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.
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.
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.
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 ...