Christopher R. Pavey v. Patrick Conley, et al

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ARGUED AUGUST 2, 2011

Before WOOD, SYKES, and HAMILTON, Circuit Judges.

In this suit under 42 U.S.C. § 1983, Christopher Pavey claims Indiana prison officials violently roused him from his cell and in the process broke his arm. The defendants insist Pavey’s suit must be dismissed because he failed to exhaust his administra- tive remedies for the incident. 42 U.S.C. § 1997e(a). This is the third time the case has been before this court. We first held that the question whether Pavey had exhausted his administrative remedies was clouded by disputed issues of material fact. Pavey v. Conley, 170 F. App’x 4 (7th Cir. 2006). Then we held that those disputed facts ought to be resolved by a judge, not a jury. Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). The district court has since con- ducted an evidentiary hearing, resolved the factual dis- putes in favor of the defendants and, accordingly, dis- missed Pavey’s suit for failure to exhaust. The question on appeal is whether those findings are clearly erroneous.

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