Harris v. Hodge et al

Filing 147

MEMORANDUM AND ORDER, The Court REJECTS the Report and Recommendation in its entirety (Doc. 142 ). Magistrate Judge Frazier is DIRECTED to conduct a merits review pursuant to 28 U.S.C. § 1915A of Plaintiffs Second Amended Complaint (Doc. 92 ) and submit a Report and Recommendation. Signed by Judge J. Phil Gilbert on 7/29/2015. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY G. HARRIS,
Plaintiff,
vs.
WARDEN HODGE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 11-cv-00973-JPG-PMF

MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“R & R”) (Doc.
142) of Magistrate Judge Philip M. Frazier with regard to Plaintiff Larry G. Harris’ Motion for
Summary Judgment (Doc. 119) and Defendants’ Motion for Summary Judgment (Doc. 124).
The parties each filed responses in opposition (Docs. 128 and 131, respectively).
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. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). As objections have been
filed, the Court will review those portions de novo.
The R & R recommends that the Defendants’ Motion for Summary Judgment be granted
with regard to Count 1 and 2 and denied with regard to Count 3. It further recommends that the
Plaintiff’s Motion for Summary Judgment be denied.

Page 1 of 2

Plaintiff’s Second Amended Complaint (Doc. 93) contains four claims and it has come to
the Court’s attention that a merits review pursuant to 28 U.S.C. § 1915A was not conducted. As
such, the counts set forth in the R & R do not reflect the claims in the Second Amended
Complaint.

The Court notes that the Plaintiff’s Motion for Summary Judgment and the

Defendants’ Motion for Summary Judgment address allegations – not specific counts – and both
motions request summary judgment in their favor yet neither party address all the allegations
contained in Plaintiff’s Amended Complaint.
The Court is aware that some defendants and at least one claim was dismissed with
prejudice (Doc. 8) and then were reinstated by this Court’s Order (Doc. 22) of December 6,
2015. The de novo review of this matter indicates that there is some confusion with regard to the
claims proceeding forward in this matter. Although the Court is hesitant to cause any delay in
this matter, the interests of justice deem that the Plaintiff’s Second Amended Complaint be
review pursuant to 28 U.S.C. § 1915A and upon completion of the review, this matter can
proceed with all parties having a clear understanding of the claims at issue.
Accordingly, the Court hereby REJECTS the Report and Recommendation in its entirety
(Doc. 142). Magistrate Judge Frazier is DIRECTED to conduct a merits review pursuant to 28
U.S.C. § 1915A of Plaintiff’s Second Amended Complaint (Doc. 92) and submit a Report and
Recommendation. All pending motions are TERMINATED and the Court will provide the
parties an opportunity for filing dispositive motions upon completion of the merit review.
IT IS SO ORDERED.
DATED: 7/29/2015
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

Page 2 of 2