Pickett v. Johnson et al

Filing 78

MEMORANDUM AND ORDER ADOPTING 72 REPORT AND RECOMMENDATIONS, Granting 58 MOTION for Summary Judgment. Jose Delgado, Brent Hunsaker, John Maragni, Homer Markel, Daniel Monti, Jeff Peterson, Sarah Robertsen, Eugene Simpson, Jamie Sisk, James Smith, James Watkins, Keith Benefield and Robert Benefield terminated. Counts 1, 2 and 4 will remain only against defendant John Doe. Signed by Judge J. Phil Gilbert on 9/11/12. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OZZIE PICKETT,
Plaintiff,
vs.

Case No. 12-cv-13-JPG-PMF

YOLANDE JOHNSON, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“R & R”) (Doc.
72) of Magistrate Judge Philip M. Frazier recommending that the Court deny the Motion for
Summary Judgment (Doc. 58) as follows: (1) find there is no genuine issue of material fact for
an evidentiary hearing on the defendants’ affirmative defense of failure to exhaust administrative
remedies; (2) find that the movants have demonstrated by a preponderance of the evidence that
the plaintiff has failed to exhaust his available administrative remedies against them; and (3)
dismiss defendants Keith Benefield, Robert Benefield, Jose Delgado, Brent Hunsaker, John
Maragni, Homer Markel, Daniel Monti, Jeff Peterson, Sarah Robertson, Jamie Sisk, James
Smith, James Watkins, and Eugene Simpson from the lawsuit. Thereafter, plaintiff filed an
objection to the R & R (Doc. 75), to which defendants filed a response (Doc. 77).
I.

Facts and Procedural History
Plaintiff has more than the three allowed “strikes” under 28 U.S.C. § 1915(g); the Court,

however, permitted him to proceed finding that he had sufficiently pleaded he was under
imminent danger of serious physical injury. In his complaint, plaintiff alleged numerous
violations of his constitutional rights by several defendants. The Court previously recounted the
relevant facts of this case as follows:

The complaint begins by describing assaults on Plaintiff by several Defendant
correctional officers on December 8, 2011. First, while driving Plaintiff back to
Tamms after he had spent a week at Pontiac Correctional Center (“Pontiac”) on a
writ to appear in court, Defendants Keith Benefield, Watkins, and Lt. John Doe
punched Plaintiff on the back and side of his head and verbally threatened him
(Doc. 1, p. 6-8). Defendant Watkins repeatedly slammed on the van’s brakes in
order to throw Plaintiff against the sides of the “cage” where he was seated in
shackles and handcuffs, and Defendant K. Benefield turned on the air conditioner
to increase Plaintiff’s discomfort. During the van ride, these Defendants verbally
harassed Plaintiff, using racial epithets, and at one point discussed hanging him
(Doc. 1, p. 8).
After Plaintiff’s arrival at Tamms later that day, Defendant Watkins again
punched Plaintiff in the head while Defendants Peterson and Sisk held him down.
Defendants K. Benefield and Hunsaker also participated in this assault (Doc. 1, p.
14). In addition, Defendants K. Benefield, Peterson, Hunsaker, Watkins, Sisk, and
Lt. Robert Benefield, while “shaking down” Plaintiff’s property, destroyed and
threw away Plaintiff’s mail and legal papers, and read his confidential legal
correspondence (Doc. 1, p. 11).
Subsequently, Plaintiff was taken to the prison hospital, where he reported the
assault and his injuries to Defendants Hill and Parrish (Doc. 1, p. 15). They
examined him but gave him no medical treatment, nor did they request Internal
Affairs to investigate the incident.
Plaintiff claims that some two weeks earlier, on November 24, 2011, he had
complained to Defendant Lambert (the Tamms Assistant Warden) about the
danger he believed he was in from numerous correctional officers, including those
Defendants who perpetrated the December 8, 2011, assaults (Doc. 1, p. 15).
Additionally, Plaintiff had filed a grievance on August 30, 2011, over another
incident of excessive force. He requested Defendant Lambert to “restrain the
Defendants from having contact with Plaintiff” and from working on Plaintiff’s
housing unit (Doc. 1, p. 16). Plaintiff asserts that these complaints motivated
Defendants K. Benefield, R. Benefield, Watkins, Peterson, Sisk, Hunsaker, and
John Doe to assault him and destroy his mail, legal correspondence, and other
property in retaliation against him for complaining (Doc. 1, p. 16).
Plaintiff further notes that he has several pending court cases which will require
him to again be transported to another institution, thus placing him in a situation
where another assault such as the one on December 8, 2011, may recur. Indeed,
while this case was awaiting preliminary review, Plaintiff notified the Court that
he was again temporarily relocated to Pontiac on February 2, 2012 (Doc. 17).
Plaintiff asserts that several Defendants conspired together to orchestrate and then
to cover up the December 8, 2011, assault on him, as well as the retaliatory
destruction of his property. He further claims that the warden and other
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administrators and officers (Defendants Johnson, Lambert, Monti, Markel, J.
Smith,2 Delgado, Robertsen, and T. Osman;3 along with four staff members not
named elsewhere in the complaint as Defendants) failed to protect him from
racially motivated assaults by other Defendants, failed to discipline correctional
staff, ignored complaints from Plaintiff and other inmates, and housed him in
inhumane conditions (Doc. 1, p. 19; Doc. 1-1, p. 1). He states that the Defendants
who assaulted him on December 8, 2011, had previously victimized three other
black inmates in racially motivated attacks (Doc. 1-1, p. 1).
Doc. 23, pp. 3-5.
As Magistrate Judge Frazier explained, the Court divided plaintiff’s complaint into seven
counts, allowing only the following three counts to survive threshold review:
Count 1: Excessive Force in violation of the right to be free from cruel and
unusual punishment under the Eighth Amendment of the U.S. Constitution with
respect to allegations related to being punched in the head, verbal taunts, and
failure to intervene on December 8, 2011, against defendants K Benefield,
Watkins, Lt. John Doe, []Peterson, Sisk, and Hunsaker.
Count 2: Retaliation for filing grievances (protected activity) in violation of the
First Amendment of the U.S. Constitution with respect to allegations of retaliation
occurring on or after December 8, 2011, against defendants K. Benefield, R.
Benefield, Watkins, Peterson, Sisk, and Lt. John Doe.
Count 4: Conspiracy to violate Eighth and First Amendment rights (see Counts 1
and 2) with respect to allegations of planning and covering up the unlawful
beating, intimidation, and confiscation [of] personal property on or after
December 8, 2011, against defendants Delgado, R. Benefield, Maragani, Lt. John
Doe, Monti, J. Smith, Simpson, Markel, and Robertson.
Doc. 72, p. 3. Thereafter, with regard to these three remaining counts, defendants filed a motion
for summary judgment alleging that plaintiff failed to exhaust his administrative remedies. (Doc.
58). Defendants attached the affidavit of Gina Allen, Chairperson for the Administrative Review
Board, who attested that she was unable to locate any grievances filed by plaintiff complaining
of “issues of force or destruction of legal property on December 8, 2011.” Doc. 58-1, p. 2.
Thereafter, plaintiff filed a motion for an extension of time (Doc. 63) to respond to
defendants’ motion for summary judgment, to which he attached 107 pages of exhibits. Plaintiff

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never filed a response to defendants’ motion for summary judgment. The R & R recommended
this Court grant defendants’ motion for summary judgment. Specifically, the R & R looked
through the numerous documents filed by plaintiff and determined that none of the attached
grievances concerned the December 8, 2011, incidents of which plaintiff currently complains.
Accordingly, the R & R concluded that plaintiff failed to overcome the presumption that he had
failed to exhaust his administrative remedies.
II.

Analysis
After reviewing a report and recommendation, the Court may accept, reject or modify, in

whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R.
Civ. P. 72(b). 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).
Summary judgment is proper where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind., Inc., 211
F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a

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genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-26; Johnson
v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not
demonstrated by the mere existence of “some alleged factual dispute between the parties,”
Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material facts,” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692.
Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict
for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252; accord
Michas, 209 F.3d at 692.
As the R & R explained, the Prison Litigation Reform Act requires that all prisoners must
exhaust available administrative remedies before filing an action under 42 U.S.C. § 1983. 42
U.S.C. § 1997e(a). “Failure to exhaust is an affirmative defense under the PLRA.” Jones v.
Bock, 549 U.S. 199, 216 (2007). Pavey explained the process by which to proceed where
exhaustion is contested as follows:
(1) The district judge conducts a hearing on exhaustion and permits whatever
discovery relating to exhaustion he deems appropriate. (2) If the judge determines
that the prisoner did not exhaust his administrative remedies, the judge will then
determine whether (a) the plaintiff has failed to exhaust his administrative
remedies, and so he must go back and exhaust; (b) or, although he has no
unexhausted administrative remedies, the failure to exhaust was innocent (as
where prison officials prevent a prisoner from exhausting his remedies), and so he
must be given another chance to exhaust (provided that there exist remedies that
he will be permitted by the prison authorities to exhaust, so that he's not just being
given a runaround); 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.
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Where there are no disputed facts regarding
exhaustion, “there is no reason to conduct an evidentiary hearing.” Doss v. Gilkey, 649 F. Supp.
2d 905, 912 (S.D. Ill. 2009).

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Plaintiff failed to respond to defendants’ motion for summary judgment. Pursuant to
Local Rule 7.1(c), the Court may, in its discretion, consider plaintiff’s failure to respond as an
admission of the merits of defendants’ summary judgment motion. However, even if this Court
declined to exercise its discretion under Local Rule 7.1(c), the Court finds that plaintiff has failed
to overcome the presumption that he failed to exhaust his administrative remedies. The Court
has reviewed plaintiff’s voluminous objection. Nowhere in plaintiff’s objection does he claim he
grieved the events surrounding the alleged December 8, 2011, incidents. Instead, he attaches
numerous irrelevant documents and discusses many of the same grievances that the R & R
already concluded were not relevant to the December 8, 2011, incidents. Further, the Court has
reviewed the documents that Magistrate Judge Frazier reviewed in concluding that plaintiff
failed to exhaust administrative remedies. Similarly, this Court is unable to find a grievance
filed by plaintiff concerning the December 8, 2011, incidents that are at issue in this case.
Plaintiff has failed to show that a genuine issue of material fact exists regarding his exhaustion of
remedies. Accordingly, movants are entitled to judgment as a matter of law.
III.

Conclusion
Accordingly, the Court ADOPTS the R & R (Doc. 72) which GRANTS defendants’

motion for summary judgment (Doc. 58) as follows:
1. There is no genuine issue of material fact for an evidentiary hearing on defendants’
affirmative defense of failure to exhaust administrative remedies;
2. Movants have demonstrated by a preponderance of the evidence that the plaintiff
failed to exhaust his available administrative remedies against them; and

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3. Defendants Keith Benefield, Robert Benefield, Jose Delgado, Brent Hunsaker, John
Maragni, Homer Markel, Daniel Monti, Jeff Peterson, Sarah Robertson, Jamie Sisk,
James Smith, James Watkins, and Eugene Simpson are dismissed.
Thereafter, Counts 1, 2, and 4 will remain only against defendant John Doe.
IT IS SO ORDERED.
DATE: September 11, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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