10-1019-cv
Messa v. Goord
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2010
(Argued: June 17, 2011 Decided: July 26, 2011)
Docket No. 10-1019-pr
RAFAEL MESSA,
Plaintiff-Appellant,
v.
GLENN GOORD, Commissioner, Department of Correctional
Services, LESTER N. WRIGHT, Deputy Commissioner/Chief Medical
Officer, Department of Correctional Services, M ARC F. STERN,
Regional Medical Director, Department of Correctional
Services, STEVEN VANBUREN, Regional Health Services
Administration, L UCIEN J. LECLAIRE, JR., Deputy Commissioner,
CHARLES R. GREINER, Superintendent, GHCF, GEORGE B. DUNCAN,
Superintendent, GHCF, A LBERT PAOLANO, Facility Health Service
Director, CMCF, HOWARD SILVERBERG, DR. BENDHEIN, Medical Doctor,
GHCF, DR. NUNEZ, MS. RODAS, Physician's Assistant, M R. NESMITH,
PAUL BURNDRICK, Nurse Administrator, C. MARTUSCELLO,
Defendants,
V. BLAESTZ, Senior Correctional Counselor, J OHN TIERNEY,
Correctional Sergeant, S. ULLRICH, Correctional Sergeant,
GERALD TILLOTSON, DAVID MAZZELLA, CHARLES V. AUSTIN, W. R. KELLY, C.
MITCHELL, J. ERNS, M. MILLER, M. MRZYGLOD,
Defendants-Appellees.*
Before:
B.D. PARKER and CHIN, Circuit Judges, and
KORMAN, District Judge.**
*
The Clerk of the Court is directed to revise the
official caption to conform to the above.
**
The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Appeal from a February 17, 2010, judgment of the
United States District Court for the Northern District of
New York (Suddaby, J.), dismissing plaintiff-appellant's
suit for failure to exhaust administrative remedies as
required by the Prison Litigation Reform Act of 1995.
AFFIRMED.
DAVID J. MARCK and JEFFREY ROSE-
STEINBERG,*** Seton Hall University
School of Law Center for Social
Justice, Newark, New Jersey, for
Plaintiff-Appellant.
MARTIN HOTVET, Assistant Solicitor
General (Barbara D. Underwood,
Solicitor General, and Michael
S. Belohlavek, Senior Counsel,
on the brief), for Eric T.
Schneiderman, Attorney General
of the State of New York,
Albany, New York, for
Defendants-Appellees.
PER CURIAM:
In this appeal, we consider whether a plaintiff in
a lawsuit governed by the Prison Litigation Reform Act of
1995 (the "PLRA") is entitled to a jury trial on disputed
factual issues relating to his exhaustion of administrative
remedies. The district court held that he is not. We
agree.
***
Appearing pursuant to 2d Cir. R. 46.1(e).
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BACKGROUND
On March 25, 2001, plaintiff-appellant Rafael
Messa, an inmate in the custody of the New York State
Department of Correctional Services ("DOCS") at Green Haven
Correctional Facility, was injured during a prison yard
altercation with defendants-appellees, a group of
correctional officers ("defendants"). As a consequence,
Messa was hospitalized in the prison infirmary for more than
a week.
On November 17, 2003, he brought this pro se
action under 42 U.S.C. § 1983 against defendants and other
DOCS employees, alleging excessive force and other Eighth
Amendment and due process violations in connection with the
prison yard incident. The parties requested a jury trial.
By mid-2007, only the excessive force claim
remained. Defendants moved for summary judgment, arguing
that Messa had not complied with the PLRA's exhaustion
provision, which provides that "[n]o action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner . . . until
such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a).
Messa acknowledged that he had failed to file a
grievance or otherwise pursue relief through DOCS's Inmate
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Grievance Procedure (the "IGP"), but he argued that his
failure should be excused. 1 Specifically, he argued that
(1) defendants should be estopped from asserting non-
exhaustion because they and other prison staff had
threatened him with further violence if he filed a
grievance; and (2) prison staff had refused him translation
and processing assistance, effectively preventing him from
utilizing the IGP because he could not speak English and was
illiterate in his native Spanish.
The district court denied the summary judgment
motion and scheduled trial for January 11, 2010. The Friday
before trial was to begin, the district court announced its
plan to conduct an evidentiary hearing on exhaustion before
impaneling a jury. On Monday, it denied Messa's request for
an adjournment and heard testimony from both sides. Ruling
from the bench, the court rejected Messa's excuses as
contrary to the evidence. For example, the district court
held that Messa's facility with the IGP was evident from the
numerous grievances he had filed between 2000 and 2003.
Moreover, he had successfully appealed disciplinary
proceedings brought against him in April 2001 that arose out
of the same prison yard altercation. Hence, the district
1
The specifics of the IGP are discussed in Espinal v.
Goord, 558 F.3d 119, 125-27 (2d Cir. 2009).
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court dismissed the remainder of the complaint without
prejudice to refiling upon exhaustion. The trial never took
place. This appeal followed.
DISCUSSION
On appeal, Messa challenges the district court's
(1) denial of a jury trial on the factual disputes regarding
his excuses for non-exhaustion; (2) rejection of his excuses
for non-exhaustion; and (3) denial of his request to adjourn
the January 11 hearing.
The right to a jury trial is a legal question that
we review de novo. See Brown v. Sandino Materials, 250 F.3d
120, 125 (2d Cir. 2001). The Seventh Amendment provides
that "[i]n suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved." U.S. CONST. amend. VII. In an
action under 42 U.S.C. § 1983, the parties have a right to a
jury trial on the merits, City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999), but
whether the right applies to other aspects of the action
depends upon "the nature of the issue . . . rather than the
character of the overall action," see Ross v. Bernhard, 396
U.S. 531, 538 (1970).
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This Court has not addressed whether there is a
right to a jury trial on factual disputes regarding an
inmate's failure to exhaust administrative remedies as
required by the PLRA, 42 U.S.C. § 1997e(a). Five of our
sister circuits have addressed the issue, however, and all
five have held that there is no such right. See Drippe v.
Tobelinski, 604 F.3d 778, 782, 785 (3d Cir. 2010); Dillon v.
Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Bryant v. Rich,
530 F.3d 1368, 1375-77 & n.15 (11th Cir. 2008); Pavey v.
Conley, 544 F.3d 739, 741 (7th Cir. 2008); Wyatt v. Terhune,
315 F.3d 1108, 1119-20 (9th Cir. 2003). We agree.
The PLRA provides that "unexhausted claims cannot
be brought in [federal] court." Jones v. Bock, 549 U.S.
199, 211 (2007); Perez v. Wisc. Dep't of Corr., 182 F.3d
532, 535 (7th Cir. 1999) (describing satisfaction of §
1997e(a) as "a precondition" to bringing suit). Like
administrative exhaustion generally, PLRA exhaustion
"govern[s] the timing of federal-court decisionmaking."
McCarthy v. Madigan, 503 U.S. 140, 144 (1992); see Woodford
v. Ngo, 548 U.S. 81, 93-103 (2006); Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50-51 & n.9 (1938). It is
a matter of judicial administration in the sense that
"[u]ntil the issue of exhaustion is resolved, the court
cannot know whether it is to decide the case or the prison
authorities are to [do so]." Pavey, 544 F.3d at 741.
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An inmate's failure to comply with this
requirement may be excused where: (1) administrative
remedies were not in fact "'available' to the prisoner," (2)
"defendants' own actions inhibit[ed]" exhaustion, or (3)
"'special circumstances' . . . justify" non-exhaustion.
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004).
Messa argues that, unlike other aspects of exhaustion, which
he concedes are properly resolved by the court, determining
whether an inmate asserts a valid excuse for non-exhaustion
is a task for the jury. We are not persuaded.
First, the Seventh Amendment's guarantee of the
right to "the ultimate determination of issues of fact by
the jury," In re Peterson, 253 U.S. 300, 309-10 (1920), does
not extend to the "threshold issue[s] that courts must
address to determine whether litigation is being conducted
in the right forum at the right time," Dillon, 596 F.3d at
272 (emphasis added). As one of our sister courts put it,
"[j]uries decide cases, not issues of judicial traffic
control." Pavey, 544 F.3d at 741.
Messa is incorrect that the presence of disputed
material facts converts exhaustion into a jury issue.
Matters of judicial administration often require district
judges to decide factual disputes that are not bound up with
the merits of the underlying dispute. In such cases, the
Seventh Amendment is not violated. See Alliance for Envtl.
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Renewal v. Pyramid Crossgates Co., 436 F.3d 82, 87-88 (2d
Cir. 2006); see also Robinson v. Metro-North Commuter R.R.
Co., 267 F.3d 147, 170 n.14 (2d Cir. 2001). Here, the
factual disputes relating to exhaustion are not intertwined
with the merits of Messa's underlying excessive force claim.
Second, Messa's proposal ignores Congress's
reasons for requiring administrative exhaustion, which are
to (1) encourage inmates to pursue administrative steps
"that they might otherwise prefer to skip," Sapp v.
Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); (2) "provide[]
prisons with a fair opportunity to correct their own
errors," Woodford, 548 U.S. at 94; and (3) "reduce the
quantity and improve the quality of prisoner suits," Porter
v. Nussle, 534 U.S. 516, 524 (2002). To require a jury
trial before it is certain that an inmate is entitled to be
in federal court would seriously undercut these goals. See
Bryant, 530 F.3d at 1376. "[O]ne could envision a series of
jury trials before there was a trial on the merits: a jury
trial to decide exhaustion, a verdict finding that the
prisoner had failed to exhuast, an administrative
proceeding, the resumption of the litigation, and another
jury trial on failure to exhaust." Pavey, 544 F.3d at 741.
Third, Messa argues that excuses for PLRA
exhaustion are analogous to a statute of limitations, an
issue that may be tried to a jury as of right, see Katz v.
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Goodyear Tire & Rubber Co., 737 F.2d 238, 242-43 (2d Cir.
1984); Bertha Bldg. Corp. v. Nat'l Theatres Corp., 248 F.2d
833, 840 (2d Cir. 1957). He is wrong. While it is true
that the two are similar in some ways -- e.g., both are non-
jurisdictional affirmative defenses -- they serve very
different functions in our civil justice system.
As discussed, PLRA exhaustion is a condition that
must be satisfied before the courts can act on an inmate-
plaintiff's action. Harris v. Hegmann, 198 F.3d 153, 158
(5th Cir. 1999). A statute of limitations, on the other
hand, "represent[s] a pervasive legislative judgment that it
is unjust to fail to put the adversary on notice to defend
within a specified period of time and that 'the right to be
free of stale claims in time comes to prevail over the right
to prosecute them.'" United States v. Kubrick, 444 U.S.
111, 117 (1979) (quoting R.R. Telegraphers v. Ry. Express
Agency, 321 U.S. 342, 349 (1944)). In other words, one
doctrine opens the courthouse door and the other closes it.
In fact, because these two doctrines play such important --
and distinct -- roles in our system of justice, we recently
held that statutes of limitations "'must be tolled while a
prisoner completes the mandatory exhaustion process.'"
Gonzalez v. Hasty, No. 07-1787-pr, 2011 WL 2463562, at *5
(2d Cir. June 22, 2011) (quoting Brown v. Valoff, 422 F.3d
926, 943 (9th Cir. 2005)).
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Finally, we are not persuaded by the argument that
a jury trial should be permitted if exhaustion is no longer
possible, i.e., if a dismissal for failure to exhaust will
"end litigation rather than shunting it to another forum,"
Pavey, 544 F.3d at 741. The Seventh Amendment does not
promise a jury trial on all issues that might, as a
practical matter, finally dispose of a case. Rather, it
guarantees the right to a jury's resolution of the merits of
the ultimate dispute. See Markman v. Westview Instruments,
517 U.S. 370, 377 (1996); see also In re Peterson, 253 U.S.
at 309-10. There has been no interference with that right
in Messa's case: whether defendants used excessive force in
the prison yard that day has yet to be determined.
We have considered Messa's remaining arguments and
conclude that they are without merit. The district court
did not err in rejecting Messa's excuses after consideration
of the evidence presented at the January 11 hearing. Nor
was the district court's denial of Messa's request for an
adjournment -- after the case had been pending almost seven
years -- an abuse of discretion. See Dow Chem. Pac. Ltd. v.
Rascator Maritime S.A., 782 F.2d 329, 341 (2d Cir. 1986).
CONCLUSION
For the foregoing reasons, we hold that the
Seventh Amendment does not guarantee a jury trial on factual
disputes regarding administrative exhaustion under the PLRA.
Accordingly, the judgment of the district court is AFFIRMED.
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