Rivera v. Drake

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.” View "Rivera v. Drake" on Justia Law