Ford v. Davis et al

Filing 58

ORDER denying 48 Motion for TRO; adopting 49 Report and Recommendations.; granting 24 Motion for Summary Judgment. Signed by Judge G. Patrick Murphy on 9/14/2012. (ktc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BOBBY FORD,
Plaintiff,
vs.
WARDEN DAVIS and KIM BUTLER,
Defendants.

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CIVIL NO.10-829-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 49), recommending that the motion for summary
judgment for failure to exhaust administrative remedies filed by Defendants Warden Davis and Kim
Butler (Doc. 24) be granted. Also before the Court is Plaintiff Bobby Ford’s motion for a temporary
restraining order (Doc. 48). The Report and Recommendation was entered on June 14, 2012. Mr.
Ford filed an objection to the Report and Recommendation on June 18, 2012 (Doc. 52), to which
Defendants replied on July 2, 2012 (Doc. 54). Defendants responded to Mr. Ford’s motion for a
temporary restraining order on June 19, 2012 (Doc. 53).
Background
In this 42 U.S.C. § 1983 case, Mr. Ford claims that Defendant Davis, Warden of
Pinckneyville Correctional Center (“Pinckneyville”), and Defendant Butler, a corrections officer at
Pinckneyville, transferred Mr. Ford to Lawrence Correctional Center under the guise of protecting
Mr. Ford from harm–guards at Pinckneyville were allegedly “trying to kill” Mr. Ford, as they had
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taken away Mr. Ford’s AIDS medication and taken away a pen so Mr. Ford could not document this
abuse (Doc. 1). According to the complaint, however, the transfer and Mr. Ford’s classification as
an escape risk was made in retaliation for previous lawsuits he had filed (Doc. 1). Mr. Ford’s
retaliation claims survived 28 U.S.C. § 1915A threshold review (Doc. 13).
Defendants filed a motion for summary judgment claiming that Plaintiff has failed to exhaust
his administrative remedies as required by 42 U.S.C. § 1997e(a) (Doc. 24). Plaintiff filed a response
to the motion, and on April 26, 2012, Magistrate Judge Wilkerson held an evidentiary hearing on
the issue of exhaustion as per Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (Doc. 39). Upon
review of the papers, the docket, and Magistrate Judge Wilkerson’s Report and Recommendation,
the Court concludes that the Report and Recommendation accurately states the nature of the
evidence presented by both sides on the issue of exhaustion, including the testimony heard during
the Pavey hearing, as well as the applicable law and the requirements of the administrative process.
Evidence
As part of Defendants’ motion for summary judgment, Jackie Miller, chairperson of the
Administrative Review Board (“ARB”) submitted an affidavit stating that, at least for the period
from July 15, 2010 to September 15, 2010, the ARB had not received any grievances or appeals
from Plaintiff regarding retaliatory transfer or naming Defendants (Doc. 25-1).
Plaintiff argued that he had filed an August 3, 2010 grievance, but the ARB was persuaded
to conceal that grievance by “their Director and Transfer Coordinators” (Doc. 27, p. 7). As part of
his complaint, and at the Pavey hearing, Plaintiff offered photocopies of a trust fund account
statement and two Offender Authorization for Payment vouchers in support of his claim that he had
mailed a grievance regarding Defendants (Doc 1, p. 8, 9). The trust fund statement shows an August

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3, 2010 withdrawal of forty-four cents for “legal postage.” The Offender Authorization for Payment
form dated August 2, 2010 states, in handwriting, that it is for the purpose of “grievance concerning
the 7-21-10 retaliation transfer from Pinckneyville Corr. Center to Lawrence C.C. sent to the Adm.
Review for handling, Springfield A.R.B. Office.” On the Offender Authorization for Payment form
dated October 12, 2010, the handwritten “purpose” for the payment authorization is “Letter to acting
Director inquiring about why I haven’t receive a response to my 8/2/10 grievance sent to the A.R.B.
about a 7/13/2010 incident at Pinckneyville.”
Recognizing that the photocopied exhibits left open the possibility that the “purpose” for the
payments had been added at a later time to bolster Plaintiff’s exhaustion argument, at the Pavey
hearing Magistrate Judge Wilkerson questioned Plaintiff about the statements on the photocopied
Offender Authorizations for Payment:
COURT:

Mr. Ford, did you write this information on there at the time you filled out
these forms or at a later time?

FORD:

When I filled out the money voucher, your Honor, I wrote down specifically
what it was for and attached it to the grievance and mailed it from Lawrence
Correctional Center from inside of my cell there, put it in the door like we
have been told to do.

COURT:

All right. Hold on. Hold on. You – but here, listen to my specific question.
Okay. This offender authorization for payment, dated August 2, 2010, it says
down on this line it says account for the purpose of it says “grievance
concerning the 7/21 retaliation transfer from Pinckneyville Correctional
Center to Lawrence sent to Administrative Review Board handling
Springfield ARB Office.” Did you fill that in at the same time you filled in
all the other information on this form or did you fill it in later?

FORD:

I filled it in exactly at that time when I mailed it.

(Doc. 41, p. 20). Magistrate Judge Wilkerson granted Defendants leave to file the original vouchers
in a supplement to the proceedings, and Defendants did so on May 10, 2012 (Doc. 43).

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The copy of the original August 2, 2010 voucher does not contain the statements of ‘purpose’
that appears on the copy offered by Plaintiff (Doc. 43). Based on the discrepancy between
Plaintiff’s testimony and the evidence; the failure of the vouchers to prove that Plaintiff filed a
relevant grievance; and the affidavit of the ARB chairperson, Defendants argued that Plaintiff had
failed to exhaust. Plaintiff argued in response that Defendants could not dis-prove that the “legal
mail” he paid for on August 3, 2010 was a grievance related to this claim.
Conclusions of the Report and Recommendation
The Report and Recommendation focuses on Plaintiff’s falsehood at the Pavey hearing: it
is clear that Plaintiff did not contemporaneously label the August 2, 2010 voucher as related to a
Davis/Butler/transfer grievance; though he testified to Judge Wilkerson that he did so. Magistrate
Judge Wilkerson rationalizes that “[a]t best, Plaintiff wrote the description on only his copy just after
he submitted the voucher, to remind himself of the document he mailed. At worst, Plaintiff wrote
the description in preparation for litigation with intent to make the Court believe he submitted a
grievance on August 3, 2010. Regardless, Plaintiff’s statements led the Court to believe that he
wrote the description before he submitted the voucher, not after. The documents belie such a claim.”
(Doc. 49). Plaintiff’s credibility so-undermined, Judge Wilkerson finds no support for Plaintiff’s
contention that he did submit a grievance related to this claim, and the Report and Recommendation
recommends dismissal for failure to exhaust administrative remedies.
Plaintiff’s Objections to the Report and Recommendation
Plaintiff essentially argues that the Court should just take his word for it–(“If I say I sent the
retaliational (sic) grievance to the A.R.B. on 8-2-10 it should be accepted I did do that just as I say
I did.”) (Doc. 52). The testimony he gave to Magistrate Judge Wilkerson, which is contradicted by

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the evidence, he explains as symptomatic of “a mental disorder like [Alzheimers].…I’m abnormally
functional.” (Doc. 52).
Discussion
Where timely objections are filed, this Court must undertake a de novo review of the Report
and Recommendation. 28 U.S.C. § 636(b)(1)B), (C), FED. R. CIV. P.72(b); SDIL-LR 73(1)(b);
Harper v. City of Chicago Heights 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court “may accept, reject, or modify the
magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788. In making this
determination, the Court must look at all of the evidence contained in the record and “give ‘fresh
consideration to those issues to which specific objections have been made.’” Id., quoting 12 Charles
Alan Wright et al., Federal Practice and Procedure § 3076.8 at p.55 (1st ed. 1973) (1992 Pocket
Part) (emphasis added). However, where neither timely nor specific objections to the Report and
Recommendation are made, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo
review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).
Plaintiff specifically objects to Magistrate Judge Wilkerson’s determination that Plaintiff’s
false statement during the Pavey hearing damaged his credibility. Plaintiff contends that the Report
and Recommendation was made because the Magistrate Judge’s feelings were hurt when Plaintiff’s
newly-revealed mental disorder caused him to give a confused answer (Doc. 52, p. 5). While
Magistrate Judge Wilkerson could rightly take umbrage at being lied to under oath, the Report and
Recommendation is based on the dearth of proof that Plaintiff filed a grievance in this matter. It is
true that determination is inevitably tied to Plaintiff’s credibility. See Pavey v. Conley, 663 F.3d
899, 904 (7th Cir. 2011) (“In the district court proceedings, the question whether Pavey had

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complied with these procedures turned largely on the issue of his credibility.”). The Court agrees
with the determination that Plaintiff is just not credible. Judge Wilkerson’s question to Plaintiff
about the timing of his notes on the vouchers was clear, and the Judge repeated the question.
Plaintiff’s ‘explanation’ for the confusion–that he has a heretofore unannounced “mental
illness”–does not cure the determination that Plaintiff is not credible. But while the Court concurs
that Plaintiff’s testimony is not reliable, the determination that Plaintiff failed to exhaust his
administrative remedies is not made in reprisal for lying under oath.

The Report and

Recommendation considers the possibility that Plaintiff made an honest mistake and still finds that
Plaintiff failed to exhaust his administrative remedies. The Court agrees. Plaintiff has not shown
that he submitted a grievance. The affidavit of the ARB chairperson is credible. Plaintiff has failed
to exhaust his administrative remedies, and Defendants’ motion for summary judgment will be
GRANTED and this case DISMISSED.
Plaintiff also has a pending motion for a temporary restraining order, asking for the Court
to order Warden Gaetz, an unknown nurse, and an unknown correctional officer to immediately
provide him with his AIDS medication, provide him with an African Hebrew Israelite diet, and
transfer him “behind the wall” to Stateville Correctional Center (Doc. 48). As Plaintiff’s claim shall
be dismissed for failure to exhaust administrative remedies, he has no chance at success on the
merits, and cannot meet the burden of proof for receiving a preliminary injunction. See MainStreet
Organization of Realtors v. Calumet City, 505 F.3d 742, 753 (7th Cir. 2007). Further, the claims
and parties in Plaintiff’s motion appear to be totally unrelated to this action. Other remedies are
available to him should he wish to pursue these claims. As for this motion in this case, Plaintiff’s
request for relief is DENIED.

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Conclusion
The Court ADOPTS the Report and Recommendation of Magistrate Judge Wilkerson (Doc.
49), DENIES Plaintiff’s motion for a temporary restraining order (Doc. 48), and GRANTS
Defendants’ motion for summary judgment (Doc. 24). Judgment shall be entered for Defendants,
this case shall be CLOSED on the Court’s docket, and this action DISMISSED without prejudice.
See Phillips v. Walker, 443 Fed.Appx. 213, 215 (7th Cir. 2011) (“Dismissals for failure to exhaust
under § 1997e(a) are without prejudice…while many of these same defendants might have valid
defenses about nonexhaustion or the statute of limitations if [plaintiff] brings a new suit, those are
questions to be resolved in the new litigation.”)
IT IS SO ORDERED.
DATED: September 14, 2012
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G. PATRICK MURPHY
United States District Judge

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