The opinion of the court was delivered by: Herndon, District Judge.
Defendant Jennings filed a Motion for Summary Judgment (Doc. 51) and supporting memorandum (Doc. 52). The basis of Defendant's Motion for Summary Judgment is that Plaintiff failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a) (Doc. 52, pp. 3-5), and is legally prohibited from bringing forth this suit. Plaintiff filed an opposing Response (Doc. 66), in which he asserts he has made a good faith attempt to exhaust such administrative remedies and should therefore be allowed at this juncture to continue with the instant suit. In the alternative, Plaintiff has requested an extension of time so that he may properly exhaust his administrative remedies (Doc. 66).
This matter now comes before the Court on a Report and Recommendation ("R&R") filed by Magistrate Judge Philip Frazier on February 17, 2006, pursuant to 28 U.S.C. § 636(b)(1)(B) (Doc. 83). The R&R advises the Court to grant Defendant's Motion for Summary Judgment (Doc. 51) due to a finding that Plaintiff has failed to properly exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), and thereby dismiss Plaintiff's claim without prejudice (Doc. 83, p. 6).
This case involves an action filed by plaintiff Horace J. Griffin, pro se, pursuant to 42 U.S.C. § 1983 (Doc. 1), against several defendants. However, the only remaining claim against the only remaining Defendant is Plaintiff's allegation of excessive force committed by defendant Jennings against Plaintiff (see Doc. 44).
To briefly summarize, Plaintiff alleges that on September 3, 2003, while incarcerated at the Lawrence Correctional Center, he was subjected to excessive force by Defendant (who is a Correctional Officer) (Doc. 44, p. 2). The allegations suggest Plaintiff was involved somehow in an altercation and Defendant was thereafter requested by a fellow correctional officer to place Plaintiff in handcuffs and take him to segregation (Id.) Plaintiff alleges that the handcuffs were severely tight, which caused his wrists to bleed and swell and also injured his back (Id. at 2, 5). As such, the Court determined Plaintiff had plead a valid claim of excessive force, constituting cruel and unusual punishment in violation of the Eighth Amendment (Id. at 5-6).
Because Plaintiff filed timely objections to the Report (pursuant to the extension of time he was granted and the mailbox rule), this Court must undertake de novo review of the objected-to portions of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). 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 objection has been made. Id.
Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Oats v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Celex Group, Inc. v. Executive Gallery, Inc., 877 F. Supp. 1114, 1124 (N.D. Ill. 1995) (Castillo, J.). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings. Rather, she must show through specific evidence that an issue of fact remains on matters for which she bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). "[P]laintiff's own uncorroborated testimony is insufficient to defeat a ...