Beasley v. Hicks

FOINR TTHHEE USONUITTEHDE SRTNA TDEISS TDRISICTTR IOCFT ICLOLIUNROTI S

THEODORE BEASLEY,

Plaintiff,

v. Case No. 3:18-CV-01193-NJR-MAB

LARRY HICKS, KENNEDY

HAMILTON, JACK RITTER, TERRY

BEEGLE, and DWAYNE BURROWS,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on the Report and Recommendation of United

States Magistrate Judge Mark A. Beatty (Doc. 82), which recommends that the Motion for

Summary Judgment on the Issue of Exhaustion (Doc. 46) filed by Defendants Dwayne

Burrows and Terry Beegle be granted. The Report and Recommendation was entered on

June 3, 2019. Plaintiff Theodore Beasley filed a timely objection (Doc. 84). For the reasons

explained below, the Court adopts the Report and Recommendation and grants the

motion for summary judgment.

BACKGROUND

Beasley filed this pro se civil rights lawsuit under 42 U.S.C. § 1983 on June 4, 2018.

(Doc. 1). Beasley asserts that he was attacked by his cellmate and three officers on

February 4, 2018, while he was incarcerated at Shawnee Correctional Center (“Shawnee”)

(Doc. 1). With regard to Defendants Beegle and Burrows, Beasley claims two violations

of his Eighth Amendment rights occurred. (Docs. 1, 7). The first violation alleged is

against Defendant Beegle for failing to intervene and protect Beasley from being attacked

a second time. (Id.). The second alleged violation is against both Defendants Beegle and

Burrows for being deliberately indifferent to his medical needs after he was assaulted.

(Id.).

In November 2018, Defendants Beegle and Burrows filed a motion for summary

judgment arguing Beasley failed to properly exhaust his administrative remedies before

filing this suit. (Doc. 46). Defendants assert there are only two grievances in the record

that mention Beegle and Burrows. Both of these grievances were dated March 18, 2018,

and were sent directly to the Administrative Review Board (“ARB”) without any

institutional responses. Defendants also dispute the credibility of a statement Beasley

attached to his Complaint claiming he received no responses to emergency grievances he

submitted on February 15, 2018, and March 18, 2018. Defendants argue this statement is

not credible as it was written on May 3, 2018, at the same time he mailed his grievances

directly to the ARB. Finally, Beasley’s cumulative counseling summary shows that he did

submit one grievance during his term in segregation on an unrelated matter. Thus, there

is evidence Beasley was able to grieve issues during his time in segregation.

Beasley responded by arguing that he filed two emergency grievances on February

15, 2018, regarding Defendants Beegle and Burrows, but he never received a response.

(Doc. 51). Beasley stated that, because he was housed in segregation, he did not have

access to housing unit mailboxes for the deposit of his emergency grievances addressed

to the Chief Administrative Officer (“CAO”)—the warden. Instead, he placed them in his

cell door for pickup by officers per Shawnee’s standard procedure at that time. (Docs. 50,

51).

Beasley further argues that on March 18, 2018, after 30 days of not receiving a

response from the CAO, he re-wrote the same emergency grievances and made hand-

written copies of them. He then stuck the grievances in his cell door. (Doc. 51; Doc. 81 at

p. 17). Beasley maintains that he never received a response to these grievances either.

Beasley also asserts he requested that his counselor, Daniel Lynn, document their

communications while he was in segregation and that he kept his counselor verbally

informed that he had not received any responses from the CAO concerning his

emergency grievances about Defendants Beegle and Burrows. (Id.). Beasley argues that

because he never received responses to his grievances, his attempts to exhaust his

administrative remedies were thwarted by officers who must have destroyed his

emergency grievances after taking them from his cell door. (Doc. 50, p. 2). Thus, Beasley

contends, he fully exhausted the administrative remedies available to him at that time.

(Id. at pp. 2-3).

Judge Beatty held an evidentiary hearing regarding the Motion for Smarmy

Judgment on April 11, 2019, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).

(Docs. 69, 82). Beasley appeared via videoconference. (Id.). At the hearing, Beasley

testified that he wrote two grievances dated February 15, 2018, pertaining to the incidents

at issue in this lawsuit and sent them out, but that he does not know what happened to

them. (Doc. 81 at pp. 12-14). Beasley testified that he made copies of these grievances—

one of which he sent along with the Complaint in this matter and the other he sent to the

Administrative Review Board (Doc. 81 at p. 13). He admitted, however, that there were

no grievances dated February 15, 2018, attached to his Complaint or included in the

records produced by the ARB (Id.).

Counselor Daniel Lynn also testified at the Pavey hearing. Lynn testified that he

recalled seeing Beasley in segregation in February 2018 and that Beasley told him he had

been turning grievances in but that he had not been getting responses. (Doc. 81 at pp. 45-

46). Lynn further testified that Beasley asked him to check and see if he had received any

grievances from Beasley, at which point Lynn checked and noted in Beasley’s cumulative

counseling summary that he did not see any grievances from him. (Id. at p. 46). According

to Lynn, he told Beasley that if he handed the grievance directly to Lynn, he would

guarantee the grievance would get turned in. (Id. at p. 32).

After the hearing, Judge Beatty issued his Report and Recommendation to this

Court on June 3, 2019, pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72(b), and SDIL-

LR 72.1(a). (Doc. 82).

DISCUSSION

In his Report and Recommendation, Judge Beatty concluded that Beasley failed to

exhaust his administrative remedies as to Defendants Beegle and Burrows. (Doc. 82, p. 7).

Judge Beatty specifically noted Counselor Lynn’s testimony that he tells inmates in

segregation to give him grievances directly to ensure proper submission, and that

Beasley’s pertinent counseling records show that Counselor Lynn never received

grievances from Beasley while he was housed in segregation. (Id.). Importantly, Judge

Beatty did not find credible Beasley’s testimony that he attempted to submit emergency

grievances in February and March 2018 but did not receive responses. Furthermore,

although Beasley attached the March 18, 2018 grievances, which contained allegations

against Beegle and Burrows, to his Complaint (Doc. 1-1), these grievances were sent

directly to the ARB without the required institutional responses (Doc. 82. pp. 8-9).

Consequently, Judge Beatty found that Beasley failed to properly exhaust his

administrative remedies before filing this lawsuit.

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 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).

Here, Beasley filed a timely objection to the Report and Recommendation.

(Doc. 84). Beasley contends that this Court should reject the Report and Recommendation

in whole because Judge Beatty improperly judged the credibility of the witness and

because “Defendants failed to establish that there is no genuine issue of material fact.”

(Id. at p. 4). Beasley contends that attempted to follow the rules established by the

Shawnee Correctional Center Offender Orientation Manual for submitting grievances

while in segregation but that prison employees thwarted his efforts because he never

received responses from the CAO. (Id. at pp. 1-3).

Contrary to Beasley’s argument, at Pavey hearings, a court is permitted to make

findings of fact and credibility assessments of witnesses. See Pavey v. Conley, 663 F.3d 899,

904 (7th Cir. 2011). Magistrate judges are in the best position to assess a witness’s

credibility because they have the opportunity “to observe the verbal and nonverbal

behavior of the witnesses . . . [including their] reactions and responses to the

interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and

body movements.” Kraushaar v. Flanigan, 45 F.3d 1040, 1052-53 (7th Cir. 1995).

In this case, Judge Beatty assessed the credibility of Beasley’s statements and found

them untrue. It is not the Court’s role at this juncture to second-guess Judge Beatty’s

credibility determinations. Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The district

court is not required to conduct another hearing to review the magistrate judge’s findings

or credibility determinations”). Accordingly, the Court defers to Judge Beatty’s

determination that Beasley was not a credible witness regarding his alleged February 15,

2018 and March 18, 2018 emergency grievances.

The Court further adopts Judge Beatty’s finding that Beasley failed to properly

exhaust his administrative remedies when he sent his March 18, 2018 grievances directly

to the ARB without any institutional responses. Beasley objects to this finding, claiming

that the ARB sent the grievance back because it wanted “more information,” not because

he lacked any required responses. What Beasley leaves out, however, is that the

additional information the ARB wanted was “your original written Offender’s Grievance,

DOC 0046, including the counselor’s response, if applicable,” and “a copy of the

Response to the Offender’s Grievance, DOC 0047, including the Grievance Officer’s and

Chief Administrative Officer’s response . . . .” Because Beasley failed to obtain the proper

institutional response prior to sending his grievances to the ARB, Defendants’ motion

must be granted.

CONCLUSION

For these reasons, the Court ADOPTS Magistrate Judge Beatty’s Report and

Recommendation (Doc. 82) and GRANTS the Motion for Summary Judgment on the

Issue of Exhaustion filed by Defendants Beegle and Burrows (Doc. 46).

IT IS SO ORDERED.

DATED: September 17, 2019

Tawsg AM oritig

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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