Turley v. Bramlet et al

Filing 54

ORDER ADOPTING 44 REPORT AND RECOMMENDATIONS: The 34 MOTION to Strike filed by Gregory J Turley is DENIED and the 24 MOTION for Summary Judgment on the Issue of Exhaustion is GRANTED. This case is DISMISSED without prejudice for failure to exhaust administrative remedies. Signed by Judge Nancy J. Rosenstengel on 08/04/2014. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY TURLEY,
Plaintiff,
vs.
BRAD BRAMLET and TONY A.
KNUST,
Defendants.

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Case No. 13-CV-738-NJR-DGW

ORDER ADOPTING REPORT AND RECOMMENDATION
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 44), recommending that Defendants’
Motion for Summary Judgment on the Issue of Exhaustion (Doc. 24) be granted, that
Plaintiff’s Motion to Strike Affirmative Defenses (Doc. 34) be denied, and that this matter
be dismissed without prejudice for failure to exhaust administrative remedies. The
Report and Recommendation was entered on April 10, 2014. Plaintiff filed a timely
objection to the Report and Recommendation on April 24, 2014 (Doc. 46).
Background
Plaintiff alleges in his Amended Complaint (Doc. 8) that certain employees at the
Menard Correctional Center (“Menard”) retaliated against him for filing grievances and
caused him to miss significant Court imposed deadlines.

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The following claims

survived threshold review:
Count 1: First Amendment access to courts claim against Defendants Bramlet and
Knust for failing to provide electronically filed court documents and causing
missed deadlines in on-going civil lawsuits.
Count 2: First Amendment Retaliation claim against Defendants Bramlet and
Knust for interfering with Plaintiff’s access to the courts in retaliation for the filing
of grievances against them.
Count 3: Conspiracy claim against Bramlet and Knust for conspiring to retaliate
against Plaintiff and deny Plaintiff access to the courts.
(Doc. 10, pp. 4-5).
On February 3, 2014, Defendants Bramlet and Knust filed a Motion for Summary
Judgment on the Issue of Exhaustion (Doc. 24). Specifically, they assert that there are
four unexhausted grievances regarding the conduct of Defendants Bramlet and Knust
that are currently pending before the Administrative Review Board, and thus Plaintiff
filed his Complaint prior to exhaustion.
On March 6, 2014, Plaintiff filed a response (Doc. 37), along with a Motion to
Subpoena Witnesses (Doc. 31), and a Motion to Strike Defendants’ Affirmative Defense
(Doc. 34).

Judge Wilkerson denied without prejudice the Motion to Subpoena

Witnesses, informing Plaintiff that the necessity of witnesses on the issue of exhaustion
would be determined at the hearing. The Motion to Strike Affirmative Defenses (Doc.
34) remains pending.
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on Defendants’ motion on April 1, 2014.

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Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report and
Recommendation

currently

before

the

Court

(Doc.

44).

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.
Conclusions of the Report and Recommendation
Based upon the evidence before the Court, Judge Wilkerson found that Plaintiff
failed to exhaust his administrative remedies. Judge Wilkerson studied the various
grievances filed by Plaintiff and found that only two were relevant and related to the
events subject to this suit: the February 28, 2013 grievance and the July 25, 2013
grievance. Specifically, Judge Wilkerson found that the July 25, 2013 grievance was
filed after Plaintiff initiated this lawsuit and is still pending before the ARB. As to the
February 18, 2013 grievance, Judge Wilkerson found that Plaintiff is not credible in his
assertion that he submitted the grievance to the grievance officer. Judge Wilkerson
further found that the grievance process has not been made unavailable to Plaintiff
because of an alleged pattern of retaliation, as Plaintiff’s actions and demeanor reveal
that he is neither intimidated nor prevented from seeking redress in the form of
grievances or lawsuit. Lastly, Judge Wilkerson found that equitable estoppel would not
apply to this matter.
Discussion
Where timely objections are filed, this Court must undertake a de novo review of
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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. 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).
Here, Plaintiff has filed a timely objection to the Report and Recommendation.
In that objection, Plaintiff reiterates the argument that the grievance procedure was
made unavailable to him by Defendants’ alleged retaliation. Administrative remedies
become “unavailable” when prison officials fail to respond to a properly-filed inmate
grievance, Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002), or when prison
employees otherwise use affirmative misconduct to prevent a prisoner from exhausting,
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Ducey v. Flagg, No. 08-cv-0691-MJR,
2009 WL 3065045, at *4 (S.D. Ill. Sept. 21, 2009) (“[P]rison officials can easily thwart an
inmate’s attempt to exhaust administrative remedies simply by failing to respond to his
or her grievances.”).
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Here, although Plaintiff alleges (and it is supported by the record) that he did not
receive a response to his February 18, 2013 grievance, Judge Wilkerson found that
Plaintiff was not credible in his assertion that he submitted the grievance to a grievance
officer in the first place. At Pavey hearings, a court is permitted to make findings of fact
and credibility assessments of witnesses. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir.
2011). Magistrate judges are 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, 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. It is well established that an inmate cannot file suit first, then
reach administrative exhaustion second. See Cannon v. Washington, 418 F.3d 714, 719
(7th Cir. 2005). Here, it is apparent to the Court that Plaintiff did not fully exhaust his
administrative remedies prior to filing suit, and thus the case must be dismissed.
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
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Recommendation (Doc. 44). Defendants’ Motion for Summary Judgment on the Issue
of Exhaustion (Doc. 24) is GRANTED, and Plaintiff’s Motion to Strike Affirmative
Defenses (Doc. 34) is DENIED. This case is DISMISSED without prejudice for failure
to exhaust administrative remedies.
IT IS SO ORDERED.
DATED: August 4, 2014
s/ Nancy J. Rosenstengel___________
NANCY J. ROSENSTENGEL
United States District Judge

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