Summary
adopting recommendation that grievance was exhausted even though the ARB received the appeal one day late because appeal was mailed prior to thirty-day deadline and it "is deemed submitted the day that it was mailed"
Summary of this case from Burt v. HarringtonOpinion
Case No. 12-CV-118 -MJR-SCW
08-11-2013
JEFFREY DEWALT, Plaintiff, v. CHRIS PITTS, Defendant.
MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Stephen C. Williams (Doc. 26), recommending that the motion for summary judgment for failure to exhaust administrative remedies filed by Defendant Chris Pitts (Docs. 20 & 21) be DENIED. The Report and Recommendation was entered on May 17, 2013, and included a Notice that any objections were due within fourteen days of service. No objections have been filed.
Plaintiff Jeffrey Dewalt, currently an inmate at Centralia Correctional Center, filed this case asserting a failure to protect claim against Defendant Pitts (Doc. 7). On January 4, 2013, Defendant Pitts filed a motion for summary judgment on the basis that Plaintiff had failed to exhaust his administrative remedies before bringing suit because he did not fully exhaust the single grievance that he filed regarding his failure to protect claim (Docs. 20 & 21). Magistrate Judge Williams did not hold a Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) hearing on the basis that a hearing "could not result in a finding that the grievance was mailed after the deadline for appealing the grievance" (See Doc. 26, p. 7, n. 2). On May 17, 2013, Magistrate Judge Williams issued the Report and Recommendation currently before the Court (Doc. 26). The Report and Recommendation accurately states the nature of the evidence on the issue of exhaustion, as well as the applicable law and the requirements of the administrative process.
Where timely objections are filed, this Court must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court "may accept, reject or modify the magistrate judge's recommended decision." Harper, 824 F. Supp. at 788. In making this determination, the Court must look at all of the evidence contained in the record and "give 'fresh consideration to those issues to which specific objections have been made.'" Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure §3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
However, where neither timely nor specific objections to the Report and Recommendation are made, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985). While a de novo review is not required here, the Court has considered the evidence and fully agrees with the findings, analysis, and conclusions of Magistrate Judge Williams. The undersigned District Judge agrees that the facts presented lead only to one conclusion: that the grievance was mailed prior to the 30 day deadline. Plaintiff's letter to the ARB was dated October 19, 2011 and the ARB received the grievance on October 24, 2011, one day after the deadline for filing an appeal. October 23, 2011 fell on a Sunday, thus the receiving of the grievance on October 24, 2011 suggests that it was mailed prior to October 23, 2011, as mail is not delivered on Sunday. The Court recognizes that Plaintiff has failed to respond to Defendant's motion, but even deeming the facts set forth by Defendant as "admitted," the facts demonstrate that the grievance was mailed prior to the thirty day deadline.
The Court ADOPTS Magistrate Judge William's Report and Recommendation (Doc. 26) and DENIES Defendant's motion for summary judgment (Docs. 20 & 21). The Court finds that Plaintiff has exhausted his administrative remedies as to Defendant Pitts, and thus the motion for summary judgment as to these defendants is DENIED. IT IS SO ORDERED.
________________________
MICHAEL J. REAGAN
United States District Judge