Phelps v. Godinez et al

Filing 84

ORDER ADOPTING REPORT AND RECOMMENDATIONS (Doc. 70 ). The Motion for Summary Judgment re Exhaustion filed by Richard Moore, Steve Duncan, and Salvador Godinez (Doc. 49 ) is GRANTED. Plaintiff's claims against these Defendants are DISMISSED without prejudice for failure to exhaust. Plaintiff's Motion for Preliminary Injunction, Motion for Temporary Restraining Order, and Motion for Issuance (Doc. 62 ) are DENIED. Signed by Judge Staci M. Yandle on 11/21/2016. (mah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEVIN PHELPS,
Plaintiff,
vs.
SALVADOR GODINEZ et al.,
Defendants.

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Case No. 15-CV-73-SMY-RJD

MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Philip M. Frazier (Doc. 70), recommending that Defendants Duncan, Godinez,
and Moore’s Motion for Summary Judgment on the Issue of Exhaustion (Doc. 49) be granted,
that Plaintiff’s Motion for Preliminary Injunction, Temporary Restraining Order and
[Subpoenas] (Doc. 62) be denied and that this matter be dismissed without prejudice for failure
to exhaust administrative remedies. The Report and Recommendation was entered on March 30,
2016 and Plaintiff filed a timely objection (Doc. 81) 1.

For the following reasons, the Court

overrules Plaintiff’s objections and ADOPTS the Report and Recommendation in its entirety.
On January 23, 2015, Plaintiff, a paraplegic, filed this lawsuit alleging that his
constitutional rights were violated when the defendants conducted a shakedown of his cell house
(Doc. 1). Plaintiff asserts that when the Defendants inspected his cell, they subjected him to an
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Plaintiff’s objection does not address Judge Frazier’s recommendation to deny Plaintiff’s preliminary
injunction. Where no timely 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 Court fully agrees with Judge Frazier’s findings
that Plaintiff is not entitled to a preliminary injunction. Accordingly, Plaintiff’s motion (Doc. 62) is
denied.

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invasive and humiliating body cavity search, used excessive force against him and violated his
rights under the Americans with Disabilities Act. Id.
Defendants moved for summary judgment asserting that Plaintiff failed to exhaust his
administrative remedies prior to filing suit. As required by Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008), Judge Frazier held an evidentiary hearing on Defendants’ motion. Following the
Pavey hearing, Judge Frazier 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.
Based upon the evidence before the Court, Judge Frazier found that Plaintiff failed to
exhaust his administrative remedies. Specifically, Judge Frazier found that Plaintiff did not
properly exhaust his July 17, 2014 grievance or his July 30, 2014 grievance. Plaintiff pursued the
July 17, 2014 grievance through the normal non-emergency procedures. However, he only went so
far as to submit it to his counselor and did not appeal the grievance to the institutional level.
Regarding the July 30, 2014 grievance, Judge Frazier found that Plaintiff skipped a step by
submitting the grievance to the ARB prior to receiving a response from the grievance office.
Plaintiff’s testimony at the hearing confirmed the aforementioned grievance timeline.

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 Amay accept, reject or modify
the magistrate judge=s recommended decision.@ Harper, 824 F. Supp. at 788. In making this

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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 which
he reiterates his argument that the grievance procedure was made unavailable to him.
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-cv0691-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.”).
In this case, Plaintiff does not deny that he failed to exhaust prior to filing suit and there
is no evidence supporting his assertion that the grievance process was made unavailable to him.
Judge Frazier found that Plaintiff’s testimony at the Pavey hearing supported the fact that he
failed to exhaust administrative remedies prior to filing suit. 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

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apparent that Plaintiff did not fully exhaust his administrative remedies prior to filing suit. Thus
the case must be dismissed.
For these reasons, the Court adopts Magistrate Judge Frazier’s Report and
Recommendation (Doc. 70). This case is DISMISSED without prejudice for failure to exhaust
administrative remedies as to Defendants Duncan, Godinez, and Moore.
IT IS SO ORDERED.
DATED: November 21, 2016

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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