United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 47) of Magistrate Judge Philip M. Frazier recommending that the Court overrule plaintiff Jesse Calatayud's objection to the affidavits submitted by the defendants in support of their summary judgment motion (Doc. 38) and grant that summary judgment motion (Doc. 35). The defendants and Calatayud have objected to the Report (Docs. 49 & 52). Calatayud has asked for leave to submit additional exhibits in support of his objection (Doc. 54), and the defendants object to that request (Doc. 55).
I. Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
In this case, Calatayud alleges that defendant Jack Townley conducted a shakedown of his cell in November 2010 while he was housed at Big Muddy River Correctional Center ("Big Muddy"). Townley wrote Calatayud a disciplinary ticket for having too many appliances, so Calatayud selected two of his appliances to be sent out of the institution. The disciplinary ticket was expunged.
In April 2011, Townley wrote Calatayud another disciplinary ticket for wearing a necklace chain outside his shirt in violation of prison rules, and confiscated the chain. This ticket was also expunged, and the chain was returned to Calatayud. Calatayud filed a grievance about this incident.
In May 2011, Townley confiscated Calatayud's athletic shorts on the grounds that they were unauthorized clothing because they had writing on them in violation of prison rules. Townley also threatened Calatayud with future disciplinary for wearing his chain again. Townley issued Calatayud another disciplinary ticket, for unauthorized property and insolence. Calatayud filed several grievances after these events. Townley told Calatayud he did not care how many grievances Calatayud filed or how many calls his girlfriend made to state officials, he would show Plaintiff "who has the bigger nuts."
Defendant Allen J. Aparicio was one of the hearing officers hearing the May disciplinary ticket. Calatayud was not allowed to attend the hearing or respond to the charges, and he was found guilty. Calatayud's punishment consisted of 2 months of restricted access to the gym/yard. In June 2011, a prison official gave Calatayud a replacement pair of athletic shorts at no charge.
In July 2011, Defendant Julius wrote Calatayud two disciplinary tickets: one for abuse of privileges and a security violation for giving a larger ice ration to inmates who belonged to a certain gang, the other for assaulting another inmate and unauthorized movement. Hearings on these infractions were held on July 23, 2011, by defendants Mark Brown and Aparicio. For both tickets, Calatayud's witnesses were not called or interviewed; he was found guilty solely based on Julius' statements. Calatayud filed grievances on July 23, 2011, complaining of harassment and retaliation by Julius, Brown and Aparicio.
The warden denied one of Calatayud's grievances regarding his athletic shorts on August 3, 2011, but the defendants have not provided evidence he received a copy of this denial. Other grievances were returned to him because of an impending transfer out of Big Muddy. On August 17, 2011, Calatayud was transferred from Big Muddy to Pinckneyville Correctional Center ("Pinckneyville"). He then mailed his grievances to his girlfriend so she could copy them and send them to the ARB. The ARB did not receive any grievances regarding the matters at issue in this case.
The Court allowed three claims Calatayud pled in his complaint to proceed:
Count 1 against Townley and Julius for retaliation and conspiracy to retaliate for Calatayud's filing grievances;
Count 2 against Townley, Julius, Aparicio and Brown for conspiracy to find him guilty of false ...