Hall v. Spiller

          MEMORANDUM AND ORDER

          STACI M. YANDLE United States District Judge

         This matter is before the Court on the Report and Recommendation (“Report”) of United States Magistrate Judge Reona J. Daly (Doc. 36), recommending that Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative Remedies be granted (Doc. 29). Plaintiff Robert Hall filed timely an objection (Doc. 39). For the following reasons, Judge Daly's Report and Recommendation is ADOPTED.

         Background

         Plaintiff Robert Hall, an inmate who is currently incarcerated at Pontiac Correctional Center, brings the instant civil rights action pursuant to 42 U.S.C. § 1983 for events that occurred at Menard Correctional Center from April 2017 to his transfer in November 2018 (Doc. 1). Plaintiff alleges he was retaliated against for answering questions related to a staff assault in a manner that Defendant Spiller and others did not want to hear. As a result, he was placed in administrative segregation for 15 days without necessary clothing and other items and subsequently issued a disciplinary ticket that resulted in 15 months of segregation. He further alleges that Defendants Gee, Lashbrook, McCarthy, Bookman, and Hart either were complicit with the discipline, failed to intervene, and/or subjected him to unconstitutional conditions of confinement. Following threshold review (Doc. 7), Plaintiff is proceeding on the following claims:

Count 1: First Amendment claim against Spiller for retaliating against Plaintiff for refusing to implicate other prisoners in a staff assault by placing him in administrative segregation for fifteen days, depriving him of certain items while he was in administrative segregation, issuing false disciplinary tickets (resulting in Plaintiff being punished with fifteen months in segregation), and labeling him an informant; against Gee for issuing a false disciplinary ticket; and against Lashbrook and McCarthy for failing to intervene on his behalf.

Count 2: Fourteenth Amendment claim against Bookman and Hart for finding him guilty of the false disciplinary tickets and sentencing him to fifteen months in segregation.

Count 3: Eighth Amendment claim against Spiller for exposing Plaintiff to a substantial risk of serious harm by falsely labeling him an informant, and against Lashbrook, and McCarthy for ignoring the subsequent threat to his safety.

Count 4: Eighth Amendment claim against Spiller for subjecting Plaintiff to unconstitutional conditions of confinement when he was in administrative segregation for fifteen days (from April 24, 2017 through May 8, 2017).

         Defendants moved for summary judgment, claiming Plaintiff failed to exhaust his administrative remedies prior to filing suit as to his claims against Lashbrook and McCarthy in Count 1 and Counts 3 and 4 (Doc. 29). After Plaintiff's response was filed (Doc. 32), Judge Daly held an evidentiary hearing on June 17, 2019 pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).

         Judge Daly issued the Report currently before the Court, setting forth the evidence presented by the parties, the applicable law, the requirements of the administrative process, and her conclusions. She found that there was no grievance that exhausted the claims in Counts 1 against Lashbrook and McCarthy and Count 3, and that Plaintiff did not fully exhaust his claim in Count 4 because he failed to timely submit a June 13, 2017 grievance to the Administrative Review Board (“ARB”). As a result, she recommends that Plaintiff's claims that Lashbrook and McCarthy failed to intervene (Count 1) and that they ignored a threat to his safety (Count 3) be dismissed without prejudice. She further recommends that Plaintiff's claim that Spiller exposed him to a substantial risk of harm (Count 3) and subjected him to unconstitutional conditions of confinement (Count 4) also be dismissed without prejudice.

         Discussion

         Because timely objections were filed, the undersigned must undertake a de novo review of the Report. 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). De novo review requires the Court to “give fresh consideration to those issues to which specific objections have been made” and to make a decision “based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept, reject or modify the magistrate judge's recommended decision.” Id.

         For his objection, Plaintiff argues his testimony that he submitted a grievance in September 2017 regarding Counts 1 and 3 should have been credited. He further argues that he timely appealed the June 13, 2017 grievance by placing it in institutional mail prior to the deadline. Finally, Plaintiff generally argues that additional discovery is required to resolve exhaustion issues.

         The written record does not contain any grievance related to Plaintiff's claims against Lashbrook and McCarthy. However, at the Pavey hearing, Plaintiff testified that because he was in administrative segregation, he could not copy the grievance, nor did he have any control over the grievance when it was picked up from his cell by members of the Intelligence Unit - either Defendant McCarthy or Correctional Officer Gate (who is not a party to this litigation). Judge Daly found that Plaintiff was not credible in his claim that he submitted a grievance in mid-September 2017 because there is no record of it and no mention of it in Plaintiff's Cumulative Counseling Summary even though Plaintiff ...