United States District Court, S.D. Illinois
MEMORANDUM and ORDER
Herndon Judge United States District Judge
before the Court is a May 16, 2018 Report and Recommendation
(“the Report”) issued by Magistrate Judge Reona
J. Daly (Doc. 37). Magistrate Judge Daly recommends that the
Court grant defendants Brace, Dunbar, Eoavaldi, Harris,
Morris, Pelker and Welborn's motion to dismiss. The
parties were allowed time to file objections to the Report.
On June 5, 2018, Moore filed an objection to the Report (Doc.
38). Based on the applicable law, the record and the
following, the Court ADOPTS the Report in
Shung Moore brought this pro se action for
deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. According to the complaint, Moore claims
that he was subjected to retaliation; was deprived of
clothing, bedding, and necessary hygiene supplies, which
aggravated a serious medical condition; and was denied
medical attention.1 On October 23, 2017, the Court screened
Moore's complaint, found that some of Moore's
survived review and (Doc. 8). Specifically, the Court found
the following claims to survive:
1: First Amendment retaliation claim against Brace, for
causing Moore's clothing and bedding to be lost or
destroyed on or about April 7, 2015, after Moore filed a
grievance against Brace for excessive force;
2: Eighth Amendment deliberate indifference claim against
Eoavaldi, Morris, Welborn, Dunbar, Harris, Monje, Butler, and
John Doe (Commissary Officer) for subjecting Moore to
unsanitary conditions of confinement, by refusing or failing
to replace Moore's clothing and bedding, refusing to give
Moore disinfectant to clean his quarantine cell, and failing
to provide Moore with person hygiene supplies or permit him
to purchase them;
3: Eighth Amendment deliberate indifference claim against
Pelker and Eoavaldi for failing to summon medical care for
Moore on April 14-15, 2015, despite being informed of
Moore's severe painful facial swelling;
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
Moore's painful facial MRSA infection between April
10-15, 2015. (Doc. 8)2.
defendants Brace, Dunbar, Eoavaldi, Harris, Morris, Pelker
and Welborn moved to dismiss Counts 1, 2 and 3 arguing that
these claims are barred by the statute of limitations (Doc.
34). The record reflects that Moore did not respond to the
motion. Subsequently, on May 16, 2018, Magistrate Judge Daly,
pursuant to 28 U.S.C. § 636(b)(1)(B), submitted the
Report recommending that the Court grant defendants'
motion to dismiss based on the statute of limitations (Doc.
37). 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 June 4, 2018. Moore did
file an objection to the Report (Doc. 38). Based on the
record and the following, the Court adopts the Report in its
entirety and grants defendants' motion to dismiss based
on the statute of limitations.
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 further evidence or recommit the
matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only
make a de novo determination of those portions of
the report and recommendation to which specific written
objection has been made. Johnson v. Zema Sys. Corp.,
170 F.3d 734, 739 (7th Cir. 1999). If no objection or only a
partial objection is made, the Court reviews those unobjected
portions for clear error. Id. In addition, failure
to file objections with the district court “waives
appellate review of both factual and legal questions.”
Id. Under the clear error standard, the Court can
only overturn a Magistrate Judge's ruling if the Court is
left with “the definite and firm conviction that a
mistake has been made.” Weeks v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal if a complaint fails to state a claim upon which
relief can be granted. In considering a motion to dismiss,
the Court accepts as true all well-pleaded allegations in the
complaint and draws all possible inferences in favor of the
plaintiff. See Killingsworth v. HSBC Bank Nevada,
N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quotations
omitted). A plaintiff need not set out all relevant facts or
recite the law in his or her complaint; however, the
plaintiff must provide a short and plain statement that shows
that he or she is entitled to relief. See FED. R.
CIV. P. 8(a)(2). Thus, a complaint will not be dismissed if
it “contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Additionally,
“[a]llegations of a pro se complaint are held