The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Report and Recommendation ("R & R") (Doc. 72) of Magistrate Judge Philip M. Frazier recommending that the Court deny the Motion for Summary Judgment (Doc. 58) as follows: (1) find there is no genuine issue of material fact for an evidentiary hearing on the defendants' affirmative defense of failure to exhaust administrative remedies; (2) find that the movants have demonstrated by a preponderance of the evidence that the plaintiff has failed to exhaust his available administrative remedies against them; and (3) dismiss defendants Keith Benefield, Robert Benefield, Jose Delgado, Brent Hunsaker, John Maragni, Homer Markel, Daniel Monti, Jeff Peterson, Sarah Robertson, Jamie Sisk, James Smith, James Watkins, and Eugene Simpson from the lawsuit. Thereafter, plaintiff filed an objection to the R & R (Doc. 75), to which defendants filed a response (Doc. 77).
I.Facts and Procedural History
Plaintiff has more than the three allowed "strikes" under 28 U.S.C. § 1915(g); the Court, however, permitted him to proceed finding that he had sufficiently pleaded he was under imminent danger of serious physical injury. In his complaint, plaintiff alleged numerous violations of his constitutional rights by several defendants. The Court previously recounted the relevant facts of this case as follows:
The complaint begins by describing assaults on Plaintiff by several Defendant correctional officers on December 8, 2011. First, while driving Plaintiff back to Tamms after he had spent a week at Pontiac Correctional Center ("Pontiac") on a writ to appear in court, Defendants Keith Benefield, Watkins, and Lt. John Doe punched Plaintiff on the back and side of his head and verbally threatened him (Doc. 1, p. 6-8). Defendant Watkins repeatedly slammed on the van's brakes in order to throw Plaintiff against the sides of the "cage" where he was seated in shackles and handcuffs, and Defendant K. Benefield turned on the air conditioner to increase Plaintiff's discomfort. During the van ride, these Defendants verbally harassed Plaintiff, using racial epithets, and at one point discussed hanging him (Doc. 1, p. 8).
After Plaintiff's arrival at Tamms later that day, Defendant Watkins again punched Plaintiff in the head while Defendants Peterson and Sisk held him down. Defendants K. Benefield and Hunsaker also participated in this assault (Doc. 1, p. 14). In addition, Defendants K. Benefield, Peterson, Hunsaker, Watkins, Sisk, and Lt. Robert Benefield, while "shaking down" Plaintiff's property, destroyed and threw away Plaintiff's mail and legal papers, and read his confidential legal correspondence (Doc. 1, p. 11).
Subsequently, Plaintiff was taken to the prison hospital, where he reported the assault and his injuries to Defendants Hill and Parrish (Doc. 1, p. 15). They examined him but gave him no medical treatment, nor did they request Internal Affairs to investigate the incident.
Plaintiff claims that some two weeks earlier, on November 24, 2011, he had complained to Defendant Lambert (the Tamms Assistant Warden) about the danger he believed he was in from numerous correctional officers, including those Defendants who perpetrated the December 8, 2011, assaults (Doc. 1, p. 15). Additionally, Plaintiff had filed a grievance on August 30, 2011, over another incident of excessive force. He requested Defendant Lambert to "restrain the Defendants from having contact with Plaintiff" and from working on Plaintiff's housing unit (Doc. 1, p. 16). Plaintiff asserts that these complaints motivated Defendants K. Benefield, R. Benefield, Watkins, Peterson, Sisk, Hunsaker, and John Doe to assault him and destroy his mail, legal correspondence, and other property in retaliation against him for complaining (Doc. 1, p. 16).
Plaintiff further notes that he has several pending court cases which will require him to again be transported to another institution, thus placing him in a situation where another assault such as the one on December 8, 2011, may recur. Indeed, while this case was awaiting preliminary review, Plaintiff notified the Court that he was again temporarily relocated to Pontiac on February 2, 2012 (Doc. 17). Plaintiff asserts that several Defendants conspired together to orchestrate and then to cover up the December 8, 2011, assault on him, as well as the retaliatory destruction of his property. He further claims that the warden and other administrators and officers (Defendants Johnson, Lambert, Monti, Markel, J. Smith,2 Delgado, Robertsen, and T. Osman;3 along with four staff members not named elsewhere in the complaint as Defendants) failed to protect him from racially motivated assaults by other Defendants, failed to discipline correctional staff, ignored complaints from Plaintiff and other inmates, and housed him in inhumane conditions (Doc. 1, p. 19; Doc. 1-1, p. 1). He states that the Defendants who assaulted him on December 8, 2011, had previously victimized three other black inmates in racially motivated attacks (Doc. 1-1, p. 1).
As Magistrate Judge Frazier explained, the Court divided plaintiff's complaint into seven counts, allowing only the following three counts to survive threshold review:
Count 1: Excessive Force in violation of the right to be free from cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution with respect to allegations related to being punched in the head, verbal taunts, and failure to intervene on December 8, 2011, against defendants K Benefield, Watkins, Lt. John Doe, Peterson, Sisk, and Hunsaker.
Count 2: Retaliation for filing grievances (protected activity) in violation of the First Amendment of the U.S. Constitution with respect to allegations of retaliation occurring on or after December 8, 2011, against defendants K. Benefield, R. Benefield, Watkins, Peterson, Sisk, and Lt. John Doe.
Count 4: Conspiracy to violate Eighth and First Amendment rights (see Counts 1 and 2) with respect to allegations of planning and covering up the unlawful beating, intimidation, and confiscation [of] personal property on or after December 8, 2011, against defendants Delgado, R. ...