United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Philip M. Frazier (Doc.
70), recommending that Defendants Duncan, Godinez, and
Moore's Motion for Summary Judgment on the Issue of
Exhaustion (Doc. 49) be granted, that Plaintiff's Motion
for Preliminary Injunction, Temporary Restraining Order and
[Subpoenas] (Doc. 62) be denied and that this matter be
dismissed without prejudice for failure to exhaust
administrative remedies. The Report and Recommendation was
entered on March 30, 2016 and Plaintiff filed a timely
objection (Doc. 81). For the following reasons, the Court
overrules Plaintiff's objections and ADOPTS the Report
and Recommendation in its entirety.
January 23, 2015, Plaintiff, a paraplegic, filed this lawsuit
alleging that his constitutional rights were violated when
the defendants conducted a shakedown of his cell house (Doc.
1). Plaintiff asserts that when the Defendants inspected his
cell, they subjected him to an invasive and humiliating body
cavity search, used excessive force against him and violated
his rights under the Americans with Disabilities Act.
moved for summary judgment asserting that Plaintiff failed to
exhaust his administrative remedies prior to filing suit. As
required by Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008), Judge Frazier held an evidentiary hearing on
Defendants' motion. Following the Pavey hearing,
Judge Frazier issued the Report and Recommendation currently
before the Court (Doc. 70). 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
upon the evidence before the Court, Judge Frazier found that
Plaintiff failed to exhaust his administrative remedies.
Specifically, Judge Frazier found that Plaintiff did not
properly exhaust his July 17, 2014 grievance or his July 30,
2014 grievance. Plaintiff pursued the July 17, 2014 grievance
through the normal non-emergency procedures. However, he only
went so far as to submit it to his counselor and did not
appeal the grievance to the institutional level. Regarding
the July 30, 2014 grievance, Judge Frazier found that
Plaintiff skipped a step by submitting the grievance to the
ARB prior to receiving a response from the grievance office.
Plaintiff's testimony at the hearing confirmed the
aforementioned grievance timeline.
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
Amay 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 Agive >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 objections to the Report
and Recommendation are made, pursuant to 28 U.S.C. 636(b),
this Court need not conduct a de novo review of the
Report and Recommendation. See Thomas v. Arn, 474
U.S. 140 (1985).
Plaintiff has filed a timely objection to the Report and
Recommendation in which he reiterates his argument that the
grievance procedure was made unavailable to him.
Administrative remedies become “unavailable” when
prison officials fail to respond to a properly-filed inmate
grievance, Lewis v. Washington, 300 F.3d 829, 833
(7th Cir. 2002), or when prison employees otherwise use
affirmative misconduct to prevent a prisoner from exhausting,
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006);
Ducey v. Flagg, No. 08-cv-0691-MJR, 2009 WL 3065045,
at *4 (S.D. Ill. Sept. 21, 2009) (“[P]rison officials
can easily thwart an inmate's attempt to exhaust
administrative remedies simply by failing to respond to his
or her grievances.”).
case, Plaintiff does not deny that he failed to exhaust prior
to filing suit and there is no evidence supporting his
assertion that the grievance process was made unavailable to
him. Judge Frazier found that Plaintiff's testimony at
the Pavey hearing supported the fact that he failed
to exhaust administrative remedies prior to filing suit.
Overall, the Court finds the factual findings and rationale
of the Report and Recommendation sound.
well established that an inmate cannot file suit first, then
reach administrative exhaustion second. See Cannon v.
Washington, 418 F.3d 714, 719 (7th Cir. 2005). Here, it
is apparent that Plaintiff did not fully exhaust his
administrative remedies prior to filing suit. Thus the case
must be dismissed.
these reasons, the Court adopts Magistrate Judge
Frazier's Report and Recommendation (Doc. 70). This case
is DISMISSED without prejudice for failure to exhaust
administrative remedies as to Defendants Duncan, Godinez, and
 Plaintiff's objection does not
address Judge Frazier's recommendation to deny
Plaintiff's preliminary injunction. Where no timely
objections to the Report and Recommendation are made, this
Court need not conduct a de novo review of the
Report and Recommendation. See Thomas v. Arn, 474
U.S. 140 (1985). Instead, the Court should review the Report
and Recommendation for clear error. Johnson v. Zema
Systems Corp.,170 F.3d 734, 739 (7th Cir. 1999). The
Court fully agrees with Judge Frazier's findings ...