The opinion of the court was delivered by: Herndon, Chief Judge
This matter is before the Court on the Report and Recommendations ("R&R") issued pursuant to 28 U.S.C. § 636(b)(1)(B) by United States Magistrate Judge Frazier (Doc. 97), regarding both a Motion for Summary Judgment (Doc. 43),*fn1 filed by defendants Ron Vitale and Jeffrey Parker, as well as a Motion for Summary Judgment (Doc. 84) against all remaining Plaintiffs, filed by defendant Bruce Morrison. Both Motions seek summary judgment in Defendants' favor based on the affirmative defense that Plaintiffs' claims are barred for their failure to properly exhaust their administrative remedies prior to filing suit.
As to plaintiffs Randle and Chabitch, the R&R noted that they had failed to timely file responses to the summary judgment motions, and also failed to apprise the Clerk of their current whereabouts (Doc. 97, p. 1, citing Docs. 71, 74, 80, 83 & 95). Therefore, the R&R deemed their lack of a timely response an admission as to the merits of the motions addressing their claims, pursuant to Local Rule 7.1(c), thereby recommending that summary judgment be granted against them in favor of defendant Morrison (summary judgment having previously been granted in favor of defendants Vitale and Parker). As to plaintiff Dismuke, the R&R did not agree with his argument that he was not required to complete the administrative procedure because no administrative remedy was available to correct the harm. Therefore, the R&R also recommends granting summary judgment in favor of Defendants and against plaintiff Dismuke.
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. Only plaintiff Dismuke has filed timely objections thereto (Doc. 100). 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.
Accordingly, the Court will adoptthe R&R (Doc. 97) as its ruling pertains to plaintiffs Randle and Chabitch, and grant summary judgment in favor of defendants Vitale, Parker and Morrison, pursuant to their respective Motions for Summary Judgment (Docs. 43 & 84). It will now turn to plaintiff Dismuke's objections, offering a de novo review of the issues arising therefrom.
It appears Dismuke did file a grievance about the incident giving rise to his § 1983 claim, although the documented evidence offered by Defendants showed this grievance was ultimately denied as untimely, and that Dismuke had failed to provide justification for late consideration. Dismuke claimed that members of a TACT team at Southwestern Correctional Center performed strip searches of the Plaintiffs in the presence of a female, in violation of Plaintiffs' right to privacy. Further, Plaintiffs claim they were forced to sit on a gymnasium floor, "Indian-style," with their chins to their chests and arms behind their backs for two and a half hours, which they allege violated their Eighth Amendment right to be free from cruel and unusual punishment.
In his Objections (Doc. 100), Dismuke does not contest the R&R's finding that he failed to exhaust his administrative remedies. Instead, Dismuke maintains his argument that because the TACT team incident was a past, isolated incident, there would be no administrative remedy granted and thus, proceeding to exhaust his administrative remedies would be futile. In sum, Dismuke maintains that he should be excepted from the failure to exhaust requirement pursuant to Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir. 1999) (carving out exception where a prisoner's injury lies wholly in the past and no relief other than monetary compensation is conceivable), which Dismuke refers to as the "Perez exception" (Doc. 100, p. 2).
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 inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in the pleadings; rather, it must be shown through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accordStarzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).In other words, "inferences relying on mere speculation or conjecture will not suffice." Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (citation omitted); see also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]."). Instead, the non-moving party must present "definite, competent evidence to rebut the [summary judgment] motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (citation omitted).
B. Administrative Exhaustion
Dismuke's status as an inmate subjects his claims to the provisions of the Prisoner Litigation Reform Act ("PLRA"). That statute states, in pertinent part, that "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) (emphasis added). This exhaustion requirement is applicable to both state and federal inmates. See Porter v. Nussle, 534 ...