United States District Court, S.D. Illinois
MIGUEL A. SUAREZ, Plaintiff,
WARDEN RICHARD HARRINGTON, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE
matter is before the Court on a Report and Recommendation of
United States Magistrate Judge Donald G. Wilkerson (Doc. 52),
which recommends that the Motion for Summary Judgment on the
Issue of Exhaustion filed by Defendant Warden Richard
Harrington ("Harrington") (Doc. 41) be granted. The
Report and Recommendation was entered on August 21, 2017.
Plaintiff Miguel A. Suarez ("Suarez") filed a
timely objection to the Report and Recommendation on
September 7, 2017 (Doc. 53). Harrington filed a response to
Suarez's objection on September 15, 2017 (Doc. 54).
Suarez alleges in his Second Amended Complaint (Doc. 32) that
he was held in segregation at the Menard Correctional Center
under unsanitary conditions and on a disciplinary ticket that
was ultimately expunged due to a procedural deficiency.
Suarez proceeds on the following claims (Doc. 52, p. 2):
Count 1: Deliberate indifference claim against Defendants
Veath and Johnson for ignoring problems with Suarez's
disciplinary ticket at the hearing and sentencing Suarez to a
year in segregation; and
Count 2: Conditions of confinement claim against Harrington
for failing to provide Suarez with hygiene products and
Court dismissed with prejudice Count One against Defendants
Veath and Johnson on January 4, 2017 (Doc. 36). Suarez filed
a Motion for Reconsideration (Doc. 37), which the Court
denied on July 18, 2017 (Doc. 48).
17, 2017, Harrington filed a Motion for Summary Judgment on
the Issue of Exhaustion (Docs. 41, 42). Specifically,
Harrington alleges that Suarez did not "raise the issue
regarding cell conditions in the manner specified by the
grievance rules . . . [and thus] has not exhausted his
administrative remedies." (Doc. 42, p. 5). On June 20,
2017, Suarez filed a response opposing the Motion (Doc. 47).
required by Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008), Magistrate Judge Wilkerson held an evidentiary hearing
on Harrington's Motion on July 27, 2017 (Doc. 51).
Following the Pavey hearing, Magistrate Judge
Wilkerson issued the Report and Recommendation currently
before the Court (Doc. 52). 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
Report and Recommendation
upon the evidence before the Court, Magistrate Judge
Wilkerson found that Suarez failed to exhaust his
administrative remedies prior to filing this lawsuit. Despite
finding it credible that Suarez submitted a grievance,
Magistrate Judge Wilkerson noted that Suarez only complained
to Harrington about cell conditions after Suarez had
submitted the grievance. (Doc. 51, pp. 12-13). Moreover,
" [Suarez's] claim against Defendant Harrington is
premised on [Harrington's] failure to address the
unsanitary conditions in [Suarez's] cell after being
verbally advised of such conditions." (Doc. 52, p. 7).
Thus, Magistrate Judge Wilkerson found that, because Suarez
filed the grievance before speaking to Harrington, the
grievance could not have complained of Harrington's
failure to address cell conditions.
timely objections are filed, the 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. 111. 1993); see also Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court
"may 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 give 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 (lsted. 1973) (1992 Pocket Part)).
Suarez filed a timely objection to the Report and
Recommendation. In the objection, Suarez argues that he
exhausted his administrative remedies as required by the
Prison Litigation Reform Act by "filing the grievance
complaining about the unsanitary segregation cell conditions
in June or July, 2013 and then talking to [Harrington] about
said grievance." (Doc. 53, p. 1). Suarez further alleges