case 3:03-cv-00662-RLM-CAN document 84 filed 11/21/06 page 1 of 4
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
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`CAUSE NO. 3:03-CV-662 RM
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`SIR CHRISTOPHER R. PAVEY,
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`Plaintiff
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`vs.
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`P. CONLEY, et al.,
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`Defendants
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`OPINION AND ORDER
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`The defendants, by counsel, move to reconsider two of this court’s prior orders. It
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`is appropriate for the court to begin where the defendants’ brief ends. On March 3, 2006,
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`the court of appeals issued its order reversing this court’s grant of summary judgment.
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`Nineteen days later, on March 22, Christopher R. Pavey, a pro se prisoner, signed an
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`untimely jury demand. More than three months later, on July 31, the defendants moved to
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`strike that jury demand arguing that it was more than two years late. When the Magistrate
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`Judge denied that motion, they filed a motion to reconsider, which was also denied.
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`Though the Magistrate Judge did not cite FED. R. CIV. P. 39(b) in either of his rulings, it is
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`clear that he exercised the discretion conferred by that rule to order a jury trial. Though the
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`defendants did not file an objection pursuant to FED. R. CIV. P. 72(a), and though they
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`acknowledge that “they may not now assign error to that ruling as matter of right” (docket
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`# 83 at 15), they nevertheless, ask the court to distinguish the Magistrate Judge’s ruling
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`from a prior ruling by the undersigned judge in a different case. This court declines to
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
`
`CAUSE NO. 3:03-CV-662 RM
`
`))
`
`))
`
`)
`)
`)
`)
`)
`
`SIR CHRISTOPHER R. PAVEY,
`
`Plaintiff
`
`vs.
`
`
`P. CONLEY, et al.,
`
`Defendants
`
`OPINION AND ORDER
`
`The defendants, by counsel, move to reconsider two of this court’s prior orders. It
`
`is appropriate for the court to begin where the defendants’ brief ends. On March 3, 2006,
`
`the court of appeals issued its order reversing this court’s grant of summary judgment.
`
`Nineteen days later, on March 22, Christopher R. Pavey, a pro se prisoner, signed an
`
`untimely jury demand. More than three months later, on July 31, the defendants moved to
`
`strike that jury demand arguing that it was more than two years late. When the Magistrate
`
`Judge denied that motion, they filed a motion to reconsider, which was also denied.
`
`Though the Magistrate Judge did not cite FED. R. CIV. P. 39(b) in either of his rulings, it is
`
`clear that he exercised the discretion conferred by that rule to order a jury trial. Though the
`
`defendants did not file an objection pursuant to FED. R. CIV. P. 72(a), and though they
`
`acknowledge that “they may not now assign error to that ruling as matter of right” (docket
`
`# 83 at 15), they nevertheless, ask the court to distinguish the Magistrate Judge’s ruling
`
`from a prior ruling by the undersigned judge in a different case. This court declines to
`
`
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`case 3:03-cv-00662-RLM-CAN document 84 filed 11/21/06 page 2 of 4
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`attempt to render an advisory analysis distinguishing the discretion exercised by two
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`different judges in two different cases.
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`Returning to the primary focus of the defendants’ brief, they argue that disputed
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`issues of fact related to their affirmative defense of exhaustion should be tried to the court
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`rather than to a jury. They concede that there is no binding precedent addressing this
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`specific affirmative defense, but such a narrow focus is unnecessary. Neither their brief nor
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`any of their cited cases squarely address the fundamental principle of federal law that
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`“federal policy favor[s] jury decisions of disputed fact questions . . ..” Byrd v. Blue Ridge
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`Rural Elec. Coop., 356 U.S. 525, 538 (1958).
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`The defendants argue that the judge should resolve the fact questions related to the
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`affirmative defense of exhaustion because Congress wanted to reduce prisoner litigation.
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`It is unnecessary for this court to address either Congressional intent or even Congressional
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`authority in regard to depriving inmates of their right to a jury determination since the
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`PLRA did not expressly speak to this question. Without an unequivocal statute clearly
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`denying the right to a jury, the presumption is that fact questions are resolved by juries.
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`“Although district courts are expert in finding facts, at the summary judgment stage
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`disputed facts must be reserved for the jury.” Nike, Inc. v. "Just Did It" Enterprises, 6 F.3d
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`1225, 1233 (7th Cir. 1993) (holding that the affirmative defense of parody is a jury question
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`in a trademark case.); see also Europlast, Ltd. v. Oak Switch Sys., 10 F.3d 1266 (7th Cir. 1993)
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`(holding that it was proper for the jury to resolve a disputed issue of fact related to an
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`affirmative defense involving insolvency in a contract and tort case.), and Campbell v.
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`2
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`case 3:03-cv-00662-RLM-CAN document 84 filed 11/21/06 page 3 of 4
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`Nordco Products, 629 F.2d 1258 (7th Cir. 1980) (holding that the jury should resolve a
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`disputed issue of fact related to an affirmative defense involving assumption of the risk.).
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`Though the defendants question the applicability of Byrd v. Blue Ridge, that case
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`demonstrates the strength of the federal presumption of jury adjudications. Byrd involved
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`the adjudication of a state law statutorily created cause of action which afforded no jury
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`trial right. Yet neither an unambiguous precedent, nor principles of comity were sufficient
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`to overcome the Supreme Court’s stated presumption of jury determinations of disputed
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`facts in federal court.
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`The federal system is an independent system for administering justice to
`litigants who properly invoke its jurisdiction. An essential characteristic of
`that system is the manner in which, in civil common-law actions, it
`distributes trial functions between judge and jury and, under the influence
`-- if not the command -- of the Seventh Amendment, assigns the decisions of
`disputed questions of fact to the jury.
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`Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 537 (1958) (footnote omitted). Though
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`the defendants argue that this case is a constitutional, rather than a statutory or common-
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`law claim, there is no logic in arguing that constitutional claimants should be denied the
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`right to a jury trial while lesser claimants are afforded it.
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`Further, the defendants argue that the exhaustion question must be resolved before
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`the court may proceed any further with this lawsuit. They argue that because the PLRA
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`states that “No action shall be brought . . . by a prisoner . . . until such administrative
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`remedies as are available are exhausted” 42 U.S.C. § 1997e(a), that not even discovery
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`related to the merits of the case can occur. To the extent possible, that has already
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`3
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`case 3:03-cv-00662-RLM-CAN document 84 filed 11/21/06 page 4 of 4
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`happened in this case. Discovery was stayed and the defendants filed a summary judgment
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`motion. Because exhaustion is an affirmative defense, the burden was on the defendants
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`and it has been determined that they did not carry their burden because a genuine issue
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`of fact exists. Now it is time for this case to proceed because, though it is still necessary to
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`determine whether the plaintiff exhausted his administrative remedies, the time for making
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`that determination shifted when the defendants lost on summary judgment. The
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`defendants might yet prevail on their exhaustion defense, but to do so they must convince
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`the fact finder, in this case a jury, to resolve those disputed issues of fact in their favor. The
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`time for presenting affirmative defenses to the jury is no different in this case than it is in
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`any other: after the plaintiff has rested his case in chief.
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`Before trial, the plaintiff is entitled to conduct discovery. In this case the plaintiff has
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`outstanding discovery that went unanswered for six months. The motion to compel was
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`granted and the defendants were ordered to respond to the discovery on or before
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`December 15, 2006.
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`For the forgoing reasons, the motion to reconsider (docket # 82) is DENIED.
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`SO ORDERED.
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`ENTERED: November 21 , 2006
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` /s/ Robert L. Miller, Jr.
`Chief Judge
`United States District Court
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`4
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