NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 2, 2011
Decided August 8, 2011
Before
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3222
RONALD T. SCHAEFER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 2:05‐cv‐240‐LJM‐TAB
MARK A. BEZY, et al.,
Defendants‐Appellees. Larry J. McKinney,
Judge.
O R D E R
Ronald Schaefer, a former inmate at the Terre Haute Federal Correctional Complex, appeals
for the second time from the dismissal of his claim under Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). During Round 1, the district court granted summary judgment for the
defendants on the ground that Schaefer had failed to exhaust his administrative remedies
before filing suit. We found, however, that material facts relating to exhaustion were in dispute
and thus remanded for an evidentiary hearing on that issue. See Schaefer v. Bezy, 336 F. App’x
558 (7th Cir. 2009).
After a Pavey hearing, see Pavey v. Conley,
544 F.3d 739, 741‐42 (7th Cir. 2008), the district
No. 10‐3222 Page 2
court found that Schaefer indeed had failed to exhaust available administrative remedies and
again dismissed the case. Schaefer now challenges that ruling. He is convinced that the key
prison employee who testified at his hearing, one Officer Stanley Kraemer, was the wrong
Kraemer and thus was in no position to refute Schaefer’s story. While we appreciate the fact
that both Schaefer and his counsel believe in the existence of two Kraemers, the objective facts
in the record provide no support for this unusual theory. With that possibility out of the way,
there is nothing to impugn the district court’s finding that Schaefer failed to exhaust his
remedies in the prison and thus cannot proceed with his lawsuit. We therefore affirm the
district court’s judgment of dismissal.
I
Schaefer is now 78 years old. In late May 2005 he reported to the Federal Correctional
Complex in Terre Haute, Indiana, to complete the final eight months of a 37‐month prison term
for mail fraud and wire fraud. For the first week he was held in the maximum‐security
penitentiary within the complex, but on June 3 he was assigned to the prison camp there.
Schaefer had served the earlier portions of his sentence in the camp, in two segments spanning
the years 2001 to 2004, but twice he was released pending resentencing after successful appeals.
See United States v. Schaefer,
384 F.3d 326, 338 (7th Cir. 2004); United States v. Schaefer,
291 F.3d
932, 935 (7th Cir. 2002). While released he underwent treatment for osteoarthritis. When he
returned to the facility in 2005 after the second resentencing, Schaefer brought a letter from his
doctor stating that he needed pain medication and that without continued therapy he likely
would need a hip replacement.
Schaefer initially filed this suit pro se in September 2005; after his release from prison he
retained an attorney and amended his complaint. His complaint accuses the prison employees
of violating the Eighth Amendment by failing to treat his osteoarthritis. He asserted that he
started asking for care in June 2005. When care was not forthcoming, he thrice used an informal
procedure known as a “cop‐out” (officially called an “Inmate Request to Staff” or a BP‐AO148)
to bring his problem to the prison’s attention. After screening the district court allowed the suit
to proceed against the prison warden and doctor.
Before answering Schaefer’s complaint, the defendants filed a motion to dismiss or, in the
alternative, for summary judgment, contending that Schaefer had failed properly to exhaust
his BOP administrative remedies, see 42 U.S.C. § 1997e(a);
28 C.F.R. §§ 542.10‐542.16. The cop‐
out that Schaefer had used is intended for general inquiries or necessities and is not related to
the grievance system.
28 C.F.R. §§ 542.13‐542.14. Schaefer argued, however, that his failure to
avail himself of the grievance process should be excused because the correct process had been
unavailable to him. In an affidavit he explained that on June 3, 2005, he told his counselor,
whom he identified only by the surname “Kraemer,” that he needed immediate orthopedic
care, and that Kraemer had instructed him to use a cop‐out to make his request. Schaefer said
No. 10‐3222 Page 3
that he resisted and requested a grievance form, but Kraemer refused to give it to him because
the full administrative process would extend past Schaefer’s expected release date. The
defendants replied with a declaration from Stanley Kraemer, who said that he is a counselor
but was not Schaefer’s counselor in June 2005. Kraemer had been Schaefer’s counselor for brief
periods in 2001 and 2004, but he had transferred from the prison camp to the penitentiary in
March 2005. From then on, Kraemer maintained, he did not work at the camp where Schaefer
was an inmate and had no contact with camp inmates. Kraemer asserted that he did not even
remember Schaefer but was sure that he had never refused to give an inmate a grievance form.
In its first order granting summary judgment for the defendants, the district court credited
Kraemer’s account of the facts and concluded that Kraemer could not have refused to give
Schaefer a grievance form. Schaefer’s statement conflicted with Kraemer’s, however, and so in
Schaefer’s previous appeal this court concluded that a genuine issue of material fact – whether
formal prison remedies were available to Schaefer – remained unresolved. We remanded the
case to the district judge for an evidentiary hearing to resolve the conflicting accounts.
The district court held the hearing on November 10, 2009. At that hearing, Stanley Kraemer
testified that he was transferred to the penitentiary in early 2005 and afterward had no contact
with inmates at the prison camp. He never worked in the complex’s Education Department or
assisted with job fairs inside the prison camp. Kraemer repeated the statement in his
declaration that he never denied Schaefer’s request for a grievance form, and he added that it
would violate prison policy to recommend that an inmate bypass administrative remedies.
Kraemer could not definitively say which of the complex’s buildings he entered on June 3, 2005,
but he thought it was “highly unlikely” that he visited the prison camp on that day. Although
Kraemer still maintained that he did not remember Schaefer, he acknowledged that he knew
he had been his counselor at some time in 2004. A secretary at the penitentiary authenticated
Kraemer’s work schedules and time sheet, which corroborated his testimony that he worked
at the penitentiary beginning in March 2005. Kraemer’s performance evaluations from 2004 to
2006 also memorialize the transfer.
Schaefer also testified at the hearing, and in what must have seemed an odd turn, he
insisted that never before had he seen the Stanley Kraemer in the courtroom. (As we explain
further below, Kraemer’s appearance had changed drastically between 2003 and 2009;
photographs and testimony indicate that he lost about 130 pounds.) Schaefer explained that he
must have conveyed his need for medical care to a different counselor named “Kraemer,” or
perhaps “Kramer,” who worked at the prison camp from 2003 to 2005. Contradicting his
affidavit, Schaefer said that the “Kraemer” he spoke with on June 3, 2005, was not his assigned
counselor. Rather, “Kraemer” had been Schaefer’s counselor in 2004 and was then transferred,
according to Schaefer, to the Education Department, where Schaefer continued to work with
him and assist with inmate job fairs. Schaefer maintained that he did not know who his new
counselor was on June 3, and so instead he spoke to “Kraemer”—his former counselor and a
No. 10‐3222 Page 4
friend—when the two men ran into each other in a hallway of the camp. It was that “Kraemer”
who told Schaefer to submit a cop‐out in order to get the medical help that he needed. Schaefer,
further changing his story, said that “Kraemer” did not give him a grievance form because
“Kraemer” no longer had access to them. But in the middle of June, he contended, he learned
that his new counselor was a “Mr. Parker,” and he did ask Parker for a grievance form but was
refused. Schaefer now said that Parker, not “Kraemer,” told him that filing a grievance would
be pointless because he would be released from prison before the grievance was resolved. The
defendants, on rebuttal, called a BOP employee who testified that in 2005 there was no one
named “Kraemer” or “Kramer,” other than Stanley Kraemer, working as a counselor at the
Terre Haute complex. There was another employee named “Kraemer” at Terre Haute, the
witness said, but that person was a female guard.
After the hearing Schaefer asked the district court to reserve decision on the exhaustion
issue until the parties could determine whether more than one counselor named Kraemer
worked at the Terre Haute complex. Schaefer wanted to examine personnel records “for all staff
members.” Schaefer’s attorney submitted a declaration stating that, at the start of the case,
defense counsel had mentioned that there were two male prison counselors with last names
that sound like “Kraemer.” The defendants objected and attached a record of Schaefer’s
assigned counselors for his time at the camp; that list shows that Schaefer was assigned to “S.
Kraemer” in 2001 and 2004, and that he was assigned to “D. Parker” upon his return to the
facility on May 27, 2005. Schaefer then filed a motion to compel discovery, reiterating the same
points in his “motion to reserve decision” and complaining that the defendants had refused to
engage in further discovery after the Pavey hearing. Noting the untimely nature of this request,
the defendants essentially conceded this point, but they also submitted a declaration from
D. Parker denying that he ever told Schaefer to bypass the grievance process or to submit a cop‐
out as a substitute for a grievance. Finally, the defendants included a declaration from yet
another BOP employee who confirmed that Stanley Kraemer was the only male employee with
the surname Kraemer or Kramer at Terre Haute from 2001 to 2005.
About a month after filing the motion to compel, Schaefer’s counsel wrote to defense
counsel requesting additional information. In response to defense counsel’s request for further
detail, he listed quite a number of specific items, including things like a complete list of all
inmates from 2001 to 2004, lists of different types of employees at the complex from 2001 to
2005, and fingerprints and photographs for all the case counselors. Defense counsel responded
(without waiving his objections to Schaefer’s request for more discovery at that late date), but
the gist of his answer was that those lists did not exist.
The district court denied Schaefer’s motions on grounds of both timeliness and futility. The
court concluded that the defendants had proved that Schaefer had administrative remedies
available that he did not exhaust. It credited the testimony of Stanley Kraemer and the BOP
employee and found that Kraemer was not Schaefer’s counselor when he returned to the prison
No. 10‐3222 Page 5
camp in 2005. It followed, the court reasoned, that “counselor Kraemer could not and did not
refuse Schaefer’s request” for a grievance form. The court did not address Schaefer’s testimony
that he encountered Kraemer in the camp after Kraemer’s transfer, a possibility that Kraemer
had not ruled out but characterized as “highly unlikely.” Neither did the court address
Schaefer’s testimony that in mid‐June he requested a grievance form from Parker—who, the
defendants agree, was his counselor—and was refused. The court did, however, discredit
Schaefer’s testimony that on June 3 he spoke with another counselor named “Kraemer.”
Schaefer, still represented by retained counsel, filed a motion for reconsideration,
contending that he now possessed documents from his time in prison showing that the Stanley
Kraemer who testified at the Pavey hearing was not the “Kraemer” who was his former
counselor and the man with whom he spoke on June 3, 2005. Schaefer asserted that these
documents had just been discovered by his daughter in their garage. One of the documents,
which he submitted with his motion, is his progress report from a career‐development course
that he says “Kraemer” taught (although the instructor’s name is not on the report). The report
is signed by a case manager, “Baskerville,” and a unit manager, Phyliss King, who Schaefer said
could verify that “Kraemer” had taught the course as part of his organization of the job fairs
and was Schaefer’s counselor. Also among the documents, said Schaefer, was contact
information for two fellow prison‐camp inmates, who corroborated his recollection that the
missing “Kraemer” is overweight, is under six feet tall, and has a round face and a thinning
hairline. The Kraemer who testified at the Pavey hearing, Schaefer continued, was not
overweight, was more than six feet tall, and sported a full head of hair.
The defendants, in response, disputed that Schaefer’s evidence was newly discovered. They
located Baskerville, who reconfirmed that Stanley Kraemer was the only counselor with that
surname (or one similar) at the complex, but Baskerville agreed with Schaefer that the man he
remembered as his counselor was stocky, under six feet tall, and round‐faced. Baskerville
proved the point by including a photograph of Stanley Kraemer from 2003. But the defendants
also submitted a declaration from Stanley Kraemer, in which he explains that he stands at 5ʹ11ʺ
and has lost over 130 pounds since May 2005. Kraemer attached a current photo and agreed
that in 2003 he was considered overweight. Kraemer also explained that he did not teach the
career‐development course.
Schaefer submitted a reply asking for another evidentiary hearing. Buried in a declaration
attached to that reply, Schaefer asserts that neither of the photographs of Stanley Kraemer
resembles the “Kraemer” who was his counselor and instructor. The district court denied the
motion for reconsideration, finding that Schaefer’s evidence had been available to him well
before the evidentiary hearing.
II
No. 10‐3222 Page 6
On appeal Schaefer makes only one argument: that the district court erred by not allowing
him to engage in further discovery after the Pavey hearing to prove his contention that Stanley
Kraemer is not the “Kraemer” or “Kramer” who once served as his counselor and was the man
he spoke with on June 3, 2005. The point of the remand, says Schaefer, was to produce
“Kraemer,” and in his view the district court failed to assure that this happened.
Schaefer assumes that the panel’s review is de novo, as with a ruling at summary judgment,
but he is mistaken. The kind of evidentiary hearing contemplated by Pavey is distinct from
summary judgment,
544 F.3d at 741‐42, and requires the district court to make factual findings.
As we noted in Pavey, “not every factual issue that arises in the course of a litigation is triable
to a jury as a matter of right.”
Id. at 741. This court reviews factual determinations for clear
error, FED. R. CIV. P. 52(a)(6); Dexia Crédit Local v. Rogan,
629 F.3d 612, 628 (7th Cir. 2010); Rain
v. Rolls‐Royce Corp.,
626 F.3d 372, 379 (7th Cir. 2010), and as long as the court’s finding
represents a plausible view of the evidence, it cannot be clearly erroneous, Kanter v. Comm’r.,
590 F.3d 410, 417‐18 (7th Cir. 2009); Indiana Funeral Dirs. Ins. Trust v. Benefit Actuaries, Inc.,
533
F.3d 513, 519‐20 (7th Cir. 2008).
Schaefer’s sole argument on appeal, that the district court should have reopened discovery
so that Schaefer could search for the other “Kraemer,” fails. For starters, based on Schaefer’s
testimony at the hearing, finding “Kraemer” would not have done him any good. This court
remanded Schaefer’s case in 2008 because there was a material issue of fact about whether
Schaefer’s counselor denied him a grievance form and told him instead to use a cop‐out. On
remand Schaefer testified that the “Kraemer” he is searching for was not his counselor in 2005
and could not have given him the grievance form because he no longer had access to them. The
missing “Kraemer” seems to have been simply a former counselor who offered some friendly
advice but, as Schaefer admitted at the hearing, did not refuse to give him a grievance form.
Even assuming there is a different “Kraemer,” therefore, this person did not deprive Schaefer
of access to the form he needed and thus did not bar Schaefer from the proper grievance
process.
Even if locating “Kraemer” might have mattered, the district court was under no obligation
to grant Schaefer’s request for further discovery after the hearing. Trial courts have broad
leeway to manage discovery matters. See Sims v. GC Servs. L.P.,
445 F.3d 959, 963 (7th Cir. 2006);
Spiegla v. Hull,
371 F.3d 928, 944 (7th Cir. 2004). Our earlier order was issued on July 7, 2009;
the hearing took place four months later, on November 10, 2009. This was plenty of time for
both parties to gather whatever evidence was pertinent. Based on that evidence, the district
court found that there was no other counselor named “Kraemer.” In so doing, the court
credited Stanley Kraemer’s testimony and rejected Schaefer’s. Credibility findings can virtually
never be clear error. United States v. Biggs,
491 F.3d 616, 621 (7th Cir. 2007); Carnes Co. v. Stone
Creek Mech., Inc.,
412 F.3d 845, 848 (7th Cir. 2005). As it happens, the evidence that surfaced
after the hearing also supports the district court’s conclusion. The vast difference in Stanley
No. 10‐3222 Page 7
Kraemer’s appearance in the photographs taken in 2003 and 2009 suggests one obvious
explanation for Schaefer’s confusion. Schaefer has never addressed this evidence; he simply
asserted that neither photograph of Stanley Kraemer resembled his counselor “Kraemer.”
Baskerville, however, identified the 2003 photograph as the only male counselor named
Kraemer in the complex.
Schaefer must show that the district court abused its discretion by refusing to reopen
discovery. See Winters v. Fru‐Con Inc.,
498 F.3d 734, 743 (7th Cir. 2007); Raymond v. Ameritech
Corp.,
442 F.3d 600, 603 n.2 (7th Cir. 2006); Bennington v. Caterpillar Inc.,
275 F.3d 654, 658, 661
(7th Cir. 2001). We find no such abuse here. Schaefer had opportunities to investigate the
identity of “Kraemer” before the hearing. Indeed, counsel was on notice of the potential issue
of two Kraemers from the beginning of the litigation, and yet did nothing to pursue the matter
until after the hearing. Schaefer also had known since the time that the motion for summary
judgment was filed in 2008 that Stanley Kraemer would testify that he was transferred from the
camp to the penitentiary in March 2005. In contrast, Schaefer’s “Kraemer,” was supposedly
transferred to the Education Department in 2004. Schaefer could have pursued further avenues
of inquiry, including the documents later found in his garage, before the hearing. Moreover,
Schaefer had ample time after the hearing—six months between his motion to reopen discovery
and the district court’s ruling on exhaustion—to pursue his own investigation. He could have
spoken to other employees at the Terre Haute complex, or searched the surrounding area for
other surnames like “Kraemer,” for example. And when Schaefer received the response from
defense counsel that the documents Schaefer had requested do not exist, he did not follow up
with more targeted requests. When “no effort was made to present the issue to the court in a
timely fashion and when no effort was made to explain why the requested discovery could not
have taken place within the original discovery period,” the district court may deny a motion
to compel or to reopen discovery. See Kalis v. Colgate‐Palmolive Co.,
231 F.3d 1049, 1056‐57 (7th
Cir. 2000).
III
We recognized in our earlier decision that a key factual issue had to be resolved before
Schaefer could move forward with his case, namely, whether his failure to use the prison’s
established grievance procedures had been impeded by prison officials. The district court held
a hearing and found as a matter of fact that no such excuse existed. Schaefer therefore cannot
satisfy the requirements of 42 U.S.C. § 1997e(a), which requires the exhaustion of “such
administrative remedies as are available.” See Woodford v. Ngo,
548 U.S. 81 (2006). We therefore
AFFIRM the judgment of the district court.
