United States District Court, S.D. Illinois
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 ...