Harris v. Godinez et al

Filing 59

ORDER ADOPTING 53 REPORT AND RECOMMENDATIONS and GRANTING 23 Motion for Summary Judgment. Plaintiff's claims against Defendant Dean are DISMISSED without prejudice. The Clerk of the Court is DIRECTED to close this case on the Court's docket. Signed by Judge Michael J. Reagan on 09/23/2013. (bak)

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

JAMES HARRIS,
Plaintiff,
vs.
JIMMY DEAN,
Defendant.

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Case No. 12-CV-1002 –MJR- SCW

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Stephen C. Williams (Doc. 53), recommending that the motion
for summary judgment (Doc. 38) for failure to exhaust administrative remedies filed by
Defendant Jimmy Dean be granted. The Report and Recommendation was entered on
August 6, 2013. Plaintiff filed an objection on September 12, 2013 (Doc. 58).
Plaintiff James Harris filed this § 1983 suit against Jimmy Dean, alleging that
Defendant Dean was deliberately indifferent to his serious medical needs when Plaintiff
was vomiting blood in his cell due to an ulcer and ruptured artery.
Plaintiff alleges Defendant Dean delayed his transfer to the health care unit.
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Specifically,

Defendant Dean filed a motion for summary judgment on the basis that Plaintiff
had failed to exhaust his administrative remedies before bringing suit (Doc. 23).
Specifically, Defendant Dean asserts that Plaintiff did not fully exhaust his grievances
because he submitted grievances to the ARB without attaching the counselor’s response,
grievance officer’s report, and the Chief Administrative Officer’s response. Plaintiff
filed a response to this motion, arguing that he tried to pursue his grievance, but neither
his counsel, grievance officer, nor the Chief Administrative Officer ever responded (Doc.
53).
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Williams held an evidentiary hearing on Defendants’ motion on August 5, 2013.
Following the Pavey hearing, Magistrate Judge Williams issued the Report and
Recommendation

currently

before

the

Court

(Doc.

53).

The

Report

and

Recommendation accurately states the nature of the evidence presented by both sides on
the issue of exhaustion, as well as the applicable law and the requirements of the
administrative process.
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 Amay
accept, reject or modify the magistrate judge=s recommended decision.@ Harper, 824 F.

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Supp. at 788. In making this determination, the Court must look at all of the evidence
contained in the record and Agive >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,
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).
At the Pavey hearing, Judge Williams heard testimony from two witnesses, Lori
Oakley and David Hennrich, as well as Plaintiff. Judge Williams ultimately concluded
that Plaintiff received a response to his grievance in the form of a memo from the health
care unit.

Thus, Plaintiff should have continued with the grievance process by

forwarding the memo along with the grievance to the grievance officer.

Plaintiff

received this memo in January 2012 and it indicated that Nursing Supervisor Angela
Crain read his grievance and recommended a follow-up appointment. Judge Williams
found that, although this was not standard procedure, it was still clear that Plaintiff
received a response to his grievance. If Plaintiff was concerned about this response, he
had ample opportunity to discuss this with his counselor. Judge Williams noted that it
appeared that Plaintiff was hiding this grievance, not for his own proof, but instead to
play games with his counselor and to circumvent the grievance process.
In Plaintiff’s objection, he re-asserts that he kept the grievance in order “to have

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proof that [he] was telling the truth, not to play games with the Court….” (Doc. 58, p. 2).
He also asserts that Menard C.C. “has played so many games against [him].” (Id.).
Regardless of Plaintiff’s motives, the facts demonstrate that Plaintiff received a response
to his grievance. The document from the health care unit directly responded to his
grievance and Plaintiff has acknowledged this much, when he expressed some curiosity
as to why it came from the health care unit instead of his counselor. Nonetheless,
Plaintiff never inquired any further. Instead of submitting his grievance along with the
memo to the grievance officer, he chose to do nothing.
Plaintiff also alleges in his objection that Menard C.C. transferred him in
retaliation for filing this lawsuit. While this could arguably support a Constitutional
claim, it does not belong in this lawsuit. The Court has taken this information into
consideration for purposes of the exhaustion issue only. Should Plaintiff decide to
pursue this claim, he must file a new lawsuit. To the extent Plaintiff raises this point to
express the idea that he was unable to keep copies of the memo due to being transferred;
this argument carries little weight here. See Flornoy v. Schomig, 152 Fed. Appx. 535,
538 (7th Cir. 2005) (Prisoner’s transfer of prisoner from one prison to another within
the state did not make administrative remedies unavailable).
Thus, the Court finds that Defendant has fulfilled his burden of proof on the issue
of exhaustion. See Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006) (“[E]xhaustion is an
affirmative defense, and consequently the burden of proof is on the prison

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officials.”). Plaintiff failed to rebut Defendant’s evidence that Plaintiff did not fully
navigate the administrative procedure prior to bringing this action. Plaintiff did not
follow the proper procedures when making this grievance, and failed to avail himself of
the avenues that remained open to him before bringing this action. Therefore, Plaintiff
failed to exhaust his administrative remedies.1
For these reasons, the Court ADOPTS Magistrate Judge William’s Report and
Recommendation (Doc. 53).

Defendant’s motion for summary judgment based on

failure to exhaust administrative remedies (Doc. 23) is GRANTED, and Plaintiff’s claims
against Defendant Dean are DISMISSED without prejudice. The Clerk of the Court is
DIRECTED to enter judgment and close this case on the Court’s docket.
IT IS SO ORDERED.
DATED: September 23, 2013

s/Michael J. Reagan __________
MICHAEL J. REAGAN
United States District Judge

1

At the end of Plaintiff’s objection, he once again seeks appointment of counsel. For the reasons previously stated at
Docs. 13 & 26, this request is DENIED. Nothing before the Court indicates Plaintiff’s present inability to litigate on
his own behalf. Plaintiff’s objection responds to the issues addressed in a competent manner. As previously
determined, the Court does not find it necessary to appoint counsel for the issue of exhaustion (See Doc. 26, p. 2-3).

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