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Moore v. Brace

United States District Court, S.D. Illinois

May 16, 2018

SHUNG MOORE Plaintiff,
v.
HUBERT BRACE, et al., Defendants.

          REPORT AND RECOMMENDATION DALY

          Hon. Reona J. Daly United States Magistrate Judge

         The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge David R. Herndon pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion to Dismiss (Doc. 34) filed by Defendants Brace, Dunbar, Eoavaldi, Harris, Morris, Pelker, and Welborn. Plaintiff failed to respond to the Motion. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' Motion be GRANTED.

         FINDINGS OF FACT

         Plaintiff Shung Moore filed this pro se civil rights action pursuant to 42 U.S.C. §1983 alleging his constitutional rights were violated while he was incarcerated at Menard Correctional Center (“Menard”). Following threshold screening pursuant to 28 U.S.C. § 1915A, he proceeds on the following claims:

         Count 1: First Amendment retaliation claim against Brace, for causing Plaintiff's clothing and bedding to be lost or destroyed on or about April 7, 2015, after Plaintiff filed a grievance against Brace for excessive force;

         Count 2: Eighth Amendment deliberate indifference claim against Eoavaldi, Morris, Welborn, Dunbar, Harris, and John Doe #1 (Commissary Officer) for subjecting Plaintiff to unsanitary conditions of confinement, by refusing or failing to replace Plaintiff's clothing and bedding, refusing to give Plaintiff disinfectant to clean his quarantine cell, and failing to provide Plaintiff with personal hygiene supplies or permit him to purchase them;

         Count 3: Eighth Amendment deliberate indifference claim against Pelker and Eoavaldi for failing to summon medical care for Plaintiff on April 14-15, 2015, despite being informed of Plaintiff's severe and painful facial swelling;

         Count 4: Eighth Amendment deliberate indifference claim against Trost, Maciura, John Doe #2 (doctor), and John Doe #3 (medical official) for delaying and denying treatment for Plaintiff's painful facial MRSA infection between April 10-15, 2015.

         Defendants Brace, Dunbar, Eoavaldi, Harris, Morris, Pelker, and Welborn filed a Motion to Dismiss (Doc. 34) Counts I, II, and III, arguing Plaintiff's claims against them are barred by the statute of limitations. Plaintiff failed to timely respond to Defendants' motion. Pursuant to Local Rule 7.1(c), the Court considers Plaintiff's failure to respond an admission of the merits of the motion.

         Plaintiff filed his complaint on September 1, 2017 (Doc. 1). The dates relevant to the accrual of each claim are as follows:

         Count I

         Plaintiff alleges that on April 8, 2015, after filing a grievance against Defendant Brace, Plaintiff's laundry bag was not returned and that Brace was responsible either directly, or indirectly, for the loss of his laundry (Id. at 10). Plaintiff filed a grievance for retaliation against Defendant Brace on July 12, 2015 (Id. at 60). The ARB returned Plaintiff's July 12, 2015 grievance on October 22, 2015 (Id. at 56).

         Count II

         Plaintiff alleges Defendants Eoavaldi, Morris, Welborn, Dunbar, and Harris failed to provide him with clothing, bedding, and personal hygiene supplies on a number of dates from April 8, 2015 through May 13, 2015 (Id. at 10-15). Plaintiff states clothing and hygiene supplies were eventually provided on May 13, 2015 (Id. at 15). Plaintiff filed a grievance regarding the deprivation of clothing and hygiene supplies on ...


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