United States District Court, S.D. Illinois
MARIO S. ENGLISH, JR., Plaintiff,
MONICA NIPPE, Defendant.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
("R&R") of United States Magistrate Judge Reona
J. Daly (Doc. 68), recommending that the Court grant
Defendant Monica Nippe's Motion for Summary Judgment on
the Issue of Exhaustion (Doc. 46), deny Plaintiff's
Motion for Summary Judgment on Exhaustion of Remedies (Doc.
53), and deny Plaintiff's Motion for Leave to Amend his
Motion for Summary Judgment on Exhaustion (Doc. 57).
Plaintiff filed a timely objection (Doc. 70). For the
following reasons, the Court ADOPTS the
Report and Recommendation in its entirety.
Mario English, Jr., currently incarcerated at Menard
Correctional Center, filed this lawsuit pursuant to 42 U.S.C.
§ 1983, alleging that Defendant Nippe violated his right
to access the courts by denying him a supply of money
vouchers to subsidize his legal mailings. Defendant 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 Daly conducted an evidentiary hearing on
the Pavey hearing, Judge Daly issued the R&R
currently before the Court which 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 process. Judge Daly found
that Plaintiff failed to exhaust his administrative remedies
as to his claim against Defendant Nippe prior to filing his
Daly examined the grievances allegedly dated January 14, 2016
and January 20, 2016, and determined that the content of the
grievances were suspicious and likely written after Plaintiff
filed this lawsuit. She concluded that the inconsistencies in
Plaintiff's allegations and testimony regarding his
attempts at exhaustion coupled with the strong documentary
evidence supported her determination that Plaintiff did not
submit these grievances to prison staff. Judge Daly also
noted that Plaintiff has filed many grievances; each
contained in his counseling summaries. However, there was
nothing in the record to indicate that he filed either of the
January grievances with any IDOC staff.
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); 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. Id.
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 (1st Ed. 1973) (1992 Pocket Part).
Prison Litigation Reform Act requires prisoners to exhaust
all available administrative remedies before filing suit. 42
U.S.C. § 1997e(a). Proper exhaustion requires that an
inmate file complaints and appeals in the place, at the time,
and in the manner the prison's administrative rules
require. Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002).
filed general objections to the R&R reiterating the
arguments made at the Pavey hearing and in his
previous filings with the Court - mainly that he filed his
grievances on January 14, 2016 and January 20, 2016.
Plaintiff also asserts that the Court must credit his
statements that he put the grievances in the institutional
mail on the specified dates.
Plaintiff alleges that he submitted his grievances, Judge
Daly did not find Plaintiff's assertions credible. During
Pavey hearings, a court can make findings of fact
and credibility assessments of witnesses. See Pavey,
663 F.3d at 904. Magistrate judges stand in the best position
to assess a witness's credibility because they have the
opportunity “to observe the verbal and nonverbal
behavior of the witnesses . . . [including their] reactions
and responses to the interrogatories, their facial
expressions, attitudes, tone of voice, eye contact, posture
and body movements.” Kraushaar v. Flanigan, 45
F.3d 1040, 1052-53 (7th Cir. 1995). Clearly, Judge Daly
assessed the credibility of Plaintiff's statements
regarding when the January grievances were written and found
them lacking. The Court finds no reason in the record to
second-guess Judge Daly's credibility determinations.
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
Court finds Judge Daly's factual findings and rationale
to be sound. It is 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
exhaust his administrative remedies prior to filing suit.
Accordingly, the Court adopts Magistrate Judge Daly's
Report and Recommendation (Doc. 68). This case is
DISMISSED without prejudice
for failure to exhaust administrative remedies.