                        NONPRECEDENTIAL DISPOSITION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 December 13, 2017
                                Decided January 31, 2018

                                          Before

                            DIANE P. WOOD, Chief Judge

                            DANIEL A. MANION, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 16-2174

JAMES J. DAHER, JR.,                            Appeal from the United States District
     Plaintiff-Appellant,                       Court for the Northern District of
                                                Indiana, South Bend Division.
      v.
                                                No. 3:13-cv-940
MARK R. SEVIER,
Superintendent, et al.,                         Jon E. DeGuilio,
      Defendants-Appellees.                     Judge.

                                        ORDER

       This case concerns the fairness of a hearing. A magistrate judge found, after this
hearing, that James Daher, an Indiana inmate, did not exhaust his administrative
remedies before suing prison officials. On appeal, Daher challenges the hearing
procedure, which the magistrate judge arranged in two “steps.” In the first step, the
prison officials could try to meet their burden of producing evidence that Daher failed
to exhaust the prison grievance system. At the second step, Daher could try to rebut
that evidence. Daher contends the magistrate judge denied him a fair opportunity to
discover relevant evidence before, and submit evidence at, the second step. We
conclude that the magistrate judge unreasonably denied Daher an opportunity to rebut
the defendant’s case, so we vacate and remand for further proceedings.
No. 16-2174                                                                         Page 2

                                  Factual Background

        Daher sued officials at Miami Correctional Facility under 42 U.S.C. § 1983. He
contended that on September 6, 2011, they “reclassified” him to a higher security level,
put him in segregation, and subjected him to harsh prison conditions in retaliation for
filing lawsuits and grievances. The district court screened Daher’s complaint,
see 28 U.S.C. § 1915A. It allowed him to proceed on the theories that the alleged
retaliation violated the First Amendment and that the prison conditions violated the
Eighth Amendment.

        The defendants moved for summary judgment, arguing that Daher failed to
exhaust administrative remedies as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a). Several rounds of briefing followed. The defendants contended
that the prison’s electronic grievance system showed no record of any grievance from
Daher complaining about his time in segregation in September 2011. Daher responded
that he had submitted such grievances and that officials had rejected or returned them.
He submitted three documents to prove his point. First was a grievance form, dated
September 12, 2011 (six days after his placement in segregation), which he said he had
filed to protest his reclassification and the conditions in segregation. Next was a form
that, according to Daher, showed that the prison had rejected his grievance on
November 7. (The form asserts that the prison rejected a grievance because it was
“submitted on behalf of another person or a group” and was missing Daher’s inmate
number.) Third, Daher submitted another grievance that he purportedly had filed on
November 9 to complain about the prison’s failure to timely respond to his September
12 grievance.

        The defendants replied that Daher had never filed the September 12 grievance
and that the November 7 “rejection” corresponded to an unrelated grievance. They
compared their copy of the November 7 rejection to a grievance that Daher filed on
November 2 about toilet paper. They explained that, unlike the September 12 grievance,
the toilet-paper grievance appears to be filed on behalf of a group and is missing
Daher’s inmate number—the reasons given for the November 7 rejection. Further, the
November 7 rejection mentions “November 2,” the date of the toilet-paper grievance.
They concluded that both the September 12 grievance and Daher’s copy of the
November 7 rejection form were “fabricated” and had never actually been filed.

      Daher disputed this evidence in a sur-reply. He argued that defendants have an
unwritten policy “of not filing or processing grievances” and that officials often reject
grievances for nonsensical reasons. Therefore, Daher argued, it was reasonable to
No. 16-2174                                                                        Page 3

conclude that the prison lost or mishandled his September 12 grievance, and that the
November 7 rejection form may have corresponded to that grievance despite its
seeming relationship to the toilet-paper grievance.

       The court concluded that three disputed issues required a hearing. These were:
(1) did Daher submit a grievance on September 12, (2) was the grievance rejected on
November 7, and (3) did he resubmit it on November 9. The court ordered a magistrate
judge to conduct a hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), to
determine if Daher had exhausted his prison remedies as required.

      The magistrate judge proposed a “two-step” hearing procedure. First, because it
was defendants’ burden to prove Daher’s failure to exhaust, they would put on their
evidence and witnesses. After that, the judge said, if Daher needed to rebut any issues,
he could explain “what documents or what witnesses, in context and with specificity,
he would need to call.” If needed, his rebuttal case would occur at a second hearing.

       The parties agreed to this procedure. Before the hearing, Daher asked for
discovery from the defendants. To prove that in the fall of 2011 the prison’s
record-keeping was unreliable and that responses to grievances often did not match the
grievances, Daher asked (among other things) for his own grievance records and those
of other inmates in 2011. But the magistrate judge postponed those requests. He
explained that Daher did not “need” discovery before “step one,” but that he could
request it later if he needed to rebut the defendants’ evidence. The judge reiterated the
two-step process. He said that he would go forward with the defendants’ evidence and
“then determine what discovery” Daher might need if the defendants carried their
burden.

        Step one proceeded. The defendants presented three witnesses over two hours.
They sought to prove that the November 7 rejection corresponded to the November 2
toilet-paper grievance, and thus that Daher had never filed a grievance on September
12. Daher, proceeding pro se, cross-examined those witnesses and introduced some
exhibits. But the judge stopped him from proffering evidence that the Department of
Correction handled other grievances unreliably, as he had argued in his filings.

        Step two never occurred. When step one ended, the judge asked Daher how he
“wish[ed] to proceed.” Daher replied that he wanted to “put a little evidence on” or
testify. The judge did not adjourn to consider the deferred discovery requests; noting
the press of other business and the passing of the lunch hour, he offered Daher only ten
No. 16-2174                                                                             Page 4

minutes during which he alone could testify. Daher declined that meager offer as “not
necessary.” Both sides declined the judge’s offer to receive supplemental briefs.

      The magistrate judge recommended dismissing Daher’s suit for lack of
exhaustion. He found that the November 7 rejection form corresponded to the
November 2 toilet-paper grievance, and thus that Daher likely had fabricated the
September 12 grievance after filing suit. Daher filed written objections to the
recommendation and argued that he was denied a fair hearing. He pointed out that he
was not able to call witnesses to the hearing or obtain evidence. He argued that, if he
could have presented evidence, he might have shown that the electronic grievance
system was unreliable or explained the “mixups as to which rejection/response went
with which grievance.” A district judge accepted the recommendation and dismissed
Daher’s suit.

                                       Legal Analysis

      Daher, now represented by counsel recruited by this court, contends that the
magistrate judge denied him a fair hearing. The judge did so, Daher says, by
abandoning the agreed-upon, two-step process, prohibiting Daher from conducting
discovery, and denying him a reasonable chance to rebut the defendants’ case.

        This case turns on the proper procedures for a Pavey hearing. See Wagoner
v. Lemmon, 778 F.3d 586, 588 (7th Cir. 2015). Daher contends that due process calls for a
“fair hearing.” See Dr. Robert L. Meinders, D.C., Ltd. v. UnitedHealthcare, Inc., 800 F.3d 853,
858 (7th Cir. 2015) (due process requires “a plaintiff be given an opportunity to respond
to an argument or evidence raised” against his claims); English v. Cowell, 10 F.3d 434,
437 (7th Cir. 1993) (“The opportunity to respond is deeply imbedded in our concept of
fair play and substantial justice.”). We find it unnecessary to invoke the Constitution,
however, because established procedural rules govern these proceedings. See Hussain
v. Keisler, 505 F.3d 779, 781 (7th Cir. 2007). Specifically, Federal Rule of Evidence 611(a)
requires district courts to exercise “reasonable control” over the presentation of
evidence and witnesses to “make those procedures effective for determining the truth,”
“avoid wasting time,” and “protect witnesses from harassment or undue
embarrassment.” And Federal Rule of Civil Procedure 26(b)(1) permits parties to
“obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense” and proportional to the scope of the case. Decisions about discovery
and evidence are reviewed for abuse of discretion. See Houlihan v. City of Chicago,
871 F.3d 540, 553 (7th Cir. 2017); Bryant v. City of Chicago, 746 F.3d 239, 242–43 (7th Cir.
2014).
No. 16-2174                                                                         Page 5

       For two reasons we conclude that the magistrate judge unreasonably applied
these rules. First, the “two-step procedure” created expectations that were not fulfilled.
The defendants bore the initial burden of producing evidence sufficient to find that
Daher had not filed a grievance. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)
(noting that burden of proving lack of exhaustion under PLRA is on prison officials). If
the defendants did not produce sufficient evidence, the magistrate judge presumably
would have found that Daher had exhausted his administrative remedies, and no
rebuttal would have been needed. But if the defendants met their burden of production,
Daher would have had to try to rebut that evidence to succeed. Therefore, the case
would end after step one only if the defendants’ evidence did not raise an inference that
Daher failed to exhaust the grievance process. The judge acknowledged so much by
ruling that it was “unnecessary” for Daher to conduct discovery before step one.

       But the magistrate judge did not follow through with the agreed procedure.
After step one, the judge must have believed that the defendants had met their burden
of production, since he ultimately relied on the evidence from the hearing to rule
against Daher. But he offered Daher no chance to seek discovery on the disputed issues,
despite his earlier, repeated promises to consider doing so. The judge gave no reason
for revising the discovery plan that he had established and the parties had agreed to,
despite the “good cause” requirement of Federal Rule of Civil Procedure 16(b)(4). Other
than the usual press of other cases and the waning lunch hour, there was no good
reason to upend the two-step procedure, so the decision was not reasonable.

        Besides upsetting the parties’ expectations, the judge avoided Federal Rule of
Civil Procedure 26(b)(1) and Federal Rule of Evidence 611(a) by allowing Daher no
discovery and only ten minutes of testimony. Before the hearing, Daher had several
times explained that he could not rebut the defendants’ case without first obtaining
discovery. Some of his discovery requests were tailored to counter the defendants’
assertions. Specifically, Daher’s requests for his grievance records, and those of other
inmates from the fall of 2011, reasonably addressed his theory that the prison’s
grievance system was systemically unreliable at this time. But the judge refused even to
consider these requests and gave Daher virtually no time to testify. Effectively, the
judge decided the exhaustion issue after allowing only one side to present evidence on
it. This was an abuse of discretion under both Federal Rule of Civil Procedure 26(b)(1)
and the “truth-determining” function of Federal Rule of Evidence 611(a).

      The appellees contend that Daher waived or forfeited his challenge to the
procedure. But Daher asked for an opportunity to “put a little evidence on.” This
No. 16-2174                                                                          Page 6

request is best understood as a plea for the originally promised time to conduct
discovery before putting on a full case in rebuttal. True, after the judge decided to limit
Daher to ten minutes of testimony with no discovery or other witnesses or evidence,
Daher replied that, in light of the ruling, it was “not necessary” for him to testify or do
anything further. This statement reflects an understandable reluctance to take
“exception” to the just-made ruling, and exceptions are not required. See FED. R. CIV. P.
46; FED. R. EVID. 103(b). Daher’s later written objections, which protested the denial of
discovery and a reasonable time to present evidence, confirm that he opposed the
ruling.

        We conclude that another Pavey hearing is necessary. Before the hearing, Daher
may request and should receive discovery relevant to rebut the defendants’ assertions
on their exhaustion defense. See FED. R. CIV. P. 26(b)(1). At the hearing, he should
receive a reasonable amount of time in which to put on his case in rebuttal. We caution
Daher, however, that this remand is not a free pass to conduct open-ended discovery
and litigation. Many of Daher’s previous discovery requests were vague or overbroad;
although that is not why the magistrate judge denied them, a judge may do so if Daher
insists on unreasonably broad or vague discovery. See FED. R. CIV. P. 26(b)(2)(C);
Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (noting that district
courts have “broad discretion” to limit or curtail discovery). Furthermore, Daher is
responsible for ensuring that his evidence and witnesses are available for the hearing.
And the testimony from Daher’s witnesses may be limited to rebutting the defendants’
evidence that he failed to exhaust the prison grievance system. Finally, nothing in this
decision limits the district court’s discretion to enter appropriate sanctions against any
party who the court has found to have submitted falsified evidence. See, e.g., FED. R. CIV.
P. 11(c); 28 U.S.C. § 1927.

                                                           VACATED AND REMANDED.
