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Middleton v. Berkley

United States District Court, S.D. Illinois

May 22, 2018

DWAYNE J. MIDDLETON, Plaintiff,
v.
C/O BERKLEY and STEVEN MEEKS, Defendants.

          MEMORANDUM AND ORDER

          Herndon United States District Judge

         Introduction and Background

         Pending before the Court is an April 30, 2018 Report and Recommendation (“the Report”) issued by Magistrate Judge Stephan C. Williams (Doc. 74). Magistrate Judge Williams recommends that the Court deny defendant Berkley's motion for summary judgment on the issue of exhaustion of administrative remedies. The parties were allowed time to file objections to the Report. On May 17, 2018, Berkley filed an objection to the Report (Doc. 77). Based on the applicable law, the record and the following, the Court ADOPTS the Report in its entirety.

         Plaintiff Dwayne J. Middleton brought this pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. According to the complaint, defendants have been deliberately indifferent to plaintiff's serious medical condition. Specifically, plaintiff contends he suffers from Tourette's syndrome, a neurological disease which interferes with his ability to control his body. Plaintiff contends he has been denied medication for his condition and, as a result, has suffered several injuries because he is unable to control his body.

         On May 25, 2017, the Court screened Middleton's complaint, found that it survived review and construed the complaint as containing a request for preliminary injunction (Doc. 4). Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Williams, after conducting a hearing, submitted a Report and Recommendation recommending that the Court deny the request for preliminary injunction (Doc. 23). On July 5, 2017, the Court adopted the Report and Recommendation and denied the motion for preliminary injunction (Doc. 29).

         Thereafter, defendant Berkley filed a motion for summary judgment as to the issue of exhaustion of administrative remedies (Docs. 60 & 61). Berkley contends that on July 11, 2017, after this lawsuit was filed, Middleton sent a grievance to the Administrative Review Board that had not been previously reviewed at the institution. Middleton opposed the motion (Doc. 65). On April 26, 2018, Magistrate Judge Williams held a Pavey[1] hearing on the motion for summary judgment and to assess the credibility of the conflicting accounts about Middleton's use of the grievance process (Doc. 73). Subsequently, on April 30, 2018, Magistrate Judge Williams, pursuant to 28 U.S.C. § 636(b)(1)(B), submitted the Report recommending that the Court deny defendant Berkley's motion for summary judgment on the issue of exhaustion of administrative remedies. Specifically, Judge Williams found that “[D]efendant has failed to carry his burden and demonstrate that he is entitled to summary judgment.” (Doc. 74, pg. 8). The Report was sent to the parties with a notice informing them of their right to appeal by way of filing “objections” on or before May 17, 2018. Berkley did file an objection to the Report (Doc. 77). Based on the record and the following, the Court adopts the Report in its entirety and denies defendant Berkley's motion for summary judgment on the issue of exhaustion.

         Facts

         The facts set forth in this section are limited to those necessary for this Court to review the Report. A more comprehensive recitation of the facts is contained in the Report. Middleton filed this lawsuit on May 23, 2017. At this time, Middleton was housed on the receiving wing of Menard Correctional Center. During this time, Berkley was a correctional officer assigned to the receiving wing.

         Middleton testified that he asked Berkley for a grievance on May 5, 2017, on May 6, 2017 and on May 16, 2017and that Berkley never provided him a grievance. Berkley testified that he does not recall Middleton asking him for grievances and that if Middleton would have asked for a grievance he would have tried to resolve the problem informally as he believed that was what the grievance code required and if an issue still remained, he would have provided a grievance. Berkley also testified that if Middleton did not have a grievance form, he would have told Middleton to write the grievance on a piece of paper, also known as a “kite, ” and that Berkley would have placed it in a the grievance box.

         Middleton admitted that he did not ask anyone in the law library for a grievance and Middleton also admitted to indicating in his complaint that he did not complete the grievance process. Middleton was transferred from Menard to Sheridan Correctional Center on May 25, 2017.

         On July 11, 2017, the Administrative Review Board (“ARB”) received a written grievance from Middleton. Prior to this time, the ARB did not receive a written grievance from Middleton.

         Legal Standards

         The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1), which provides in part:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive ...

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