rather withdraw
the argument from their summary judgment motion due to the
anticipated expense of a Pavey hearing, in the
interest of expediting the resolution of this case and
believing in the remaining meritorious arguments set forth in
their motion. The RCJ Defendants, by withdrawing the
argument, likewise do not acquiesce to the authenticity of
any of the grievances submitted by the Plaintiff in this
lawsuit or filed with the various motions.
Id. at 2.
The Racine County Defendants' position is not tenable.
Pavey and its progeny state, in no uncertain terms,
that exhaustion is a preliminary matter for the Court to
decide, not a jury. Pavey, 544 F.3d at 742;
Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015)
(“Pavey's central holding is that
exhaustion is not a question for the jury at trial, but
instead is a preliminary issue for the court.”);
Jackson v. Hoffman, 618 Fed.Appx. 290, 292 (7th Cir.
2015) (“On appeal Jackson maintains that he properly
filed the grievances and insists that factual disputes must
be resolved by a jury. But the district court, not a jury,
must resolve the exhaustion issue at a Pavey
hearing.”). They cannot, therefore, preserve the
defense while simultaneously refusing to participate in a
In light of the Racine County Defendants'
misunderstanding of Pavey, and Bucholtz's
non-opposition to Plaintiff's motion, the Court will
order that all Defendants file a notice with the Court
regarding the exhaustion issue. The notice must state whether
Defendants are waiving their exhaustion defense or not. If
they waive the defense, the Court will proceed to address the
pending motions for summary judgment. If Defendants press
their exhaustion defense, the Court will order that a
Pavey hearing be held. Defendants must file these
notices on or before Friday, July 6, 2018.
IT IS ORDERED that Defendants shall file a notice with the
Court as described in this Order ...