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. 52), recommending that Defendants' Motion for Summary Judgment on the Issue of Exhaustion (Doc. 38) be granted, and that this matter be dismissed without prejudice for failure to exhaust administrative remedies. The Report and Recommendation was entered on March 14, 2014. Plaintiff filed a number of documents, which the Court construes as objections to the Report and Recommendation (Docs. 54, 56, 57, 64, and 65). For the reasons stated below, the Court overrules Plaintiff's objections, adopts the Report and Recommendation of Magistrate Judge Wilkerson, and dismisses this case without prejudice.
Plaintiff Burl Washington is a federal inmate currently incarcerated at FCI Williamsburg in Salters, South Carolina. He filed this action on July 30, 2012, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging violations of his constitutional rights by persons acting under the color of federal authority while he was incarcerated at FCI Greenville in Greenville, Illinois (Doc. 1). A number of claims were dismissed, and some were severed into separate actions (Docs. 14, 17). There are three claims that survived in this action:
Count 1: Against Defendant Margaret Hodges for deliberate indifference to Plaintiff's medical condition for intentionally exposing him to extreme cold for over an hour in the van on December 8, 2011; Count 2: Against Defendant Margaret Hodges for assault/excessive force for kicking Plaintiff in the leg on December 8, 2011; Count 3: Against Defendants Gary Cooper and David Hutchcraft, for placing Plaintiff in the Special Housing Unit on December 20, 2011 in retaliation for his pursuit of a grievance and documentary evidence regarding the disciplinary charge of December 8, 2011.
(Doc. 14, pp. 8-18).
On January 21, 2014, Defendants Hodges, Cooper, and Hutchcraft filed a Motion for Summary Judgment on the Issue of Exhaustion (Doc. 38). Specifically, they assert that there are four grievances regarding the conduct of Hodges, Cooper, and Hutchcraft, however, Plaintiff failed to exhaust any of the four.
Plaintiff did not file a response to Defendants' Motion for Summary Judgment. However, he did file a document entitled "Motion Confirming Exhaustion of All Administrative Remedies and Confirming Defendant's Acts as Alleged, if True, Waives Immunity" on January 13, 2014, before Defendants filed their Motion for Summary Judgment (Doc. 37). Plaintiff also filed his own Motion for Summary Judgment on the issue of exhaustion on February 22, 2014, to which Defendants responded (Docs. 43, 50).
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on the issue of exhaustion on March 5, 2014. Following the Pavey hearing, on March 14, 2014, Magistrate Judge Wilkerson issued the Report and Recommendation currently before the Court (Doc. 52). 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.
Plaintiff filed a number of documents, which the Court construes as objections to the Report and Recommendation. Specifically, on March 17, 2014, Plaintiff filed a document entitled "Plaintiff Response to the March 5, 2014 Hearing and Document 50: Were Defendants Either Misrepresented the Facts or Intentionally Fabricated a Reason for Rejection and Brough [sic] Into Existence a Non, Existing Rule to Support a Failure to Exhaust Administrative Remedies" (Doc. 54). On March 28, 2014, Plaintiff filed a document entitled "Objection to Report and Recommendation" (Doc. 56). On April 14, 2014, Plaintiff filed a document entitled "Motion Amending Additional Information as to the Exhaustion of Administrative Remedies" (Doc. 57). By Court order, both documents 56 and 57 were stricken from the record because they were illegible (Doc. 62). Plaintiff was given until July 1 to file one, consolidated objection to the Report and Recommendation (Doc. 62). On June 30, 2014, apparently in response to the Court's order, Plaintiff filed a document entitled "Plaintiffs Motion: Identifying Exhausted Administrative Remedy Addressing: December 8th, 2011 Issues, Request for Appointment of Counsel, and Plaintiff's Objection to Doc #52 Report and Recommendations" (Doc. 64). Finally, on October 9, 2014, Plaintiff filed a document entitled "Plaintiffs Motion: Declaration of Burl Washington" (Doc. 64).
Conclusions of the Report and Recommendation
Based upon the evidence before the Court, Magistrate Judge Wilkerson found that Plaintiff failed to exhaust his administrative remedies. Magistrate Judge Wilkerson studied the four grievances filed by Plaintiff and found that only two were timely filed in relation to the events subject to this suit: grievance #670685 submitted on December 21, 2011 ("grievance 1"), and grievance #670688 submitted on December 27, 2011 ("grievance 2"). Magistrate Judge Wilkerson concluded that Plaintiff had not exhausted either of these grievances because his appeals to the Central Office of the Bureau of Prisons ("BOP") were not submitted in the proper format. The appeals were returned to Plaintiff with instructions to re-submit, but he never did so.
Where timely objections are filed, this Court must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F.Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court "may accept, reject or modify the magistrate judge's recommended decision." Harper, 824 F.Supp. at 788. In making this determination, the Court must look at all of the evidence contained in the record and "give fresh consideration to those issues to which specific objections have been made.'" Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part). However, where neither timely nor specific ...