Ollie v. Hodge et al

Filing 78

ORDER ADOPTING 70 Report and Recommendations and GRANTING IN PART and DENYING IN PART 53 Motion for Partial Summary Judgment. 56 Motion to Deny Defendants' Motion for Partial Summary Judgment is DENIED AS MOOT because it was construed as a response to Defendants' Motion for Summary Judgment. Defendants Childers, Dismore, and Cecil are DISMISSED without prejudice from this action. See attached Order for details regarding remaining claims and defendants. Signed by Judge Nancy J. Rosenstengel on 3/20/15.(mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT OLLIE,
Plaintiff,
vs.
MARCUS HODGE, et al.,
Defendants.

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Case No. 13-CV- 1181-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. 70), which recommends granting in
part and denying in part Defendants’ Motion for Partial Summary Judgment on the
issue of exhaustion (Doc. 53). The Report and Recommendation was entered on
February 9, 2015. No objections have been filed.
Plaintiff Robert Ollie filed this action on November 18, 2013, asserting violations
of his First, Eighth, and Fourteenth Amendment rights between April 25, 2010, and June
14, 2013, while he was incarcerated at Lawrence Correctional Center. Plaintiff named
eleven Lawrence officials as defendants, including Marcus Hodge, Jerry Tanner, Mark
Storm, Russell Goins, Terry Childers, Bruce Eubanks, S. Erickson, Brad Stafford, Daniel
Downen, R. Dismore, and M. Cecil. The following claims survived threshold review:
Count 1:

Plaintiff’s retaliation claim against Defendants Erickson, Tanner,
Childers, Eubanks, Downen, Hodge, and Storm for allowing
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excessive searches in response to Plaintiff’s complaints;
Count 2:

Plaintiff’s Fourteenth Amendment substantive due process claim
against Defendants Tanner, Erickson, Childers, and Eubanks for
targeting Plaintiff and other non-Caucasian inmates for excessive
searches;

Count 3:

Plaintiff’s Fourteenth Amendment procedural due process claim
against Defendants Hodge, Storm, Goins, Erickson, Stafford, and
Downen for issuing false disciplinary reports, ignoring grievances,
failing to investigate grievances, or failing to conduct a complete
and impartial hearing on Plaintiff’s false disciplinary tickets;

Count 4:

Plaintiff’s Eighth Amendment claims against Defendants Hodge,
Dismore, Childers, Erickson, Tanner, and Storm for subjecting
Plaintiff to unconstitutional conditions of confinement in
segregation that caused health complications;

Count 5:

Plaintiff’s First Amendment mail interference claim against
Defendants Hodge, Storm, Downen, and Cecil for opening personal
and legal mail outside of Plaintiff’s presence and delaying delivery
of Plaintiff’s mail for 21-45 days; and

Count 6:

Plaintiff’s retaliation claim against Defendants Hodge, Storm,
Stafford, Goins, Downen, and Erickson for transferring Plaintiff
from Lawrence, a medium security prison, to Menard, a maximum
security prison.

(See Doc. 6).

On August 13, 2014, Defendants moved for partial summary judgment arguing
that Plaintiff failed to exhaust his administrative remedies as to some Defendants and
some claims prior to filing this lawsuit (Doc. 53). Defendants conceded that Plaintiff
exhausted his administrative remedies as to Count 1 against Defendant Tanner, Count 2
against Defendant Tanner, and Count 3 against Defendant Goins (See Doc. 54, p.3, FN1).
Defendants rely on the affidavit of Thomas S. Keen, Chairperson of the Administrative
Review Board (“ARB”), to assert that Plaintiff failed to properly file an appeal of

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grievances concerning the remaining Defendants between April 25, 2010, and August
2013. Plaintiff filed a “Motion to Deny Defendants’ Motion for Partial Summary
Judgment,” (Doc. 56), which has been construed as a response to the Defendants’
motion for summary judgment. Plaintiff asserts that he exhausted his administrative
remedies and that genuine issues of material fact exist which preclude summary
judgment (Doc. 56).
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on Defendants’ Motion on October 16, 2014.
Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report and
Recommendation

currently

before

the

Court

(Doc.

70).

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 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
3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part). However, where neither timely nor
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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 carefully examined the
evidence and fully agrees with the detailed findings, analysis, and conclusions of
Magistrate Judge Wilkerson. In the Report and Recommendation, Magistrate Judge
Wilkerson judiciously outlined the documentary and testimonial evidence regarding
each of the seven grievances submitted by Plaintiff. Moreover, Judge Wilkerson
thoroughly discussed his conclusions with respect to the claims exhausted by Plaintiff
during the administrative process. The Court fully agrees with the findings, analysis
and conclusions of Magistrate Judge Wilkerson regarding the issue of exhaustion.
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 70). Defendants’ Motion for Partial Summary Judgment (Doc.
53) is GRANTED IN PART and DENIED IN PART. Plaintiff’s Motion to Deny
Defendants’ Motion for Partial Summary Judgment (Doc. 56) is DENIED as moot.
Defendants Childers, Dismore, and Cecil are DISMISSED without prejudice from this
action.

Additionally, Defendants Downen, Hodge, and Storm are DISMISSED

without prejudice from Count 1; Defendants Erickson is DISMISSED without
prejudice from Count 2; Defendants Stafford is DISMISSED without prejudice from
Count 3; Count 4 and Count 5 of Plaintiff’s Complaint are DISMISSED without
prejudice in their entirety for failure to exhaust administrative remedies. The following
claims remain pending before the Court:
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Count 1:

Retaliation claim against Defendants Erickson, Tanner, and
Eubanks for allowing excessive searches in response to Plaintiff’s
complaints;

Count 2:

Fourteenth Amendment substantive due process claim against
Defendants Tanner and Eubanks for targeting Plaintiff and other
non-Caucasian inmates for excessive searches;

Count 3:

Fourteenth Amendment procedural due process claim against
Defendants Hodge, Storm, Goins, and Erickson for issuing false
disciplinary reports, ignoring grievances, failing to investigate
them, or failing to conduct a complete and impartial hearing on
Plaintiff’s false disciplinary reports; and

Count 6:

Retaliation claim against Defendants Hodge, Storm, Stafford,
Goins, Downen, and Erickson for transferring Plaintiff from
Lawrence, a medium security facility, to Menard, a maximum
security facility.

The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: March 20, 2015
/s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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