United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE.
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 221) of
Magistrate Judge Donald G. Wilkerson with regard to
Defendants' Motion (Doc. 204) for Summary Judgment.
Plaintiff filed a timely objection (Doc. 222) and the
defendant filed a response to the objection (Doc. 223).
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 matter, the Court has received an objection to the R
& R and will review those portions of the R & R
threshold review, the plaintiff was allowed to proceed on one
COUNT 12: Prison officials will soon
transfer Miller into a gang violence program or to a
Communications Management Unit with ISIS members, both of
which will expose Miller to inmates who have
“hits” out on his life, in violation of his
constitutional and statutory rights.
remainders of plaintiff's claims were dismissed without
prejudice as the plaintiff had incurred more than three
strikes under the Prison Litigation Reform Act. See
Miller v. Mines, No. 7:12-cv-00382, 2012 WL 5178005, at
*1 (W.D. Va. Oct. 18, 2012) (recounting Miller's
strikes). Because Miller had accrued more than three strikes,
he could not avail himself of pauper status and could not
proceed with his case by paying the filing fee in
installments, unless a claim alleges an “imminent
danger of serious physical injury.” See 28
U.S.C. § 1915(g). Count 12 was the only claim determined
by the Court which contained an “imminent danger of
serious physical injury.”
judgment must be granted, “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000).
The reviewing court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
initial summary judgment burden of production is on the
moving party to show the Court that there is no reason to
have a trial. Celotex, 477 U.S. at 323;
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir.
2013). Where the non-moving party carries the burden of proof
at trial, the moving party may satisfy its burden of
production in one of two ways. It may present evidence that
affirmatively negates an essential element of the non-moving
party's case, see Fed. R. Civ. P. 56(c)(1)(A),
or it may point to an absence of evidence to support an
essential element of the non-moving party's case without
actually submitting any evidence, see Fed. R. Civ.
P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25;
Modrowski, 712 F.3d at 1169.
the moving party fails to meet its strict burden, a court
cannot enter summary judgment for the moving party even if
the opposing party fails to present relevant evidence in
response to the motion. Cooper v. Lane, 969 F.2d
368, 371 (7th Cir. 1992).
responding to a summary judgment motion, the nonmoving party
may not simply rest upon the allegations contained in the
pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477
U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of
material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,
” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts, ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists only if “a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence
presented.” Anderson, 477 U.S. at 252.
& R recommends that the Court grant defendants'
motion for summary judgment for plaintiff's failure to
exhaust his administrative remedies. The R & R correctly
sets forth the exhaustion requirements so they will not be
repeated here. The R & R also addressed the two issues
raised by the parties: “(1) the date on which Plaintiff
filed his complaint; ...