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Matthew Wojtaszek, #K63527 v. Dr. Litherland

September 27, 2011

MATTHEW WOJTASZEK, #K63527, PLAINTIFF,
v.
DR. LITHERLAND, MS. CORRELL, PAMELA MORAN AND WEXFORD HEALTH SOUCES, INC., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Magistrate Judge Donald G. Wilkerson's Report and Recommendation ("R & R") (Doc. 68) wherein it was recommended the Court find Plaintiff Matthew Wojtaszek exhausted his administrative remedies as to Defendants Litherland, Correll, and Wexford Health Sources, Inc. After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id.

The Court must review de novo the portions of the report to which specific written objections are made. Id. "If no objection or only partial objection is made, the district court Judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The Defendants have filed an objection (Doc. 69) which the Plaintiff responded to (Doc. 70) and as such the Court reviews the objected to portions of the R&R de novo.

BACKGROUND

I. Facts

No party has objected to the substantive facts of this case. The Plaintiff, Matthew Wojtaszek arrived at Lawrence Correctional Center on February 21, 2007. Shortly thereafter, he experienced pain in two of his teeth with cavities and was told a different tooth which was not causing him pain needed to be extracted. Plaintiff did not want the tooth not causing pain to be extracted but wanted the other two teeth, which had exposed nerves and caused him pain to eat, to be fixed. Plaintiff was told there was a nine month waiting list for cavity work and he asked to be added to the list. He signed an extraction refusal at this point. Sometime after this, a piece of one of the teeth fell out while eating and he sent a request for dental work. On April 23, 2007, the Plaintiff was seen by a dental assistant who offered no pain medication and offered to extract the teeth not causing him pain. Plaintiff's pain and difficulty eating continued and he requested to see Dr. Litherland on June 26, 2007. Dr. Litherland also wanted to extract teeth that were not causing pain, leaving the plaintiff "with few teeth left to eat with even without pain." Plaintiff was told by Defendant Correll, a dental assistant, that by the time he was called for cavity repair, the teeth would need to be extracted. He signed another extraction refusal and asked for the names of the Doctor and dental assistant which they refused to give him. On July 5, 2007, he saw Maggie Bryan, the medical director at Lawrence about the lack of dental treatment and she advised him to file a grievance which he did on July 17, 2007.

II. Procedural History

On July 23, 2007, a correctional counselor responded to the grievance and stated Plaintiff needed dental extractions and restoration would be utilized after all severely non-restorable teeth were removed. Grievance Officer Pamela Moran filed a grievance officer's report on September 10, 2007, wherein she denied the grievance finding Wojtaszek would not agree to Dr. Litherland's treatment plan. The Administrative Review Board also denied the appeal on October 26, 2007. On April 29, 2008, the Plaintiff filed this present action under 42 U.S.C. §1983 alleging deliberate indifference to serious medical needs by the defendants.

On November 16, 2009, Magistrate Judge Wilkerson held a hearing in accordance with Pavey to determine whether the Plaintiff exhausted his administrative remedies. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Following this hearing, Magistrate Judge Wilkerson determined the Plaintiff did in fact exhaust his administrative remedies (Doc. 68) and it is this finding which the Defendants appeal.

ANALYSIS

I. Defendants' Objection to Factual Inaccuracy

The Defendants first object on the ground of factual inaccuracy. Defendants specifically alleged Magistrate Judge Wilkerson misstated what the Defendants conceded at the Pavey hearing on November 6, 2009. The R&R states:

[a]t the hearing held November 16, 2009, Defendants conceded that the issues raised in the July 17, 2007 grievance filed by Plaintiff were sufficient to exhaust as to Dr. ...


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