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Wheeler v. Merchant

September 2, 2010

ANTHONY WHEELER, PLAINTIFF,
v.
JAY MERCHANT, GREGORY A. JAMES, RICK D. SUTTON, FREDERICO FERNANDEZ, JASON C. BRADLEY, CHRISTEL CROW, TERESA KISRO, SERGEANT OWENS AND MARK HARTMAN, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

I. Introduction and Factual/Procedural Background

In February 2009, Anthony Wheeler, an inmate incarcerated at Pinckneyville Correctional Center in Pinckneyville, Illinois, filed suit for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. Liberally construed, Wheeler's complaint alleges three claims: 1) that his Fourteenth Amendment right to Due Process was violated when Defendants chose to deliberately ignore his complaints; 2) that Defendants violated his Eighth Amendment right to not be subjected to cruel and unusual punishment by placing him in a hot, dirty cell; and 3) that Defendants retaliated against him by ignoring his grievances and subjecting him to the conditions of Unit 5 in order to prevent him from seeking further redress in the future. On preliminary review, the Court dismissed Wheeler's claim that Defendants had ignored his grievances but found that he had stated a claim as to his allegations of cruel and unusual punishment and retaliation (Doc. 10).

In answering the complaint, Defendants, Merchant, James, Sutton, Fernandez, Bradley, Crow, Kisro and Hartman, raised the affirmative defense that Wheeler failed to exhaust his administrative remedies prior to filing suit, in violation of 42 U.S.C. § 1997e(a). (Docs. 30, 42).*fn1 As a result, United States Magistrate Judge Donald G. Wilkerson set this matter for a hearing, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), and limited pre-hearing discovery to the issue of exhaustion of administrative remedies (Doc. 45). On December 4, 2009, James, Sutton, Fernandez, Bradley, Crow, Kisro and Hartman moved for summary judgment on the issue of violation Wheeler's right to not be subjected to cruel and unusual punishment, asserting that Wheeler had not exhausted his remedies as to any Defendant. On May 20, 2010, Judge Wilkerson conducted a Pavey hearing and took the matter under advisement.

On July 20, 2010, Judge Wilkerson submitted a Report and Recommendation ("the Report") pursuant to 28 U.S.C. § 636(b)(1)(B), recommending that Defendants' summary judgment motion be denied in its entirety (Doc. 51). 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. Defendants filed a timely objection (Doc. 59).

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).

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.

III. Analysis

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 as are available are exhausted. 42 U.S.C. § 1997e(a).

InPerez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir. 1999), the Court of Appeals for the Seventh Circuit held that exhaustion of administrative remedies, while not jurisdictional per se, is a "precondition" to suit, regardless of the apparent futility of pursuing an administrative remedy, regardless of whether money damages are sought as a tangential remedy and regardless of notions of judicial economy. Perez, 182 F.3d at 537. Exhaustion means that the prisoner has "complete[d] the administrative process by following the rules the state has established for that process." Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). "Any other approach ... would defeat the statutory objective of requiring the prisoner to give the prison administration an opportunity to fix the problem -or to reduce the damages and perhaps to shed light on factual disputes that may arise in litigation even if the prison's solution does not ...


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