Garrett v. Schwatz et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS 51 ; GRANTING IN PART AND DENYING IN PART 36 MOTION for Summary Judgment filed by Lieutenant Dintelman, Officer Urbanek, C/O Colgan, Gregory Schwatz, C/O Myers. Officer Urbanek, C/O Myers and Gregory Schwatz terminated. Signed by Judge G. Patrick Murphy on 7/25/2012. (ktc)

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

ROBERT GARRETT,

)
)
Plaintiff,
)
)
vs.
)
)
GREGORY SCHWATZ, LIEUTENANT )
DINTELMAN, C/O COLGAN, C/O )
MYERS, and OFFICER URBANEK,
)
)
Defendants.
)

CIVIL NO. 10-955-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
In this 42 U.S.C. § 1983 action, Plaintiff, Mr. Garrett, claims that Defendants denied him
access to the restroom in violation of his Eighth Amendment rights (Docs. 1, 10). Defendants
moved for summary judgment arguing that Mr. Garrett failed to exhaust his administrative remedies
as required by 42 U.S.C. § 1997(e) (Doc. 36). Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008), United States Magistrate Judge Donald G. Wilkerson held an evidentiary hearing on the
motion for summary judgment on April 5, 2012 (Doc. 48). This matter is now before the Court on
the resulting Report and Recommendation of Judge Wilkerson (Doc. 51), recommending that this
Court: grant in part and deny in part Defendants’ motion for summary judgment; find that Plaintiff
did exhaust his administrative remedies as to Defendants Colgan and Dintelman; find that Plaintiff
did not exhaust his administrative remedies as to Defendants Schwartz, Myers, and Urbanek; and
dismiss Defendants Schwartz, Myers, and Urbanek from this action. Judge Wilkerson’s Report and
Recommendation was entered June 1, 2012. No objections have been filed.
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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).
However, whereSas hereSneither 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).
The record indicates that Mr. Garrett filed grievances regarding the alleged denial of
restroom access on February 9, 2009 and May 12, 2010. Mr. Garrett also testified that he directly
submitted those grievances to the Administrative Review Board (ARB) on July 22, 2010. Judge
Wilkerson credited Mr. Garrett’s testimony regarding the February 9, 2009 grievance–that his direct
submission of the grievance to the ARB after receiving no response from the grievance officer was
a reasonable attempt to exhaust his administrative remedies. The February 9, 2009 grievance names
only Defendants Colgan and Dintelman.

The ARB did not receive the May 12, 2010

grievance–which names Defendants Schwartz, Myers, and Urbanek–until September 7, 2010, and
Judge Wilkerson found that the evidence contradicted Mr. Garrett’s testimony that he had
immediately forwarded that grievance to the ARB. Judge Wilkerson therefore found that Mr.
Garrett had failed to exhaust his administrative remedies as against Defendants Schwatz, Myers, and

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Urbanek.
While a de novo review is not required here, the Court has considered the evidence adduced
at the Pavey hearing and fully agrees with the findings, analysis, and conclusions of Magistrate
Judge Wilkerson. The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 51) and GRANTS in part and DENIES in part Defendants’ motion for summary judgment
for failure to exhaust administrative remedies (Docs. 36). Plaintiff’s action as against Defendants
Schwartz, Myers, and Urbanek is DISMISSED. Plaintiff’s claim against Defendants Colgan and
Dintelman shall proceed.
IT IS SO ORDERED.
DATED: July 25, 2012
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G. PATRICK MURPHY
United States District Judge

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