Diaz vs. Big Muddy et al

Filing 59

ORDER ADOPTING 55 REPORT AND RECOMMENDATIONS ; Granting 36 MOTION for Summary Judgment. Plaintiff's claims against Defendants Childers, Durbin, Schuler, Thornton and Valdez are DISMISSED without prejudice. The only Defendants remaining are Defendants Clark, Arnez and Davies. Signed by Judge Michael J. Reagan on 01/09/14. (dkd )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUAN DIAZ,

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Plaintiff,
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vs.
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SHANE CHILDERS, MICHAEL DURBIN, )
HAROLD SCHULER, ROBERT
)
THORNTON, RANDY VALDEZ, R.
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CLARK, ARNEZ, AND DAVIES,
)
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Defendants.
)
)
)

Case No. 12-CV- 1168-MJR-DGW

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 55), recommending that this Court
grant Defendants’ motion for summary judgment based on exhaustion (Doc. 36). The
Report and Recommendation was entered on December 11, 2013. No objections have
been filed.
Plaintiff Juan Diaz, an inmate at Pontiac Correctional Center, filed this case on
November 8, 2012 asserting that the above-mentioned defendants allowed and
encouraged him to fight with other inmates while he was incarcerated at the Big Muddy
Correctional Center in the Spring of 2011 (Doc. 10). Specifically, Plaintiff alleges that
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Defendant Childers forced him “into fighting with [his[ cellmates by threatening to kill
[his] mother;” that Defendant Valdez encouraged other inmates to fight with him; that
Defendants Arnez and Thornton “stood guard” while Plaintiff fought his cell mate and
encouraged the fight; that Defendants Clark and Schuler also stood by watching and
encouraged Plaintiff to join a gang; that Defendant Durbin “would make phone call” to
someone “in organized crime” when Plaintiff engaged in fighting; and that Defendant
Davies “helped in hiding weapons that were provided to inmates” hoping that they
would riot.
On July 22, 2013, Defendants Childers, Durbin, Schuler, Thornton and Valdez
filed motions for summary judgment on the basis that Plaintiff had failed to exhaust his
administrative remedies before bringing suit (Doc. 36). As required by Pavey v. Conley,
544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on
Defendants’ motion on December 3, 2013. Following the Pavey hearing, Magistrate
Judge Wilkerson issued the Report and Recommendation currently before the Court
(Doc. 55). 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
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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 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). While a de novo review is not required here, the Court has considered the
evidence and fully agrees with the findings, analysis, and conclusions of Magistrate
Judge Wilkerson. Plaintiff filed suit on November 8, 2012 (Doc. 1). With respect to the
purported March 20, 2011 grievance, it was determined at the hearing that this grievance
was written on a form that was not available to Plaintiff until August 2012. Thus, the
document attached to Plaintiff’s Complaint is not a true and accurate photocopy of the
grievance that Plaintiff allegedly submitted on that date. Based on the testimony and
evidence presented at the evidentiary hearing, Magistrate Judge Wilkerson determined
that Plaintiff is not credible in his statements that he submitted the grievance through
institutional mail. The undersigned District Judge finds no basis for disagreeing with
Magistrate Judge Wilkerson’s credibility determinations and thus treats his findings and
recommendations as his own. See Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)
(“The district court is not required to conduct another hearing to review the
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magistrate judge’s findings or credibility determinations”).

Lastly, the second

grievance, dated February 13, 2012, was returned to Plaintiff by the Administrative
Review Board as untimely. Here, it is apparent to the Court that Plaintiff did not fully
exhaust his administrative remedies prior to filing suit, and thus Plaintiff’s claims
against Defendants Childers, Durbin, Schuler, Thornton and Valdez must be dismissed.
The Court ADOPTS Magistrate Judge Wilkerson=s Report and Recommendation
(Doc. 55) and GRANTS Defendants’ motion for summary judgment (Doc. 36). The
Court finds that Plaintiff has failed to exhaust his administrative remedies against
Defendants Childers, Durbin, Schuler, Thornton and Valdez and thus the motion for
summary judgment (Doc. 36) is GRANTED.

Plaintiff’s claims against Defendants

Childers, Durbin, Schuler, Thornton and Valdez are DISMISSED without prejudice.
The only Defendants remaining are Defendants Clark, Arnez and Davies. The Court
recognizes that these Defendants have not yet been served; however, Plaintiff has filed a
pending Motion to Amend the Complaint (Doc. 50), which the Court will address by
separate order.
IT IS SO ORDERED.
DATED: January 9, 2014
s/ Michael J. Reagan_____________
MICHAEL J. REAGAN
United States District Judge

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