In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3839
RICHARD WAGONER,
Plaintiff-Appellant,
v.
BRUCE LEMMON, Commissioner of the Indiana Department of
Corrections, and INDIANA DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:05-cv-438 — Christopher A. Nuechterlein, Magistrate Judge.
____________________
ARGUED SEPTEMBER 18, 2014 — DECIDED FEBRUARY 4, 2015
____________________
Before WOOD, Chief Judge, and POSNER and MANION, Cir-
cuit Judges.
WOOD, Chief Judge. This appeal requires us to revisit the
rule imposed by the Prison Litigation Reform Act (PLRA)
requiring a prisoner to exhaust any available administrative
remedies before challenging her conditions of confinement
in a federal court. See 42 U.S.C. § 1997e(a). Often exhaustion
(or its lack) will be apparent, but when it is not, the district
2 No. 13-3839
court must hold an evidentiary hearing to resolve the ques-
tion. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). A Pavey
hearing serves a limited but important role: it helps the
judge decide whether the court or the prison is the proper
forum for the prisoner’s grievance. A proper Pavey hearing
should be conducted before an adjudication on the merits. In
the present case, that did not happen, because the prisoner
failed to submit his renewed motion for a Pavey hearing as
directed by the district court. We must decide whether the
court abused its discretion in denying that hearing and
whether the Commissioner and the Indiana Department of
Corrections were entitled to summary judgment.
I
For twelve years, Richard Wagoner was incarcerated in
various facilities overseen by the Indiana Department of
Corrections (IDOC). Wagoner is paraplegic, as a result of se-
vere injuries he sustained in a car accident in 1996, and thus
he needs a wheelchair. In 2005, five years into his confine-
ment, Wagoner filed a pro se complaint in which he asserted
that IDOC had failed properly to accommodate his disability
and had thus violated his civil and constitutional rights. The
district court eventually recruited counsel for Wagoner, and
counsel submitted the operative third amended complaint
on September 6, 2011. That complaint alleged that IDOC and
its Commissioner (in his official capacity) had committed
various violations of the Eighth and Fourteenth Amend-
ments of the U.S. Constitution, redressable under 42 U.S.C.
§ 1983, and had violated Title II of the Americans with Dis-
abilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504
of the Rehabilitation Act, 29 U.S.C. § 794, as well. The com-
plaint identified eight particular grievances, including 1) in-
No. 13-3839 3
adequate and humiliating toileting arrangements; 2) a cell so
small that Wagoner had to move his wheelchair every time
his cellmate needed to use the toilet; 3) sidewalks that
caused him to tip out of his wheelchair and fall to the
ground; 4) no access to the weight room or the library be-
cause of space constraints; 5) ongoing problems with his
wheelchair and its repair; 6) failures to provide him with
other medical supplies; 7) exclusion from a job training pro-
gram; and 8) transportation in a vehicle not equipped for
wheelchairs—a shortcoming that led once to Wagoner’s
catheter becoming dislodged and that forced him to crawl on
the van’s floor in order to get out of the vehicle.
IDOC, acting for itself and the Commissioner, filed a mo-
tion for summary judgment. IDOC argued it was entitled to
judgment as a matter of law for several reasons, including
that Wagoner had failed to exhaust his administrative reme-
dies as required by the PLRA. On April 18, 2013, Wagoner
filed a motion for a Pavey hearing to determine whether he
had, in fact, exhausted his administrative remedies. On May
20, 2013, the court denied that motion without prejudice,
with this explanation:
The Court acknowledges Plaintiff’s apparent interest
in clarifying the proper timing of a Pavey hearing pre-
sumably to ensure that the opportunity is not lost by
litigating the pending motion for summary judgment.
However, Plaintiff has not yet established that a dis-
pute of fact as to whether Plaintiff exhausted his ad-
ministrative remedies before filing this action exists.
Therefore, the Court has no reason to schedule a
Pavey hearing. Plaintiff may use his response to De-
fendants’ motion for summary judgment to create
4 No. 13-3839
such a record. If he does, the Court will schedule a
Pavey hearing should exhaustion remain an issue after
the Court’s full consideration of the pending motion
for summary judgment.
Rather than follow the court’s order to combine his brief
in opposition to summary judgment with facts supporting
the need for a Pavey hearing, Wagoner filed a brief in opposi-
tion to IDOC’s motion for summary judgment on June 14,
2013. Over a month later, he filed a separate motion request-
ing a Pavey hearing. This second Pavey motion, though simi-
lar to the first, filled in the evidentiary blanks that had exist-
ed. It included a lengthy excerpt of Wagoner’s deposition in
which he recounted with more particularity IDOC’s threats
when he filed grievances and support for his contention that
futility excused any failure to exhaust that existed.
On November 26, 2013, the district court granted IDOC’s
motion for summary judgment. The magistrate judge, acting
with the consent of the parties pursuant to 28 U.S.C. § 636(c),
refused to consider Wagoner’s second Pavey motion “or any
of the accompanying exhibits as part of its exhaustion analy-
sis.” Without those materials, the court concluded that Wag-
oner was not entitled to a Pavey hearing. It found that Wag-
oner had properly exhausted only two grievances (one con-
cerning repair of his wheelchair and the other the improper
transportation to a medical appointment). As to the remain-
ing claims, the district court concluded that IDOC and the
Commissioner were entitled to judgment as a matter of law:
neither IDOC nor the Commissioner was a proper party un-
der Section 1983, Wagoner had not been denied access with-
in the meaning of the Rehabilitation Act or the ADA, and
qualified immunity protects the Commissioner from indi-
No. 13-3839 5
vidual liability under the Rehabilitation Act. (It is not clear
why the court included the last of those points: these were
official-capacity claims, and the doctrine of qualified im-
munity applies to individual persons, not to state agencies or
official-capacity suits. See, e.g., Hafer v. Melo, 502 U.S. 21, 25
(1991).)
Wagoner appeals on two grounds. He argues that the
district court committed reversible error when it denied his
second request for a Pavey hearing. Wagoner also asserts that
the district court erred in granting summary judgment in fa-
vor of IDOC and its Commissioner.
II
We begin with the district court’s handling of Wagoner’s
requests for a Pavey hearing. A word about the standard of
review is in order, since the parties have different views on
the matter. Wagoner asks us to review the denial of a Pavey
hearing de novo because it is a legal interpretation of the
PLRA and not a factual finding. IDOC suggests that the
more appropriate standard is abuse of discretion, since the
district court had to exercise some judgment in coming to its
conclusion. In a sense, they are both correct. We review the
threshold question whether a Pavey hearing is required at all
de novo, as it is ultimately an interpretation of the federal
statute. To the extent we are considering trial management,
however, the standard is abuse of discretion.
Since the passage of the PLRA, exhaustion of remedies is
not optional for a prisoner in cases to which it applies. See 42
U.S.C. § 1997e(a). As the Supreme Court noted, “A center-
piece of the PLRA’s effort to reduce the quantity ... of pris-
oner suits is an invigorated exhaustion provision.” Woodford
6 No. 13-3839
v. Ngo, 548 U.S. 81, 84 (2006) (citations and quotation marks
omitted). In Pavey, we attempted to flesh out the practical
application of this rule. We held that a prisoner is not enti-
tled to a jury trial on contested issues regarding his failure to
exhaust; instead, a hearing before the district court suffices
to resolve any such questions. We then outlined the proce-
dure that the court should follow:
(1) The district judge conducts a hearing on
exhaustion and permits whatever discovery re-
lating 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 administra-
tive remedies, and so he must go back and ex-
haust; (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 ex-
haust, so that he’s not just being given a runa-
round); 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 adminis-
trative remedies, the case will proceed to pre-
trial 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 be-
ing bound by (or even informed of) any of the
No. 13-3839 7
findings made by the district judge in deter-
mining that the prisoner had exhausted his
administrative remedies.
Pavey, 544 F.3d at 742.
Wagoner contends that the district court improperly de-
nied his request to conduct the hearing prescribed in Step #1
of Pavey. For support, he cites to two pre-Pavey, but post-
PLRA, cases. In Lewis v. Washington, this court remanded a
PLRA case to the district court to consider whether adminis-
trative remedies for a particular grievance were available
given the prison official’s failure to respond. 300 F.3d 829,
835 (7th Cir. 2002). Wagoner’s case is different, however, be-
cause the court did consider, grievance by grievance, wheth-
er he had exhausted.
In Dale v. Lappin, the other case Wagoner cites for sup-
port, we admonished the district judge for failing to address
any of the prisoner’s exhaustion evidence and instead
“merely describ[ing] his allegations as ‘bald assertions’”
even though the prisoner had specifically identified instanc-
es where prison employees had denied him the grievance
forms he requested. 376 F.3d 652, 655–56 (7th Cir. 2004) (cit-
ing Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“[A]
remedy that prison officials prevent a prisoner from ‘uti-
liz[ing]’ is not an ‘available’ remedy under § 1997e(a).”)).
Most of Wagoner’s assertions about his attempts to pursue
his administrative remedies involve either being unable to
get into the office to voice his complaint because of the steps
or verbal comments from IDOC officials.
But Wagoner’s biggest problem stems from his failure to
follow the court’s order to include his renewed Pavey motion
8 No. 13-3839
(and supporting evidence) in his brief in opposition to
IDOC’s motion for summary judgment. Instead, contrary to
the court’s instructions, he bifurcated the two submissions
and waited a month after submitting his brief in opposition
to summary judgment to file his second Pavey motion.
Wagoner says that he followed this procedure in order to
avoid confusion on the issues. But it was not up to him to
override the court’s considered choice. It is true that the
court’s role is different for the two matters, but we have no
reason to think that the magistrate judge was unaware of
this fact. The judge, not the litigants, is responsible for direct-
ing pretrial traffic, and a party does not get to pick which
court orders to follow. The magistrate judge had granted
Wagoner’s motions for extensions of time to file the proper
briefs. The judge did not abuse his discretion in refusing to
consider those materials, because Wagoner did not comply
with the order on when and how to submit them.
All of that said, as a matter of best practices we do not
endorse the combining of a Pavey motion with a summary
judgment response. The purpose of a Pavey hearing is to re-
solve disputed factual questions that bear on exhaustion, in-
cluding what steps were taken and whether the futility ex-
ception might apply. Wagoner’s case was far from open-
and-shut. The fact that he was able to exhaust two of his
claims offers a reason to reject his claim that he was prevent-
ed from exhausting his other six. On the other hand, IDOC
took five years to get Wagoner a new wheelchair. That strikes
us as an extraordinarily long time, and it raises a legitimate
question of futility. An evidentiary hearing could have clari-
fied these matters, and we know from Wagoner’s untimely
submission that there was more he might have proffered.
No. 13-3839 9
To be clear, we do not regard the court’s initial ruling as
the only one that would have been supportable. Just as the
court did not abuse its discretion in requiring more evidence
before moving to the hearing, it would not have abused its
discretion by holding a Pavey hearing based on Wagoner’s
first motion. Cf. Roberts v. Neal, 745 F.3d 232, 236 (7th Cir.
2014) (holding that it was improper for the court to grant
summary judgment for prison officials without conducting a
Pavey hearing); see also Swisher v. Porter Ctny. Sheriff’s Dep’t,
769 F.3d 553 (7th Cir. 2014). The logic of Pavey is in some ten-
sion with a decision to combine the resolution of facts perti-
nent to exhaustion with the decision whether there are facts
warranting a trial. Pavey’s central holding is that exhaustion
is not a question for the jury at trial, but instead is a prelimi-
nary issue for the court. Summary judgment, in contrast, is
designed to weed out cases that must to go to a trier of fact
from those that present no such issues. Separation of the ex-
haustion inquiry from summary judgment will thus promote
clear decisionmaking.
III
We now turn to the question whether summary judg-
ment in favor of IDOC and the Commissioner was correctly
granted. We review that part of the court’s order under the
familiar standard under which we look at the record in the
light most favorable to the non-moving party, Hayes v.
Snyder, 546 F.3d 516, 522 (7th Cir. 2008), and uphold the
judgment only if there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56. We address in order Wagoner’s claims
based on Section 1983, Title II of the ADA, and Section 504 of
the Rehabilitation Act.
10 No. 13-3839
Section 1983—The district court properly dismissed Wag-
oner’s Section 1983 claims for violations of his Eighth and
Fourteenth Amendment rights. IDOC and the Commissioner
in his official capacity are not “persons” within the meaning
of the statute. See Dobbey v. Ill. Dep't of Corr., 574 F.3d 443,
444 (7th Cir. 2009) (citing Will v. Mich. Dep’t of State Police,
491 U.S. 58 (1989)). And as we have noted, Wagoner did not
raise any claim against the Commissioner in his individual
capacity. Even if he had, it would have gone nowhere, be-
cause individual-capacity claims cannot rest on a respondeat
superior theory. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Title II of the ADA and the Rehabilitation Act—The district
court also properly dismissed Wagoner’s ADA and Rehabili-
tation Act claims. To establish a violation of Title II of the
ADA, “the plaintiff must prove that he is a ‘qualified indi-
vidual with a disability,’ that he was denied ‘the benefits of
the services, programs, or activities of a public entity’ or oth-
erwise subjected to discrimination by such an entity, and
that the denial or discrimination was ‘by reason of’ his disa-
bility.” Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.
1996) (citing 42 U.S.C. § 12132). The Rehabilitation Act claim
is functionally identical: it requires the plaintiff to allege that
“(1) he is a qualified person (2) with a disability and (3) the
[state agency] denied him access to a program or activity be-
cause of his disability.” Jaros v. Ill. Dep't of Corr., 684 F.3d
667, 672 (7th Cir. 2012). For the Rehabilitation Act to apply,
the relevant state agency (here the corrections department)
must accept federal funds, which all states do. Id. at 671
(“[T]he analysis governing each statute is the same except
that the Rehabilitation Act includes as an additional element
the receipt of federal funds, which all states accept for their
prisons”) (citations omitted). Wagoner’s paraplegia qualifies
No. 13-3839 11
as a disability. The only question is whether IDOC denied
him access to any program or service.
Had Wagoner exhausted his administrative remedies for
some of his complaints, such as his exclusion from the De-
partment of Labor program and the law library, he might
have been entitled to pursue his theories under the ADA or
the Rehabilitation Act. As matters stand, however, all but
two of his claims are procedurally barred. The two that sur-
vive are the grievance about the condition of his wheelchair
and its repair and IDOC’s improper transportation of Wag-
oner in that ill-equipped van. But these claims are a poor fit
for the statutes Wagoner has invoked. He does not allege, for
example, that the failure to provide him with an adequate
wheelchair backrest or a wheelchair-ready van (however in-
appropriate those failings might otherwise have been) de-
nied him access to any services or programs.
Wagoner’s strongest argument is that by failing to repair
his wheelchair, IDOC impeded his access to facilities availa-
ble to non-disabled prisoners. But Wagoner has not asserted
as did the prisoner in Love v. Westville Correctional Center,
that he was “denied all access to some programs and activi-
ties, and his access to others was severely limited.” 103 F.3d
at 560. Wagoner says only that he was inconvenienced with
longer waits and humiliation, as when he had to crawl off
the regular van because it did not accommodate his wheel-
chair. These disconcerting allegations do not amount to a
denial of services within the meaning of either statute. Wag-
oner could have claimed that the wheelchair itself is a ser-
vice under either act, because it is necessary to accommodate
his paraplegia, but IDOC provided Wagoner with a new
wheelchair before he filed his grievance about the backrest.
12 No. 13-3839
IV
In closing, we stress that it is better practice to hold a
Pavey hearing separate from and before considering a mo-
tion for summary judgment. Nonetheless, although the
judge did not do so here, we find no reversible error. In ad-
dition, the court correctly concluded that no material facts
were disputed and that the Commissioner and IDOC were
entitled to judgment as a matter of law. We therefore AFFIRM
the judgment of the district court.