Dickey v. Harrington et al

Filing 61

ORDER ADOPTING 48 Report and Recommendations and DENYING 41 Motion for Summary Judgment. Signed by Judge Nancy J. Rosenstengel on 4/23/15. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAECEO DICKEY,
Plaintiff,
vs.
RICHARD HARRINGTON,
NICHOLAS BEBOUT, DAVID EALEY,
REBECCA STEFANI, and
C/O HOLMES,1
Defendants.

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Case No. 14-CV-1024-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. 48), recommending that Defendants’
Motion for Summary Judgment on the Issue of Exhaustion (Doc. 41) be denied.
Plaintiff Maeceo Dickey, an inmate in the Illinois Department of Corrections, filed
this lawsuit on September 19, 2014, against various prison officials at Menard
Correctional Center. A number of his claims have been dismissed (Docs. 8, 31), and this
matter is currently proceeding on the following counts:


Count 1—an Eighth Amendment claim for excessive force
against Defendants Richard Harrington, David Ealey,
Nicholas Bebout, and C/O Holmes;

The Complaint named the Defendant as C/O Holmes (Doc. 1; Doc. 8), however, there is no
correctional officer with that name at Menard (Doc. 25). Dickey has indicated that he named
C/O Holmes by mistake, and the correct Defendant is C/O Harris (Doc. 27). Dickey has
submitted an amended complaint (Doc. 37) that has not yet been screened by the Court. As such,
C/O Harris has not been served, and the docket still reflects C/O Holmes is a Defendant.
1

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

Count 2—an Eighth Amendment claim for deliberate
indifference against Defendant Rebecca Stefani;



Count 3—a state law claim for assault and battery against
Defendants David Ealey, Nicholas Bebout, and C/O Holmes;



Count 4—a state law claim for intentional infliction of
emotional distress against Defendants David Ealey, Nicholas
Bebout, and C/O Holmes.

Defendants Richard Harrington, David Ealey, Nicholas Bebout, and Rebecca
Stefani moved for summary judgment arguing that Dickey failed to exhaust his
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997(e) (Doc. 41). Dickey filed a response in opposition to the motion for summary
judgment (Doc. 44). On March 5, 2015, Magistrate Judge Wilkerson held an evidentiary
hearing on the issue of exhaustion as outlined in Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008). The following day, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 48). Objections to the Report and
Recommendation were due on or before March 23, 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.
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). Where neither timely nor specific
objections to the Report and Recommendation are made, however, 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

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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).
The Court has carefully reviewed the briefs and exhibits submitted by the parties,
as well as Magistrate Judge Wilkerson’s Report and Recommendation. Following this
review, the Court fully agrees with the findings, analysis, and conclusions of Magistrate
Judge Wilkerson and adopts the Report and Recommendation in its entirety.
Dickey submitted an emergency grievance on October 30, 2013, complaining
about all of the events at issue. The warden determined that the grievance was not an
emergency and returned it to Dickey on November 4, 2013. Under the Illinois
Administrative Code, Dickey had thirty days to appeal to the Administrative Review
Board (“ARB”). ILL. ADMIN. CODE tit. 20, § 504.850(a). But Dickey was unable to mail his
appeal to the ARB until early December because he was transferred to Pontiac
Correctional Center on November

21, 2013, and he

did not

receive

his

property—including his pens and stamps needed to mail his appeal—until a few weeks
later. The ARB received Dickey’s appeal on December 20, 2013, and rejected it for being
submitted outside the timeframe. Nevertheless, Dickey is deemed to have exhausted his
administrative remedies because the grievance process was rendered unavailable during
his transfer to Pontiac when he did not have access to his property and therefore did not
have the means to mail his appeal to the ARB.
For this reason, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 48), and DENIES Defendants’ Motion for Summary Judgment

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on the Issue of Exhaustion (Doc. 41).
IT IS SO ORDERED.
DATED: April 23, 2015
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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