Rocquemore v. Godinez et al

Filing 53

ORDER ADOPTING 51 Report and Recommendations and GRANTING 34 Motion for Summary Judgment. Defendants Shearing and Moldenhauer are DISMISSED without prejudice and Plaintiff's case is DISMISSED for failure to exhaust administrative remedies. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 3/20/15.(mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHNNIE ROCQUEMORE,
Plaintiff,
vs.
DR. ROBERT SHEARING and
M. MOLDENHAUER,
Defendants.

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Case No. 13-CV-1261-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. 51), which recommends granting
the Motion for Summary Judgment on the issue of exhaustion filed on July 29, 2014, by
Defendants Robert Shearing, M.D. and Michael Moldenhauer (Doc. 34).
Plaintiff Johnnie Rocquemore, an inmate at Menard Correctional Center
(“Menard”), filed this lawsuit on December 5, 2013, against numerous defendants for
allegedly violating his constitutional rights. The Court conducted a threshold review of
Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A, and Plaintiff’s claim against
Defendants Shearing and Moldenhauer for inadequate treatment of his thrush and
genital warts survived threshold review (Doc. 7).
On July 29, 2014, Defendants Shearing and Moldenhauer moved for summary
judgment arguing that Plaintiff failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e) (Doc. 34). Based on a
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review of Plaintiff’s grievance records at Menard and the Administrative Review Board
(“ARB”), Defendants argued that Plaintiff never filed a grievance alleging that they, or
any other medical provider, denied him care for thrush and/or genital warts at Menard.
On September 4, 2014, Plaintiff filed a response to the Defendants’ Motion for Summary
Judgment asserting that he filed grievances regarding inadequate treatment by medical
staff, but never received a response (Doc. 37).
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson scheduled a hearing on the issue of exhaustion for October 22, 2014 (Doc. 31).
This hearing was canceled and reset for December 16, 2014, as Plaintiff had been
paroled and was not able to make necessary arrangements for the October 2014, hearing
(Doc. 39). Prior to the December 16, 2014, hearing, Plaintiff again informed the Court
that he would not be able to make the necessary arrangements to attend the hearing (See
Doc. 45). As a result, Magistrate Judge Wilkerson reset the hearing for February 10,
2015, and advised Plaintiff that the hearing would not be rescheduled again, absent
extraordinary circumstances (Doc. 45). At the hearing on February 15, 2015, Plaintiff
failed to appear. Accordingly, Magistrate Judge Wilkerson did not hear arguments
regarding Plaintiff’s attempts to exhaust his administrative remedies.
On February 20, 2015, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 51). Objections to the Report and
Recommendation were due on or before March 9, 2015. See 28 U.S.C. § 636(b)(1); FED. R.
CIV. P. 72(b)(2); SDIL-LR 73.1(b). Neither party filed an objection. On March 9, 2015, the
Report and Recommendation mailed to Plaintiff was returned as undeliverable (Doc.

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52).

Plaintiff was advised when he filed this suit that he is under a continuing

obligation to keep the Court informed of any change to his address within seven days of
a transfer or other change in address (See Doc. 7). Plaintiff was further advised that
failure to comply with this Order could result in dismissal of his action for want of
prosecution (Doc. 7). To date, however, Plaintiff has not filed notice with the Court
regarding a change of address, and the Court is currently unaware of his whereabouts.
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). However, where neither
timely nor specific objections to the Report and Recommendation are made, this Court
need not conduct a de novo review of the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985).

Instead, the Court should review the Report and

Recommendation for clear error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th
Cir. 1999). The judge may then “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Based on the evidence submitted by Defendants in support of their Motion for
Summary Judgment, Plaintiff has not exhausted his administrative remedies.

The

Court agrees that, although Plaintiff asserted that he filed grievances that were not
responded to, Plaintiff has not provided any evidence to corroborate his assertions.
Moreover, Plaintiff’s failure to appear at the Pavey hearing precluded Magistrate Judge
Wilkerson from considering Plaintiff’s credibility and hearing any testimony regarding

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when and how Plaintiff attempted to file these supposed grievances. Plaintiff was
given three opportunities by the Court to appear and testify at the Pavey hearing
regarding the issue of exhaustion. Despite proper notification regarding the February
15, 2015, hearing, Plaintiff failed to appear. 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. 51), and GRANTS the Motion for Summary Judgment filed by
Defendants Shearing and Moldenhauer (Doc. 34).

Defendants Shearing and

Moldenhauer are DISMISSED without prejudice and Plaintiff’s case is DISMISSED
for failure to exhaust administrative remedies. 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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