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Rame Gara, #M03053 v. Robert Kelley

August 23, 2012

RAME GARA, #M03053, PLAINTIFF,
v.
ROBERT KELLEY, TRACY PEEK, DR. WAHL AND WEXFORD HEALTH SOURCES, INC., DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

I. Introduction and Factual/Procedural Background

In October 2010, Rame Gara, an inmate incarcerated at Pinckneyville Correctional Center in Pinckneyville, Illinois, filed suit for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983.

Liberally construed, Gara's complaint alleges as follows. Gara was playing soccer in early May 2009 and injured his knee. He was carried back into the building by two other inmates, in pain and unable to walk. C/O Kelley denied Gara's request to be taken to the Health Care Unit and instead sent him back to his cell. Gara put in a sick call request and was seen three days later by Tracy Peek, an LPN. Gara told Peek that he was in extreme pain and showed her his badly swollen knee, but Peek only gave him a bag to use for an ice pack. During the following year, Gara was seen at various times by Doctors Obadina, Wahl and Gary who recommended or prescribed such remedies as pain pills, physical therapy and a knee immobilizing device. An April 2010 MRI showed osteoarthritis, fluid, swelling of the kneecap, a small tear of the medial meniscus and a probable tear of the anterior cruciate ligament.

On preliminary review, the Court found that Gara had stated an Eighth Amendment claim for deliberate indifference to serious medical needs against Kelley, Peek, Obadina, Wahl and Wexford Health Sources, Inc. The Court's current analysis focuses on claims against Kelley. In answering the complaint, Kelley raised the affirmative defense that Gara failed to exhaust his administrative remedies as is required before filing suit under 42 U.S.C. § 1983 by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. 43). On December 1, 2011, Kelley moved for summary judgment on the issue of exhaustion (Doc. 53).

On July 13, 2012, Judge Williams submitted a Report and Recommendation ("the Report") pursuant to 28 U.S.C. § 636(b)(1)(B), recommending that Kelley's summary judgment motion be granted and that Kelley be dismissed without prejudice as Defendant herein (Doc. 73). 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. Gara filed a timely objection (Doc. 74).

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 appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010). In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Accord Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010).

When the non-moving party bears the burden of proof, though, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Reget, 595 F.3d at 695. To survive summary judgment, the non-movant must provide admissible evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

In deciding a summary judgment motion, the court may not evaluate the weight of the evidence, judge the credibility of witnesses, or determine the truth of the matter. The court's only role is to determine whether there is a genuine issue of triable fact. National Athletic, 528 F.3d at 512, citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). As succinctly stated by the Seventh Circuit Court of Appeals, "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Van Antwerp v. City of Peoria, Illinois, 627 F.3d 295, 297 (7th Cir. 2010), quoting Brewer v. Bd. of Trs. of the Univ. of Illinois, 479 F.3d 908, 915 (7th Cir. 2007).

Stated another way, summary judgment is the "put up or shut up" moment in litigation -- the point at which the non-movant must marshal and present to the court the admissible evidence which he contends will prove his case. Goodman v. National Security Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010) (citations omitted). With these principles in mind, the Court turns to the motion in the instant case.

III. Analysis

With respect to the issue of exhaustion of remedies, the Prison Litigation Reform ...


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