The opinion of the court was delivered by: Herndon, Chief Judge.
Before the Court is a Report and Recommendation ("R&R") (Doc. 75), issued by United States Magistrate Judge Philip M. Frazier, pursuant to 28 U.S.C § 636(b)(1)(B), recommending that the Motion for Summary Judgment (Doc. 36), filed by defendants Mash, Weeks, and Boaz be granted and further recommending that Plaintiff's claim against defendant Lewis be dismissed for want of prosecution.
The R&R was sent to the Parties, with a notice informing them of their right to appeal by way of filing "objections" within fourteen days of service of the R&R. Plaintiff has filed timely objections thereto (Doc. 76). Accordingly, this Court must undertake de novo review of the objected-to portions of the R&R. 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 for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections have been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings.
Plaintiff is an inmate who has brought a civil rights suit against Defendants pursuant to 42 U.S.C. § 1983, alleging the intentional use of excessive force in violation of the Eighth Amendment. Specifically, Plaintiff alleges that on July 27, 2006, while incarcerated at the United States Penitentiary in Marion, Illinois ("USP Marion"), he was assaulted by Correctional Officers Weeks and Boaz while Correctional Officers Mash and Lewis looked on without intervening to stop the assault. The following day, Plaintiff was transferred to the Administrative Maximum Institution in Florence, Colorado ("USP Florence").
Defendants Mash, Weeks and Boaz*fn1 ("Defendants") have moved for summary judgment based on the affirmative defense that Plaintiff has failed to properly exhaust his administrative remedies prior to bringing this suit (Doc. 36). Plaintiff has filed an opposing Response (Doc. 62).*fn2 In support of their Motion, Defendants argue that there is nothing on record to show that Plaintiff filed a grievance concerning the alleged July 27, 2006 assault. In contrast, Defendants note their record of Plaintiff's 36 filed grievances from July 28, 2006 -- the day after the alleged assault occurred -- and the date he filed this lawsuit, February 5, 2007, none of which describe the July 27, 2006 incident.
Plaintiff, in his opposing Response, submits his own sworn affidavit testimony to contest Defendants' assertions regarding the issue of administrative exhaustion (Doc. 62, Ex. A). Plaintiff avers that he did, in fact, file a grievance regarding the alleged July 27, 2006 assault, but that he filed it after the 20-day deadline because he was repeatedly denied the requested grievance paperwork by his correctional counselor, Richard Madison and other USP Florence staff. Additionally, Plaintiff explained that the reason he did not have his own copy of said grievance was because he claims that USP Florence staff allowed another inmate by the name of A. Twitty to enter his cell and destroy his personal effects, including his copy of the grievance regarding the alleged July 27, 2006 assault.
After considering the Parties' arguments, the Court found a hearing was necessary to determine the issue of administrative exhaustion, in accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). The following were material factual disputes regarding the issue of exhaustion to be resolved at the hearing: (1) whether Plaintiff actually filed a grievance concerning the alleged assault of July 27, 2006; (2) whether Plaintiff was denied the grievance forms he requested from his counselor during his first 20 days at USP Florence; and (3) whether Plaintiff's copy of his grievance form describing the alleged July 27, 2006 assault was destroyed by another inmate allowed in Plaintiff's cell (see Doc. 75, p. 5). The Magistrate conducted a Pavey hearing on July 23, 2010 (Doc. 74), in which both sides had the opportunity to present testimony and other evidence.
In contrast to his sworn affidavit testimony, during the Pavey hearing, Plaintiff testified that he did, in fact, fill out the grievance (a BP-9 form) concerning the alleged July 27, 2006 assault in a timely manner but that either correctional counselor Haygood neglected to file the grievance or that a BOP employee failed to enter the grievance form into its records database upon receipt. In addition, Plaintiff testified that he also requested and submitted an appeals form for the Regional Office (BP-10) and thereafter for the Central Office (BP-11) regarding the alleged July 27, 2006 assault, but never got a response from any level. Plaintiff then testified that after receiving no response from the Central Office for his BP-11, he submitted a second grievance form (BP-9), because he realized he had not received a receipt acknowledging that his previous alleged grievance forms were filed. Plaintiff also conceded that his second BP-9 form was not timely submitted in that it was filed around 26 days after the alleged July 27, 2006 assault. Because of its untimeliness, Plaintiff testified that he received a rejection notice from BOP. It is the copy of this second BP-9 grievance form which Plaintiff claims he had in his cell and was destroyed by another inmate, which is why he was unable to produce it as evidence. Plaintiff further testified that a copy of this second BP-9 grievance form was sent to his court-appointed attorney. Plaintiff also testified that the reason he had failed to previously disclose to Defendants the fact that he had submitted BP-10 and BP-11 grievance appeal forms regarding the July 27, 2006 assault was "because he merely forgot about these previous filings" (Doc. 75, p. 6).
Correctional counselor Haygood testified during the Pavey hearing that he could not recall Plaintiff ever giving him either a BP-9, BP-10 or BP-11 form, but if he was given these forms, he would not have refused to file them. Correctional counselor Madison also testified during the hearing, stating that inmates at USP Florence were not allowed to enter other inmates' cells. Madison also testified that he could not recall a time where Plaintiff ever complaint to him that another inmate had destroyed his legal documents kept in his cell. Also testifying on Defendants' behalf at the Pavey hearing was a BOP attorney, Paul Pepper. Pepper testified that all submitted inmate grievance forms, whether BP-9. BP-10 or BP-11, are entered into an electronic database by a BOP administrative remedy clerk, regardless of whether the grievance is accepted or rejected, to establish a complete record of inmate filings. Regarding Plaintiff's claimed grievance submitted describing the alleged July 27, 2006 assault, Pepper testified that the BOP database showed no record of Plaintiff ever submitting this grievance.
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, this 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). This Court must consider the entire record, drawing reasonable ...