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SOWEMIMO v. COWAN

August 24, 2005.

ABIODUN SOWEMIMO, Plaintiff,
v.
ROGER COWAN, EUGENE McADORY, GARY A. KNOP, NANCY S. TUCKER, DONALD SNYDER, JOE HARPER, MICHAEL L. NESBITT, MR. ALISON, D. HASEMYER, CAPTAIN STANLEY, and C/O WHITTENBURG,[fn1] Defendants.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

*fn1 The record contains a discrepancy as to the correct name of Defendant Whittenburg. A review of the pleadings indicates that this Defendant has been referred to also as "Wittenborn." In fact, the Final Pre-Trial Order entered by Magistrate Judge Frazier refers to this Defendant by both names (Doc. 77). The pleadings filed by Defendant use "Whittenburg." The Court assumes that this is the correct name and uses it throughout this Order.

MEMORANDUM AND ORDER

I. Introduction and Procedural Background

  On April 24, 2001, Abiodun Sowemimo, an inmate within the Illinois Department of Corrections ("IDOC"), filed suit against the Defendants alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 (Doc. 1). Defendants are employed in various positions with the IDOC. Sowemimo alleges that his First and Eighth Amendment rights were violated on various occasions at the Menard Correctional Center ("Menard") during the years 2000 and 2001. He maintains that Defendants deliberately exposed him to inmate violence or responded to the threat of inmate violence with deliberate indifference by denying him placement in protective custody. He also claims that Defendants have retaliated against him for a prior litigation.

  On September 23, 2002, the Court conducted a preliminary review of Plaintiff's complaint (Doc. 12). The Court divided Plaintiff's claims into two counts: Eighth Amendment claims and First Amendment retaliation claims.

  On March 8, 2004, the Court adopted a Report and Recommendation submitted by Judge Frazier and granted Snyder and Knop's motions for summary judgment (Doc. 48). Thereafter, the Clerk of the Court issued a default entry as to Michael Nesbitt (Doc. 53). On April 14, 2004, Judge Frazier denied Nesbitt's motion to vacate entry of default (Doc. 58). Subsequently on May 25, 2004, the Court denied Nesbitt's objection to Judge Frazier's April 14, 2004 Order (Doc. 61).

  Thereafter, this case was referred to Magistrate Judge Philip M. Frazier for an evidentiary hearing. Judge Frazier conducted the hearing on May 2, 2005. At the hearing, Plaintiff was represented by court appointed counsel, Michael McDonald. During the hearing, the parties presented evidence through exhibits and witnesses. On June 23, 2005, Judge Frazier entered a Report and Recommendation ("the Report") recommending that the Court enter verdicts and judgments in favor of each Defendant and against Plaintiff on his Eighth and First Amendment claims (Doc. 82). Judge Frazier found that Plaintiff failed to prove that any Defendant was deliberately indifferent to or displayed callous disregard for his safety and that Plaintiff failed to prove that his prior civil rights lawsuit was the actual motivating factor for defendant's decision to deny him protective custody.

  Plaintiff filed timely objections to the Report (Doc. 83). Plaintiff raises the following objections: (1) the Report erroneously found in favor of Defendants on the basis that they had no knowledge of any special threat to Plaintiff; and (2) the Report erroneously failed to enter judgment against Defendant Michael Nesbitt. Defendants filed a response to Plaintiff's objections (Doc. 84). After conducting de novo review, the Court ADOPTS Magistrate Judge Frazier's Report in its entirety.

  II. Standard of Review

  A federal district court is authorized to refer a matter to a magistrate judge to conduct an evidentiary hearing. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Following the hearing, the magistrate judge cannot enter a final judgment, but must submit to the district court proposed findings of fact and recommendations for disposition to which either party may file written objections within 10 days. See Id. The district court is required to conduct a de novo review of those portions of the magistrate judge's report and recommendations to which specific written objection have been filed. Local Rule 73.1(b).

  However, this de novo review is not the same as a de novo hearing. The district court is not required to conduct another hearing to review the magistrate judge's findings and credibility determinations. United States v. Raddatz, 447 U.S. 667, 675 (1980); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). Rather, the district court has discretion to "accept, reject or modify, in whole or part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Local Rule 73.1(b). If the district court finds a problem, it may take additional evidence, call witnesses, or remand to the magistrate judge for further development. Raddatz, 447 U.S. at 675. If upon reviewing the record, the district court is satisfied with the magistrate judge's findings and recommendations, it may in its discretion treat those findings as its own. Id.

  III. Facts*fn2

  In 1997, Plaintiff was incarcerated in Menard. On September 23, 1997, Plaintiff was attacked by, Raymond Washington, an inmate also housed at Menard Following that attack, Plaintiff was transferred to Joliet Correctional Center. In the meantime, Plaintiff filed a civil rights suit alleging that Mendard officials had been deliberately indifferent to his safety. See Sowemino v. Hennrich, 98-387-GBC. On March 30, 2000, a jury returned a verdict for the Defendants and against Plaintiff. Id. This is the lawsuit that Plaintiff believes he was retaliated against. None of the named Defendants in the case at bar were named Defendants in his prior lawsuit.

  Sometime after the trial, Plaintiff was returned to Menard. On May 11, 2000, Plaintiff requested placement into protective custody. Plaintiff believed that Raymond Washington had friends at Menard and that he ...


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