Miller v. Walton et al

Filing 224

MEMORANDUM AND ORDER, The Court ADOPTS the Report and Recommendation in its entirety (Doc. 221 ) and GRANTS Defendants' Motion (Doc. 204 ) for Summary Judgment. This matter is DISMISSED with prejudice and the Clerk of Court is DIRECTED to enter judgment accordingly and terminate all pending motions as moot. Signed by Judge J. Phil Gilbert on 7/31/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT ETHAN MILLER, JR.,

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Plaintiff,
vs.
J.S. WALTON, et al.,
Defendants.

Case No. 15-cv-00533-JPG-DGW

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
221) of Magistrate Judge Donald G. Wilkerson with regard to Defendants’ Motion (Doc. 204) for
Summary Judgment. Plaintiff filed a timely objection (Doc. 222) and the defendant filed a response
to the objection (Doc. 223).
The Court may accept, reject or modify, in whole or in part, the findings or recommendations
of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must
review de novo the portions of the report to which objections are made. The Court has discretion to
conduct a new hearing and may consider the record before the magistrate judge anew or receive any
further evidence deemed necessary. Id. “If no objection or only partial objection is made, the district
court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). In this matter, the Court has received an objection to the R & R and will

review those portions of the R & R de novo.
1. Background.
Upon threshold review, the plaintiff was allowed to proceed on one count. Specifically:
COUNT 12: Prison officials will soon transfer Miller into a gang violence program
or to a Communications Management Unit with ISIS members, both of which will
expose Miller to inmates who have “hits” out on his life, in violation of his
constitutional and statutory rights.

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The remainders of plaintiff’s claims were dismissed without prejudice as the plaintiff had
incurred more than three strikes under the Prison Litigation Reform Act. See Miller v. Mines,
No. 7:12-cv-00382, 2012 WL 5178005, at *1 (W.D. Va. Oct. 18, 2012) (recounting Miller’s
strikes). Because Miller had accrued more than three strikes, he could not avail himself of
pauper status and could not proceed with his case by paying the filing fee in installments,
unless a claim alleges an “imminent danger of serious physical injury.” See 28 U.S.C. §
1915(g). Count 12 was the only claim determined by the Court which contained an “imminent
danger of serious physical injury.”
2. Standard.
Summary judgment must be granted, “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the
Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at
trial, the moving party may satisfy its burden of production in one of two ways. It may present
evidence that affirmatively negates an essential element of the non-moving party’s case, see Fed.
R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element
of the non-moving party’s case without actually submitting any evidence, see Fed. R. Civ. P.

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56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169.
Where the moving party fails to meet its strict burden, a court cannot enter summary
judgment for the moving party even if the opposing party fails to present relevant evidence in
response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented.”
Anderson, 477 U.S. at 252.
3. Analysis.
The R & R recommends that the Court grant defendants’ motion for summary judgment
for plaintiff’s failure to exhaust his administrative remedies. The R & R correctly sets forth the
exhaustion requirements so they will not be repeated here. The R & R also addressed the two
issues raised by the parties: “(1) the date on which Plaintiff filed his complaint; and (2) whether
the General Counsel properly extended its response time.” (Doc. 221 at 7).
On the first issue, the plaintiff argued that the “prisoner mailbox rule” did not apply it fell
within an “exceptional situation.” The plaintiff puts forth this same argument in his objection
stating that this Court should reject the R & R and find, “that Miller’s situation was exceptional
and that the mailbox rule should not apply.”

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However, the Court does not agree. As noted earlier, the plaintiff has incurred more than
three strikes under the Prison Litigation Reform Act - indicating to the Court that he is familiar
with prison litigation and the necessity of exhaustion. He failed to wait the time allowed for his
issue to be addressed and had already drafted and submitted his complaint prior to receiving a
final decision on his grievance. The “prison mailbox rule” is there to assist prisoners to ensure
that they are not penalized for any filing delays in which they have no control. However, an
early filing is within the defendant’s control and as such, the Court does not find it an
“exceptional situation” simply because the defendant jumped the gun in filing his complaint.
There were no other objections with regard to R & R and the Court has reviewed the
remainder of the R & R and finds no clear error.
4. Conclusion.
Based on the above, the Court hereby ADOPTS the Report and Recommendation in its
entirety (Doc. 221) and GRANTS Defendants’ Motion (Doc. 204) for Summary Judgment. This
matter is DISMISSED with prejudice and the Clerk of Court is DIRECTED to enter judgment

accordingly and terminate all pending motions as moot.
IT IS SO ORDERED.
DATE: 7/31/2017
s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE

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