Daher v. Sevier et al

Filing 80

OPINION AND ORDER: OVERRULING 79 Plaintiff's Objections To Proposed Finding and/or Any Recommendation of Magistrate Judge to 78 Report and Recommendations by James Daher, Jr.; ADOPTING the 78 report and recommendation of the magistrate judg e; and DISMISSING Mark Sevier, Laurie Johnson and James Csenar from this case WITHOUT PREJUDICE for the plaintiff's failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Signed by Judge Jon E DeGuilio on 4/13/2016. (lhc)(cc: Daher)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES DAHER, JR.,
Plaintiff,
v.
MARK SEVIER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 3:13-CV-940 JD

OPINION AND ORDER
On November 30, 2015, United States Magistrate Judge Christopher A. Nuechterlein
issued a report and recommendation in which he recommended that the claims against Mark
Sevier, Laurie Johnson and James Csenar be dismissed without prejudice for failure to exhaust
administrative remedies pursuant to 42 U.S.C. § 1997e(a). (DE 78.) Plaintiff James Daher, Jr., a
pro se prisoner, filed a timely objection to the report and recommendation. (DE 79.)
In this case, Daher alleges that Mark Sevier, Laurie Johnson, and James Csenar
(collectively “the defendants”) housed him under substandard conditions at the Miami
Correctional Facility, and retaliated against him for filing grievances. (DE 12.) As a preliminary
matter, the defense of failure to exhaust administrative remedies was raised. To resolve this
issue, on October 20, 2015, the assigned magistrate judge conducted an evidentiary hearing
pursuant to a referral made by this court. (DE 41, 77.) The questions to be answered were: (1)
whether Daher submitted a formal grievance on September 12, 2011; (2) whether his grievance
was returned to him unfiled for the reasons listed on the return of grievance form dated
November 7, 2011; (3) whether Daher resubmitted the grievance on November 9, 2011; and (4)
if so, how the resubmitted grievance was handled by prison staff. (DE 50.) The witnesses and

evidence presented at the hearing were fully set forth by the magistrate judge and will be
recounted here only where necessary to the court’s analysis. Based on the testimony and
evidence presented, the magistrate judge found that Daher did not properly exhaust his
administrative remedies before filing suit. (DE 78.)
In determining that Daher did not file a formal grievance on September 12, 2011,
(hereinafter “Grievance”), the magistrate judge credited the testimony of Angie Heishman,
administrative assistant at the Miami Correctional Facility, Clair Barnes Beaver (“Barnes”),
former litigation supervisor at Miami, and Amanda Tobin (“Tobin”), a counselor at Miami.
These witnesses testified about the prison grievance process and that, according to the records at
Miami, Daher did not file the Grievance, nor did he resubmit it on November 9, 2011. The
witnesses also testified that Daher doctored an unrelated November 7, 2011, Return of Grievance
form to make it appear as though the prison had rejected his Grievance. Based upon Miami
having no record of Daher filing the Grievance, along with the fact that Daher falsified
documents to make it appear as though he exhausted his administrative remedies, the magistrate
judge concluded that Daher never filed the Grievance. (DE 78.)
Here, Daher raises the three following objections to the report and recommendation: (1)
he was denied a right to call witnesses at the hearing; (2) he filed the Grievance; and (3) he was
not required to exhaust his administrative remedies because his claim is non-grievable. (DE 79.)
The third objection is irrelevant as it was neither a finding in the report and recommendation nor
an issue to be decided in this case.1 (DE 41, 78.) Clearly, the report and recommendation

1

Not only is this argument outside the scope of the order of referral, but the argument is misplaced. Daher’s
amended complaint is premised on the defendants’ alleged misconduct. Daher alleges that the defendants placed him
in segregation and later transferred him to another prison in retaliation for filing grievances. This retaliation claim is
what Daher was given leave to proceed on, and challenging the action of a staff member, such as retaliation, is a

2

focuses on whether Daher exhausted his administrative remedies. The court will address Daher’s
remaining two objections.
The court’s review of the contested portions of the magistrate judge’s report and
recommendation is de novo. 28 U.S.C. § 636(b)(1)(c). The court may “accept, reject, or modify
the recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed. R. Civ. P. 72(b)(3). The court is not required to hold further
hearings to review the magistrate judge’s findings simply because witness credibility is at issue.
See United States v. Raddatz, 447 U.S. 667, 673-76 (1980).
Daher’s first objection is that he was denied the right to call witnesses. Daher claims that
if he could have called witnesses and presented evidence, he would have shown that he simply
made a mistake about the November 7, 2011, Return of Grievance being used to reject his
Grievance. He also claims that he would have shown that Miami’s computer record keeping
system is unreliable. Daher’s contention that he was denied the right to present his case is simply
not true. The record reflects that the magistrate judge proposed holding the Pavey hearing in a
two-step process:
In the first step, scheduled to take place on October 20, 2015, the defendants will
present evidence in an effort to meet their burden of showing that Daher failed to
grievable issue. (Def. Ex. A; Offender Grievance Process at 5.) Thus, Daher was required to exhaust his
administrative remedies.
Nevertheless, Daher asserts that he was not required to exhaust his administrative remedies because his claim is a
“classification issue.” It is true that the offender grievance process is not used to contest a prison’s “classification
actions or decisions.” (Def. Ex. A; Offender Grievance Process, at 6.) However, Daher’s amended complaint does
not allege, nor was he granted leave to proceed on, any claim based simply on being misclassified. And to the extent
he is challenging the appropriateness of his classification, without any accompanying claim of retaliation, such a
claim does not violate the Constitution. Daher does not have a protected liberty interest in a particular classification.
Sandin v. Conner, 515 U.S. 472, 486 (1995); see also DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992)
(“[P]risoners possess neither liberty nor property in their classifications and prison assignments.”). Nor does he have
the right to be housed in any particular prison. Meachum v. Fano, 427 U.S. 215, 224 (1976). Thus, while Daher was
not required to grieve his classification issues, he has no constitutional claim based upon them either.

3

exhaust his administrative remedies. The evidence at this hearing will consist of
defendants’ witnesses and exhibits as well as Daher’s testimony and any exhibits
in his possession. If the defendants meet their burden and there are issues that
Daher needs to rebut, he can explain to the court what further documents or
witnesses he needs in order to accomplish that task. The court will then determine
whether a second hearing is necessary for Daher to present that evidence.
(DE 70.) No party objected to proceeding in such a manner. (Id.)
After reviewing the unofficial transcript of the October 20, 2015, hearing, it is apparent
that the magistrate judge repeated this procedure at the start of the hearing. Then, at the
conclusion of the hearing, the magistrate judge asked Daher if he desired to present any further
evidence, to which Daher said, “No, sir.” Daher also declined the opportunity to submit further
briefing. Notably, Daher does not identify what witnesses or evidence he asked for at the
hearing, which were refused.
Even now, while he generally complains that he could have been able to explain away his
alleged fraud and the fact that Miami had no record of his Grievance, he fails to identify what
additional evidence or witnesses would have accomplished this task. Surely, he could have
attempted to explain these things on his own, but he declined to testify. Upon review, the court
finds Daher was never denied the opportunity to present witnesses or evidence at the hearing and
he received a fair opportunity to present his case. Accordingly, this objection is overruled.
Daher’s second challenge goes to the magistrate judge’s finding that he did not file the
Grievance. This objection is general in nature and Daher does not specify what portion of the
magistrate judge’s report and recommendation he is challenging. He essentially objects to the
recommended outcome rather than pointing this court to specific areas where the magistrate
judge misconstrued the law or the facts. Nevertheless, the court will attempt to address his
contention.
4

This much is clear: the defendants initially filed a motion for summary judgment because
Miami had no record of Daher filing a grievance for the events he sues about in this lawsuit. In
response, Daher produced the Grievance and the doctored Return of Grievance. Because Miami
has no record of the Grievance ever being filed or rejected, the court must believe Daher to find
that any such grievance was filed. Unfortunately for him, as the magistrate judge fully and
accurately explained in his report and recommendation, Daher’s assertion that Miami rejected
his Grievance via the November 7, 2011, Return of Grievance was a lie.
In fact, Daher now admits that the November 7, 2011, Return of Grievance is not related
to the Grievance. However, he claims that he was simply mistaken and confused about whether
that Return of Grievance form accompanied the Grievance. Such an excuse is untenable. This
was not just a mistake. Daher did not merely put the wrong Return of Grievance form with the
wrong grievance. He took affirmative steps to doctor the November 7, 2011, Return of
Grievance to make it appear as though it rejected the Grievance. This is fraud. And, since he
committed fraud in presenting his Return of Grievance, he is not credible.
The court refuses to believe that Daher filed the Grievance, but Miami failed to properly
make a record of it. The more likely scenario is that Miami has no record of the Grievance
because Daher never filed it. Daher seemingly created the Grievance in an attempt to defeat the
defendants’ motion for summary judgment. Daher’s use of the Grievance, like his use of the
November 7, 2011, Return of Grievance, is fraudulent. As such, the court agrees with the
magistrate judge in finding that Daher did not file the Grievance, nor did he resubmit it on
November 9, 2011. Accordingly, this objection is overruled.
For these reasons, the court:

5

(1) OVERRULES the plaintiff’s objections (DE 79);
(2) ADOPTS the report and recommendation of the magistrate judge; and
(3) DISMISSES Mark Sevier, Laurie Johnson and James Csenar from this case
WITHOUT PREJUDICE for the plaintiff’s failure to exhaust administrative remedies pursuant
to 42 U.S.C. § 1997e(a).
SO ORDERED.
ENTERED: April 13, 2016

/s/ JON E. DEGUILIO
Judge
United States District Court

6