Osbaldo v. Harrington et al

Filing 37

ORDER ADOPTING 34 REPORT AND RECOMMENDATIONS and DENYING 24 MOTION for Summary Judgment filed by Defendants Richard Harrington and Kimberly Butler. Signed by Judge Nancy J. Rosenstengel on 6/5/17. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSE-NICOLAS OSBALDO,

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Plaintiff,
vs.
RICHARD HARRINGTON and
KIMBERLY BUTLER,
Defendants.

Case No. 15-CV-1317-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. 34), which recommends denying the
motion for summary judgment on the issue of exhaustion of administrative remedies
filed by Defendant Richard Harrington and Kimberly Butler (Doc. 24). Neither party
filed an objection to the Report and Recommendation. For the reasons explained below,
the Court adopts Magistrate Judge Wilkerson’s Report and Recommendation and
denies the motion for summary judgment.
BACKGROUND
Plaintiff Jose-Nicolas Osbaldo, an inmate of the Illinois Department of
Corrections currently incarcerated at Menard Correctional Center, filed a pro se lawsuit
pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights stemming from
an assault in February 2014, the denial of medical care, subsequent disciplinary
proceedings, and the conditions of his confinement in segregation (Doc. 1).

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Supplemental claims based on Illinois law were also asserted (Doc. 1). Plaintiff’s claims
against Defendants Harrington and Butler for unconstitutional conditions of
confinement and his supplemental state law claims for negligence or willful and
wanton conduct and indemnification were severed from the original case (15-cv-964NJR-DGW) into this case (Doc. 1, Doc. 7).
Defendants Harrington and Butler filed a motion for summary judgment on
September 28, 2016, arguing that Plaintiff failed to exhaust his administrative remedies
prior to filing suit as required by the Prison Litigation Reform Act (Doc. 24). Defendants
asserted that the Administrative Review Board had no record of any grievances from
Plaintiff regarding the conditions of his confinement at Menard, and therefore he failed
to exhaust his administrative remedies (Doc. 34; Doc. 25). Plaintiff filed a response in
opposition to the motion for summary judgment, asserting that he submitted two
grievances related to the conditions of his confinement (Doc. 34; Doc. 29).
In accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on the issue of exhaustion on April 18, 2017
(Doc. 33). On May 12, 2017, he issued the Report and Recommendation currently before
the Court, in which he recommends denying the motion for summary judgment,
(Doc. 34). Objections to the Report and Recommendation were due on or before May 26,
2017. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); SDIL-LR 73.1(b). As previously
mentioned, neither party filed an objection.

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ANALYSIS
Where neither timely nor specific objections to the Report and Recommendation
are made, the court need not conduct a de novo review. 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 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 undersigned 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 undersigned fully agrees with the findings, analysis, and
conclusions

of

Magistrate

Judge

Wilkerson

and

adopts

the

Report

and

Recommendation in its entirety.
Plaintiff submitted an emergency grievance on May 11, 2014, which included a
request to be “free from N2 segregation and $1,000.00 dollars for each day spend in this
condemn confinement [sic]” (Docs. 29-2, 29-3). It is undisputed that this grievance was
fully exhausted (see Doc. 34, p. 2). Plaintiff submitted another emergency grievance on
July 10, 2014, complaining that the fan in his cell overheated and melted (Doc. 29-8).
Plaintiff also asked for compensation for each day that he had spent in confinement
behind a steel door (Doc. 29-8). This grievance was determined not to be an emergency,
and Plaintiff submitted it to his counselor (Doc. 29-8; see Doc. 29-9). The cumulative
counseling summary indicates this grievance was received by Plaintiff’s counselor on
August 16, 2014 (Doc. 29-9), however, Plaintiff testified that he never received a written

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response from his counselor. Magistrate Judge Wilkerson found Plaintiff’s testimony
credible (Doc. 34), and that credibility determination is entitled to deference. See Pavey
v. Conley, 663 F.3d 899, 904 (7th Cir. 2011). Because Plaintiff took the steps required of
him to informally resolve his grievance, but his counselor failed to provide a written
response, the grievance process was rendered unavailable. Brengettcy v. Horton, 423 F.3d
674, 682 (7th Cir. 2005) (citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)).
Furthermore, the Court fully agrees with Magistrate Judge Wilkerson’s assessment that
the content of these two grievances was sufficient for prison officials to infer that
Plaintiff was complaining about the conditions in his segregation cell (see Doc. 34, pp. 7–
8). Therefore, Plaintiff is deemed to have exhausted his administrative remedies. Lewis,
300 F.3d at 833.
CONCLUSION
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 34) and DENIES the motion for summary judgment on the issue of exhaustion
filed by Defendants Richard Harrington and Kimberly Butler (Doc. 24).
IT IS SO ORDERED.
DATED: June 5, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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