Chadrick Fulks v. T. Watson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3308
CHADRICK FULKS,
Plaintiff-Appellant,
v.
T. J. WATSON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:19-cv-00501-JPH-MG — James P. Hanlon, Judge.
____________________
ARGUED SEPTEMBER 26, 2023 — DECIDED DECEMBER 13, 2023
____________________
Before WOOD, SCUDDER, and ST. EVE, Circuit Judges.
WOOD, Circuit Judge. Chadrick Fulks is an inmate con-
signed to the death-row section of the United States Peniten-
tiary in Terre Haute, Indiana. The present litigation concerns
his allegations of constitutionally deficient medical care, the
use of excessive force, and a sexual assault. He sued several
defendants, but the district court concluded that he had suc-
cessfully exhausted his administrative remedies with respect
to only two claims. The record on exhaustion was otherwise
2 No. 22-3308
not so clear, and so the court held a hearing pursuant to Pavey
v. Conley, 544 F.3d 739 (7th Cir. 2008). At that point, a more
serious problem arose: the court found that Fulks had know-
ingly proffered a forged document and perjured testimony.
As a sanction for this egregious misconduct, the court dis-
missed the entire action with prejudice. We affirm.
I
We can be brief about the underlying lawsuit. Fulks al-
leges that in September 2018, after his capital-defense attor-
neys complained about the adequacy of the medical care
Fulks was receiving for his chronic back issues, Dr. William
Wilson (who was then the Medical Director at the Peniten-
tiary) drugged him, and while Fulks was incapacitated, sex-
ually assaulted him. Immediately afterwards, Fulks was able
to grab three paper towels that Dr. Wilson had used to clean
up; he intended to use them as evidence of the assault, but
they eventually were confiscated. Fulks promptly filed griev-
ances against two prison employees, Lieutenant J. Sherman
and Nurse Michelle Smith, and he alerted a sexual assault re-
porting service, his attorneys, and his spiritual advisor about
the alleged incident. He also called a sexual assault hotline
and wrote to the U.S. Attorney’s Office.
Later that month, Fulks complained to the Bureau of Pris-
ons that Dr. Wilson had failed to treat his back pain and had
not provided needed medication for him. Then-Acting Com-
plex Warden T.J. Watson denied the grievance, and the Bu-
reau’s Regional Director affirmed that decision. Fulks ap-
pealed to the Bureau’s Central Office. This time, he again
sought medication for his back pain, but he also detailed his
sexual assault allegation against Dr. Wilson. The Central Of-
fice’s Administrator of National Inmate Appeals found no
No. 22-3308 3
flaw in the doctor’s decision not to prescribe medication; it re-
ferred the allegation of sexual assault to the appropriate office
for review.
In October 2019, Fulks (acting pro se) initiated this lawsuit
against six prison officials: Warden Watson, Clinical Director
Wilson, Lieutenant Sherman, Nurse Smith, and Officers Aa-
ron Johnson and Bradley Hammon. Fulks asked to proceed in
forma pauperis, and the district court granted his motion. His
complaint raised a number of claims, not all of which were
related to one another. He relied for the most part on the pri-
vate right of action supplied by Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). 1
The defendants moved to dismiss all but his Eighth
Amendment claims against Dr. Wilson for the alleged assault
and failure to treat his chronic back pain. Specifically, they
contended that the following counts failed to state a claim
upon which relief could be granted: (1) a claim under the Re-
ligious Freedom Restoration Act (RFRA) against the Warden;
(2) an Eighth Amendment excessive-force claim against Of-
ficer Hammon; (3) an Eighth Amendment failure-to-protect
claim against the Warden and Officer Johnson; and (4) Eighth
Amendment claims for deficient medical care against the
Warden, Lieutenant Sherman, and Nurse Smith. At that point,
the court recruited counsel to represent Fulks.
In support of their motion, the defendants argued that
Fulks’s allegations of retaliation and unconstitutional
1 Fulks also sought injunctive relief against Dr. Wilson and the War-
den (now Steve Kallis) acting in their official capacities. This appeal does
not concern that request. The claims that are relevant here are against the
defendants in their personal capacities.
4 No. 22-3308
conditions of confinement lay outside the traditional scope of
the Bivens remedy, and that special factors counseled against
extending Bivens to cover them. See Ziglar v. Abbasi, 582 U.S.
120, 136 (2017). With the assistance of recruited counsel, Fulks
pushed back, but the district court, applying Abbasi, decided
it had to dismiss those two counts.
This left four claims: the Eighth Amendment excessive-
force allegation against Officer Hammon; the Eighth Amend-
ment failure-to-protect claims against Warden Watson and
Officer Johnson; the Eighth Amendment claims against Nurse
Smith, Lieutenant Sherman, and Warden Watson for failing to
provide proper care after the alleged assault; and a RFRA
claim against the Warden. With respect to each of these, the
defendants argued that they were entitled to summary judg-
ment because Fulks had failed to comply with the exhaustion
requirements of the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). See 28 C.F.R. § 542.10 et seq. The court concluded
that Fulks had not exhausted the RFRA claim, and so it dis-
missed that one without further ado. It permitted the Eighth
Amendment claims against Dr. Wilson for the alleged assault
and failure to provide proper medical care to go forward. The
remaining claims (that is, those resting on excessive force, fail-
ure to protect, and failure to provide proper care after the as-
sault) required a Pavey hearing.
II
The parties engaged in limited discovery before the hear-
ing. 2 The key question was not whether Fulks exhausted his
2 Attorney Mark Crandley was recruited to represent Fulks after the
district court scheduled the Pavey hearing, and he has continued to assist
No. 22-3308 5
remedies—he did not. What he needed to do instead was to
demonstrate that the Bureau’s administrative remedy pro-
gram was functionally unavailable to him. If that were true,
then he could proceed with his action. Ross v. Blake, 578 U.S.
632 (2016). In order to support this critical argument, he of-
fered into evidence a photocopied document that he alleged
was a grievance form, known as a BP-8, that he had tried to
submit to prison officials. At the bottom of the document was
a handwritten note: “This is not a grievable issue.”
The defendants challenged the authenticity of that form.
They presented a supplemental affidavit from a prison official
who screens BP-8s at the Penitentiary. That official swore that
he recognized the handwriting on the form as his own and
that he had written it on a piece of blue paper and attached it
to an unrelated BP-8 that Fulks had tried unsuccessfully to
submit.
The Pavey hearing took place in April 2022. At a cost ex-
ceeding $8,000, the defendants retained an expert in the field
of forensic document examination, Grant Sperry. Referring to
the three versions of the contested statement we have set out
below, Sperry testified that the handwritten note on the pur-
ported BP-8 (item 1) originated from the writing on the blue
paper (item 2), and that the forgery could easily have been
accomplished by anyone familiar with a copy machine. Here
is the graphic he used; to facilitate comparison, the third im-
age superimposes item 1 over item 2.
with this appeal. We thank Mr. Crandley and his firm for their efforts on
behalf of their client and the court.
6 No. 22-3308
Despite this evidence, Fulks persisted in his story that he nei-
ther forged the purported BP-8 nor asked anyone to do so on
his behalf.
The district court concluded that the purported BP-8 was
indeed forged. As for the claims that had prompted the Pavey
hearing, it ruled that the Bureau’s administrative processes
were available to Fulks and that he had failed to exhaust those
remedies. It thus dismissed those claims.
But there was more. The court found that Fulks “know-
ingly presented a forged document to the Court and pre-
sented perjured testimony when he testified that he did not
forge it or ask someone to forge it on his behalf.” It ordered
Fulks to show cause why his case should not be dismissed
with prejudice. Fulks made no such showing, and so the court
No. 22-3308 7
determined that the appropriate sanction for his litigation
misconduct was to dismiss the entire action with prejudice.
On appeal, Fulks wisely does not contest the district
court’s factual findings; he argues only that the court abused
its discretion by sweeping away his sexual assault claim
against Dr. Wilson along with the rest of the case.
III
As we have noted before, “perjury is among the worst
kinds of misconduct.” Rivera v. Drake, 767 F.3d 685, 686 (7th
Cir. 2014). “Dismissal can [thus] be appropriate when the
plaintiff has abused the judicial process by seeking relief
based on information that the plaintiff knows is false.” Se-
crease v. Western & Southern Life Ins. Co., 800 F.3d 397, 401 (7th
Cir. 2015). Fulks submitted the forged document in response
to a dispositive pretrial motion and, despite ample oppor-
tunity to withdraw his unexhausted claims, he lied at the
Pavey hearing when he insisted that the document was genu-
ine. By so doing, he “undermined the function of § 1997e(a) in
promoting alternative dispute resolution.” Rivera, 767 F.3d at
686. Worse, he set in motion a serious waste of resources both
on the government’s part and on the court’s. Because of his
dishonesty, the district court recruited counsel and the de-
fendants devoted time and energy to a hearing that could
have been avoided. The defendants spent over $8,000 to retain
an expert to analyze the purported BP-8 and refute Fulks’s
false testimony. It was well within the district court’s discre-
tion to conclude that dismissal was a sanction “proportionate
to the circumstances.” Donelson v. Hardy, 931 F.3d 565, 569 (7th
Cir. 2019).
8 No. 22-3308
The district court properly considered other sanctions be-
fore settling on dismissal. See Rivera, 767 F.3d at 686. It as-
sessed Fulks’s proposed alternatives and found them all to be
wanting. Dismissing only the claims to which the forged doc-
ument was relevant would have been “no sanction at all,” be-
cause they had been dismissed for failure to exhaust anyway.
Martin v. Redden, 34 F.4th 564, 569 (7th Cir. 2022). Monetary
sanctions would have been ineffective because Fulks is pro-
ceeding in forma pauperis and lives on death row. See Rivera,
767 F.3d at 687. And the court reasonably decided not to rely
on the hope that the Bureau would somehow punish Fulks for
his actions, because the judiciary has an interest in preserving
the integrity of its own proceedings. Cf. Secrease, 800 F.3d at
401.
Fulks now proposes three additional sanctions that would
have been appropriate. But these proposals come too late in
the day, and their mere existence does not show that the court
abused its discretion in the measure it chose. A strike under
28 U.S.C. § 1915(g) would do little, since there is no evidence
that Fulks already has any strikes. See 28 U.S.C. § 1915(g) (im-
posing a filing bar after three strikes). Restricting Fulks’s abil-
ity to bring claims in the future would be at least as drastic as
dismissal. Finally, permitting a factfinder at a hypothetical fu-
ture trial for his sexual assault claim to consider Fulks’s litiga-
tion misconduct would be too speculative to be considered a
punishment. While we recognize that there is no evidence
that Fulks has a history of litigation misconduct, we have
never suggested that this fact alone takes the sanction of dis-
missal off the table. Cf. Hoskins v. Dart, 633 F.3d 541 (7th Cir.
2011) (per curiam) (affirming dismissal with prejudice for a sin-
gle fraudulent act).
No. 22-3308 9
We fully appreciate the severity of the district court’s de-
cision. Dismissal prevents Fulks from litigating his allegation
of sexual assault against Dr. Wilson. If one credits Fulks’s ac-
count of what happened, there are serious issues the Bureau
must address. But there are remedies other than a private
right of action, including through the Bureau’s Office of Inter-
nal Affairs, which is able to provide relief for an inmate who
experienced sexual assault. In addition, Congress enacted the
Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, 117Stat. 972, to make alternative remedies available. See 28 C.F.R.
Part 115. In this very case, the Bureau’s Central Office ensured
that Fulks’s allegations were forwarded to an appropriate of-
fice for review.
IV
After finding that Fulks presented a forged document and
perjured testimony, the district court determined that the ap-
propriate sanction for his litigation misconduct was dismissal
of the entire action. Although “another district court judge
may have addressed the problem with a different set of sanc-
tions or solutions, … we can reverse only where no reasona-
ble judge would have done the same.” Fuery v. City of Chicago,
900 F.3d 450, 455 (7th Cir. 2018). That is not the case here. The
judgment of the district court is AFFIRMED.