United States District Court, S.D. Illinois
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. 43), recommending that the Court grant
Defendants' Motion for Summary Judgment on the Issue of
Exhaustion (Doc. 29). Plaintiff filed a timely objection
(Doc. 46). For the following reasons, the Court
ADOPTS the Report and Recommendation in its
Adam Pegues, a former IDOC inmate, filed this lawsuit
pursuant to 42 U.S.C. § 1983 while he was incarcerated
at Lawrence Correctional Center. Plaintiff alleges Defendants
violated his constitutional rights by using excessive force
while removing him from his wheelchair, refusing to summon
medical attention after he was battered, and by denying him
due process rights at his disciplinary committee hearing.
Defendants 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 Defendants' motion.
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, the applicable law, and the requirements of the
administrative process. Judge Daly concluded that Plaintiff
failed to exhaust his administrative remedies as to his claim
against the Defendants prior to filing his lawsuit.
Daly examined the grievance dated April 11, 2016, which was
received by the ARB on April 28, 2016, along with a letter
from Plaintiff. The letter, dated April 25, 2016, stated that
Plaintiff was requesting the assistance of the ARB because he
sent the April 11, 2016 grievance to the Warden and did not
receive a response. The ARB denied the grievance and returned
it because it did not contain the Counselor's Response,
Grievance Officer's Report or the CAO Response. Based on
inconsistencies in Plaintiff's allegations and testimony
regarding his attempts at exhaustion, coupled with the strong
documentary evidence, Judge Daly found that Plaintiff did not
submit his grievance internally prior to appealing the
grievance to the ARB.
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. Specifically, Plaintiff
maintains that on April 25, 2016, he sent out four copies of
the grievance to the Warden of Lawrence, the Counselor, the
Grievance Officer, and the ARB. Plaintiff asserts that he did
not receive a response to any of the internal grievances, but
did receive a response from the ARB. He contends that he
resubmitted copies of the grievance internally, but never
received a response. Plaintiff also argues that he was
prejudiced at the hearing because Judge Daly denied his
request for appointment of counsel.
Plaintiff alleges that he followed the proper protocol and
submitted the grievance internally as well as to the ARB,
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).
Judge Daly assessed the credibility of Plaintiff's
statements regarding when the grievance was 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
credibility determinations”). Moreover, even taking
Plaintiff's assertions as true, Plaintiff's testimony
belies his claim that he properly exhausted his
administrative remedies. If he mailed four copies of the same
grievance internally and to the ARB on the same day, then he
failed to follow the administrative rules which require that
an inmate submit the grievance internally prior to appealing
it the ARB. Finally, regarding Plaintiff's contention
that he was denied counsel at the Pavey hearing,
there is no constitutional or statutory right to
court-appointed counsel in a federal civil case. See
Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007).
Court finds Judge Daly's factual findings and rationale
to be sound. 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. 43). This case is
DISMISSED without prejudice for failure to
exhaust administrative remedies.