Hodge, Jr. v. Duncan et al

Filing 39

ORDER ADOPTING 38 Magistrate Judge Wilkerson's Report and Recommendation and GRANTING 32 Motion for Summary Judgment filed by Defendants Steven A. Duncan, C/O Fitch, C/O Danks, and Lt. Leif McCarthy. The case is DISMISSED without prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 5/5/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEWIS E. HODGE, JR.,

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Plaintiff,
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vs.
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STEVEN A. DUNCAN, C/O FITCH, C/O )
DANKS, and LT. LEIF MCCARTHY,
)
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Defendants.
)

Case No. 3:16-CV-241-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. 38), which recommends granting the
Motion for Summary Judgment on the issue of exhaustion filed by Defendants Steven A.
Duncan, C/O Fitch, C/O Danks, and Lt. Leif McCarthy (Doc. 32).
On April 25, 2016, Plaintiff Lewis E. Hodge, Jr., filed an Amended Complaint
pursuant to 42 U.S.C. § 1983 (Doc. 9) alleging Defendants subjected him to unbearable
living conditions when the toilet in his cell broke (Id.). Hodge claims he informed
Defendants of the condition, but they never addressed the problem. Hodge seeks
compensatory and punitive damages (Id.).
On January 10, 2017, Defendants filed a motion for summary judgment (Doc. 32)
arguing Hodge failed to exhaust his administrative remedies pursuant to the Prison
Litigation Reform Act, 42 U.S.C. §1997e, et seq., prior to filing this suit. In their motion,
Defendants acknowledge that Hodge spoke to his counselor about the broken toilet on
August 3, 2015, and that he submitted an emergency grievance on August 24, 2015,
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“presumably concerning his malfunctioning toilet” (Doc. 33, p. 1). The emergency
grievance was returned to Hodge on August 26, 2015, with a response from the warden
indicating it was a non-emergency (Id.). Defendants argue that Hodge never appealed
the denial of his emergency grievance to the Administrative Review Board (“ARB”) as
required by the Illinois Administrative Code. Defendants also note that Hodge claims to
have sent a grievance to “Springfield,” but argue that Hodge provides no further
information on the timeframe or addressee (e.g., “Director” or “Administrative Review
Board”). Hodge also failed to attach a copy of the alleged grievance or appeal to the
Amended Complaint. Defendants note that the ARB has no record of any grievance from
Hodge regarding a broken toilet (or any grievances at all, for that matter) (Doc. 33-1, p.
11).
Hodge did not file a response to Defendants’ Motion for Summary Judgment
despite being warned of the consequences for failing to do so (Doc. 34). The Report and
Recommendation was entered on April 7, 2017. No objections were filed.
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). Where neither timely nor specific
objections to the Report and Recommendation are made, however, 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 may then

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“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 Court has carefully reviewed the briefs and exhibits submitted by
Defendants, as well as Magistrate Judge Wilkerson’s Report and Recommendation.
Magistrate Judge Wilkerson thoroughly discussed his conclusion that Hodge failed to
exhaust his administrative remedies when there is no evidence that Hodge received a
response from the ARB regarding the issues with his broken toilet. Indeed, the only
evidence before the Court is that Hodge has never filed a grievance with the ARB
(Doc. 33-1, p. 11). Hodge has provided no evidence to the contrary.
The Court finds the factual findings and rationale of the Report and
Recommendation sound. It is apparent to the Court that Hodge did not fully exhaust his
administrative remedies prior to filing suit; thus, the motion for summary judgment
must be granted.
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 38) and GRANTS the Motion for Summary Judgment on the
issue of exhaustion filed by Defendants Steven A. Duncan, C/O Fitch, C/O Danks, and
Lt. Leif McCarthy (Doc. 32). Accordingly, this action is DISMISSED without prejudice.
The Clerk of the Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: May 5, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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