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Hunter v. Welborn

March 24, 2008

MARKUS HUNTER, PLAINTIFF,
v.
GEORGE C. WELBORN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on several matters: plaintiff Marcus Hunter's ("Hunter") objections to a February 27, 2007, order and a September 25, 2007, order by Magistrate Judge Clifford J. Proud (Docs. 139 & 147) and an October 9, 2007, Report and Recommendation by Magistrate Judge Proud (Doc. 146).

I. Objection (Doc. 139) to February 27, 2007, Order (Doc. 134);

Objection (Doc. 147) to September 25, 2007, Order (Doc. 143)

A district court reviewing a magistrate judge's decision on nondispositive issues should only modify or set aside that decision if it is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). Accordingly, the Court will affirm Magistrate Judge Proud's decision unless his factual findings are clearly erroneous or his legal conclusions are contrary to law. Id.

On October 17, 2006, Hunter asked the Court to extend the time in which he could respond to the defendants'*fn1 summary judgment motion (Doc. 121), which had been filed on September 29, 2006 (Doc. 128). On October 23, 2006, Hunter asked the Court to stay its consideration of the defendants' summary judgment motion on the grounds that he was unable to communicate with certain necessary prisoner witnesses, that defendants Hinsley and Harner had not responded to interrogatories and that objections to certain of Magistrate Judge Proud's discovery rulings were pending before the Court (Doc. 129). On November 22, 2006, before the Court ruled on his pending motions, Hunter filed a response to the summary judgment motion (Docs. 130 & 131). On February 27, 2007, Magistrate Judge Proud denied Hunter's motions as moot in light of the fact that Hunter had responded to the summary judgment motion and the Court had resolved Hunter's objections to the discovery rulings at issue (Doc. 134). On April 2, 2007, Hunter objected to that order (Doc. 139).

On April 9, 2007, Hunter again asked the Court to stay its consideration of the defendant's motion for summary judgment until he received responses to interrogatories directed at defendants Hinsley and Harner and until the Court ruled on his objection described in the prior paragraph of this order (Doc. 140). In response to Hunter's motion, the defendants responded that Hinsley and Harner had responded in August 2006 to the interrogatories directed to them and attached a copy of those responses to their filing (Doc. 142). On September 26, 2007, Magistrate Judge Proud denied Hunter's motion, finding that Hinsley and Harner had responded to the interrogatories directed to them and that the Court had ruled it would not stay consideration of the summary judgment motion pending the appeal of Magistrate Judge Proud's February 27, 2007, order (Doc. 143). On October 15, 2007, Hunter objected to that order and moved to compel Hinsley and Harner to respond to outstanding interrogatories (Doc. 147). The defendants have responded (Doc. 148).

The Court has reviewed the relevant documents from the file and has determined that Magistrate Judge Proud's February 27, 2007, and October 15, 2007, orders were not clearly erroneous or contrary to law. Hinsley and Harner have responded to interrogatories directed at them, Hunter was able to file a response to the summary judgment motion, and the motion is ready to rule upon. For these reasons, the Court will affirm Magistrate Judge Proud's orders (Docs. 134 & 143) and will deny Hunter's motion to compel responses to interrogatories (Doc. 147).

II. Report and Recommendation (Doc. 146)

This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 146) of Magistrate Judge Proud recommending that the Court grant in part and deny in part the defendants' motion for summary judgment (Doc. 121). Hunter has objected to the Report (Doc. 153) and the defendants have responded to his objection (Doc. 154).

After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).

Hunter, an inmate at Tamms Correctional Center, alleges in this case that he has been the subject of retaliation for filing numerous grievances. The Report finds that there is no evidence from which a reasonable jury could concluded that defendants Bonifield, Ellis, Nix, Ramsey, Taylor and Welborn were personally involved in any of the alleged retaliatory acts and therefore recommends that summary judgment should be granted in their favor. The Report notes that there is evidence those defendants had knowledge of Hunter's protected speech but that there is no evidence they knew of unconstitutional retaliation such that their silence or inaction could be viewed as condoning or turning a blind eye to it.

The Report further finds that there are genuine issues of material fact about the personal involvement of defendants Elder, Goodman and Hinsley in the alleged retaliation cited by Hunter and recommends accordingly that they should be denied summary judgment.

No party objects to the recommendation to deny summary judgment as to defendants Elder, Goodman and Hinsley. The Court finds that the Report is not clearly erroneous as to that recommendation and will therefore adopt it.

Hunter objects to the recommendation to grant summary judgment as to defendants Bonifield, Ramsey, Taylor, Nix, Ellis and Welborn. Specifically, he asserts that those defendants had personal knowledge of his grievances and were personally involved in the alleged retaliation for those grievances either directly or by condoning it or turning ...


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