Suarez v. Harrington et al

Filing 55

ORDER ADOPTING 52 Report and Recommendation and GRANTING Harrington's 41 Motion for Summary Judgment on the Issue of Exhaustion. This action is DISMISSED without prejudice for failure to exhaust administrative remedies. Signed by Judge Nancy J. Rosenstengel on 10/30/2017. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MIGUEL A. SUAREZ,
Plaintiff,
vs.
WARDEN RICHARD HARRINGTON,
Defendant.

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Case No. 15-CV-637-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on a Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 52), which recommends that the Motion for
Summary Judgment on the Issue of Exhaustion filed by Defendant Warden Richard
Harrington (“Harrington”) (Doc. 41) be granted. The Report and Recommendation was
entered on August 21, 2017. Plaintiff Miguel A. Suarez (“Suarez”) filed a timely objection
to the Report and Recommendation on September 7, 2017 (Doc. 53). Harrington filed a
response to Suarez’s objection on September 15, 2017 (Doc. 54).
BACKGROUND
Suarez alleges in his Second Amended Complaint (Doc. 32) that he was held in
segregation at the Menard Correctional Center under unsanitary conditions and on a
disciplinary ticket that was ultimately expunged due to a procedural deficiency. Suarez
proceeds on the following claims (Doc. 52, p. 2):
Count 1:

Deliberate indifference claim against Defendants Veath and
Johnson for ignoring problems with Suarez’s disciplinary

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ticket at the hearing and sentencing Suarez to a year in
segregation; and
Count 2:

Conditions of confinement claim against Harrington for
failing to provide Suarez with hygiene products and cleaning
supplies. 1

The Court dismissed with prejudice Count One against Defendants Veath and
Johnson on January 4, 2017 (Doc. 36). Suarez filed a Motion for Reconsideration
(Doc. 37), which the Court denied on July 18, 2017 (Doc. 48).
On May 17, 2017, Harrington filed a Motion for Summary Judgment on the Issue
of Exhaustion (Docs. 41, 42). Specifically, Harrington alleges that Suarez did not “raise
the issue regarding cell conditions in the manner specified by the grievance rules . . .
[and thus] has not exhausted his administrative remedies.” (Doc. 42, p. 5). On June 20,
2017, Suarez filed a response opposing the Motion (Doc. 47).
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on Harrington’s Motion on July 27, 2017
(Doc. 51). Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report
and Recommendation currently before the Court (Doc. 52). 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.

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In his Second Amended Complaint, Suarez labels the claim against Harrington as Count One. (Doc. 32,
p. 7).

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THE REPORT AND RECOMMENDATION
Based upon the evidence before the Court, Magistrate Judge Wilkerson found
that Suarez failed to exhaust his administrative remedies prior to filing this lawsuit.
Despite finding it credible that Suarez submitted a grievance, Magistrate Judge
Wilkerson noted that Suarez only complained to Harrington about cell conditions after
Suarez had submitted the grievance. (Doc. 51, pp. 12-13). Moreover, “[Suarez’s] claim
against Defendant Harrington is premised on [Harrington’s] failure to address the
unsanitary conditions in [Suarez’s] cell after being verbally advised of such conditions.”
(Doc. 52, p. 7). Thus, Magistrate Judge Wilkerson found that, because Suarez filed the
grievance before speaking to Harrington, the grievance could not have complained of
Harrington’s failure to address cell conditions.
DISCUSSION
Where timely objections are filed, the 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)).
Here, Suarez filed a timely objection to the Report and Recommendation. In the

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objection, Suarez argues that he exhausted his administrative remedies as required by
the Prison Litigation Reform Act by “filing the grievance complaining about the
unsanitary segregation cell conditions in June or July, 2013 and then talking to
[Harrington] about said grievance.” (Doc. 53, p. 1). Suarez further alleges that he
“wait[ed] 6 months to file [this action] after no response was given to grievance.” Id.
This Court adopts a “strict compliance approach to exhaustion.” Maddox v. Love,
655 F.3d 709, 721 (7th Cir. 2011) (quoting Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006)). In order to exhaust administrative remedies under Illinois law, a plaintiff must
file a grievance that contains certain factual details, “including what happened, when,
where and the name of each person who is the subject of or who is otherwise involved in
the complaint.” ILL. ADMIN. CODE tit. 20, § 504.810(c). Suarez’s grievance, premised on
Harrington’s failure to address unsanitary cell conditions, was filed before Suarez had
spoken to Harrington about cell conditions. Consequently, Suarez could not have
alleged in his grievance that Harrington ignored Suarez’s complaint. Thus, the grievance
could only contain generalized complaints as to cell conditions and necessarily lacks the
specific facts required by the Illinois Administrative Code.
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). It is apparent to the Court that Suarez did not fully exhaust his administrative
remedies prior to filing suit, and thus the case must be dismissed.

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CONCLUSION
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 52). Harrington’s Motion for Summary Judgment on the Issue of
Exhaustion (Doc. 41) is GRANTED. This action is DISMISSED without prejudice for
failure to exhaust administrative remedies.
IT IS SO ORDERED.
DATED: October 30, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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