Henricks v. Pickaway Correctional Institution et al

Filing 229

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 11-18-13. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN HENDRICKS,
Plaintiff,

vs.

Case No.: 2:08-cv-580
JUDGE SMITH
Magistrate Judge Abel

PICKAWAY CORRECTIONAL
INSTITUTION, et al.,
Defendants.

ORDER
On September 9, 2013, the United States Magistrate Judge issued a Report and
Recommendation recommending that Defendants Ida Gonzalez, M.D. and Correction Officer
Michael Maynard’s May 29, 2013 Motion for Summary Judgment be DENIED; Plaintiff’s July
1, 2013 Motion to Strike (Doc. 209) and his August 9, 2013 Motion to Strike (Doc. 221) be
GRANTED; and Defendants’ July 23, 2013 Motion for Leave to Answer Instanter (Doc. 215) be
DENIED. (See Report and Recommendation, Doc. 226). The parties were advised of their right
to object to the Report and Recommendation. This matter is now before the Court on
Defendants’ Objections to the Magistrate Judge’s Report and Recommendation. (See Doc. 226).
The Court will consider the matter de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The objections present issues that were fully briefed and considered by the Magistrate
Judge in the Report and Recommendation. For the reasons stated in the Report and
Recommendation, this Court finds that the objections are without merit.

The Court notes that it is sympathetic to Defendants’ position that their attorney failed to
file an answer on their behalf and ultimately waived their defenses. However, Defendants’
insistence that the Report and Recommendation is contrary to law is incorrect. The Supreme
Court has determined, however, that an inmate is not required to specially plead or demonstrate
exhaustion in his complaint; rather failure to exhaust administrative remedies is an affirmative
defense. Jones v. Bock, 549 U.S. 199, 212–17, 127 S.Ct. 910, 919–21, 166 L.Ed.2d 798 (2007).
“Because failure to exhaust administrative remedies is an affirmative defense, defendants have
the burden of pleading and proving the defense.” Massey v. Helman, 196 F.3d 727, 735 (7th
Cir.2000). And. like any other affirmative defense, reliance on the PLRA exhaustion requirement
can be waived. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.2004); Perez v. Wisconsin Dep’t
of Corrections, 182 F.3d 532, 536 (7th Cir.1999) (“Defendants may waive or forfeit reliance on
§ 1997e(a), just as they may waive or forfeit the benefit of a statute of limitations.”); Randolph v.
Rodgers, 253 F.3d 342, 347 n. 11 (8th Cir.2001); see also Rose v. Saginaw County, 232 F.R.D.
267, 277–78 (E.D.Mich.2005) (finding that the defendants had waived their right to rely on the
PLRA’s administrative exhaustion requirement where they did not assert this affirmative defense
until three years after the plaintiffs’ amended complaint was filed and after their previously-filed
dispositive motions had been decided).
Accordingly, the Report and Recommendation, Document 226, is ADOPTED and
AFFIRMED. Defendants Ida Gonzalez, M.D. and Correction Officer Michael Maynard’s May
29, 2013 Motion for Summary Judgment is hereby DENIED; Plaintiff’s July 1, 2013 Motion to
Strike (Doc. 209) and his August 9, 2013 Motion to Strike (Doc. 221) are GRANTED; and
Defendants’ July 23, 2013 Motion for Leave to Answer Instanter (Doc. 215) is DENIED.

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The Clerk shall remove Documents 205, 209, 215, 221, 225 and 226 from the Court’s
pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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