Beasley v. Hicks et al

Filing 90

ORDER ADOPTING 82 Report and Recommendation and GRANTING 46 Motion for Summary Judgment on the Issue of Exhaustion filed by Defendants Dwayne Burrows and Terry Beegle. Signed by Chief Judge Nancy J. Rosenstengel on 9/17/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

THEODORE BEASLEY,
Plaintiff,
v.

Case No. 3:18-CV-01193-NJR-MAB

LARRY HICKS, KENNEDY
HAMILTON, JACK RITTER, TERRY
BEEGLE, and DWAYNE BURROWS,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Mark A. Beatty (Doc. 82), which recommends that the Motion for
Summary Judgment on the Issue of Exhaustion (Doc. 46) filed by Defendants Dwayne
Burrows and Terry Beegle be granted. The Report and Recommendation was entered on
June 3, 2019. Plaintiff Theodore Beasley filed a timely objection (Doc. 84). For the reasons
explained below, the Court adopts the Report and Recommendation and grants the
motion for summary judgment.
BACKGROUND
Beasley filed this pro se civil rights lawsuit under 42 U.S.C. § 1983 on June 4, 2018.
(Doc. 1). Beasley asserts that he was attacked by his cellmate and three officers on
February 4, 2018, while he was incarcerated at Shawnee Correctional Center (“Shawnee”)
(Doc. 1). With regard to Defendants Beegle and Burrows, Beasley claims two violations
of his Eighth Amendment rights occurred. (Docs. 1, 7). The first violation alleged is
Page 1 of 7

against Defendant Beegle for failing to intervene and protect Beasley from being attacked
a second time. (Id.). The second alleged violation is against both Defendants Beegle and
Burrows for being deliberately indifferent to his medical needs after he was assaulted.
(Id.).
In November 2018, Defendants Beegle and Burrows filed a motion for summary
judgment arguing Beasley failed to properly exhaust his administrative remedies before
filing this suit. (Doc. 46). Defendants assert there are only two grievances in the record
that mention Beegle and Burrows. Both of these grievances were dated March 18, 2018,
and were sent directly to the Administrative Review Board (“ARB”) without any
institutional responses. Defendants also dispute the credibility of a statement Beasley
attached to his Complaint claiming he received no responses to emergency grievances he
submitted on February 15, 2018, and March 18, 2018. Defendants argue this statement is
not credible as it was written on May 3, 2018, at the same time he mailed his grievances
directly to the ARB. Finally, Beasley’s cumulative counseling summary shows that he did
submit one grievance during his term in segregation on an unrelated matter. Thus, there
is evidence Beasley was able to grieve issues during his time in segregation.
Beasley responded by arguing that he filed two emergency grievances on February
15, 2018, regarding Defendants Beegle and Burrows, but he never received a response.
(Doc. 51). Beasley stated that, because he was housed in segregation, he did not have
access to housing unit mailboxes for the deposit of his emergency grievances addressed
to the Chief Administrative Officer (“CAO”)—the warden. Instead, he placed them in his
cell door for pickup by officers per Shawnee’s standard procedure at that time. (Docs. 50,

Page 2 of 7

51).
Beasley further argues that on March 18, 2018, after 30 days of not receiving a
response from the CAO, he re-wrote the same emergency grievances and made handwritten copies of them. He then stuck the grievances in his cell door. (Doc. 51; Doc. 81 at
p. 17). Beasley maintains that he never received a response to these grievances either.
Beasley also asserts he requested that his counselor, Daniel Lynn, document their
communications while he was in segregation and that he kept his counselor verbally
informed that he had not received any responses from the CAO concerning his
emergency grievances about Defendants Beegle and Burrows. (Id.). Beasley argues that
because he never received responses to his grievances, his attempts to exhaust his
administrative remedies were thwarted by officers who must have destroyed his
emergency grievances after taking them from his cell door. (Doc. 50, p. 2). Thus, Beasley
contends, he fully exhausted the administrative remedies available to him at that time.
(Id. at pp. 2-3).
Judge Beatty held an evidentiary hearing regarding the Motion for Smarmy
Judgment on April 11, 2019, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
(Docs. 69, 82). Beasley appeared via videoconference. (Id.). At the hearing, Beasley
testified that he wrote two grievances dated February 15, 2018, pertaining to the incidents
at issue in this lawsuit and sent them out, but that he does not know what happened to
them. (Doc. 81 at pp. 12-14). Beasley testified that he made copies of these grievances—
one of which he sent along with the Complaint in this matter and the other he sent to the
Administrative Review Board (Doc. 81 at p. 13). He admitted, however, that there were

Page 3 of 7

no grievances dated February 15, 2018, attached to his Complaint or included in the
records produced by the ARB (Id.).
Counselor Daniel Lynn also testified at the Pavey hearing. Lynn testified that he
recalled seeing Beasley in segregation in February 2018 and that Beasley told him he had
been turning grievances in but that he had not been getting responses. (Doc. 81 at pp. 4546). Lynn further testified that Beasley asked him to check and see if he had received any
grievances from Beasley, at which point Lynn checked and noted in Beasley’s cumulative
counseling summary that he did not see any grievances from him. (Id. at p. 46). According
to Lynn, he told Beasley that if he handed the grievance directly to Lynn, he would
guarantee the grievance would get turned in. (Id. at p. 32).
After the hearing, Judge Beatty issued his Report and Recommendation to this
Court on June 3, 2019, pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72(b), and SDILLR 72.1(a). (Doc. 82).
DISCUSSION
In his Report and Recommendation, Judge Beatty concluded that Beasley failed to
exhaust his administrative remedies as to Defendants Beegle and Burrows. (Doc. 82, p. 7).
Judge Beatty specifically noted Counselor Lynn’s testimony that he tells inmates in
segregation to give him grievances directly to ensure proper submission, and that
Beasley’s pertinent counseling records show that Counselor Lynn never received
grievances from Beasley while he was housed in segregation. (Id.). Importantly, Judge
Beatty did not find credible Beasley’s testimony that he attempted to submit emergency
grievances in February and March 2018 but did not receive responses. Furthermore,

Page 4 of 7

although Beasley attached the March 18, 2018 grievances, which contained allegations
against Beegle and Burrows, to his Complaint (Doc. 1-1), these grievances were sent
directly to the ARB without the required institutional responses (Doc. 82. pp. 8-9).
Consequently, Judge Beatty found that Beasley failed to properly exhaust his
administrative remedies before filing this lawsuit.
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); SDILLR 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). The Court may accept, reject or modify
the magistrate judge’s recommended decision. Harper, 824 F. Supp. at 788. In making this
determination, the Court must look at all the evidence contained in the record and give
fresh consideration to those issues to which specific objections have been made. Id.,
quoting 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st
ed. 1973) (1992 Pocket Part).
Here, Beasley filed a timely objection to the Report and Recommendation.
(Doc. 84). Beasley contends that this Court should reject the Report and Recommendation
in whole because Judge Beatty improperly judged the credibility of the witness and
because “Defendants failed to establish that there is no genuine issue of material fact.”
(Id. at p. 4). Beasley contends that attempted to follow the rules established by the
Shawnee Correctional Center Offender Orientation Manual for submitting grievances
while in segregation but that prison employees thwarted his efforts because he never
received responses from the CAO. (Id. at pp. 1-3).

Page 5 of 7

Contrary to Beasley’s argument, at Pavey hearings, a court is permitted to make
findings of fact and credibility assessments of witnesses. See Pavey v. Conley, 663 F.3d 899,
904 (7th Cir. 2011). Magistrate judges are in the best position to assess a witness’s
credibility because they have the opportunity “to observe the verbal and nonverbal
behavior of the witnesses . . . [including their] reactions and responses to the
interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and
body movements.” Kraushaar v. Flanigan, 45 F.3d 1040, 1052-53 (7th Cir. 1995).
In this case, Judge Beatty assessed the credibility of Beasley’s statements and found
them untrue. It is not the Court’s role at this juncture to second-guess Judge Beatty’s
credibility determinations. 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 defers to Judge Beatty’s
determination that Beasley was not a credible witness regarding his alleged February 15,
2018 and March 18, 2018 emergency grievances.
The Court further adopts Judge Beatty’s finding that Beasley failed to properly
exhaust his administrative remedies when he sent his March 18, 2018 grievances directly
to the ARB without any institutional responses. Beasley objects to this finding, claiming
that the ARB sent the grievance back because it wanted “more information,” not because
he lacked any required responses. What Beasley leaves out, however, is that the
additional information the ARB wanted was “your original written Offender’s Grievance,
DOC 0046, including the counselor’s response, if applicable,” and “a copy of the
Response to the Offender’s Grievance, DOC 0047, including the Grievance Officer’s and

Page 6 of 7

Chief Administrative Officer’s response . . . .” Because Beasley failed to obtain the proper
institutional response prior to sending his grievances to the ARB, Defendants’ motion
must be granted.
CONCLUSION
For these reasons, the Court ADOPTS Magistrate Judge Beatty’s Report and
Recommendation (Doc. 82) and GRANTS the Motion for Summary Judgment on the
Issue of Exhaustion filed by Defendants Beegle and Burrows (Doc. 46).
IT IS SO ORDERED.
DATED: September 17, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

Page 7 of 7