United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Donald G. Wilkerson (Doc.
34), which recommends denying the motion for summary judgment
on the issue of exhaustion of administrative remedies filed
by Defendant Richard Harrington and Kimberly Butler (Doc.
24). Neither party filed an objection to the Report and
Recommendation. For the reasons explained below, the Court
adopts Magistrate Judge Wilkerson's Report and
Recommendation and denies the motion for summary judgment.
Jose-Nicolas Osbaldo, an inmate of the Illinois Department of
Corrections currently incarcerated at Menard Correctional
Center, filed a pro se lawsuit pursuant to 42 U.S.C.
§ 1983 for deprivations of his constitutional rights
stemming from an assault in February 2014, the denial of
medical care, subsequent disciplinary proceedings, and the
conditions of his confinement in segregation (Doc. 1).
Supplemental claims based on Illinois law were also asserted
(Doc. 1). Plaintiff's claims against Defendants
Harrington and Butler for unconstitutional conditions of
confinement and his supplemental state law claims for
negligence or willful and wanton conduct and indemnification
were severed from the original case (15-cv-964-NJR-DGW) into
this case (Doc. 1, Doc. 7).
Harrington and Butler filed a motion for summary judgment on
September 28, 2016, arguing that Plaintiff failed to exhaust
his administrative remedies prior to filing suit as required
by the Prison Litigation Reform Act (Doc. 24). Defendants
asserted that the Administrative Review Board had no record
of any grievances from Plaintiff regarding the conditions of
his confinement at Menard, and therefore he failed to exhaust
his administrative remedies (Doc. 34; Doc. 25). Plaintiff
filed a response in opposition to the motion for summary
judgment, asserting that he submitted two grievances related
to the conditions of his confinement (Doc. 34; Doc. 29).
accordance with Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008), Magistrate Judge Wilkerson held an evidentiary
hearing on the issue of exhaustion on April 18, 2017 (Doc.
33). On May 12, 2017, he issued the Report and Recommendation
currently before the Court, in which he recommends denying
the motion for summary judgment, (Doc. 34). Objections to the
Report and Recommendation were due on or before May 26, 2017.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(2); SDIL-LR 73.1(b). As previously mentioned, neither
party filed an objection.
neither timely nor specific objections to the Report and
Recommendation are made, the court need not conduct a de
novo review. 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 may
then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
undersigned has carefully reviewed the briefs and exhibits
submitted by the parties, as well as Magistrate Judge
Wilkerson's Report and Recommendation. Following this
review, the undersigned fully agrees with the findings,
analysis, and conclusions of Magistrate Judge Wilkerson and
adopts the Report and Recommendation in its entirety.
submitted an emergency grievance on May 11, 2014, which
included a request to be “free from N2 segregation and
$1, 000.00 dollars for each day spend in this condemn
confinement [sic]” (Docs. 29-2, 29-3). It is
undisputed that this grievance was fully exhausted
(see Doc. 34, p. 2). Plaintiff submitted another
emergency grievance on July 10, 2014, complaining that the
fan in his cell overheated and melted (Doc. 29-8). Plaintiff
also asked for compensation for each day that he had spent in
confinement behind a steel door (Doc. 29-8). This grievance
was determined not to be an emergency, and Plaintiff
submitted it to his counselor (Doc. 29-8; see Doc.
29-9). The cumulative counseling summary indicates this
grievance was received by Plaintiff's counselor on August
16, 2014 (Doc. 29-9), however, Plaintiff testified that he
never received a written response from his counselor.
Magistrate Judge Wilkerson found Plaintiffs testimony
credible (Doc. 34), and that credibility determination is
entitled to deference. See Pavey v. Conley, 663 F.3d
899, 904 (7th Cir. 2011). Because Plaintiff took the steps
required of him to informally resolve his grievance, but his
counselor failed to provide a written response, the grievance
process was rendered unavailable. Brengettcy v.
Horton, 423 F.3d 674, 682 (7th Cir. 2005) (citing
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.
2002)). Furthermore, the Court fully agrees with Magistrate
Judge Wilkerson's assessment that the content of these
two grievances was sufficient for prison officials to infer
that Plaintiff was complaining about the conditions in his
segregation cell (see Doc. 34, pp. 7-8). Therefore,
Plaintiff is deemed to have exhausted his administrative
remedies. Lewis, 300 F.3d at 833.
Court ADOPTS Magistrate Judge Wilkerson's Report and
Recommendation (Doc. 34) and DENIES the motion for summary
judgment on the issue of exhaustion filed by ...