Thursday, February 05, 2015
Ind. Decisions - 7th Circuit posts two Indiana cases, dated Feb. 4th
In Richard Wagoner v. Indiana Department of Correction (ND Ind., Nuechterlein, MJ), a 12-page opinion, Chief Judge Wood writes:
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 court must hold an evidentiary hearing to resolve the question. 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. * * *In USA v. Duryea Rogers (SD Ind., Barker), a 7-page opinion, Judge Manion writes:
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 addition, 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.
Duryea Rogers pleaded guilty to conspiracy to commit armed bank robbery, armed bank robbery, and brandishing a firearm during a crime of violence (in this case, a bank robbery). He challenges the district court’s imposition of a two-level enhancement for carjacking under U.S.S.G. § 2B3.1(b)(5). We affirm.
Posted by Marcia Oddi on February 5, 2015 10:36 AM
Posted to Ind. (7th Cir.) Decisions