Hill v. Best

Filing 74

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 72 ; granting in part and denying in part 66 MOTION for Summary Judgment filed by James P Best, dismissing without prejudice Count 4 (retaliation.) Clerk of court to enter judgment accordingly at close of case. Signed by Judge J. Phil Gilbert on 7/2/2012. (dka, )

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS G. HILL,
Plaintiff,
v.

Case No. 10-cv-26-JPG

JAMES P. BEST,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
72) of Magistrate Judge Philip M. Frazier recommending that the Court grant in part and deny in
part defendant James P. Best’s second motion for summary judgment (Doc. 66) and dismiss
without prejudice for failure to exhaust administrative remedies certain retaliation claims of
plaintiff Demetrius G. Hill. Hill has objected to the Report (Doc. 73).
I.

Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. Id. “If no objection or only partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999).
II.

Report
Magistrate Judge Frazier addressed the question of whether Hill had exhausted his

administrative remedies as to two claims pled in the Amended Complaint: excessive use of
force (Count 2) and retaliation (Count 4). With respect to Count 2, Magistrate Judge Frazier

found that Hill exhausted the administrative remedies that were available to him by preparing
and submitting a grievance to his counselor and to a grievance officer. He received no response,
which was required before he could pursue further administrative steps, so no further steps were
available to him. With respect to Count 4, Magistrate Judge Frazier found Hill had failed to
exhaust his administrative remedies for all allegedly retaliatory conduct except a restriction on
shower access and an assault, both alleged to have occurred August 12, 2009.
III.

Objections and Analysis
In his objection, Hill argues that a June 14, 2009, grievance was sufficient to alert prison

officials to retaliatory acts involving his legal mail. Hill seems to be under the mistaken
impression that retaliatory interference with legal mail is part of Count 4. It is not. The
retaliatory acts in Count 4 are set forth in paragraph 59 of the Amended Complaint and do not
mention legal mail. Count 1, which centers on issues involving legal mail, remains pending and
has not been challenged for failure to exhaust administrative remedies.
Hill also argues that, although he exhausted his grievance for retaliatory deprivation of
barber services after he filed this lawsuit, there was no way he could have known that the
Administrative Review Board, the final step in the administrative remedies process, was
considering his grievance. He asserts it was reasonable for him to assume that, like many of his
other grievances, his grievance about barber services would receive no response. While the
Court has some sympathy with Hill, this does not justify an exception to the exhaustion
requirement of 42 U.S.C. § 1997e(a). Hill’s retaliation claim based on barber services will be
dismissed without prejudice, and Hill is free to refile that claim in another lawsuit in which the
exhaustion requirement may not be a barrier.
Finally, Hill argues that his October 30, 2009, grievance about being deprived of a
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shower was sufficient to exhaust his administrative remedies about his complaint that Best was
soliciting other inmates to attack him in return for food. In its September 30, 2011, order, the
Court determined that Hill’s October 30, 2009, grievance did not contain the level of detail
required by the Illinois Administrative Code and did not alert the reader that Hill was
complaining that Best bribed other inmates with food to attack him. This is true regardless of
whether he is pursuing a failure to protect theory or a retaliation theory. The Court need not
address this further.
In sum, the Court has reviewed the portions of the Report to which objections have been
made and finds, for the reasons stated above, that the Report was correct. The Court has reviewed
the remainder of the Report for clear error and finds none.

IV.

Conclusion
For the foregoing reasons, the Court:

•

ADOPTS the Report in its entirety (Doc. 72);

•

GRANTS in part and DENIES in part Best’s motion for summary judgment (Doc. 66);

•

DISMISSES without prejudice Count 4 (retaliation) for failure to exhaust
administrative remedies to the extent it is based on:
(a)
(b)
(c)
(d)

C

Retaliation by threatening great bodily harm on June 14, 2009,
Retaliation by causing Hill to be housed with a mentally unstable inmate in
September 2009,
Retaliation by depriving Hill of barber services, and
Retaliation by offering food to bribe inmates to inflict harm on October 10, 2009;
and

DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: July 2, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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