                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-1426
CHRISTOPHER PAVEY,
                                               Plaintiff-Appellee,
                               v.

PATRICK CONLEY, et al.,
                                         Defendants-Appellants.
                        ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, South Bend Division.
   No. 3:03-CV-0662-RLM-CAN—Robert L. Miller, Jr., Chief Judge.
                        ____________
        ARGUED APRIL 9, 2008—DECIDED JUNE 5, 2008
                        ____________


  Before POSNER, RIPPLE, and MANION, Circuit Judges.
  POSNER, Circuit Judge. The question presented by this
interlocutory appeal under 28 U.S.C. § 1292(b) is whether
a prisoner plaintiff in a suit for damages governed by
the Prison Litigation Reform Act is entitled by the
Seventh Amendment to a jury trial on any debatable
factual issues relating to the defense of failure to exhaust
administrative remedies. The district court answered yes.
  The prisoner filed this suit under 42 U.S.C. § 1983 against
guards who he claimed had used excessive force in re-
moving him from his cell, as a result breaking his arm. In
2                                                 No. 07-1426

their answer the defendants claimed that the prisoner
had failed to exhaust his administrative remedies be-
cause he hadn’t filed a timely grievance with the prison
authorities. He countered with an affidavit which stated
that he had been unable to exhaust those remedies because
he could not prepare the grievance himself, as he is left-
handed and it was his left arm that was broken; and that
he was transferred to another prison before a promised
investigation of the incident was conducted, which pre-
sumably prevented him from obtaining the facts that he
needed in order to be able to press a grievance effectively.
The defendants respond that any factual issues relating
to the defense of failure to exhaust administrative rem-
edies should be resolved by the judge at the outset of the
litigation without a jury unless of course the judge decides
to convene an advisory jury.
  The Prison Litigation Reform Act provides that “no
action shall be brought [under federal law] with respect
to prison conditions . . . by a prisoner . . . until such admin-
istrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The Supreme Court has held that the failure
to satisfy this requirement is an affirmative defense,
Jones v. Bock, 549 U.S. 199 (2007), which means that the
plaintiff need not plead that he exhausted his administra-
tive remedies. Only one appellate court has weighed in on
the question whether there is a right to a jury trial if
genuine issues of material fact concerning compliance
with the duty to exhaust are presented: in Wyatt v. Terhune,
315 F.3d 1108, 1119-20 (9th Cir. 2003), the Ninth Circuit
held that because previous Ninth Circuit cases had held
that a failure to exhaust remedies is a “matter in abate-
ment,” properly raised not by a motion for summary
judgment but by a motion under Fed. R. Civ. P. 12(b) (an
No. 07-1426                                                  3

“unenumerated Rule 12(b) motion,” the court called it), the
judge must decide exhaustion even if that requires him
to make findings of fact.
   The Ninth Circuit’s approach is not persuasive, al-
though we agree with its result. Rule 12(b) does not say
anything about who finds the facts. It just permits cer-
tain defenses, such as lack of subject-matter or personal
jurisdiction, to be presented by motion rather than only
in the answer to the complaint. Yet the defendants are
right that not every factual issue that arises in the course
of a litigation is triable to a jury as a matter of right, even
if it is a suit at law (rather than in equity) within the
meaning of the Seventh Amendment. The clearest ex-
ample is subject-matter jurisdiction; often it turns on
factual issues that may be genuinely debatable, but even
if so the issues are resolved by the judge. E.g., McNutt
v. General Motors Acceptance Corp., 298 U.S. 178, 188-90
(1936); Prizevoits v. Indiana Bell Telephone Co., 76 F.3d
132, 134-35 (7th Cir. 1996). The same is true of factual
issues relating to the defense of lack of personal jurisdiction
or venue, e.g., Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 712-13
(7th Cir. 2002); Marra v. Papandreou, 216 F.3d 1119, 1122
(D.C. Cir. 2000)—though these defenses are not jurisdic-
tional in the sense of requiring the judge to decide them
even if the parties do not make an issue of them—and to
motions to abstain in favor of another court, or an agency.
E.g., Ambrosia Coal & Construction Co. v. Pages Morales, 368
F.3d 1320, 1331-32 (11th Cir. 2004); cf. Majors v. Engelbrecht,
149 F.3d 709, 711 (7th Cir. 1998). A decision to relinquish
supplemental jurisdiction to the state courts, see 28
U.S.C. § 1367, is likewise made by the judge even if there
are contestable factual questions bearing on the decision.
  The generalization that emerges from these examples
and others that might be given is that juries do not decide
4                                                No. 07-1426

what forum a dispute is to be resolved in. Juries decide
cases, not issues of judicial traffic control. Until the issue
of exhaustion is resolved, the court cannot know whether
it is to decide the case or the prison authorities are to. In
this case, should the defendants’ contention that the
prisoner inexcusably failed to file a timely grievance be
sustained, he would no longer have any administrative
remedies. But in many cases the only consequence of a
failure to exhaust is that the prisoner must go back to the
bottom rung of the administrative ladder; and in such a
case one could envision a series of jury trials before there
was a trial on the merits: a jury trial to decide exhaustion,
a verdict finding that the prisoner had failed to exhaust, an
administrative proceeding, the resumption of the litiga-
tion, and another jury trial on failure to exhaust. That
distinguishes the issue of exhaustion from deadline
issues that juries decide. A statute of limitations defense
if successfully interposed ends the litigation rather
than shunting it to another forum. If the defense is re-
jected, the case proceeds in the court in which it is filed.
  A peculiarity of this case is a possible overlap between
the factual issues relating to exhaustion and those relating
to the merits of the excessive-force claim. The broken arm is
of course germane to both, and while the fact that it was
broken is conceded, the severity of the break could well be
an issue common to both the allegedly inexcusable failure
to exhaust and the excessiveness of the force that caused
the break. By analogy to the cases that require that claims
at law be decided before equitable claims when both types
of claim are presented, so that the judge’s decision on the
latter does not preclude or otherwise affect the jury’s
determination of the former, e.g., Beacon Theatres, Inc. v.
Westover, 359 U.S. 500, 508-11 (1959); Williams Electronics
No. 07-1426                                                5

Games, Inc. v. Garrity, 366 F.3d 569, 577-78 (7th Cir. 2004),
we think that any finding that the judge makes, relating to
exhaustion, that might affect the merits may be reexamined
by the jury if—and only after—the prisoner overcomes the
exhaustion defense and the case proceeds to the merits. The
alternative of trying the merits before exhaustion, as under
the Beacon Theatres line of cases, is unsatisfactory in the
present setting because it would thwart Congress’s effort
to bar trials of prisoner cases in which the prisoner has
failed to exhaust his administrative remedies. Jones v. Bock,
supra; Porter v. Nussle, 534 U.S. 516, 523-25 (2002); Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). A jury
might decide the merits of a case that should never have
gotten to the merits stage because the judge should have
found that the prisoner had failed to exhaust his adminis-
trative remedies.
  The sequence to be followed in a case in which exhaus-
tion is contested is therefore as follows: (1) The district
judge conducts a hearing on exhaustion and permits
whatever discovery relating to exhaustion (and only to
exhaustion) he deems appropriate. (2) If the judge deter-
mines that the prisoner did not exhaust his administra-
tive remedies, he will then determine whether (a) the
plaintiff has unexhausted remedies, and so he must go
back and exhaust; (b) or, although he has no unexhausted
remedies, the failure to exhaust was innocent (as where
prison officials prevent a prisoner from exhausting his
remedies), in which event he will be allowed to go back
and exhaust; or (c) the failure to exhaust was the prisoner’s
fault, in which event the case is over. (3) If and when the
judge determines that the prisoner has properly exhausted
his administrative remedies, the case will proceed to
pretrial discovery, and if necessary a trial, on the merits;
6                                                No. 07-1426

and if there is a jury trial, the jury will make all necessary
findings of fact without being bound by (or even informed
of) any of the findings made by the district judge in
determining that the prisoner had exhausted his adminis-
trative remedies.
   We emphasize that discovery with respect to the merits
must not be begun until the issue of exhaustion is resolved.
If merits discovery is allowed to begin before that resolu-
tion, the statutory goal of sparing federal courts the bur-
den of prisoner litigation until and unless the prisoner
has exhausted his administrative remedies will be
thwarted.
  The judgment of the district court is reversed and the
case is remanded for further proceedings consistent with
this opinion.
                                 REVERSED AND REMANDED.




                    USCA-02-C-0072—6-5-08
