West v. Rakers et al

Filing 41

ORDER ADOPTING 39 Report and Recommendations and DENYING 22 Motion for Summary Judgment filed by Defendants Adam Rakers and Misty Thompson. Signed by Judge Nancy J. Rosenstengel on 3/7/2018. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENTES WEST,

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Plaintiff,
vs.
ADAM RAKERS and
MISTY THOMPSON,
Defendants.

Case No. 16-CV-984-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. 39), which recommends denying the
motion for summary judgment on the issue of exhaustion of administrative remedies
filed by Defendants Adam Rakers and Misty Thompson (Doc. 22). None of the parties
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.
Plaintiff Kentes West, an inmate of the Illinois Department of Corrections
(“IDOC”) currently incarcerated at Menard Correctional Center, filed a pro se lawsuit
pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights (Doc. 1). He is
proceeding in this matter on an excessive force claim against Defendant Rakers for
slamming his hand in a metal food slot on August 4, 2015. He is also proceeding on a

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deliberate indifference claim against Defendants Rakers and Thompson for refusing to
provide him with medical care to treat the injuries to his hand.
Defendants Rakers and Thompson filed a motion for summary judgment on
August 9, 2017, arguing that West failed to exhaust his administrative remedies prior to
filing suit as required by the Prison Litigation Reform Act (Doc. 22). West filed a
response in opposition to the motion (Doc. 28). 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 (Doc. 30). Magistrate Judge Wilkerson then issued the Report and
Recommendation currently before the Court, in which he recommends denying the
motion

for

summary

judgment

(Doc.

39).

Objections

to

the

Report

and

Recommendation were due on or before February 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, no objections were
filed.
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.

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Following this review, the undersigned fully agrees with the findings, analysis, and
conclusions of Magistrate Judge Wilkerson.
The day after West’s hand was allegedly slammed in the food slot at Menard, he
was transferred to Stateville Correctional Center on a temporary writ (Doc. 35, p. 6).
Several days later, he drafted an emergency grievance about the incident (Doc. 23-2,
pp. 4–5). He submitted the grievance directly to the Administrative Review Board
(“ARB”) (Id.). See ILL. ADMIN. CODE, TITLE 20, § 504.870(a) (2015) (“Offenders shall
submit grievances directly to the Administrative Review Board when grieving . . .
issues except personal property issues that pertain to a facility other than the facility
where the offender is currently assigned.”). The ARB received the grievance on August
17, 2015, but returned it to West because it did not include responses from his counselor
and the warden (Doc. 23-2, p. 3). West testified that he then mailed the grievance to
Menard but it was sent back to him, and he was told that he could not file a grievance at
Menard while he was housed somewhere else (Doc. 36). Magistrate Judge Wilkerson
found West’s testimony credible, and that credibility determination is entitled to
deference. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011). Thus, the grievance
process was rendered unavailable to West because neither Menard nor the ARB would
accept his grievance while he was housed at Stateville.
Defendants argue that West could have filed another grievance when he was
transferred back to Menard (Doc. 23). But there is no evidence that West was
guaranteed to return to Menard before the 60-day window for grieving the August 4th
incident expired. ILL. ADMIN. CODE, TITLE 20, § 504.810(a) (2015) (“A grievance shall be

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filed within 60 days after the discovery of the incident, occurrence, or problem that
gives rise to the grievance.”). Additionally, there is no provision in the Administrative
Code that requires an inmate to keep trying to file a grievance that the institution
previously refused to accept.
The Report and Recommendation (Doc. 39) is ADOPTED in its entirety, and
Defendants’ motion for summary judgment (Doc. 22) is DENIED.
IT IS SO ORDERED.
DATED: March 7, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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