Opinion
3:21-cv-00340-SMY-GCS
10-18-2022
REPORT & RECOMMENDATION
GILBERT C. SISON UNITED STATES MAGISTRATE JUDGE
The matter is before the Court on the Motion for Summary Judgment on the Issue of Exhaustion filed by Defendants Marvin Bochantin, Timothy Brumley, Trenton Freeman, Tyler Harmon, Jason Hart, Frank Lawrence, Matthew Major, Kevin Page, Aaron Priddy, Gannon Richelman, Joshua Schoenbeck, Morgan Teas, and Anthony Wills. (Doc. 64). The motion has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(c) for a Report and Recommendation. (Doc. 74). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law and GRANT in part and DENY in part the motion as detailed below.
Wills was dismissed on December 9, 2021 (Doc. 52).
Background
Plaintiff Cedrick J. Graham, an inmate of the Illinois Department of Corrections, filed the instant lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at Menard Correctional Center. He makes the following allegations in the Complaint (Doc. 1): Graham was experiencing flu-like symptoms on May 14, 2019, and requested medical assistance from the gallery officer. The officer stated Graham did not appear ill and kept walking. Later the officer stopped at Graham's cell and saw him lying on the floor vomiting. After acknowledging that Graham was ill, the officer left and returned with Sergeant Brumley. They instructed Graham to drink some water and left. Later, Graham vomited so much he began dry heaving. When the officer walked by the cell, Graham begged him for help, but he kept walking. Graham eventually passed out from exhaustion.
Shortly thereafter, Sergeant Brumley observed Graham unconscious on the cell floor. A tactical team was ordered to remove him even though he was unconscious and showed zero signs of aggression or being a threat. Graham was awakened by the extreme aggressive behavior of tactical team members Freeman, Harmon, and Major, who repeatedly punched, kicked, and stomped Graham. Lt. Priddy and Sergeant Brumley were present but did not intervene to stop the assault. Graham believes that either Lt. Priddy or Sergeant Brumley kicked and struck him. Graham was dragged from the cell through the gallery and up a flight of stairs while being stomped and kicked by Freeman, Harmon, and Major.
Graham was tossed into the segregation bullpen in North 2 cellhouse. Sergeant Brumley stated, “I don't think you're sick . . . do you like what you got for making me have to work . . . I could have killed you for interrupting my day.” Nurse Jane Doe 1 was standing next to Sergeant Brumley when he made this statement. Graham told Sergeant Brumley, Lt. Priddy, and Jane Doe 1 that he had been vomiting and having sharp pains. Lt. Priddy stated “oh you got a little tummy ache now you're going to get up and walk your ass back to your cell.” Nurse Jane Doe 1 did not assess Graham or intervene.
Graham was then removed from the bullpen by Freeman, Harmon, and Major and roughly escorted back to his cell. He was tossed back into the vomit ridden cell and shoved so aggressively he slipped on the vomit, further exacerbating his injuries from the assault. He suffered injuries to his shoulder, back, torso, wrist, arms, and legs. The restraints were so tight he lost feeling in his arms and hand. He was denied medical care by Lt. Priddy, Freeman, Harmon, Major, and Sergeant Brumley.
Graham was served with a disciplinary ticket for disobeying a direct order essential to safety and security for refusing to be restrained. Correctional Officer Richelman wrote the false disciplinary ticket. In the report, Richelman stated Graham was evaluated by medical staff and told them that Graham played hurt so that he could see the nurse. Richelman issued the ticket in retaliation for Graham complaining of severe pain. The shift supervisor, Kevin Page, conducted the shift review of the disciplinary report and directed that Graham be placed in temporary confinement. Marvin Bochantin also reviewed the disciplinary report and concurred with the temporary confinement. Sergeant Brumley and Lt. Priddy violated Graham's First amendment rights by attempting to use their position of authority and intimidate him with a false disciplinary ticket to stop him from filing a grievance.
Graham filed a grievance regarding staff conduct and the disciplinary report on May 17, 2019, but he did not receive a response. He filed another grievance on May 19, 2019 regarding the denial of medical treatment and staff conduct, but he did not receive a response. He wrote a letter to Warden Lawrence on May 20, 2019 regarding his confinement in segregation, the assault, and the denial of medical care, but he did not receive a response.
Graham went before Adjustment Committee Members Joshua Schoenbeck and Jason Hart on the disciplinary report related to the incidents on May 14, 2019. He made a statement, produced relevant documents, and requested that the inmates housed near the incident be interviewed. Schoenbeck told Graham to leave the disciplinary hearing. After the hearing, Graham did not receive a statement as to the findings or disposition. On July 22, 2019, Graham discovered he had been disciplined and found guilty through a grade promotion notification. Warden Lawrence failed to assign a hearing investigator as was required for a major infraction, and he was not informed of his right to appeal.
Graham sent requests to Counselor Teas on May 24, May 29, June 19, June 26, and June 28, 2019 about his grievances, but he did not receive any responses. He filed a grievance on July 12, 2019 regarding staff conduct and the false IDR ticket that was given to him to cover up staff misconduct as well as the denial of medical care that occurred on May 14, 2019. Again, however, Graham did not receive a response. He submitted additional requests to Counselor Teas on July 31 and August 7, 2019 about not receiving responses to his grievances, but he did not receive a response. He filed a grievance on September 6, 2019 on Counselor Teas regarding staff conduct, practices of the IDOC grievance process, and request slip response policies, but he did not receive a response.
Graham asked Counselor Teas about the requests slips he had sent her and the grievances he had filed. In response, she stated, “Mr. Graham do you like Pontiac because that's where I'll send your ass to Pontiac . . . keep poking the hornet[‘]s nest mother fucker I'll make sure you do the hardest time possible. I will make sure your time is pure hell, try me.” About a week later, Graham was threatened by Counselor Teas and Lt. Aaron Priddy. Graham asked about his grievances and the policies of the IDOC grievance process. Graham was warned “If it's up to me or you losing my job I'd have you killed.” Lt. Priddy asked if Graham thought he would allow Graham to sue him. Lt. Priddy also stated he would have all of Graham's grievances shut down to prevent exhaustion so Graham's lawsuit would be dismissed.
Lt. Priddy, Freeman, Harmon, Major, and Sergeant Brumley have repeatedly engaged in excessive force against inmates in the past. Warden Lawrence has been placed on notice of the abusive conduct of Lt. Priddy, Freeman, Harmon, Major, and Sergeant Brumley by a number of complaints and grievances made over many months and years, but he has failed to take disciplinary action against them or otherwise control their behavior. It is the custom and practice of Warden Lawrence, Lt. Priddy, Bochantin, Page, and Sergeant Brumley to allow correctional officers under their direct supervision, including Lt. Priddy, Freeman, Harmon, and Major, to do the following: assaulting inmates; falsifying and fabricating incident and disciplinary actions; taking adverse actions out of retaliation; making threats against and intimidating and harassing inmates; allowing adverse actions of the adjustment committee resulting in loss of privileges and a finding of guilt with no investigation; failing to respond to grievances; and denying medical care. The constitutional violations Graham suffered were caused in part by the customs, policies, and practices of Warden Lawrence.
Following screening of the Complaint under 28 U.S.C. § 1915A, Graham proceeds on the following claims (Doc. 10):
Count 1: Eighth Amendment excessive force and/or failure to intervene claim against Lt. Priddy, Freeman, Harmon, Major, and Brumley for the assault on Graham on May 14, 2019.
Count 2: Eighth Amendment deliberate indifference to serious medical needs claim against Lt. Priddy, Brumley, Freeman, Harmon, Major, and Lawrence for denying Graham medical treatment for his flu-like symptoms and injuries from the May 14, 2019 assault.
Count 5: First Amendment retaliation claim against Richelman, Page, Bochantin, Lt. Priddy, Brumley, Schoenbeck, and Hart for the false disciplinary action in response to Graham's request for medical care and allegations of assault.
Count 6: First Amendment retaliation claim against Teas for denying Graham the grievance process and for threatening Graham in response to Graham's request for medical care, allegations of assault, and filing grievances.
Count 7: First Amendment retaliation claim against Lt. Priddy for threatening Graham in response to Graham's request for medical care, allegations of assault, and filing grievances.
Count 8: Eighth Amendment claim against Teas and Lt. Priddy for verbal abuse, threats, and harassment.
Count 11: Monell claim against Lt. Priddy, Lawrence, and Brumley for the custom, practice, or policy of denying medical care to segregation inmates based on prison officials determinations that the inmate is faking symptoms.
Count 12: Monell claim against Lt. Priddy, Lawrence, and Brumley for Menard officials' practice of assaulting prisoners following
staff/prisoner altercations which they have knowledge of but have not taken action to stop.
Count 13: Monell claim against Lt. Priddy, Lawrence, and Brumley for Menard Tactical Team's practice of using excessive force which they have knowledge of but have not taken action to stop.
Count 15: State law assault and battery claim against Lt. Priddy, Freeman, Harmon, Major, and Brumley.
Count 16: State law medical negligence claim against Wexford Health Sources, Inc. for the actions and omissions of its employee, Nurse Jane Doe who failed to provide Graham medical care for his flu-like symptoms and the injuries from the May 14, 2019 assault.
Defendants filed a motion for summary judgment arguing that Graham failed to properly exhaust his administrative remedies prior to filing this lawsuit. (Doc. 64). Specifically, they assert that the only relevant grievance was not filed within 60 days of the alleged incidents.
In response, Graham asserts he submitted a number of timely grievances at Menard and directly to the Administrative Review Board (“ARB”) for which he received no response. (Doc. 67). As such, he contends the grievance process was not available to him.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held an evidentiary hearing on the issue of exhaustion on August 30, 2022. (Doc. 80).
Findings of Fact
A. Grievance Records
Defendants offered one grievance related to the claims in this lawsuit - a grievance Graham submitted dated October 3, 2019 regarding staff conduct and medical treatment related to incidents on May 10, 2019 and May 14, 2019. (Doc. 65-3, p. 2-5; Doc. 67, p. 77 82). A counselor at Hill directed Graham to forward the grievance to the ARB. The ARB received the grievance on October 15, 2019 and returned the grievance as untimely on December 12, 2019.
Graham offered grievances that he testified he submitted but did not receive a response. The grievances are set forth below.
Grievance dated May 17, 2019 with the nature of grievance marked as staff conduct and the disciplinary report dated May 14, 2019. (Doc. 67, p. 47-49). Graham details the May 14, 2019 alleged assault and states he was given a false disciplinary report in retaliation and to cover up officers' illegal actions.
Grievance dated May 19, 2019 with the nature of grievance marked as staff conduct and medical treatment. (Doc. 67, p. 43-45). Again, Graham details the May 14, 2019 alleged assault and states he was given a false disciplinary report in retaliation and to cover up officers' illegal actions. He also grieves a denial of medical treatment.
Grievance dated June 26, 2019 with the nature of grievance marked as staff conduct, medical treatment, and other “policies of IDOC grievance process and HCU sick call process.” (Doc. 67, p. 57-59). Graham states he submitted unanswered sick call requests on May 15, 17, 18, and 19, 2019 for flu-like symptoms. He also grieves the injuries from the May 14, 2019 alleged use of excessive force and for not receiving a response to his grievances.
Grievance dated July 10, 2019 with the nature of grievance marked as staff conduct, the disciplinary report dated May 14, 2019, medical treatment, and other “violations of policy, rules, code, directives, and constitutional rights pertaining to grievance process and violations of local, state and federal law.” (Doc. 67, p. 67-68). This grievance was submitted directly to the ARB. Id. at p. 68.
Grievance dated July 12, 2019 with the nature of grievance marked as staff conduct, the disciplinary report dated May 14, 2019, and other “false IDR ticket given to cover up staff misconduct and denial of medical.” (Doc. 67, p. 61-63).
Graham again details the May 14, 2019 alleged assault and asserts that he was given a false disciplinary report in retaliation and to cover up officers' illegal actions. He refers to grievances he wrote dated May 17 and 19, 2019 and complains about not receiving any responses. He also grieves issues related to the disciplinary hearing on May 21, 2019.
Grievance dated September 6, 2019 regarding Counselor Teas's failure to respond to his May 17 and 19, 2019 and June 26, 2019 grievances and the IDOC grievance and request slip response processes. (Doc. 67, p. 72-74).
Graham also offered copies of request slips and letters inquiring about the status of his grievances including the following:
May 29, 2019 request slip to “Counselor” inquiring about the status of grievances he submitted dated May 17 and 19, 2019. (Doc. 67, p. 54).
June 19, 2019 kite to Counselor Teas inquiring about the status of the May 17 and 19, 2019 grievances and referencing the May 29, 2019 request slip. (Doc. 67, p. 55).
July 12, 2019 letter to the IDOC Director about grievances dated May 17 and 19, 2019. (Doc. 67, p. 65-66).
July 31, 2019 request slip to Counselor Teas inquiring about the status of his May 17 and 19, 2019 and June 26, 2019 grievances. (Doc. 67, p. 70).
August 7, 2019 kite to Counselor Teas about grievances with no response, staff misconduct, use of excessive force, denial of medical care, and an IDR received as a cover-up. (Doc. 67, p. 71).
September 6, 2019 letter to the IDOC Director regarding being placed in a cell with an SMI inmate, a false PREA claim made by the SMI inmate, the May 14, 2019 alleged use of excessive force, denial of medical attention, and false disciplinary report, and the subsequent failure to respond to grievances. (Doc. 67, p. 76).
January 3, 2020 letter to the ARB regarding the response to the October 3, 2019 grievance. Graham states he filed grievances dated May 17 and 19, 2019 at Menard but never received any responses. He also notes the dates he sent requests slips to Counselor Teas that went unanswered. He also details alleged threats by Teas and Lt. Priddy that occurred after he filed the September 6, 2019 grievance. (Doc. 67, p. 85-87).
January 3, 2020 request slip to the “Counselor” inquiring about the status of grievances filed at Menard with no responses from a counselor. (Doc. 67, p. 88).
February 6, 2020 request slip to the “Counselor” inquiring about the status of grievances filed at Menard with no responses from a counselor. (Doc. 67, p. 89).
B. Pavey hearing testimony
Graham testified regarding the grievances he submitted for which he did not receive responses. After he drafted each grievance, he re-wrote the grievance with better handwriting. He kept the draft and submitted the one with the better handwriting. He did the same thing with requests slips that he sent out. He handed each grievance to a member of the Menard staff.
Legal Standards
A. Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. PROC. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. See Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party. See Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013).
When a motion for summary judgment pertains to a prisoner's failure to exhaust administrative remedies, the Seventh Circuit has instructed courts to conduct an evidentiary hearing and to resolve contested issues of fact regarding a prisoner's efforts to exhaust. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding facts, and determining credibility, the court must decide whether to allow the claim to proceed or to dismiss it for failure to exhaust. See Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018).
B. The Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all available administrative remedies prior to filing lawsuits in federal courts with regard to prison conditions. See 42 U.S.C. § 1997e(a); Pavey, 544 F.3d at 740. “The exhaustion requirement is an affirmative defense, which the defendants bear the burden of proving.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). Administrative exhaustion “means using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). This is a mandatory rule that a court does not have discretion to waive. Id. at 93. “[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed.” Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999).
The Seventh Circuit requires strict adherence to the exhaustion requirement. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). However, an inmate is required to exhaust only those administrative remedies that are available to him. See 42 U.S.C. § 1997e(a). Administrative remedies become “unavailable” when prison officials fail to respond to a properly filed inmate grievance or when prison employees thwart a prisoner from exhausting. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 809.
C. Illinois Exhaustion Requirements
As an inmate in the Illinois Department of Corrections, Graham was required to follow the grievance process outlined in the Illinois Administrative Code, 20 ILL. ADMIN. CODE § 504.800, et seq. (2017). The regulations require an inmate to file his grievance with his counselor within 60 days of the discovery of an incident, occurrence, or problem that gave rise to the grievance. See 20 ILL. ADMIN. CODE § 504.810(a). The grievance must set forth the following:
[F]actual details regarding each aspect of the offender's complaint, including what happened, when, where and the name of each person who is the subject of or who is otherwise involved in the complaint. This provision does not preclude an offender from filing a grievance when the names of individuals are not known, but the offender must include as much descriptive information about the individual as possible.20 ILL. ADMIN. CODE § 504.810(c). The Seventh Circuit has held that an inmate is required to provide enough information to serve a grievance's function of giving “prison officials a fair opportunity to address [an inmate's] complaints.” Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011).
If the complaint is not resolved through the counselor, the grievance may be submitted to a grievance officer, who reports his or her findings and recommendations in writing to the Chief Administrative Officer (“CAO”). See 20 ILL. ADMIN. CODE § 504.830(e). The CAO then provides the inmate with a written decision on the grievance. Id. If the inmate is not satisfied with the CAO's response, he can file an appeal with the IDOC Director through the ARB. See 20 ILL. ADMIN. CODE § 504.850(a). The ARB must receive the appeal within thirty days of the date of the CAO's decision. Id. The inmate must attach copies of the responses from the grievance officer and CAO to his appeal. Id. The ARB submits a written report of its findings and recommendations to the Director, who then makes a final determination. See 20 ILL. ADMIN. CODE § 504.850(d), (e).
Analysis
Based on the evidence in the record and in consideration of the parties' arguments, the Court finds that the October 3, 2019 grievance was untimely as to the claims in Counts 1, 2, 5, 11, 12, and 13. However, the claim in Count 6 pertains to ongoing retaliation by Teas in denying Graham responses to his grievances and an alleged threat that occurred after September 6, 2019. (Doc. 67, p. 86). Similarly, the claim against Priddy in Count 7 and the claim against Teas and Priddy in Count 8 are based on alleged threats and harassment that occurred after September 6, 2019. Id. Thus, the grievance would be timely if it made any mention of these claims, but it does not. (Doc. 65-3, p. 4-5). As a result, the October 3, 2019 grievance does not exhaust any claims in this lawsuit.
The grievance also does not address all of the claims but it is not necessary to address this issue.
That said, the Court finds that Defendants have not met their burden to show that the grievance process was fully available to Graham. Graham testified that he submitted grievances for which he did not receive a response. This testimony was not rebutted and there is no evidence before the Court to doubt Graham's credibility. Indeed, Graham presented evidence of grievances that were not responded to, as well as follow-up kites and requests seeking an update on the grievances he had filed.
The Court must therefore consider whether the content of the grievances submitted was sufficient to cover the claims in this lawsuit. As the Ninth Circuit has articulated, “a prisoner must show that he attempted to exhaust his administrative remedies but was thwarted . . . In particular, [he] must establish . . . that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court ....” Sapp v. Kimbrell, 623 F.3d 813, 823-824 (9th Cir. 2010). Judges in this district have found the Ninth Circuit's rationale in Sapp to be persuasive and have adopted it. See Mohammad v. Lashbrook, 3:19-cv-01331-SMY-GCS, at *5 (S.D. Ill. July 7, 2022); McGraw v. Peeks, 3:21-cv-00800-SMY-RJD, 2022 WL 4088169, at *6 (S.D. Ill. April 22, 2022); Cortez v. Wexford Health Source, Inc., No. 3:19-cv-01238-SMY-MAB, 2022 WL 802282, at *6 (S.D. Ill. Feb. 23, 2022); Anderson v. Thole, No. 3:20-cv-00151-SMY, 2021 WL 2554111, at *2 (S.D. Ill. June 22, 2021); Russell v. Lashbrook, No. 19-cv-963-DWD, 2021 WL 1165120, at *3 (S.D. Ill. Mar. 26, 2021); and Walker v. Butler, No. 19-cv-0446-SPM, 2021 WL 857355, at *6 (S.D. Ill. Mar. 8, 2021).
Graham submitted the grievance dated July 10, 2019 directly to the ARB while he was still incarcerated at Menard and therefore, he failed to follow the proper procedure. Consequently, the ARB's failure to respond does not fall within the unavailability exception.
Graham's grievances dated May 17, May 19, and June 26, 2019 sufficiently address the claims in Counts 1, 2, 5, and the first part of the claim in Count 6. However, the grievances do not address the claim asserted in the second part of Count 6, the claims in Counts 7 and 8, or the claims in Counts 11, 12, and 13. The grievances dated July 12 and September 6, 2019 also do not address those claims. As such, the aforementioned claims should be dismissed.
Finally, as to the claims in Counts 15 and 16, the PLRA's exhaustion requirement does not apply to state law tort claims. See, e.g., 42 U.S.C. § 1997e(a)(noting that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”) (emphasis added); McDaniel v. Meisner, No. 14-2833, 617 Fed.Appx. 553, 556 n.3 (7th Cir. May 28, 2015)(stating that “[w]e note that the exhaustion requirements of the Prison Litigation Reform Act do not apply to state-law claims.”) (citing 42 U.S.C. § 1997e(a)). Because the state law claims derive from a common nucleus of operative facts as the federal claims, they should also be allowed to proceed. See, e.g., Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008)(noting that where a district court has original jurisdiction over a civil action such as a Section 1983 claim, it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the original federal claims).
Recommendation
For the reasons stated above, it is RECOMMENDED that the Court ADOPT the foregoing findings of fact and conclusions of law; GRANT in part and DENY in part the Motion for Summary Judgment. In that regard, the motion should be GRANTED as to the following claims and they should be dismissed:
Count 6: First Amendment retaliation claim against Teas for threatening Graham in response to Graham's request for medical care, allegations of assault, and filing grievances.
Count 7: First Amendment retaliation claim against Lt. Priddy for threatening Graham in response to Graham's request for medical care, allegations of assault, and filing grievances.
Count 8: Eighth Amendment claim against Teas and Lt. Priddy for verbal abuse, threats, and harassment.
Count 11: Monell claim against Lt. Priddy, Lawrence, and Brumley for the custom, practice, or policy of denying medical care to segregation inmates based on prison officials determinations that the inmate is faking symptoms.
Count 12: Monell claim against Lt. Priddy, Lawrence, and Brumley for Menard officials' practice of assaulting prisoners following staff/prisoner altercations which they have knowledge of but have not taken action to stop.
Count 13: Monell claim against Lt. Priddy, Lawrence, and Brumley for Menard Tactical Team's practice of using excessive force which they have knowledge of but have not taken action to stop.The motion should be DENIED as to the following claims and they should be allowed to proceed:
Count 1: Eighth Amendment excessive force and/or failure to intervene claim against Lt. Priddy, Freeman, Harmon, Major, and Brumley for the assault on Graham on May 14, 2019.
Count 2: Eighth Amendment deliberate indifference to serious medical needs claim against Lt. Priddy, Brumley, Freeman, Harmon, Major, and Lawrence for denying Graham medical treatment for his flu-like symptoms and injuries from the May 14, 2019 assault.
Count 5: First Amendment retaliation claim against Richelman, Page, Bochantin, Lt. Priddy, Brumley, Schoenbeck, and Hart for the false disciplinary action in response to Graham's request for medical care and allegations of assault.
Count 6: First Amendment retaliation claim against Teas for denying Graham the grievance process.
Count 15: State law assault and battery claim against Lt. Priddy, Freeman, Harmon, Major, and Brumley.
Count 16: State law medical negligence claim against Wexford Health Sources, Inc. for the actions and omissions of its employee, Nurse Jane Doe who failed to provide Graham medical care for his flu-like symptoms and the injuries from the May 14, 2019 assault.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Report and Recommendation within 14 days of service (see attached Notice). The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
IT IS SO ORDERED.