United States District Court, N.D. Illinois
Gary L. Schaefer, Plaintiff,
C/O Spates, Defendant.
FREDERICK J. KAPALA DISTRICT JUDGE
court has reviewed the magistrate judge's March 19, 2018
report and recommendation  for clear error and agrees
with its findings and conclusions. The court adopts the
R&R in its entirety. Plaintiff's claims are dismissed
without prejudice for failure to exhaust administrative
remedies. The Clerk of Court is directed to enter final
judgment. This case is closed.
order dated March 19, 2018, the magistrate judge recommended
that this case be dismissed without prejudice for
plaintiff's failure to exhaust available administrative
remedies before initiating this federal lawsuit. During the
time period allowed for objection, plaintiff submitted two
documents to the court that were docketed as
“Objection[s].” The first document is a letter to
the magistrate judge, stating that plaintiff “would
like to object” to the report and recommendation
(“R&R”) and requesting attorney
representation. The second document is nearly identical in
substance to the first document but was submitted on a
“sworn affidavit” form and includes an exhibit
that plaintiff says is a “picture of [his] jaw.”
Plaintiff did not otherwise object to the R&R within the
time period established by Federal Rule of Civil Procedure
72(b)(2) and set by court order.
the documents plaintiff filed are styled as objections, they
do not identify any objections, much less specific
objections, to any part of the magistrate judge's
R&R. Generally, if a party fails to object to a
magistrate judge's R&R, some standard of review
lesser than de novo is not positively required. See
Thomas v. Arn, 474 U.S. 140, 149-50 (1985). If a party
files an objection, those parts of the magistrate judge's
R&R that are not objected to are reviewed for clear
error. See Johnson v. Zema Sys. Corp., 170 F.3d 734,
739 (7th Cir. 1999); see also Saucedo v. Ill. Dep't
of Corr., 2017 WL 2274934, at *3 (N.D. Ill. May 25,
2017) (“Plaintiff does not specifically object to the
magistrate judge's recommendation that his grievance did
not address the lack of medical treatment he received in his
objections to the magistrate judge's report. . . .
Therefore, the court will review the magistrate judge's
recommendation using the clearly erroneous standard as to
plaintiff's medical claims.”). “The clear
error standard means that the district court can overturn the
magistrate judge's ruling only if the district court is
left with the definite and firm conviction that a mistake has
been made.” Weeks v. Samsung Heavy Indus. Co.,
126 F.3d 926, 943 (7th Cir. 1997).
magistrate judge's R&R, he recounts the events from
which this case arose and the Pavey hearing
determining whether plaintiff had exhausted his
administrative remedies as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e. See Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008). Because
plaintiff was aware of the grievance process available to him
but did not follow the grievance procedures established by
the Winnebago County Sheriff's Office, the magistrate
judge found that plaintiff did not exhaust his administrative
remedies, and therefore recommends plaintiff's claims be
dismissed without prejudice for failure to exhaust.
appears that plaintiff wants the court to recruit counsel to
object to the R&R on his behalf, but plaintiff's
requests for counsel fail to show what effort he made to
retain counsel on his own. In determining whether to recruit
counsel for a pro se litigant, the court must ask (1) whether
“the indigent plaintiff made a reasonable attempt to
obtain counsel or [has] been effectively precluded from doing
so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself?”
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007)
(en banc). The first question - whether the plaintiff has
made a reasonable attempt to obtain counsel or been
effectively precluded from doing so - is a threshold question
that must be resolved in the plaintiff's favor before the
court will consider the plaintiff's ability to litigate
the case himself. Id.; see also Russell v.
Bukowski, 608 Fed.Appx. 426, 428 (7th Cir. 2015)
(“[B]efore a district court is required to consider
recruiting counsel to assist a litigant in a civil case, the
litigant must make a reasonable attempt to secure counsel for
himself.”). Plaintiff did not disclose what attempts
(if any) he made to retain counsel on his own, and there is
no indication that he was precluded from soliciting counsel.
The court therefore denies plaintiff's request for
time for objecting to the magistrate judge's March 19,
2018 R&R has passed, and the court is not inclined to
reopen the objection period given that record evidence shows
by a preponderance of the evidence that plaintiff did not
appeal the issue presented by this lawsuit to Superintendent
Redmond, as required to exhaust administrative remedies at
the Winnebago County Jail. The assistance of counsel at this
stage of the litigation would not change the outcome of this
case. Having reviewed the record and the R&R, the court
finds no clear error in the magistrate judge's findings
and therefore adopts the magistrate judge's March 19,
2018 R&R in its entirety. Plaintiff's claims are
dismissed without prejudice for failure to exhaust
administrative remedies. See Ford v. Johnson, 362
F.3d 395, 401 (7th Cir. 2004) (“all dismissals under
§ 1997e(a) should be without prejudice”). This
case is closed. Final judgment will enter.
this court does not rule on whether a state court would apply
an exhaustion requirement similar to that of 42 U.S.C. §
1997e(a) with respect to plaintiff's claims, the
court's ruling does not preclude plaintiff from pursuing
any relief that may be available to him in state court. By
operation of 42 U.S.C. § 1997e(a), however, plaintiff
has no further recourse in federal court at this time. The
dismissal therefore constitutes a final appealable order.
See Maddox v. Love, 655 F.3d 709, 716 (7th Cir.
2011) (explaining that order dismissing § 1983 claim for
failure to exhaust administrative remedies is appealable
where there are no further remedies that plaintiff can
pursue); Barnes v. Briley, 420 F.3d 673, 676-77 (7th
Cir. 2005) (same).
plaintiff wants to appeal, he must file a notice of appeal
with this court within thirty days of the entry of judgment.
See Fed. R. App. P. 4(a)(1). If plaintiff appeals,
he will be liable for the $505.00 appellate filing fee
regardless of the appeal's outcome. See Evans v. Ill.
Dep't of Corr., 150 F.3d 810, 812 (7th Cir. 1998).
If the appeal is found to be non-meritorious, plaintiff could
be assessed a “strike” under 28 U.S.C. §
1915(g). If a prisoner accumulates three
“strikes” because three federal cases or appeals
have been dismissed as frivolous or malicious, or for failure
to state a claim, the prisoner may not file suit in federal
court without pre-paying the filing fee unless he is in
imminent danger of serious physical injury. Id. If