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Dorko v. Musgrave

United States District Court, Seventh Circuit

September 4, 2013

FRANK E. DORKO, Plaintiff,
v.
KATHY MUSGRAVE & JANIS JOKISCH, Defendants.

MEMORANDUM & ORDER

MICHAEL J. REAGAN, United States District Judge.

This § 1983 civil rights case comes before the Court on a Report and Recommendation (“R&R”) filed by Magistrate Judge Stephen C. Williams. For the reasons explained below, the Court ADOPTS (Doc. 25) Judge Williams’ R&R in full, GRANTS (Doc. 19) Defendants’ Motion for Summary Judgment, and DISMISSES Plaintiff’s case without prejudice.

Background

Plaintiff Frank E. Dorko, incarcerated at the time at Illinois’ Lawrence Correctional Center, filed suit on July 30, 2012. He amended his complaint on September 26, 2012, and after threshold review (in late October 2012) the undersigned judge severed Dorko’s original case (No. 12-cv-0857) into three separate actions, including this one. The instant case stems from Plaintiff’s allegations that Defendants Musgrave and Jokisch (both mailroom officials at Lawrence) retaliated against him for filing grievances and complaints, and that Musgrave’s failure to provide him library services denied him access to the court system. Defendants filed a Motion for Summary Judgment on February 5, 2013, arguing that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”).

Plaintiff’s response was due on or before March 11, 2013. He was informed of the consequences of failing to respond: included with Defendants’ motion was a notice informing Plaintiff that “[a]ny factual assertion in the defendants’ evidence will be accepted by the district judge as being true unless you submit your own affidavit or other documentary evidence contradicting the assertion.” (Doc. 20). At a March 6, 2013 telephonic status conference[1] Plaintiff made an oral motion to extend his response deadline to March 15, 2013. (Doc. 23). Plaintiff, though given the extra time, never responded to Defendants’ motion.

On May 1, 2013, Magistrate Judge Williams filed an R&R on the February motion for summary judgment (Doc. 25). Judge Williams, pursuant to Local Rule 7.1(c), deemed Plaintiff’s failure to respond an admission of the merits of the motion. After an analysis of the exhaustion issue, Judge Williams alternatively recommended granting the summary judgment motion on the basis that Plaintiff failed to exhaust his administrative remedies. On May 21, 2013 (in his first action in the case since the March 6 teleconference—and over two months after his original response brief was due), Plaintiff filed an objection to the R&R. While Plaintiff’s objection contained several mentions of grievances he claims to have exhausted, Plaintiff made no mention of his untimeliness in responding to the underlying motion.

For the reasons explained below, the undersigned ADOPTS (Doc. 25) Judge Williams’ R&R and GRANTS (Doc. 19) Defendant’s Motion for Summary Judgment.

Legal Standards

1. Standard of Review

Where timely objections are filed, this Court must undertake a de novo review of a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B)-(C); Fed.R.Civ.P. 72(b); SDIL-LR 73.1(b). Accord Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). An objecting party must “specifically identify the portions of the proposed findings, recommendations, or reports to which objection is made and the basis for the objections.” SDIL-LR 73.1(b). See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 742 (7th Cir. 1999) (suggesting that district courts, by local rule, may require more specificity from objecting parties than do the Federal Rules). Failure to object to a magistrate judge’s report constitutes a waiver of all factual and legal issues. Banco Del Atlantico, S.A. v. Woods Indus., 519 F.3d 350, 354 (7th Cir. 2008);Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986).

The district court is not required to review the magistrate judge’s findings or credibility determinations. Go fman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). If the district court finds a problem, it may take additional evidence, call witnesses, or remand to the magistrate judge for further development. Id.; Pinkston v. Madry, 440 F.3d 879, 893-94 (7th Cir. 2006). Any portion of the recommendation drawing no objection need only be reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

2. Summary Judgment and Local Rule 7.1(c)

In this judicial district, failure to timely respond to a dispositive motion “may, in the Court’s discretion, be considered an admission of the merits of the motion.” SDIL-LR 7.1(c). The Seventh Circuit has consistently held that a nonmovant’s failure to respond as mandated by local rules results in an admission. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). See also Chelios v. Heavener, 520 F.3d 678, 687 (7th Cir. 2008) (“[L]ocal rules streamline litigation and save litigants, lawyers and courts time and money.”). And while summary judgment cannot be automatic, it may be granted when the undisputed material facts warrant judgment as a matter of law. Carrol v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). Accord Fed. ...


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