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Johnson v. Creech

United States District Court, Seventh Circuit

September 26, 2013

WESLEY JOHNSON, Plaintiff,
v.
CHRISTOPHER CREECH and MATTHEW HARTRICH, Defendants

MEMORANDUM AND ORDER

G. PATRICK MURPHY United States District Judge

This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 46), recommending this Court grant the motion for summary judgment filed by Defendants Christopher Creech and Matthew Hartrich, and find Plaintiff Wesley Johnson failed to exhaust his administrative remedies prior to filing this 42 U.S.C. § 1983 suit. For the following reasons, the Court adopts Magistrate Judge Wilkerson’s Report and Recommendation.

BACKGROUND

Plaintiff Wesley Johnson filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that he suffered constitutional deprivations while he was incarcerated at Lawrence Correctional Center (“Lawrence”). Specifically, Johnson alleged that Defendants Christopher Creech and Matthew Hartrich, correctional officers at Lawrence, failed to protect him from assault by another inmate (Doc. 1).

Johnson’s claims against Defendants Creech and Hartrich survived threshold review by the Court (Doc. 12). Creech and Hartrich then filed a motion for summary judgment claiming that Johnson failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a) (Doc. 34). An evidentiary hearing on the issue of exhaustion pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) was set for March 13, 2013 (Doc. 33). That hearing was cancelled, however, because Johnson did not file a response to Defendants’ motion for summary judgment (Doc. 35). Johnson was ordered to show cause why Defendants’ motion should not be granted (Doc. 35), and Johnson filed a response to Defendants’ motion for summary judgment on April 1, 2013 (Doc. 37).

The Pavey hearing was rescheduled for April 26, 2013 at 10:00 a.m. and Johnson was directed to appear in person (Doc. 40). However, due to circumstances explained in the Court’s previous order dated May 1, 2013 (Doc. 42) the hearing was not held. Instead, Johnson was instructed to file a supplemental response to Defendants’ motion for summary judgment (Doc. 42), and he did so (Doc. 43).

Following these submissions from the parties, Magistrate Judge Wilkerson issued the Report and Recommendation currently before this Court (Doc. 46). Upon review of the papers, the docket, and the Magistrate Judge's Report and Recommendation, the Court concludes the Report and Recommendation accurately states the nature of the evidence presented by both sides, including the testimony heard during the Pavey hearing, as well as the applicable law and the requirements of the administrative process.

EVIDENCE

There is only one grievance that pertains to the instant motion for summary judgment—Johnson’s June 30, 2011 grievance. Defendants Creech and Hartrich contend that Johnson failed to exhaust the June 30th grievance because he filed the instant lawsuit before receiving the CAO’s decision and without appealing the CAO’s decision to the ARB (Doc. 34).

The following facts were taken from the briefs and exhibits submitted by the parties. Johnson filed an emergency grievance on June 30, 2011 with the Chief Administrative Officer (“CAO”) regarding his assault (Doc. 34-1). On November 7, 2011, the CAO determined that Johnson’s grievance was not an emergency, and indicated that “Offender should submit the grievance in the normal manner” (Doc. 34-1). Johnson submitted his grievance to his counselor, who received it on November 11, 2011 (Doc. 34-1). The counselor responded on November 21, 2011 that he was unable to substantiate Johnson’s claims and that Johnson did not have any known enemies at Lawrence at the time of the alleged assault (Doc. 34-1). Johnson then submitted his grievance to the grievance officer, who received it on December 1, 2011 (Doc. 34-1). Johnson filed the instant suit less than two weeks later, on December 12, 2011 (Doc. 1). He was released from incarceration at Lawrence Correctional Center on January 10, 2012 (Doc. 34). The grievance officer denied Johnson’s grievance on March 7, 2012 and the CAO concurred with the denial on April 6, 2012 (Doc. 34-1).

CONCLUSIONS OF THE REPORT AND RECOMMENDATION & PLAINTIFF’S OBJECTION

The Report and Recommendation was entered on July 17, 2013 (Doc. 46). In the Report and Recommendation, Judge Wilkerson found that after the CAO denied Johnson’s grievance on April 6, 2012, Johnson failed to appeal the denial to the ARB (Doc. 46). Accordingly, Judge Wilkerson concluded that Johnson failed to exhaust his administrative grievances (Doc. 46).

Johnson filed his objection to the Report and Recommendation on July 29, 2013 (Doc. 47). For his objection, Plaintiff attached a page from his complaint regarding the grievance procedure and stated the following:

Rejection. To the offer of this letter. And all other offers in reguards [sic] to the offers. if the next offers is not in the Range of “50” millions, I do ...

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