United States District Court, S.D. Illinois
JOHN M. CUSTER, Plaintiff,
ZACHARY ROECKEMAN, TIMOTHY HEATHCOAT, LT. BROWDER, MAJOR GRISHAM, and C/O CHILDERS, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
before the Court is the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 74), which
recommends granting in part, denying in part, and finding
moot in part the Motion for Summary Judgment on the Issue of
Exhaustion of Administrative Remedies filed by Defendants
Roeckeman, Heathcoat, Browder, Grisham, and Childers (Doc.
57). For the reasons explained below, the Court adopts
Magistrate Judge Wilkerson's Report and Recommendation.
24, 2016, Plaintiff John Custer filed a complaint pursuant to
42 U.S.C. § 1983 alleging Defendants violated his
constitutional rights while he was an inmate at Big Muddy
Correctional Center. After an initial screening of his
complaint pursuant to 28 U.S.C. § 1915A, Custer is
proceeding on four counts. Specifically, Custer alleges an
Eighth Amendment excessive force claim against Defendant
Heathcoat for twisting his arm and slamming him into a table
on July 31, 2015 (Count One); a verbal harassment claim
against Defendants Heathcoat, Browder, Childers, and Grisham
under the First and Eighth Amendments (Count Two); a claim of
Eighth Amendment deliberate indifference to serious medical
needs against Defendants Roeckeman, Heathcoat, Browder, and
Childers (Count Three); and state law claims for assault and
battery against Defendant Heathcoat (Count Six).
January 26, 2017, Defendants filed a motion for summary
judgment on the issue of exhaustion of administrative
remedies (Doc. 57). Custer initially filed a response pro
se on March 2, 2017 (Doc. 60). The Court appointed
counsel on March 3, 2017, who then filed a supplemental
response in opposition to summary judgment on May 18, 2017
(Doc. 71). On June 5, 2017, Magistrate Judge Wilkerson held a
hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008) (Doc. 73), and subsequently issued the Report
and Recommendation currently before the Court. Objections to
the Report and Recommendation were due June 22, 2017. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); SDIL-LR
73.1(b). No objections were filed.
Report and Recommendation, Magistrate Judge Wilkerson first
recommended that the motion for summary judgment filed by
Defendant Heathcoat be found moot, as Defendant Heathcoat
withdrew his motion at the Pavey hearing. Magistrate
Judge Wilkerson next found that Custer's September 25,
2015 grievance was sufficiently exhausted, as it was reviewed
on the merits by the Administrative Review Board
(“ARB”) and signed by the Director of the
Illinois Department of Corrections (“IDOC”).
Based on the evidence in the record, as well as testimony
provided by Custer at the Pavey hearing, Magistrate
Judge Wilkerson found the September 25, 2015 grievance was
sufficient to exhaust Custer's deliberate indifference
claim against Defendant Roeckeman. With regard to Defendants
Browder, Childers, and Grisham, however, Magistrate Judge
Wilkerson found that Custer failed to exhaust his
administrative remedies prior to filing this lawsuit, as he
filed no grievances related to their alleged conduct. In
addition to there being no evidence in the record to support
Custer's claims, Magistrate Judge Wilkerson found
Custer's testimony related to these Defendants was not
credible. As a result, Magistrate Judge Wilkerson recommended
that the motion for summary judgment be granted as to
Defendants Browder, Childers, and Grisham, but denied as to
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). Where
neither timely nor specific objections to the Report and
Recommendation are made, however, 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 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).
de novo review is not required here, the Court has
carefully reviewed the evidence and Magistrate Judge
Wilkerson's Report and Recommendation for clear error.
Following this review, the Court fully agrees with the
findings, analysis, and conclusions of Magistrate Judge
Wilkerson. Custer's September 25, 2015 grievance, of
which the Court does not have a full copy, references the
incident involving Defendant Heathcoat and seeks proper care
for Custer's shoulder injury. Magistrate Judge Wilkerson
found Custer credible in his testimony that the missing
portion of the grievance complained about Defendant
Roeckeman's refusal to ensure he received adequate
medical attention. Thus, the September 25, 2015 grievance,
which was reviewed on the merits by the ARB on February 11,
2016, and signed by the IDOC Director on February 16, 2016,
was sufficiently exhausted as to Defendant Roeckeman.
regard to Defendants Browder, Childers, and Grisham, however,
the Court agrees there are no grievances in the record
related to their alleged conduct. Furthermore, Magistrate
Judge Wilkerson did not find Custer credible in his testimony
that he tried to submit grievances related to these
Defendants but that his counselor was refusing to handle any
of his grievances. It is not the Court's role to
second-guess Magistrate Judge Wilkerson's credibility
determinations. See Pavey v. Conley, 663 F.3d 899,
904 (7th Cir. 2011); Goffman v. Gross, 59 F.3d 668,
671 (7th Cir. 1995) (“The district court is not
required to conduct another hearing to review the magistrate
judge's findings or credibility determinations.”).
Accordingly, the Court agrees with Magistrate Judge Wilkerson
that Custer did not exhaust his administrative remedies with
regard to these Defendants.
Court finds no clear error in Magistrate Judge
Wilkerson's Report and Recommendation. Thus, the Court
ADOPTS Magistrate Judge Wilkerson's
Report and Recommendation (Doc. 74) in its entirety. The
Motion for Summary Judgment is DENIED as to
Defendant Roeckeman and is MOOT as to
Defendant Heathcoat. Because Custer did not exhaust his
administrative remedies with regard to Defendants Browder,
Childers, or Grisham, however, the Motion for ...