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Spivey v. Butler

United States District Court, S.D. Illinois

September 8, 2015

RAY CHARLES SPIVEY, Plaintiff,
v.
KIMBERLY BUTLER, RICHARD HARRINGTON, JACQUELINE LASHBROOK, KEVIN CARTWRIGHT, CHRISTOPHER BRADLEY, ROGER SHURTZ, LUCAS MENNERICH, AARON HOOD, DONALD LINDENBERG, AARON WESTERMAN, SHANE JONES, TYSON SHURTZ, and RYAN DAVIS, Defendants.

MEMORANDUM AND ORDER

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. 75), recommending that Defendants' Motion for Summary Judgment on the Issue of Exhaustion (Doc. 57) be granted and that this matter be dismissed without prejudice for failure to exhaust administrative remedies. The Report and Recommendation was entered July 23, 2015 (Doc. 75). Plaintiff filed a timely objection to the Report and Recommendation on August 10, 2015 (Doc. 76).

BACKGROUND

Plaintiff Ray Charles Spivey, an inmate currently incarcerated at Menard Correctional Center ("Menard"), brings this action pursuant to 42 U.S.C. ยง 1983, alleging that, because of his history of filing grievances and civil lawsuits, he has been subjected to repeated harassment and retaliation from the correctional facility staff.

Plaintiff's initial complaint in this matter (Doc. 1) was dismissed without prejudice and with leave to amend by Chief Judge Michael J. Reagan (Doc. 6). On July 25, 2013, Plaintiff filed an amended complaint (Doc. 8). Prior to the Court undertaking its screening of the amended complaint, Plaintiff filed his second amended complaint (Doc. 12), the operative complaint in this matter. The Court reviewed Plaintiff's second amended complaint and allowed Plaintiff to proceed on the following counts:

Count 1: Jacqueline Lashbrook placed Plaintiff in segregation under "investigatory status" in retaliation for Plaintiff filing grievances and lawsuits against Menard Staff, in violation of the Plaintiff's rights under the First Amendment;
Count 2: Aaron Hood and Aaron Westerman deprived Plaintiff of his personal property in retaliation for Plaintiff filing grievances and lawsuits against Menard staff, in violation of Plaintiff's rights under the First Amendment;
Count 3: Roger Shurtz, Kevin Cartwright, Ryan Davis, and Shane Jones interfered with the repair of Plaintiff's television and the applicable warranty in retaliation for Plaintiff filing grievances and lawsuits against Menard staff, in violation of Plaintiff's rights under the First Amendment;
Count 4: Kimberly Butler, Shane Jones, Richard Harrington, and Kevin Cartwright failed to intervene to secure the repair and return of Plaintiff's television in retaliation for Plaintiff filing grievances and lawsuits against Menard staff, in violation of Plaintiff's rights under the First Amendment;
Count 5: Tyson Shurtz and/or Kevin Cartwright "locked out" all but five of the sixty-six channels on Plaintiff's television, in retaliation for Plaintiff filing grievances and lawsuits against Menard staff; in violation of Plaintiff's rights under the First Amendment;
Count 6: Kevin Cartwright, Donald Lindenberg, Richard Harrington, Lucas Mennerich, and Jacqueline Lashbrook failed to investigate and cure the locked channels and repair issues with Plaintiff's television, in retaliation for Plaintiff filing grievances and lawsuits against Menard staff, in violation of Plaintiff's rights under the First Amendment;
Count 7: Aaron Hood, Ryan Davis, Donald Lindenberg, and Christopher Bradley engaged in a course of harassment, in violation of Plaintiff's rights under the First Amendment.

Defendants in this case, Richard Harrington, Kimberly Butler, Jacqueline Lashbrook, Kevin Cartwright, Roger Shurtz, Lucas Mennerich, Christopher Bradley, Aaron Hood, Donald Lindenberg, Aaron Westerman, Shane Jones, Tyson Shurtz, and Ryan Davis, filed a motion for summary judgment on the issue of exhaustion (Doc. 57), arguing that Plaintiff failed to exhaust his administrative remedies prior to filing suit. Based on a review of the grievance record maintained by the Administrative Review Board ("ARB") and Menard, Defendants contend that Plaintiff failed to grieve, or failed to exhaust his grievances, as to every claim against each Defendant prior to filing this lawsuit. Plaintiff responded to Defendants' motion (Doc. 60 and 61), and on July 13, 2015, a hearing was held pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), in which Plaintiff appeared by video-conference and testified as to the efforts he undertook to exhaust his claims in this matter.

As indicated above, Plaintiff claims that Defendants harassed and retaliated against him due to his history of filing grievances and civil lawsuits. The events complained of occurred approximately between February 2013 and November 2013. In Defendants' motion seeking summary judgment on the issue of exhaustion, they point to five grievances filed during this timeframe that ...


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