The opinion of the court was delivered by: Reagan, District Judge
I. Introduction and Factual/Procedural Background
In November 2007, Anthony Allen, an inmate incarcerated at Menard Correctional Center in Menard, Illinois, filed suit for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. Allen injured his leg while playing basketball on June 18, 2004, causing extensive damage to his Achilles tendon. The medical staff prescribed various treatments, including Motrin and Tylenol, as well as instructions to exercise the ankle, instructions to stay off it and instructions to soak it in hot water. Allen was seen by Doctors Platt, Feinerman and Krieg, but despite the treatments discussed and attempted, his pain continued and his condition remained unresolved. Over several months, Allen filed voluminous grievances and complaints requesting medical treatment. He alleges that Defendants Feinerman, Grubman, Platt and Krieg denied him medical treatment, even after he began experiencing pain in his knee and hip. He also alleges that neither Defendant Hulick nor Defendant Walker took action to ensure that he received proper treatment.
On preliminary review, the Court determined that Allen had stated a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment against Feinerman, Grubman, Walker, Hulick, Krieg and Platt (Doc. 10). In answering the complaint, Grubman, Walker, Hulick, Krieg and Platt raised the affirmative defense that Allen failed to exhaust his administrative remedies prior to filing suit, in violation of 42 U.S.C. § 1997e(a). As a result, United States Magistrate Judge Donald G. Wilkerson set this matter for a hearing, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), and limited pre-hearing discovery to the issue of exhaustion of administrative remedies. On July 15, 2009, one week prior to the hearing, Grubman, Walker, Hulick, Krieg and Platt filed a motion for summary judgment, in which they contend that Allen failed to exhaust his administrative remedies prior to filing suit (Doc. 32). Defendant Feinerman filed his answer on August 21, 2009, approximately one month after the Pavey hearing, and raised the affirmative defense of failure to exhaust (Doc. 52). Feinerman also filed a motion requesting to join the motion for summary judgment filed by the other Defendants (Doc. 53). Judge Wilkerson granted that motion (Doc. 64) and applied to Allen's claims against Feinerman the arguments raised in the motion for summary judgment and at the hearing.
On January 26, 2010, Judge Wilkerson submitted a Report and Recommendation ("the Report") pursuant to 28 U.S.C. § 636(b)(1)(B), recommending that Defendants' summary judgment motion be granted as to Grubman, Walker, Hulick, Krieg and Platt but denied as to Feinerman. The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within 14 days of service of the Report. Although Allen filed a timely motion for an extension of time (which the Court granted in part), he actually filed his objection by the original deadline (Docs. 67-69).
Accordingly, the Court will undertake de novo review of the portions of the Report to which specific objection was made. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or modify the recommended decision, or recommit the matter to the Magistrate Judge with instructions. FED.R.CIV.P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999).
II. Standard for Summary Judgment
Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Vukadinovich v. Board of Sch. Trs. of North Newton Sch. Corp., 278 F.3d 693, 698-99 (7th Cir. 2002).
The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin Sch. Dist.,293F.3d 989, 996 (7th Cir. 2002). Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence or affirmative defenses in rebuttal. Vukadinovich, 278 F.3d at 699.
With respect to the issue of exhaustion of remedies, the Prison Litigation Reform Act ("PLRA") 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).
In Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir. 1999), the Court of Appeals for the Seventh Circuit held that exhaustion of administrative remedies, while not jurisdictional per se, is a "precondition" to suit, regardless of the apparent futility of pursuing an administrative remedy, regardless of whether money damages are sought as a tangential remedy and regardless of notions of judicial economy. Perez, 182 F.3d at 537. Exhaustion means that the prisoner has "complete[d] the administrative process by following the rules the state has established for that process." Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). "Any other approach... would defeat the statutory objective of requiring the prisoner to give the prison administration an opportunity to fix the problem - or to reduce the damages and perhaps to shed light on factual disputes that may arise in litigation even if the prison's solution does not fully satisfy the prisoner." Id. at 1023-24. "Because failure to exhaust administrative remedies is an affirmative defense, defendants have the burden of pleading and proving the defense." Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 2000).
The grievance procedures applicable to the Illinois Department of Corrections are set forthin 20 Ill. Admin. Code §§ 504.800-504.850. To be fully exhausted, a grievance must be pursued through the institutional system and ultimately be denied by the Administrative Review Board ("ARB"). Id. A grievance must be filed within 60 days after the discovery of the problem that gives rise to the grievance, but if an offender can show good cause why the grievance was not timely filed, "the grievance shall be considered." § 504.810(a). The grievance procedure requires an inmate to provide "factual 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 ...