United States District Court, S.D. Illinois
ORDER ADOPTING REPORT AND RECOMMENDATION
NANCY J. ROSENSTENGEL, District Judge.
This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 44), recommending that Defendants' Motion for Summary Judgment on the Issue of Exhaustion (Doc. 24) be granted, that Plaintiff's Motion to Strike Affirmative Defenses (Doc. 34) be denied, and that this matter be dismissed without prejudice for failure to exhaust administrative remedies. The Report and Recommendation was entered on April 10, 2014. Plaintiff filed a timely objection to the Report and Recommendation on April 24, 2014 (Doc. 46).
Plaintiff alleges in his Amended Complaint (Doc. 8) that certain employees at the Menard Correctional Center ("Menard") retaliated against him for filing grievances and caused him to miss significant Court imposed deadlines. The following claims survived threshold review:
Count 1: First Amendment access to courts claim against Defendants Bramlet and Knust for failing to provide electronically filed court documents and causing missed deadlines in on-going civil lawsuits.
Count 2: First Amendment Retaliation claim against Defendants Bramlet and Knust for interfering with Plaintiff's access to the courts in retaliation for the filing of grievances against them.
Count 3: Conspiracy claim against Bramlet and Knust for conspiring to retaliate against Plaintiff and deny Plaintiff access to the courts.
(Doc. 10, pp. 4-5).
On February 3, 2014, Defendants Bramlet and Knust filed a Motion for Summary Judgment on the Issue of Exhaustion (Doc. 24). Specifically, they assert that there are four unexhausted grievances regarding the conduct of Defendants Bramlet and Knust that are currently pending before the Administrative Review Board, and thus Plaintiff filed his Complaint prior to exhaustion.
On March 6, 2014, Plaintiff filed a response (Doc. 37), along with a Motion to Subpoena Witnesses (Doc. 31), and a Motion to Strike Defendants' Affirmative Defense (Doc. 34). Judge Wilkerson denied without prejudice the Motion to Subpoena Witnesses, informing Plaintiff that the necessity of witnesses on the issue of exhaustion would be determined at the hearing. The Motion to Strike Affirmative Defenses (Doc. 34) remains pending.
As required by Pavey v. Conley , 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on Defendants' motion on April 1, 2014. Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report and Recommendation currently before the Court (Doc. 44). The Report and Recommendation accurately states the nature of the evidence presented by both sides on the issue of exhaustion, as well as the applicable law and the requirements of the administrative process.
Conclusions of the Report and Recommendation
Based upon the evidence before the Court, Judge Wilkerson found that Plaintiff failed to exhaust his administrative remedies. Judge Wilkerson studied the various grievances filed by Plaintiff and found that only two were relevant and related to the events subject to this suit: the February 28, 2013 grievance and the July 25, 2013 grievance. Specifically, Judge Wilkerson found that the July 25, 2013 grievance was filed after Plaintiff initiated this lawsuit and is still pending before the ARB. As to the February 18, 2013 grievance, Judge Wilkerson found that Plaintiff is not credible in his assertion that he submitted the grievance to the grievance officer. Judge Wilkerson further found that the grievance process has not been made unavailable to Plaintiff because of an alleged pattern of retaliation, as Plaintiff's ...