Christopher R. Pavey v. Patrick Conley, Robert Watts, Laurence Grott

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
September 12, 2008
Before
Richard A. Posner, Circuit Judge
Kenneth F. Ripple, Circuit Judge
Daniel A. Manion, Circuit Judge
No. 07‐1426
CHRISTOPHER R. PAVEY,
Plaintiff‐Appellee,
v.
PATRICK CONLEY, ROBERT WATTS,
LAURENCE GROTT, et al.,
Defendants‐Appellants.
Appeal from the United States
District Court for the Northern
District of Indiana, South Bend
Division.
No. 03 C 662
Robert L. Miller, Jr., Chief Judge.
O R D E R
The slip opinion in this case, issued on June 5, 2008, is hereby amended as follows:
The paragraph that begins on page 5 of the slip opinion (“The sequence to be followed…”),
and the next paragraph, which is on page 6 (“We emphasize that…”), are replaced by the
following:
The sequence to be followed in a case in which exhaustion is contested is
therefore as follows: (1) The district judge conducts a hearing on exhaustion and
permits whatever discovery relating to exhaustion he deems appropriate. (2) If the

-- 1 of 2 --

Appeal No. 07‐1426 Page 2
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.
We emphasize that in the ordinary case discovery with respect to the merits
should be deferred 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 not be achieved. But we do not want to place the
district courts of this circuit in a straitjacket. There may be exceptional cases in
which expeditious resolution of the litigation requires that some discovery be
permitted before the issue of exhaustion is resolved. The present case is one in
which the exhaustion issue and the merits issue share common facts (the facts
relating to the gravity of the injury to the plaintiff’s arm), so that discovery
targeted on exhaustion may well produce evidence or leads relating to the merits.

-- 2 of 2 --