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finding that defendants were entitled to qualified immunity because no court has found soy to be harmful
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Civil No. 11–159–GPM.
2013-07-17
James MUNSON, Plaintiff, v. Donald GAETZ, Jim Winters, Suzann Griswold, Brockhouse, Dr. Fahim, Dr. Feinerman, and Dr. Fuentens, Defendants.
James Munson, Menard, IL, pro se. Lisa A. Cook, Illinois Attorney General's Office, Douglass R. Bitner, Heyl, Royster, Voelker & Allen, Joseph N. Rupcich, Heyl, Royster et al., Springfield, IL, for Defendants.
James Munson, Menard, IL, pro se. Lisa A. Cook, Illinois Attorney General's Office, Douglass R. Bitner, Heyl, Royster, Voelker & Allen, Joseph N. Rupcich, Heyl, Royster et al., Springfield, IL, for Defendants.
MEMORANDUM AND ORDER
MURPHY, District Judge:
Before the Court is Defendants Suzann Griswold–Bailey, Ronald Brockhouse, Donald Gaetz, and Jim Winters's motion for summary judgment (Doc. 49). That motion seeks judgment for those Defendants on the issues of exhaustion of administrative remedies and qualified immunity. Defendants Doctors Fahim, Feinerman, and Fuentens have no pending motions. On Defendants' claim of failure to exhaust administrative remedies, Magistrate Judge Donald G. Wilkerson held an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir.2008) and has issued a Report and Recommendation on the matter (Doc. 71). That Report recommends this Court find Plaintiff has exhausted his administrative remedies, and recommends denying Defendants' motion for summary judgment on that basis. Upon consideration of the record and Magistrate Judge Wilkerson's Report, the Court ADOPTS the recommendation of the Magistrate Judge and finds that Defendants are not entitled to summary judgment on the issue of exhaustion. However, the Court GRANTS in part Defendants' motion for summary judgment on the basis of qualified immunity. Moving Defendants are entitled to qualified immunity. Plaintiff's claim as against Defendants Griswold–Bailey, Brockhouse, Gaetz, and Winters for damages is DISMISSED. The motion for summary judgment is not granted in full because Plaintiff brings claims for damages and for injunctive relief—and “the defense of qualified immunity does not protect defendants from an action for injunctive relief.” Hannemann v. Southern Door County School Dist., 673 F.3d 746, 758 (7th Cir.2012).
Factual Background
Plaintiff James Munson filed this 42 U.S.C. § 1983 action claiming that Defendants: failed to provide him a nutritionally adequate vegetarian diet; acted in deliberate indifference to his serious medical needs by failing to address his negative reactions to soy in his diet and by failing to treat him for pain; and infringed on his free exercise of religion by their failure to provide a soy-free vegetarian diet (Docs. 1, 11). Plaintiff is a practicing Buddhist and a vegetarian. He claims that the high soy content in the IDOC vegetarian meals caused serious medical issues including weight loss, irritable bowel syndrome, chronic diarrhea, hemorrhoids, severe stomach cramps, and gallstones. Defendant Griswold is the dietary manager for IDOC, and Plaintiff claims the menu she approves are nutritionally deficient and include harmful amounts of soy. Defendants Brockhouse and Winters are food service managers at Menard, where Plaintiff was held, and Defendant Gaetz is the warden.
Report and Recommendation on Exhaustion of Administrative Remedies
Magistrate Judge Wilkerson held the Pavey hearing to take evidence on the issue of administrative exhaustion. The Report and Recommendation subsequent to the Pavey hearing recommends this Court find Plaintiff did exhaust his administrative remedies (Doc. 71). No objections to the Report and Recommendation have been filed.
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—as here—neither timely nor specific objections to the Report and Recommendation are made (in this case no objections at all), 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Upon consideration of the Magistrate Judge's report and the evidence adduced at the Pavey hearing, the Court agrees with the findings and conclusions of Magistrate Judge Wilkerson. Plaintiff submitted formal grievances and formally inquired up the grievance chain-of-command. Plaintiff has shown enough to survive summary judgment on the issue of exhaustion, and the Court ADOPTS Magistrate Judge Wilkerson's Report and Recommendation.
Qualified Immunity
“Generally, qualified immunity protects government agents from liability when their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This involves two questions: (1) whether the facts, taken in the light most favorable to the plaintiff, show that the defendant violated a constitutional right; and (2) whether that constitutional right was clearly established at the time of the alleged violation. Whether the defendants are entitled to qualified immunity will depend on what constitutional affronts the plaintiffs argue.” Hernandez v. Cook County Sheriff's Office, 634 F.3d 906, 914 (7th Cir.2011) (internal quotations and citations omitted).
To succeed in his claim that Defendants violated his Eighth Amendment rights by failing to provide him a nutritionally adequate diet, Plaintiff must demonstrate that he is “incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “In the conditions-of-confinement context, an inmate must demonstrate a serious deprivation of basic human needs,” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), or denial of the “minimal civilized measure of life's necessities,” Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Second, he must show that prison officials acted with deliberate indifference to that risk, a subjective inquiry into a prison official's state of mind. Farmer, 511 U.S. at 838–39, 114 S.Ct. 1970. As explained in Farmer, “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 511 U.S. at 837, 114 S.Ct. 1970. The prison official may be held liable only if he knows an inmate faces a substantial risk of serious harm and “disregards that risk by failing to take reasonable measures to abate it.” Id. at 847, 114 S.Ct. 1970. “[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at 838, 114 S.Ct. 1970. Negligence, gross negligence, or even “recklessness” as that term is used in tort cases, is not enough. Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir.1985);Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir.1987).
Here, Defendants argue they are entitled to qualified immunity because no court has found soy to be inherently harmful, that an amount of soy ingested over a fixed threshold is harmful, or that inclusion of soy in a prison diet is unhealthy or nutritionally inadequate (Doc. 50). As there is no case law finding that soy-rich diets violate the constitution, no defendant would be informed that providing a high-soy diet violates an inmate's constitutional rights. Regarding prison diets generally, the Seventh Circuit has determined that a well-balanced diet that contains adequate nutritional value, despite being cold or poorly-prepared, does not violate the constitution. Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir.1994) (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977)). Among the limited caselaw regarding inmate soy diets specifically, the Fifth Circuit found frivolous an inmate's claim that his Eighth Amendment rights were violated when he became ill after being fed a soy-based meat substitute. See Martin v. Scott, 156 F.3d 578 (5th Cir.1998). More recently, a Florida District Court held that prison officials did not deprive the Eighth Amendment rights of an inmate who experienced gastrointestinal illness after eating soy-based foods. Floyd v. McNeil, No. 4:10–cv–289–RH/WCS, 2011 WL 6955839 (N.D.Fla. December 5, 2011). The Florida District Court determined that Plaintiff failed to demonstrate that the harm he experienced rose to the level of a constitutional injury; the evidence presented did not show denial of “the minimal civilized measure of life's necessities.” Id. at *6;accord Catlin v. McNeil, No. 11–cv–624–WS–GRJ, 2012 WL 1379201 (N.D.Fla. April 2, 2012). In this district, the Court has also found that allegations of health problems associated with soy intake do not state a claim for damages where the inmate could not show that defendants knew of the risk of harm. See Johnson v. Randle, No. 10–cv–135–MJR–SCW, 2012 WL 1964996, *9 (S.D.Ill. May 31, 2012). In that order, District Judge Michael Reagan also held that qualified immunity would shield defendants from damage claims. Id. at *11.
Likewise, Defendants here are entitled to qualified immunity on Plaintiff's Eighth Amendment claim that they were deliberately indifference to the effects of a soy-rich diet. There is no demonstration of a constitutional violation here. Though the Court is aware that soy-diet prison litigation is currently en vogue, Plaintiff has made no showing that Defendants knew a soy-heavy diet posed any risk. Plaintiff also fails to pass the objective component of the constitutional test: he has not demonstrated that the provided soy-heavy diet poses a substantial risk of serious harm.
The Court analyzes Plaintiff's First Amendment claim—failure to provide a soy-free vegetarian diet infringed upon his religious expression—under the substantial burden test. Nelson v. Miller, 570 F.3d 868, 877 (7th Cir.2009). “[A] prisoner's religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition.” Id. Plaintiff fails to show that a vegetarian diet containing soy is nutritionally inadequate, so he has not shown that Defendants violated a constitutional right. Plaintiff observed a vegetarian diet for religious purposes. The prison provided him with a vegetarian diet that includes soy. There is no showing that a diet containing soy is necessarily harmful. There was no substantial burden on his religious practice.
While Defendants are entitled to qualified immunity on Plaintiff's claims for damages, Plaintiff's claims for injunctive relief necessarily survive the qualified immunity analysis. Morse v. Frederick, 551 U.S. 393, 432, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (“A ‘qualified immunity’ defense applies in respect to damages actions, but not to injunctive relief.”). Therefore, only insofar as Plaintiff prosecutes a meritorious claim for injunctive relief against these moving Defendants do they remain in the action.
Conclusion
Defendants' motion for summary judgment (Doc. 27) is GRANTED in part. Defendants Griswold, Brockhouse, Gaetz, and Winters are entitled to qualified immunity.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
WILKERSON, United States Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge G. Patrick Murphy pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL–LR 72.1(a) for a Report and Recommendation on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) and the Motion for Summary Judgment filed by Defendants, Suzann Griswold–Bailey, Ronald Brockhouse, Donald Gaetz, and Jim Winters, on September 7, 2012 (Doc. 50). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment be DENIED IN PART and TAKEN UNDER ADVISEMENT IN PART, that the Court find that Plaintiff has exhausted his administrative remedies, and that the Court adopt the following findings of fact and conclusions of law.
Findings of Fact
Background
Plaintiff's three (3) Count Complaint is related to the vegetarian diet that Plaintiff received at the Menard Correctional Center. Plaintiff states that he has Buddhist religious beliefs and that he is a vegetarian based on these beliefs. He alleges, however, that the high “textured vegetable protein”/soy content in his diet at Menard is not nutritionally sufficient and has caused severe digestive problems, pain, significant weight loss, and various other medical ailments.
As outlined by Judge Murphy in his initial screening Order (Doc. 11), Count I alleges that Defendants Griswold (IDOC Dietary Manager), Winters (Menard Food Service Manager), and Brockhouse (Menard Food Service Manager) violated his Eighth Amendment rights by failing to provide a nutritionally adequate vegetarian diet; and, in particular, a diet that is free from unreasonably high amounts of soy protein.
Count II also alleges an Eighth Amendment claim but with respect to the medical care Plaintiff received at Menard. Plaintiff alleges that Defendants Fahim, Feinerman, and Fuentens, all Doctors at Menard, deliberately failed to address his underlying negative reaction to soy in his diet and failed to treat pain caused as a result of his soy-based diet.
Counts III alleges an infringement on free exercise of religion by Defendants Gaetz (Menard Warden), Griswold, Winters, and Brockhouse. Plaintiff alleges that he was no longer able to follow a vegetarian diet, a tenet of his religion, because of the toxic quantities of soy.
The pending Motion for Summary Judgment was filed by Defendants Griswold, Brockhouse, Gaetz, and Winters, only. These Defendants argue that Plaintiff failed to exhaust his administrative remedies and that they are entitled to qualified immunity. This Report and Recommendation will only address the claim that Plaintiff failed to exhaust his administrative remedies.
With respect to exhaustion, Defendants assert that Plaintiff filed five grievances, dated September 4, 2009, January 5, 2010, and April 20, 2010, January 10, 2011, and August 31, 2011 related to the soy content in his diet (in addition to other matters). Of these five grievances, Defendants argue, only the last was exhausted. The last, exhausted, grievance was filed after this lawsuit was filed. In light of Defendants' assertions, this Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (2008), on October 23, 2012 in which Plaintiff appeared by video-conference and Defendants appeared by counsel. The following was determined based on the filings and the hearing:
In Plaintiff's detailed September 4, 2009 grievance, he states that he is a lacto-ovovegetarian, that the meals he receives are not adequate because of the high soy content, lack of fresh fruits and vegetables, and the limited time within which to eat, and that he is not receiving adequate medical care (Doc. 50–2, pp. 25–28). Plaintiff states that he received a response from his counselor on September 8, 2009 and he subsequently forwarded the grievance and wrote a letter to the Grievance Office (Doc. 50–3, p. 1). He states that he received no response from the Grievance Office and then sent a letter to Warden Gaetz ( Id.). Plaintiff's Counselor, James Alms, issued a memorandum to Plaintiff on December 1, 2009 notifying him that the Grievance Office never received a grievance (Doc. 57, p. 60). In a December 23, 2009 response by Assistant Warden Stock, Plaintiff was informed that he was required to forward his grievance to the Grievance Office and not merely a letter (Doc. 50–3, p. 5). The merits of this grievance were not considered any further.
Numerous exhibits have been filed in this case with various labels that repeat document identifiers at the prison level. That is, there are numerous documents labeled “Exhibit B” that would make reference to Exhibit B confusing. For ease of reference, then, the Court will refer only to the document and page numbers generated by CM/ECF.
Plaintiff's second grievance, dated January 5, 2010, also complained of the high soy content in his diet and lack of appropriate and nutritious meals (Doc. 57–1, p. 3–7). In his response to the Motion for Summary Judgment, Plaintiff states that this grievance was responded to by his Counselor on February 25, 2010 (Doc. 57, p. 11). In a letter to Assistant Warden Stock, Plaintiff states that he filed this grievance with the Grievance Office on February 25, 2010 (Doc. 57–1, p. 8). In a March 15, 2010 letter from Assistant Warden Stock, Plaintiff was informed that the Grievance Office did not receive this grievance ( Id. at p. 15). The grievance also was returned to Plaintiff by the Administrative Review Board in a letter dated May 10, 2010 and Plaintiff was instructed to include the Grievance Office's and Counselor's responses (Doc. 50–2, p. 6).
The copy of this grievance provided by Plaintiff does not contain a Counselor's response (Doc. 51–1, p. 3). The copy provided by Defendant also does not contain a Counselor's response; however, a note at the end of the hand-copied grievance states “Please allow it to be noted that this grievance is a hand re-written word for word of the grievance of 1/5/10 because I was not able to obtain photocopies from the law library ....” (Doc. 50–2, p. 12).
The April 20, 2010 grievance related to the grievance procedure itself (Doc. 57–2, p. 2). Plaintiff's Counselor responded to this grievance on May 20, 2010 ( Id.). On July 13, 2010, the Administrative Review Board issued a letter to Plaintiff regarding this grievance and stated that he must submit the Grievance Office's response in order for it to be considered (Doc. 57–2, p. 15). On July 14, 2010, the Grievance Office submitted a response which essentially indicated that Plaintiff failed to follow proper procedures and that he should submit material in a timely manner (Doc. 50–4, p. 29). In a subsequent August 19, 2010 letter, the ARB indicated that it was considering Plaintiff's grievance ( Id. p. 18). There is no indication in the record that the ARB responded to this grievance.
In a January 10, 2011 emergency grievance, Plaintiff again complained about his diet and conditions of confinement (Doc. 50–6, p. 10–13). Plaintiff attached this grievance to a letter to the ARB ( Id. p. 14). In response, the ARB returned the grievance, telling Plaintiff to acquire his Counselor's and the Grievance Office's responses ( Id. p. 9).
The final grievance, dated August 31, 2011 (filed after this lawsuit was filed) also related to the soy in his diet ( Id. p. 17). That grievance was ultimately considered and denied by the institution and the ARB on May 17, 2012 ( Id., p. 15–17). There is no dispute that this last grievance was exhausted.
Plaintiff also wrote numerous letters throughout 2010 to the Administrative Review Board, Counselor Alms, Assistant Warden Stock, Warden Gaetz, Illinois Governor Quinn, various third parties, and the Clerk of this Court seeking status updates or complaining of a lack of response to the grievances that he filed.
At the hearing, Plaintiff testified that he can only submit a grievance, to be forward to the Grievance Office, by placing it in the “grievance officer box” or in the bars of his cell to be picked up by his counselor or a correctional officer. Once the grievance leaves his hands, he has no control over whether it reaches its destination. Plaintiff further testified that when he does not receive a response, which he did not on a number of his grievances, he inquires with his counselor and then sends letters and copies of the grievances to the Assistant Warden, the Warden, and, ultimately, the ARB. The Court finds Plaintiff's testimony credible: he attempted to grieve his concerns through the proper procedure but was stymied by the lack of response.
Conclusions of Law
The Prison Litigation Reform Act provides:
No 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.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534–535 (7th Cir.1999) (stating that § 1997e(a) of the PLRA “makes exhaustion a precondition to bringing suit” under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). The Supreme Court has interpreted the PLRA to require “proper exhaustion” prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Id. at 90, 126 S.Ct. 2378, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to “file complaints and appeals in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025.
Under the procedures set forth in the Illinois Administrative Code, an inmate must first attempt to resolve a complaint informally with his Counselor. Ill. Admin. Code Tit. 20, § 504.810(a). If the complaint is not resolved, the inmate may file a grievance within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance. Id. § 504.810(b). The grievance officer is required to advise the Chief Administrative Officer (“CAO”—usually the Warden) at the facility in writing of the findings on the grievance. Id. § 504.830(d). The CAO shall advise the inmate of the decision on the grievance within two months of it having been filed. Id. § 504.830(d). An inmate may appeal the decision of the CAO in writing within 30 days to the Administrative Review Board for a final decision. Id., § 504.850(a). See also Dole v. Chandler, 438 F.3d 804, 806–07 (7th Cir.2006). An inmate may request that a grievance be handled as an emergency by forwarding it directly to the CAO. If the CAO determines there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance shall be handled on an emergency basis, which allows for expedited processing of the grievance by responding directly to the offender indicating what action shall be taken. Id. § 504.840.
An inmate is required to exhaust only those administrative remedies available to him. See42 U.S.C. § 1997e(a). The SeventhCircuit has held that administrative remedies become “unavailable” when prison officials fail to respond to inmate grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir.2005). The availability of a remedy does not depend on the rules and regulations as they appear on paper, but on “whether the paper process was in reality open for the prisoner to pursue.” Wilder v. Sutton, 310 Fed.Appx. 10, 13 (7th Cir.2009). If further remedies are unavailable to the prisoner, he is deemed to have exhausted. Id. Prisoners are required only to provide notice to “responsible persons” about the complained-of conditions. See Wilder, 310 Fed.Appx. at 15 (citing Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.2006)). An inmate forfeits the grievance process, however, when he causes the unavailability of a remedy by not filing or appealing a grievance. See Kaba, 458 F.3d at 684.
This case does not present a situation where the Plaintiff alleges that he submitted grievances but in fact did not submit them in a timely manner. Plaintiff instead filled out and submitted formal grievances on September 4, 2009 and January 5, 2010 related to the soy content in his diet. He indicates that he received responses from his Counselor and that he submitted the grievances to the Grievance Office by using the appropriate mechanism. The Court finds Plaintiff's testimony credible that he did in fact submit the grievances to the Grievance Office because of the many letters that Plaintiff mailed or submitted to the institution and the ARB. Plaintiff clearly wanted his dietary concerns to be addressed and sought redress from every person possible. The Court further notes that the administrative rules state that the Grievance Office shall provide a recommendation to the CAO who will issue a decision within 2 months of receipt of the grievance. Ill. Admin. Code Tit. 20, § 504.830(d). Plaintiff wrote to both Assistant Warden Stock and Warden Gaetz regarding his grievances—grievances which they would ultimately provide a decision on. Even those inquires did not result in some response from the institution regarding Plaintiff's underlying concern about the soy content in his diet. The rules, moreover, do not spell out what an inmate is to do if no response is given. Defendants also did not explain to the Court what Plaintiff was required to do in order to exhaust his administrative remedies when the institution itself fails to respond to his grievances. The evidence reveals that Plaintiff made his concerns about his diet clear to the very people who would ultimately decide whether his grievance had merit, the Assistant Warden and Warden. That the institution decided to not respond to the merits of Plaintiff's concerns should not count against Plaintiff. Therefore, this Court finds that Plaintiff did exhaust his administrative remedies and that Defendants' Motion for Summary Judgment on this point should be DENIED.
Recommendations
For the foregoing reasons, it is RECOMMENDED that the Motion for Summary Judgment be DENIED IN PART as to exhaustion and TAKEN UNDER ADVISEMENT IN PART as to the issue of qualified immunity, that the Court find that Plaintiff has exhausted his administrative remedies, and that the Court adopt the following findings of fact and conclusions of law.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL–LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. 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. Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir.2004); United States v. Hernandez–Rivas, 348 F.3d 595, 598 (7th Cir.2003).
DATED: February 4, 2013.