Submitted August 28, 2014.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09-C-1182. William C. Griesbach, Chief Judge.
Natanael Rivera, Plaintiff - Appellant, Pro se, Portage, WI.
For MICHAEL DRAKE, Correctional Officer, Defendant - Appellee: Karla Z. Keckhaver, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges. EASTERBROOK, Circuit Judge.
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 asserting that he had filed an administrative complaint on December 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 hearing 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 intraprison remedies. The judge held a hearing, see Pavey v. Conley, 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, (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.
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 exhaust. 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 concluded that Rivera was still lying in continuing to maintain that he had filed a written grievance in December 2008. Rivera appeals again--his third appeal in this case. (His second, 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, 96 S.Ct. 2778, 49 L.Ed.2d 747 (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 expense and delay; it undermined the function of § 1997e(a) in promoting alternative dispute resolution. These considerations show that the district court did not abuse its discretion. See also Hoskins v. Dart, 633 F.3d 541, 544 (7th Cir. 2011) (affirming the dismissal of a suit in which the plaintiff lied about his litigation history and applicability of the prepayment 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. General Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir. 2002) (concluding that the district court did not abuse its discretion by dismissing case as sanction for lying on application to proceed in forma pauperis ).
We require district judges to consider other sanctions before resorting to dismissal. The ...