Custer v. Roeckeman et al

Filing 75

ORDER ADOPTING 74 REPORT AND RECOMMENDATION. Defendants' Motion for Summary Judgment (Doc. 57 ) is DENIED as to Defendant Roeckeman, MOOT as to Defendant Heathcoat, and GRANTED as to Defendants Browder, Childers, and Grisham. Defendants Browder, Childers, and Grisham are DISMISSED without prejudice. Signed by Judge Nancy J. Rosenstengel on 9/5/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
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Plaintiff,
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vs.
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ZACHARY ROECKEMAN, TIMOTHY
HEATHCOAT, LT. BROWDER, MAJOR )
)
GRISHAM, and C/O CHILDERS,
)
)
Defendants.
JOHN M. CUSTER,

Case No. 3:16-CV-00573-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 74), which recommends granting in part,
denying in part, and finding moot in part the Motion for Summary Judgment on the
Issue of Exhaustion of Administrative Remedies filed by Defendants Roeckeman,
Heathcoat, Browder, Grisham, and Childers (Doc. 57). For the reasons explained below,
the Court adopts Magistrate Judge Wilkerson’s Report and Recommendation.
On May 24, 2016, Plaintiff John Custer filed a complaint pursuant to 42 U.S.C.
§ 1983 alleging Defendants violated his constitutional rights while he was an inmate at
Big Muddy Correctional Center. After an initial screening of his complaint pursuant to
28 U.S.C. § 1915A, Custer is proceeding on four counts. Specifically, Custer alleges an
Eighth Amendment excessive force claim against Defendant Heathcoat for twisting his
arm and slamming him into a table on July 31, 2015 (Count One); a verbal harassment
claim against Defendants Heathcoat, Browder, Childers, and Grisham under the First

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and Eighth Amendments (Count Two); a claim of Eighth Amendment deliberate
indifference to serious medical needs against Defendants Roeckeman, Heathcoat,
Browder, and Childers (Count Three); and state law claims for assault and battery
against Defendant Heathcoat (Count Six).
On January 26, 2017, Defendants filed a motion for summary judgment on the
issue of exhaustion of administrative remedies (Doc. 57). Custer initially filed a response
pro se on March 2, 2017 (Doc. 60). The Court appointed counsel on March 3, 2017, who
then filed a supplemental response in opposition to summary judgment on May 18, 2017
(Doc. 71). On June 5, 2017, Magistrate Judge Wilkerson held a hearing pursuant to Pavey
v. Conley, 544 F.3d 739 (7th Cir. 2008) (Doc. 73), and subsequently issued the Report and
Recommendation currently before the Court. Objections to the Report and
Recommendation were due June 22, 2017. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P.
72(b)(2); SDIL-LR 73.1(b). No objections were filed.
In his Report and Recommendation, Magistrate Judge Wilkerson first
recommended that the motion for summary judgment filed by Defendant Heathcoat be
found moot, as Defendant Heathcoat withdrew his motion at the Pavey hearing.
Magistrate Judge Wilkerson next found that Custer’s September 25, 2015 grievance was
sufficiently exhausted, as it was reviewed on the merits by the Administrative Review
Board (“ARB”) and signed by the Director of the Illinois Department of Corrections
(“IDOC”). Based on the evidence in the record, as well as testimony provided by Custer
at the Pavey hearing, Magistrate Judge Wilkerson found the September 25, 2015
grievance was sufficient to exhaust Custer’s deliberate indifference claim against

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Defendant Roeckeman. With regard to Defendants Browder, Childers, and Grisham,
however, Magistrate Judge Wilkerson found that Custer failed to exhaust his
administrative remedies prior to filing this lawsuit, as he filed no grievances related to
their alleged conduct. In addition to there being no evidence in the record to support
Custer’s claims, Magistrate Judge Wilkerson found Custer’s testimony related to these
Defendants was not credible. As a result, Magistrate Judge Wilkerson recommended
that the motion for summary judgment be granted as to Defendants Browder, Childers,
and Grisham, but denied as to Defendant Roeckeman.
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
“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 a de novo review is not required here, the Court has carefully reviewed the
evidence and Magistrate Judge Wilkerson’s Report and Recommendation for clear error.
Following this review, the Court fully agrees with the findings, analysis, and conclusions
of Magistrate Judge Wilkerson. Custer’s September 25, 2015 grievance, of which the

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Court does not have a full copy, references the incident involving Defendant Heathcoat
and seeks proper care for Custer’s shoulder injury. Magistrate Judge Wilkerson found
Custer credible in his testimony that the missing portion of the grievance complained
about Defendant Roeckeman’s refusal to ensure he received adequate medical attention.
Thus, the September 25, 2015 grievance, which was reviewed on the merits by the ARB
on February 11, 2016, and signed by the IDOC Director on February 16, 2016, was
sufficiently exhausted as to Defendant Roeckeman.
With regard to Defendants Browder, Childers, and Grisham, however, the Court
agrees there are no grievances in the record related to their alleged conduct.
Furthermore, Magistrate Judge Wilkerson did not find Custer credible in his testimony
that he tried to submit grievances related to these Defendants but that his counselor was
refusing to handle any of his grievances. It is not the Court’s role to second-guess
Magistrate Judge Wilkerson’s credibility determinations. See Pavey v. Conley, 663 F.3d
899, 904 (7th Cir. 2011); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The district
court is not required to conduct another hearing to review the magistrate judge’s
findings or credibility determinations.”). Accordingly, the Court agrees with Magistrate
Judge Wilkerson that Custer did not exhaust his administrative remedies with regard to
these Defendants.
The Court finds no clear error in Magistrate Judge Wilkerson’s Report and
Recommendation. Thus, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 74) in its entirety. The Motion for Summary Judgment is
DENIED as to Defendant Roeckeman and is MOOT as to Defendant Heathcoat. Because

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Custer did not exhaust his administrative remedies with regard to Defendants Browder,
Childers, or Grisham, however, the Motion for Summary Judgment is GRANTED as to
these Defendants. Defendants Browder, Childers, and Grisham are DISMISSED
without prejudice.
IT IS SO ORDERED.
DATED: September 5, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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