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Sowemimo v. Bader

July 15, 2010

ABIODUN SOWEMIMO, PLAINTIFF,
v.
MACK BADER, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

I. Report and Recommendation

This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 57) of Magistrate Judge Clifford J. Proud recommending that the Court grant the defendants' motion for summary judgment (Doc. 38) based on plaintiff Abiodun Sowemimo's failure to exhaust administrative remedies.

In this case, Sowemimo, an inmate at Lawrence Correctional Center ("Lawrence"), claims that various defendants retaliated against him for filing lawsuits. In Count 1, he alleges the retaliation took the form of charging his inmate trust account for amounts not owed, and in Counts 2 through 8, he alleges the retaliation took the form of denying or ignoring grievances. In Count 10, Sowemimo alleges the director of the Illinois Department of Corrections ("IDOC") is liable for his subordinate's conduct. In Count 11, Sowemimo complains the defendants infringed on his right to freely exercise his religion.

The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. 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).

The Report sets forth the requirement that prisoners exhaust all available administrative remedies before filing a lawsuit under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a). In Illinois, the remedies include filing a written grievance and pursuing appeals of that grievance to the level of the IDOC director. See 20 Ill. Admin. Code §§ 504.800-504.870.

The Report finds that:

* with respect to Count 1, Sowemimo grieved the propriety of the charges to his account but not their allegedly retaliatory nature, and his grievance failed to identify either by name or by description any of the defendants in Count 1;

* with respect to Counts 2 through 8, there is no evidence leading to a reasonable inference that Sowemimo filed grievances against the defendants for denying or ignoring his grievances in retaliation for his filing lawsuits;

* with respect to Count 10, there is no evidence leading to a reasonable inference that Sowemimo filed a grievance against the IDOC director for failing to intervene in his subordinates' wrongs; and

* with respect to Count 11, the admittedly exhausted grievance was filed against staff at Hill Correctional Center and who are not defendants in this case, and that Sowemimo's other grievances on this matter were not exhausted before he filed this lawsuit.

Accordingly, the Report concludes that Sowemimo did not exhaust his administrative remedies with respect to any of this claims and recommends dismissal without prejudice of all remaining claims in this case.

Sowemimo does not object to the recommended disposition of Counts 10 and 11, recommendations the Court will adopt because they are not clearly erroneous.

Sowemimo objects to the recommended disposition of Counts 1 through 8, stating in his unsworn filing that he "filed numerous grievances on the retaliatory statements and actions of the defendants in Lawrence Correctional Center." Objection at 3. This statement is not sworn, as required by Federal Rule of Civil Procedure 56(e), so it will not be considered as evidence to withstand a motion for summary judgment. See Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). Furthermore, in response to the defendants' motion, Sowemimo did not present any competent evidence that he filed any written grievance, the first formal step in the grievance process, regarding retaliation by any defendant in this case. Instead, he presented his grievances about the propriety of his account charges, not their allegedly retaliatory nature. Those grievances do not sufficiently raise a retaliation claim for the purposes of ยง 1983's exhaustion requirement. In light of the affidavit of Sherry Benton stating that IDOC has no records of any exhausted claim by Sowemimo alleging any defendant in this case retaliated against him for any reason, there is simply no evidence from which a ...


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