Osbaldo v. Harrington et al

Filing 69

ORDER ADOPTING 66 REPORT AND RECOMMENDATION and DENYING 57 Motion for Summary Judgment filed by Kimberly Butler. The case shall now proceed to trial on Counts V, IX, and XI against Defendant Butler. The Final Pretrial Conference remains set at 9:30 a.m. on February 11, 2019. Jury trial will commence at 9:00 a.m. on February 19, 2019. Signed by Judge Nancy J. Rosenstengel on 1/11/2019. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OSBALDO JOSE-NICOLAS,
Plaintiff,
vs.
KIMBERLY BUTLER,
Defendant.

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Case No. 3:15-CV-1317-NJR-GCS

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Osbaldo Jose-Nicolas filed this pro se lawsuit pursuant to 42 U.S.C. § 1983
against Defendant Kimberly Butler for violating his constitutional rights while he was an
inmate of the Illinois Department of Corrections housed in segregation at Menard
Correctional Center. This case was severed from Osbaldo v. Berry, et al., No. 15-cv-965JPG.
After severance, the following claims are pending in this action: (1) Count V—a
conditions of confinement claim; (2) Count IX—a supplemental state law claim for
negligence or willful and wanton conduct; and (3) Count XI—a supplemental state law
indemnification claim pursuant to the Illinois State Employee Indemnification Act,
5 ILCS § § 350/1, et seq. Jose-Nicolas alleges among other things that, while he was in
segregation, his mattress was broken, dirty, and smelled of urine and feces, the toilet was
leaking, and there were small white insects in the toilet as well as in a puddle of standing
water next to the toilet, there was black-green mold on the walls, and the temperature in

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his cell was extremely high during the summer.
On October 19, 2018, Defendant Butler filed a motion for summary judgment as to
Count V only, arguing the following: that the conditions were not serious enough to
violate the Eighth Amendment; Butler was not deliberately indifferent to any risk of harm
to Jose-Nicolas; Butler was not personally involved in any constitutional violation; Butler
is entitled to qualified immunity; Jose-Nicolas is not entitled to compensatory damages
under the Prison Litigation Reform Act (PLRA); and Jose-Nicolas is not entitled to
punitive damages (Doc. 57). Jose-Nicolas filed a response to Defendant Butler’s motion
on November 26, 2018 (Doc. 60).
On December 19, 2018, Magistrate Judge Donald G. Wilkerson entered the Report
and Recommendation currently before the Court, which recommends that summary
judgment be denied (Doc. 66).
Objections to the Report and Recommendation were due January 7, 2019. Because
no party has filed an objection, the undersigned District Judge need not undertake de novo
review. 28 U.S.C. § 636(b)(1)(C); Johnson v. Zema Sys. Corp., 170 F.3d 734, 741 (7th Cir.
1999). Instead, the Court should review the Report and Recommendation for clear error.
Johnson, 170 F.3d at 739. 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).
While de novo review is not required here, the Court has reviewed Magistrate
Judge Wilkerson’s Report and Recommendation for clear error. Following this review,
the Court agrees with his findings, analysis, and conclusions. The undersigned

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accordingly ADOPTS the Report and Recommendation in its entirety (Doc. 66). The
Motion for Summary Judgment filed by Defendant Butler is DENIED. 1
This case shall now proceed to trial on Counts V, IX, and XI against Defendant
Butler. The Final Pretrial Conference remains set at 9:30 a.m. on February 11, 2019. Jury
trial will commence at 9 a.m. on February 19, 2019.
IT IS SO ORDERED.
DATED: January 11, 2019
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

Butler made two additional arguments in her motion for summary judgment that the Report and
Recommendation does not address. Butler argued that Jose-Nicolas is not entitled to compensatory
damages under the Prison Litigation Reform Act (PLRA) and that Jose-Nicolas is not entitled to punitive
damages. The Court has reviewed these cursory arguments and finds that summary judgment is not
warranted.
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