Submitted February 13, 2014.
Appeal from the United States District Court for the Southern District of Illinois. No. 3:11-cv-00266-JPG -- J. Phil Gilbert, Judge.
CARL ROBERTS, Plaintiff - Appellant, Pro se, Hillsboro, IL.
For BRIAN NEAL, First-Aid Nurse, MARGARET DAVIS, Defendants - Appellees: Timothy Patrick Dugan, Attorney, SANDBERG PHOENIX & VON GONTARD P.C., St. Louis, MO.
For EDWIN DOTY, Segregation Officer, DAVID ALVIS, Receiving Officer, THAD WOODSIDE, JARROD SELBY, Defendants - Appellees: Mary Ellen Welsh, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL.
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
Posner, Circuit Judge.
The plaintiff appeals from the dismissal of his pro se civil rights suit (see 42 U.S.C. § 1983) for failure to exhaust administrative remedies. Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). He is an Illinois prison inmate who had been transferred to the Pinckneyville Correctional Center from the Big Muddy Correctional Center. The defendants are employees of the two prisons--Davis, Doty, Neal, Selby, and Woodside are employed by Big Muddy, and Alvis by Pinckneyville. The district court granted summary judgment in favor of all the defendants. We discuss the claim against Alvis first, then the claim against the Big Muddy defendants, including the separate grievance that Roberts claims to have filed against Davis.
While at Big Muddy, Roberts had broken his right hand in a fight with his cellmate, and he complains that he received inadequate treatment for the pain caused by the break. He says that he filed an " emergency" grievance (explained below) with Big Muddy's warden and received no response to it; the Big Muddy defendants claim there's no record of such a grievance.
It was several weeks after the injury that he was transferred to Pinckneyville. He says he told the receiving officer, defendant Alvis, that the staff at Big Muddy had authorized him to be assigned to the bottom bunk of the bed in his cell (it is difficult to climb into a top bunk with a broken hand), but that Alvis told him he'd have to work out his sleeping arrangements with his cellmate. He claims to have filed a grievance against Alvis, but Pinckneyville officials deny having received such a grievance.
The district court dismissed the claim against Alvis on the ground that there was no evidence besides Roberts's sayso that he had filed a grievance against him, and if he hadn't then he hadn't exhausted his administrative remedies and couldn't sue. Roberts provided no documentation to back up his claim, such as a copy of the grievance. But that was not an adequate basis for a grant of summary judgment. Roberts may have been lying about having filed a grievance--but alternatively the defendants may have been lying when they denied there was any record of such a grievance. A swearing contest requires an evidentiary hearing to resolve, and none was held. It's true that while a trial is the standard means of resolving factual disputes, a judge can resolve an issue of exhaustion, like other threshold issues (such as jurisdiction), himself, in order to avoid multiple trials in the same case. But he can do that only after conducting an evidentiary hearing. Pavey v. Conley, 544 F.3d 739, 741-42 (7th Cir. 2008).
On appeal, however, Roberts has forfeited his claim against Alvis by acknowledging that his grievance, though he says it was intended to embrace his mistreatment by Alvis, neither mentioned Alvis by name nor provided information that should have identified him to the grievance officer. That was a ...