The opinion of the court was delivered by: Michael J. Reagan United States District Judge
I. Introduction and Factual/Procedural Background
In October 2007, James Brown, an inmate incarcerated at Lawrence Correctional Center in Sumner, Illinois, filed suit for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. In its threshold Order, the Court summarized Brown's complaint as alleging that the above-named Defendants violated his First Amendment rights by retaliating against him for filing grievances or otherwise complaining about his conditions of confinement, and violated his Eighth Amendment right to be reasonably protected from assaults by other inmates. In support of these claims, Brown alleged the following conduct by Defendants: (1) allowing another inmate to attack him on November 6, 2005; (2) disregarding sexual threats and sexual harassment from another inmate in February 2006; (3) transferring him to a more secure institution; and (4) writing, and finding him guilty of, a disciplinary infraction in October 2006. The Court found that the case as a whole survived review under 28 U.S.C. § 1914A (Doc. 6).
On February 9, 2009, Defendants, Roger E. Walker, Jr., Neal Bantican, Kent Black, Melody J. Ford, Jason C. Garnett, Joyce Hoskinson, Robert Kuntz, Gregory Lambert, Lee Ryker, Julie Wilkerson, and Roy D. Bradford, moved for summary judgment on Counts 1 and 2 of Brown's complaint (Doc. 28). On March 23, 2010, the Court granted a separate motion for summary judgment on Count 4 in favor of six of these Defendants, Hoskinson, Bantican, Kuntz, Ryker, Walker and Ford (see Docs. 53, 75). Because all claims against Hoskinson, Bantican, Kuntz, Ryker and Walker where thereby resolved, they were terminated as parties. Brown's claims (Counts 1--3) remain against Garnett, Lambert, Bradford, Wilkerson, Black and Ford.
On July 7, 2009, United States Magistrate Judge Frazier submitted a Report and Recommendation ("the Report") pursuant to 28 U.S.C. § 636(b)(1)(B), recommending that Defendants' summary judgment motion be granted in part and denied in part. Specifically, the Report recommended (1) that further proceedings regarding the claims identified as Count 1 be stayed for six weeks and the Illinois Department of Corrections be directed to process Brown's March 30, 2006, grievance, as resubmitted to the Administrative Review Board ("ARB") on August 15, 2006; and (2) that the claims identified as Count 2 be dismissed with prejudice. The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within 14 days of service of the Report.
On July 16, 2009, Brown filed a timely objection (Doc. 48). The Court granted his subsequent motion to file a substitute objection and directed the Clerk of Court to electronically file the proposed corrected version as Brown's amended objection to the Report (Docs. 50, 51). Because of a misunderstanding, Brown also filed an amended objection, Document 52, which is identical to the document which the Court ordered filed, Document 50.
Accordingly, the Court will undertake de novo review of the portions of the Report to which specific objection was made. 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, or recommit the matter to the Magistrate Judge with instructions. FED.R.CIV.P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999). The Court will confine its analysis to Count 2 because Brown does notobject to the Report's recommendation as to Count 1.
II. Standard for Summary Judgment
Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions and affidavits reveal 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. Vukadinovich v. Board of Sch. Trs. of North Newton Sch. Corp., 278 F.3d 693, 698-99 (7th Cir. 2002).
The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin Sch. Dist.,293F.3d 989, 996 (7th Cir. 2002). Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence or affirmative defenses in rebuttal. Vukadinovich, 278 F.3d at 699.
With respect to the issue of exhaustion of remedies, the Prison Litigation Reform Act ("PLRA") provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies ...