In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-‐‑1458
NATANAEL RIVERA,
Plaintiff-‐‑Appellant,
v.
MICHAEL DRAKE,
Defendant-‐‑Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-‐‑C-‐‑1182 — William C. Griesbach, Chief Judge.
____________________
SUBMITTED AUGUST 28, 2014 — DECIDED SEPTEMBER 3, 2014
____________________
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE,
Circuit Judges.
EASTERBROOK, Circuit Judge. Contending that a guard at
his prison had sexually assaulted him during a pat-‐‑down by
inserting a finger in his anus, Natanael Rivera filed this suit
under 42 U.S.C. §1983 seeking damages. Michael Drake, the
guard, asked the court to dismiss the suit because Rivera
had failed to exhaust administrative remedies, as 42 U.S.C.
§1997e(a) requires. Rivera responded with an affidavit as-‐‑
2 No. 14-‐‑1458
serting that he had filed an administrative complaint on De-‐‑
cember 16, 2008, the day after the alleged assault. Without
deciding whether exhaustion had occurred, a question on
which the judge thought that a dispute of fact made a hear-‐‑
ing essential, the judge granted summary judgment to the
guard, deeming the events too trivial to justify damages. We
reversed, holding that Rivera’s claim of sexual assault could
not be dismissed as de minimis. Rivera v. Drake, 497 F. App’x
635 (7th Cir. 2012).
On remand, and now before a different judge, Drake
again contended that Rivera had failed to exhaust his intra-‐‑
prison remedies. The judge held a hearing, see Pavey v. Con-‐‑
ley, 544 F.3d 739 (7th Cir. 2008), at which Rivera testified that
he had filed a written grievance on December 16, 2008. The
judge concluded, by clear and convincing evidence, that
both the affidavit and the testimony were false. Rivera v.
Drake, 2013 U.S. Dist. LEXIS 76825 (E.D. Wis. May 31, 2013).
The prison’s records contained more than 100 of Rivera’s
grievances, but none relating to assault during a pat-‐‑down
other than one filed in August 2009—and Rivera conceded
in that grievance (which did not mention Drake) that it was
untimely and had been filed only “for exhaustion purposes”.
Officials at Rivera’s prison testified about how grievances
are collected and recorded; the judge concluded that there is
very little chance that a written grievance would be lost.
Moreover, the judge observed that Rivera’s initial allegation
had been that he made an oral complaint and did not file a
written grievance; the judge concluded that Rivera’s first
story was true and his second one a lie designed to avoid
dismissal once he recognized the problem.
No. 14-‐‑1458 3
Later the court concluded that, by not protesting when
the first judge directed the parties to file briefs on the merits,
Drake had waived his affirmative defense of failure to ex-‐‑
haust. But still later the court concluded that by committing
perjury Rivera had forfeited his claim; it dismissed the suit
as a sanction for misconduct. Rivera attempted as part of
that proceeding to have the judge reconsider his decision of
May 31, 2013. The judge did revisit the issue—and he con-‐‑
cluded that Rivera was still lying in continuing to maintain
that he had filed a written grievance in December 2008. Ri-‐‑
vera appeals again—his third appeal in this case. (His se-‐‑
cond, from the order scheduling a hearing under Pavey, was
dismissed because it was not a final decision.)
A litigant’s misconduct can justify default judgment, see
National Hockey League v. Metropolitan Hockey Club, Inc., 427
U.S. 639 (1976), and perjury is among the worst kinds of
misconduct. Rivera’s lies put the judicial system through
more than three years of unnecessary work, including an
unnecessary appeal; it caused the defense unnecessary ex-‐‑
pense and delay; it undermined the function of §1997e(a) in
promoting alternative dispute resolution. These considera-‐‑
tions show that the district court did not abuse its discretion.
See also Hoskins v. Dart, 633 F.3d 541, 544 (7th Cir. 2011) (af-‐‑
firming the dismissal of a suit in which the plaintiff lied
about his litigation history and applicability of the prepay-‐‑
ment requirement in 28 U.S.C. §1915(g)); Ridge Chrysler Jeep,
LLC v. DaimlerChrysler Financial Services Americas LLC, 516
F.3d 623, 626–27 (7th Cir. 2008) (affirming dismissal against
plaintiff who lied to obtain interlocutory relief); Greviskes v.
Universities Research Association, Inc., 417 F.3d 752, 759 (7th
Cir. 2005) (affirming dismissal where plaintiff engaged in
fraudulent misconduct that delayed lawsuit); Thomas v. Gen-‐‑
4 No. 14-‐‑1458
eral Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir. 2002)
(concluding that the district court did not abuse its discre-‐‑
tion by dismissing case as sanction for lying on application
to proceed in forma pauperis).
We require district judges to consider other sanctions be-‐‑
fore resorting to dismissal. The district judge did that and
thought other options inadequate. Rivera is litigating in for-‐‑
ma pauperis, so financial sanctions under Fed. R. Civ. P. 56(h)
could not work. See Williams v. Adams, 660 F.3d 263, 266 (7th
Cir. 2011). Excluding evidence, one of the sanctions men-‐‑
tioned in Fed. R. Civ. P. 37(b), also does not seem a good
prospect; the only evidence Rivera has on the merits is his
own say-‐‑so, and to exclude that would be to decide the case
as surely as an immediate dismissal. (Rule 37 addresses
problems in discovery, but its list of potential sanctions is
worth consulting for other purposes as well.)
This conclusion means that we need not consider wheth-‐‑
er the district judge was right to believe that, in order to pre-‐‑
serve a defense of failure to exhaust administrative reme-‐‑
dies, a litigant must protest a judge’s decision to bypass ex-‐‑
haustion and consider the merits. For current purposes, it is
enough to say that Rivera’s perjury imposed such substan-‐‑
tial costs on the judiciary and the defense that dismissal is an
appropriate response whether or not Drake should have in-‐‑
voked the exhaustion defense even more frequently than he
did.
Although we have said enough to explain why the dis-‐‑
trict court’s judgment must be affirmed, we do not think that
the dismissal of a doomed suit (having failed to exhaust his
intra-‐‑prison remedies during the time Wisconsin allowed,
Rivera was bound to lose) is a sufficient response to perjury.
No. 14-‐‑1458 5
The judicial system cannot function if the only consequence
of lying is the loss of a suit that would have had no chance
from the outset, had the truth been told. That’s effectively no
sanction at all. If perjury pays benefits when it escapes detec-‐‑
tion, but has no cost when detected, there will be far too
much perjury and the accuracy of judicial decisions will be
degraded.
We therefore will send copies of this opinion and the case
file to the United States Attorney for the Eastern District of
Wisconsin, who may wish to consider prosecuting Rivera for
the crime of perjury. 18 U.S.C. §1621.
We also will issue an order requiring Rivera to show
cause why we should not revoke his privilege of litigating in
forma pauperis in the courts of this circuit and impose finan-‐‑
cial sanctions that, if unpaid, will lead to the entry of a litiga-‐‑
tion-‐‑control order under Support Systems International, Inc. v.
Mack, 45 F.3d 185 (7th Cir. 1995).
We take these steps in part because Rivera has made de-‐‑
ceit the norm in his litigation. He is a frequent plaintiff, and
many of his suits entail dissembling. Four of his suits (in-‐‑
cluding this one) have reached this court during the last few
months, and all four involve falsity on Rivera’s part.
In Rivera v. Schultz, 556 F. App’x 500 (7th Cir. 2014), Rive-‐‑
ra’s complaint alleged that guards had stripped him naked,
without provocation, and laughed at him for their own sex-‐‑
ual gratification. The district court held a trial, at which Ri-‐‑
vera admitted that his pants were down for just a few se-‐‑
conds and that only his underwear was visible. The district
judge then granted judgment to the defendants as a matter
of law and stated that she would have granted summary
6 No. 14-‐‑1458
judgment, avoiding the need for a trial, had Rivera told the
truth earlier in the proceedings. We affirmed because the tes-‐‑
timony, contrary to the allegations of Rivera’s complaint, re-‐‑
vealed only a brief and non-‐‑humiliating episode.
In Rivera v. Jimenez, 556 F. App’x 505 (7th Cir. 2014), Rive-‐‑
ra asserted that a guard had stripped him naked without
provocation and paraded him in front of other inmates; Ri-‐‑
vera also asserted that the guard repeatedly kneed him in
the back for no reason. The prison had a video of the events;
it showed that Rivera had been obstreperous and had to be
subdued by pepper spray, after which his clothes were re-‐‑
moved so that the spray’s residue could be washed away in
the shower. A guard used a knee only to help bring Rivera
under control. The district court granted summary judg-‐‑
ment, ruling that incontrovertible evidence showed the falsi-‐‑
ty of Rivera’s contentions, and we affirmed.
In Rivera v. Lindmeier, 560 F. App’x 619 (7th Cir. 2014),
Rivera maintained that a guard violated the Constitution by
placing him in painful six-‐‑point restraints for 11 hours,
without any reason. Once again the prison produced a video
recording that refuted this contention. The video showed
that Rivera had been shouting and banging on the window
of his cell, refusing to stop despite repeated instructions by
the guards. He also refused to put his hands through the
door so that he could be handcuffed. Guards eventually
subdued him with pepper spray and placed him under re-‐‑
straint in an isolation cell. When he complained that the re-‐‑
straints were too tight, they were loosened. A nurse moni-‐‑
tored his condition to ensure that the restraints did not cause
harm. The district judge granted summary judgment, ruling
No. 14-‐‑1458 7
that incontrovertible evidence showed the falsity of Rivera’s
contentions, and we affirmed.
Many litigants with serious claims are awaiting judicial
attention. Litigants such as Rivera who make false charges,
perhaps just for the pleasure of vexing the defendants, are
abusing the judicial process and injuring other litigants as
well as the judicial system. This is intolerable and must
cease.
The judgment is affirmed. This opinion and a copy of the
record will be sent to the United States Attorney. Rivera has
14 days to show cause why we should not fine him, see Fed.
R. App. P. 38, and revoke his privilege of litigating in forma
pauperis.