Morrow v. Godinez et al

Filing 106

ORDER ADOPTING 102 Report and Recommendations. Plaintiff's objections to the Report and Recommendation (Doc. 104) are OVERRULED, and Defendants' Motions for Summary Judgment on the issue of exhaustion (Docs. 74, 77) are GRANTED. This case is DISMISSED without prejudice for failure to exhaust administrative remedies. Signed by Judge Nancy J. Rosenstengel on 05/29/15. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAUL S. MORROW,
Plaintiff,
vs.
AARON HOOD, JAMES CHEATHAM,
SEAN STARKWEATHER, RYAN
DAVIS, CLINT MAYER, MONICA
GREATHOUSE, AIMEE LANG, and
UNKNOWN DEFENDANTS,
Defendants.

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Case No. 13-CV- 331-NJR- DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 102), which recommends that the
undersigned grant the Motion for Summary Judgment filed by Defendant Monica
Greathouse (Doc. 74) and the Motion for Summary Judgment filed by Defendants
Aaron Hood, James Cheatham, Sean Starkweather, Ryan Davis, Clint Mayer, and
Aimee Lang (Doc. 77). The Report and Recommendation was entered on April 28, 2015,
and Plaintiff filed a timely objection 1 (Doc. 104). For the reasons stated below, the Court
overrules Plaintiff’s objections, adopts the Report and Recommendation of Magistrate
Judge Wilkerson, and dismisses this case without prejudice.
Plaintiff’s Objections to Report and Recommendations [sic] (Doc. 104) was docketed on May
20, 2015 – five days after the deadline; however, the proof of service attached to the Objections
indicates that it was mailed to the Court on May 10, 2015.

1

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BACKGROUND
On April 2, 2013, Plaintiff Paul S. Morrow, an inmate at the Shawnee
Correctional Center, filed this action pursuant to 42 U.S.C. § 1983 alleging Defendants
violated his constitutional rights while he was incarcerated at Menard Correctional
Center. Specifically, Plaintiff alleges that on October 9, 2012, a number of correctional
officers, including Defendants Hood and Cheatham, handcuffed and beat him. Plaintiff
asserts that Defendants Mayer, Starkweather, and Davis failed to protect him from the
attack, while Defendants Lang and Greathouse failed to adequately treat his injuries.
The following claims survived threshold review:
Count 1:

Excessive force claims against Defendants Hood,
Cheatham, and unidentified others;

Count 2:

Failure to protect claim against Defendants
Starkweather, Davis, Mayer, and unidentified others;
and

Count 3:

Deliberate indifference claim against Defendants
Greathouse, Lang, and unidentified optometrist, and
an unidentified sick call nurse.

On October 31, 2014, Defendants Hood, Cheatham, Starkweather, Davis, Mayer,
and Lang (the “IDOC Defendants”) filed a motion for summary judgment asserting that
Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit (Doc.
77). The IDOC Defendants rely on the affidavit of Debbie Knauer, Chairperson for the
Administrative Review Board (“ARB”), to assert that Plaintiff only filed one grievance
relevant to this lawsuit. According to IDOC Defendants, Plaintiff’s grievance never
received a decision on the merits because he submitted it to the ARB beyond the
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allowable timeframe. In the grievance, dated November 14, 2012, Plaintiff complains of
the incidents alleged in this lawsuit.

Plaintiff signed and dated this grievance on

November 14, 2012; however, there is no indication that Plaintiff submitted this
grievance to either his counselor or the grievance officer for review. The ARB received
the grievance on March 11, 2013, and refused to make a determination on the merits as
Plaintiff submitted it beyond the timeframe allowed in Department Rule 504.

On

November 17, 2014, Plaintiff filed a timely response to the IDOC Defendants’ Motion
(Doc. 81).
On October 31, 2014, Defendant Greathouse also filed a motion for summary
judgment arguing that Plaintiff failed to exhaust his administrative remedies prior to
filing suit (Doc. 74).

Defendant Greathouse asserts that the grievance attached to

Plaintiff’s Complaint is insufficient to exhaust his administrative remedies as there is no
evidence that the grievance was submitted for review prior to January 2013. Further,
Defendant argues that the ARB did not receive the grievance until well beyond the
applicable timeframe for review.

On November 17, 2014, Plaintiff filed a timely

response to Defendant Greathouse’s Motion (Doc. 81).
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Donald Wilkerson held an evidentiary hearing on Defendants’ Motions on December
16, 2014. Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report
and Recommendation currently before the Court (Doc. 102). 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
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administrative process.
CONCLUSIONS OF THE REPORT AND RECOMMENDATION
Based upon the evidence before the Court, Magistrate Judge Wilkerson found
that Plaintiff failed to exhaust his administrative remedies. Magistrate Judge Wilkerson
examined the grievance filed by Plaintiff and found that, contrary to Plaintiff’s
assertions, it was not timely filed. Specifically, Magistrate Judge Wilkerson did not find
Plaintiff’s assertion that he submitted the grievance in November 2012 credible. Rather,
Magistrate Judge Wilkerson determined that Plaintiff likely filed the grievance in
January 2013, beyond the 60-day timeframe. Magistrate Judge Wilkerson concluded
that the inconsistencies in Plaintiff’s allegations regarding his attempts at exhaustion,
coupled with the strong documentary evidence that Plaintiff did not submit this
grievance until January 2013, supported a finding that Plaintiff failed to properly
exhaust his administrative remedies prior to filing this lawsuit.
DISCUSSION
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
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3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part). 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).
Plaintiff filed an objection to the Report and Recommendation reiterating the
arguments made at the Pavey hearing and in his previous filings with the Court –
mainly that he filed his grievance on November 14, 2012, within the applicable time
frame (See Doc. 104).

Plaintiff further asserts that he “attempted to exhaust his

administrative remedies but prison officials did not respond to his first grievance filed
on November 14, 2012, so he resubmitted the grievance in January 2013” (Id.).
The Prison Litigation Reform Act requires prisoners to exhaust all available
administrative remedies before filing suit. 42 U.S.C. § 1997e(a). The Supreme Court has
held that exhaustion of administrative remedies must be done “properly,” because “no
adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). Proper
exhaustion requires that a prisoner must file complaints and appeals in the place, at the
time, and in the manner that the prison’s administrative rules require. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
That being said, a prisoner cannot be required to exhaust his administrative
remedies if they are not “available” to him. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.
2006).

Administrative remedies become “unavailable” when prison officials fail to

respond to a properly-filed inmate grievance or prevent a prisoner from exhausting
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through affirmative misconduct, such as withholding necessary forms, destroying
inmate submissions, or announcing additional steps not mandated by regulation or
rule. See Smith v. Buss, 364 Fed. Appx. 253, 255 (7th Cir. 2010); Pavey v. Conley, 544 F.3d
739, 742 (7th Cir. 2008); Kaba, 458 F.3d at 684; Dale v. Lappin, 376 F.3d 652, 656 (7th Cir.
2004); Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002).
Here, although Plaintiff alleges that he submitted his grievance within the 60-day
timeframe, Magistrate Judge Wilkerson did not find Plaintiff’s assertions credible. At
Pavey hearings, a court can make findings of fact and credibility assessments of
witnesses. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011). Magistrate judges stand
in the best position to assess a witness’s credibility because they have the opportunity
“to observe the verbal and nonverbal behavior of the witnesses . . . [including their]
reactions and responses to the interrogatories, their facial expressions, attitudes, tone of
voice, eye contact, posture and body movements.” Kraushaar v. Flanigan, 45 F.3d 1040,
1052-53 (7th Cir. 1995). Clearly, Magistrate Judge Wilkerson has assessed the credibility
of Plaintiff’s statements and found them lacking. It is not the Court’s business at this
juncture to second-guess Magistrate Judge Wilkerson’s credibility determinations.
Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The district court is not required to
conduct another hearing to review the magistrate judge’s findings or credibility
determinations”).
Overall, the Court finds the factual findings and rationale of the Report and
Recommendation sound. The evidence supports the conclusion that Plaintiff did not
submit his grievance until January 2013, beyond the 60-day allotted timeframe.
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Furthermore, Plaintiff has not submitted sufficient evidence or argument that he was
thwarted in his attempts to exhaust his administrative remedies. Here, it is apparent to
the Court that Plaintiff did not fully exhaust his administrative remedies prior to filing
suit. Thus, the case must be dismissed.
CONCLUSION
For the foregoing reasons, the Court ADOPTS Magistrate Judge Wilkerson’s
Report and Recommendation (Doc. 102).

Plaintiff’s objections to the Report and

Recommendation (Doc. 104) are OVERRULED, and Defendants’ Motions for Summary
Judgment on the issue of exhaustion (Docs. 74, 77) are GRANTED.

This case is

DISMISSED without prejudice for failure to exhaust administrative remedies.
IT IS SO ORDERED.
DATED: May 29, 2015
s/ _Nancy J. Rosenstengel___
NANCY J. ROSENSTENGEL
United States District Judge

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