UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES DAHER, JR., )

)

Plaintiff, )

) 

v. ) Case No. 3:13-CV-940 JD

)

MARK SEVIER, et al., )

)

Defendants. )

OPINION AND ORDER

On November 30, 2015, United States Magistrate Judge Christopher A. Nuechterlein

issued a report and recommendation in which he recommended that the claims against Mark

Sevier, Laurie Johnson and James Csenar be dismissed without prejudice for failure to exhaust

administrative remedies pursuant to 42 U.S.C. § 1997e(a). (DE 78.) Plaintiff James Daher, Jr., a

pro se prisoner, filed a timely objection to the report and recommendation. (DE 79.) 

In this case, Daher alleges that Mark Sevier, Laurie Johnson, and James Csenar

(collectively “the defendants”) housed him under substandard conditions at the Miami

Correctional Facility, and retaliated against him for filing grievances. (DE 12.) As a preliminary

matter, the defense of failure to exhaust administrative remedies was raised. To resolve this

issue, on October 20, 2015, the assigned magistrate judge conducted an evidentiary hearing

pursuant to a referral made by this court. (DE 41, 77.) The questions to be answered were: (1)

whether Daher submitted a formal grievance on September 12, 2011; (2) whether his grievance

was returned to him unfiled for the reasons listed on the return of grievance form dated

November 7, 2011; (3) whether Daher resubmitted the grievance on November 9, 2011; and (4)

if so, how the resubmitted grievance was handled by prison staff. (DE 50.) The witnesses and
evidence presented at the hearing were fully set forth by the magistrate judge and will be

recounted here only where necessary to the court’s analysis. Based on the testimony and

evidence presented, the magistrate judge found that Daher did not properly exhaust his

administrative remedies before filing suit. (DE 78.)

In determining that Daher did not file a formal grievance on September 12, 2011,

(hereinafter “Grievance”), the magistrate judge credited the testimony of Angie Heishman,

administrative assistant at the Miami Correctional Facility, Clair Barnes Beaver (“Barnes”),

former litigation supervisor at Miami, and Amanda Tobin (“Tobin”), a counselor at Miami.

These witnesses testified about the prison grievance process and that, according to the records at

Miami, Daher did not file the Grievance, nor did he resubmit it on November 9, 2011. The

witnesses also testified that Daher doctored an unrelated November 7, 2011, Return of Grievance

form to make it appear as though the prison had rejected his Grievance. Based upon Miami

having no record of Daher filing the Grievance, along with the fact that Daher falsified

documents to make it appear as though he exhausted his administrative remedies, the magistrate

judge concluded that Daher never filed the Grievance. (DE 78.)

Here, Daher raises the three following objections to the report and recommendation: (1)

he was denied a right to call witnesses at the hearing; (2) he filed the Grievance; and (3) he was

not required to exhaust his administrative remedies because his claim is non-grievable. (DE 79.)

The third objection is irrelevant as it was neither a finding in the report and recommendation nor

an issue to be decided in this case.1

 (DE 41, 78.) Clearly, the report and recommendation

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Not only is this argument outside the scope of the order of referral, but the argument is misplaced. Daher’s

amended complaint is premised on the defendants’ alleged misconduct. Daher alleges that the defendants placed him

in segregation and later transferred him to another prison in retaliation for filing grievances. This retaliation claim is

what Daher was given leave to proceed on, and challenging the action of a staff member, such as retaliation, is a

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focuses on whether Daher exhausted his administrative remedies. The court will address Daher’s

remaining two objections.

The court’s review of the contested portions of the magistrate judge’s report and

recommendation is de novo. 28 U.S.C. § 636(b)(1)(c). The court may “accept, reject, or modify

the recommended disposition; receive further evidence; or return the matter to the magistrate

judge with instructions.” Fed. R. Civ. P. 72(b)(3). The court is not required to hold further

hearings to review the magistrate judge’s findings simply because witness credibility is at issue.

See United States v. Raddatz, 447 U.S. 667, 673-76 (1980).

Daher’s first objection is that he was denied the right to call witnesses. Daher claims that

if he could have called witnesses and presented evidence, he would have shown that he simply

made a mistake about the November 7, 2011, Return of Grievance being used to reject his

Grievance. He also claims that he would have shown that Miami’s computer record keeping

system is unreliable. Daher’s contention that he was denied the right to present his case is simply

not true. The record reflects that the magistrate judge proposed holding the Pavey hearing in a

two-step process:

In the first step, scheduled to take place on October 20, 2015, the defendants will

present evidence in an effort to meet their burden of showing that Daher failed to

grievable issue. (Def. Ex. A; Offender Grievance Process at 5.) Thus, Daher was required to exhaust his

administrative remedies.

Nevertheless, Daher asserts that he was not required to exhaust his administrative remedies because his claim is a

“classification issue.” It is true that the offender grievance process is not used to contest a prison’s “classification

actions or decisions.” (Def. Ex. A; Offender Grievance Process, at 6.) However, Daher’s amended complaint does

not allege, nor was he granted leave to proceed on, any claim based simply on being misclassified. And to the extent

he is challenging the appropriateness of his classification, without any accompanying claim of retaliation, such a

claim does not violate the Constitution. Daher does not have a protected liberty interest in a particular classification.

Sandin v. Conner, 515 U.S. 472, 486 (1995); see also DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992)

(“[P]risoners possess neither liberty nor property in their classifications and prison assignments.”). Nor does he have

the right to be housed in any particular prison. Meachum v. Fano, 427 U.S. 215, 224 (1976). Thus, while Daher was

not required to grieve his classification issues, he has no constitutional claim based upon them either.

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exhaust his administrative remedies. The evidence at this hearing will consist of

defendants’ witnesses and exhibits as well as Daher’s testimony and any exhibits

in his possession. If the defendants meet their burden and there are issues that

Daher needs to rebut, he can explain to the court what further documents or

witnesses he needs in order to accomplish that task. The court will then determine

whether a second hearing is necessary for Daher to present that evidence. 

 (DE 70.) No party objected to proceeding in such a manner. (Id.)

After reviewing the unofficial transcript of the October 20, 2015, hearing, it is apparent

that the magistrate judge repeated this procedure at the start of the hearing. Then, at the

conclusion of the hearing, the magistrate judge asked Daher if he desired to present any further

evidence, to which Daher said, “No, sir.” Daher also declined the opportunity to submit further

briefing. Notably, Daher does not identify what witnesses or evidence he asked for at the

hearing, which were refused.

Even now, while he generally complains that he could have been able to explain away his

alleged fraud and the fact that Miami had no record of his Grievance, he fails to identify what

additional evidence or witnesses would have accomplished this task. Surely, he could have

attempted to explain these things on his own, but he declined to testify. Upon review, the court

finds Daher was never denied the opportunity to present witnesses or evidence at the hearing and

he received a fair opportunity to present his case. Accordingly, this objection is overruled.

Daher’s second challenge goes to the magistrate judge’s finding that he did not file the

Grievance. This objection is general in nature and Daher does not specify what portion of the

magistrate judge’s report and recommendation he is challenging. He essentially objects to the

recommended outcome rather than pointing this court to specific areas where the magistrate

judge misconstrued the law or the facts. Nevertheless, the court will attempt to address his

contention. 

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This much is clear: the defendants initially filed a motion for summary judgment because

Miami had no record of Daher filing a grievance for the events he sues about in this lawsuit. In

response, Daher produced the Grievance and the doctored Return of Grievance. Because Miami

has no record of the Grievance ever being filed or rejected, the court must believe Daher to find

that any such grievance was filed. Unfortunately for him, as the magistrate judge fully and

accurately explained in his report and recommendation, Daher’s assertion that Miami rejected

his Grievance via the November 7, 2011, Return of Grievance was a lie.

In fact, Daher now admits that the November 7, 2011, Return of Grievance is not related

to the Grievance. However, he claims that he was simply mistaken and confused about whether

that Return of Grievance form accompanied the Grievance. Such an excuse is untenable. This

was not just a mistake. Daher did not merely put the wrong Return of Grievance form with the

wrong grievance. He took affirmative steps to doctor the November 7, 2011, Return of

Grievance to make it appear as though it rejected the Grievance. This is fraud. And, since he

committed fraud in presenting his Return of Grievance, he is not credible.

The court refuses to believe that Daher filed the Grievance, but Miami failed to properly

make a record of it. The more likely scenario is that Miami has no record of the Grievance

because Daher never filed it. Daher seemingly created the Grievance in an attempt to defeat the

defendants’ motion for summary judgment. Daher’s use of the Grievance, like his use of the

November 7, 2011, Return of Grievance, is fraudulent. As such, the court agrees with the

magistrate judge in finding that Daher did not file the Grievance, nor did he resubmit it on

November 9, 2011. Accordingly, this objection is overruled.

For these reasons, the court:

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(1) OVERRULES the plaintiff’s objections (DE 79);

(2) ADOPTS the report and recommendation of the magistrate judge; and 

(3) DISMISSES Mark Sevier, Laurie Johnson and James Csenar from this case

WITHOUT PREJUDICE for the plaintiff’s failure to exhaust administrative remedies pursuant

to 42 U.S.C. § 1997e(a).

SO ORDERED.

ENTERED: April 13, 2016

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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