Rivera v. Drake, No. 14-1458 (7th Cir. 2014)

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Contending that a guard had assaulted him during a pat-down by inserting a finger in his anus, inmate Rivera filed suit under 42 U.S.C. 1983. Drake, the guard, moved to dismiss because Rivera had failed to exhaust administrative remedies. Rivera provided an affidavit claiming to have filed an administrative complaint on the day after the alleged assault. The judge granted summary judgment to the guard, deeming the events too trivial to justify damages. The Seventh Circuit reversed. On remand, Rivera testified that he had filed a written grievance. The judge found that the affidavit and testimony were false. Prison records contained more than 100 of Rivera’s grievances, but none relating to assault during a pat-down until August 2009. Rivera conceded in that grievance (which did not mention Drake) that it was untimely and had been filed only “for exhaustion purposes”. Prison officials testified about how grievances are collected and recorded; the judge concluded that there was little chance that a written grievance would be lost. The judge observed that Rivera’s initial allegation had been that he made an oral complaint, not a written grievance. The court dismissed, concluding that by committing perjury Rivera had forfeited his claim. The Seventh Circuit affirmed and issued an order requiring Rivera to show cause why it should not revoke his privilege of litigating in forma pauperis and imposing financial sanctions that, if unpaid, will lead to the entry of a litigation-control order. “Rivera has made deceit the norm in his litigation. He is a frequent plaintiff, and many of his suits entail dissembling.”

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14- 1458 NATANAEL RIVERA, Plaintiff- Appellant, v. MICHAEL DRAKE, Defendant- Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09- C- 1182 William C. Griesbach, Chief Judge. ____________________ SUBMITTED AUGUST 28, 2014 DECIDED SEPTEMBER 3, 2014 ____________________ Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges. 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 as- 2 No. 14- 1458 serting that he had filed an administrative complaint on De- cember 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 hear- ing 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 intra- prison remedies. The judge held a hearing, see Pavey v. Con- ley, 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, 2013 U.S. Dist. LEXIS 76825 (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. No. 14- 1458 3 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 ex- haust. 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 con- cluded that Rivera was still lying in continuing to maintain that he had filed a written grievance in December 2008. Ri- vera appeals again his third appeal in this case. (His se- cond, 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 (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 ex- pense and delay; it undermined the function of §1997e(a) in promoting alternative dispute resolution. These considera- tions show that the district court did not abuse its discretion. See also Hoskins v. Dart, 633 F.3d 541, 544 (7th Cir. 2011) (af- firming the dismissal of a suit in which the plaintiff lied about his litigation history and applicability of the prepay- ment 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. Gen- 4 No. 14- 1458 eral Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir. 2002) (concluding that the district court did not abuse its discre- tion by dismissing case as sanction for lying on application to proceed in forma pauperis). We require district judges to consider other sanctions be- fore resorting to dismissal. The district judge did that and thought other options inadequate. Rivera is litigating in for- ma pauperis, so financial sanctions under Fed. R. Civ. P. 56(h) could not work. See Williams v. Adams, 660 F.3d 263, 266 (7th Cir. 2011). Excluding evidence, one of the sanctions men- tioned in Fed. R. Civ. P. 37(b), also does not seem a good prospect; the only evidence Rivera has on the merits is his own say- so, and to exclude that would be to decide the case as surely as an immediate dismissal. (Rule 37 addresses problems in discovery, but its list of potential sanctions is worth consulting for other purposes as well.) This conclusion means that we need not consider wheth- er the district judge was right to believe that, in order to pre- serve a defense of failure to exhaust administrative reme- dies, a litigant must protest a judge s decision to bypass ex- haustion and consider the merits. For current purposes, it is enough to say that Rivera s perjury imposed such substan- tial costs on the judiciary and the defense that dismissal is an appropriate response whether or not Drake should have in- voked the exhaustion defense even more frequently than he did. Although we have said enough to explain why the dis- trict court s judgment must be affirmed, we do not think that the dismissal of a doomed suit (having failed to exhaust his intra- prison remedies during the time Wisconsin allowed, Rivera was bound to lose) is a sufficient response to perjury. No. 14- 1458 5 The judicial system cannot function if the only consequence of lying is the loss of a suit that would have had no chance from the outset, had the truth been told. That s effectively no sanction at all. If perjury pays benefits when it escapes detec- tion, but has no cost when detected, there will be far too much perjury and the accuracy of judicial decisions will be degraded. We therefore will send copies of this opinion and the case file to the United States Attorney for the Eastern District of Wisconsin, who may wish to consider prosecuting Rivera for the crime of perjury. 18 U.S.C. §1621. We also will issue an order requiring Rivera to show cause why we should not revoke his privilege of litigating in forma pauperis in the courts of this circuit and impose finan- cial sanctions that, if unpaid, will lead to the entry of a litiga- tion- control order under Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). We take these steps in part because Rivera has made de- ceit the norm in his litigation. He is a frequent plaintiff, and many of his suits entail dissembling. Four of his suits (in- cluding this one) have reached this court during the last few months, and all four involve falsity on Rivera s part. In Rivera v. Schultz, 556 F. App x 500 (7th Cir. 2014), Rive- ra s complaint alleged that guards had stripped him naked, without provocation, and laughed at him for their own sex- ual gratification. The district court held a trial, at which Ri- vera admitted that his pants were down for just a few se- conds and that only his underwear was visible. The district judge then granted judgment to the defendants as a matter of law and stated that she would have granted summary 6 No. 14- 1458 judgment, avoiding the need for a trial, had Rivera told the truth earlier in the proceedings. We affirmed because the tes- timony, contrary to the allegations of Rivera s complaint, re- vealed only a brief and non- humiliating episode. In Rivera v. Jimenez, 556 F. App x 505 (7th Cir. 2014), Rive- ra asserted that a guard had stripped him naked without provocation and paraded him in front of other inmates; Ri- vera also asserted that the guard repeatedly kneed him in the back for no reason. The prison had a video of the events; it showed that Rivera had been obstreperous and had to be subdued by pepper spray, after which his clothes were re- moved so that the spray s residue could be washed away in the shower. A guard used a knee only to help bring Rivera under control. The district court granted summary judg- ment, ruling that incontrovertible evidence showed the falsi- ty of Rivera s contentions, and we affirmed. In Rivera v. Lindmeier, 560 F. App x 619 (7th Cir. 2014), Rivera maintained that a guard violated the Constitution by placing him in painful six- point restraints for 11 hours, without any reason. Once again the prison produced a video recording that refuted this contention. The video showed that Rivera had been shouting and banging on the window of his cell, refusing to stop despite repeated instructions by the guards. He also refused to put his hands through the door so that he could be handcuffed. Guards eventually subdued him with pepper spray and placed him under re- straint in an isolation cell. When he complained that the re- straints were too tight, they were loosened. A nurse moni- tored his condition to ensure that the restraints did not cause harm. The district judge granted summary judgment, ruling No. 14- 1458 7 that incontrovertible evidence showed the falsity of Rivera s contentions, and we affirmed. Many litigants with serious claims are awaiting judicial attention. Litigants such as Rivera who make false charges, perhaps just for the pleasure of vexing the defendants, are abusing the judicial process and injuring other litigants as well as the judicial system. This is intolerable and must cease. The judgment is affirmed. This opinion and a copy of the record will be sent to the United States Attorney. Rivera has 14 days to show cause why we should not fine him, see Fed. R. App. P. 38, and revoke his privilege of litigating in forma pauperis.

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