The opinion of the court was delivered by: Reagan, District Judge:
In January 2011, Joseph Conley (then confined at Sheridan Correctional Center) filed suit in this Court under 42 U.S.C. 1983, alleging deprivation of rights secured to him by the United States Constitution. The complaint alleged that while Conley was incarcerated at the Illinois Department of Corrections (IDOC) facility in Vienna, Illinois, Defendants were deliberately indifferent to Conley's serious medical needs. More specifically, Conley alleged that Defendants delayed his access to an x-ray and otherwise stalled in treating him, after he injured his hand in an altercation with another inmate at Vienna Correctional Center in December 2009.
The complaint (filed January 7, 2011) named two Defendants -- the Warden of Vienna Correctional Center and the Director of the IDOC. A third Defendant (the IDOC) was listed in the caption. On threshold review under 28 U.S.C. 1915A, the undersigned Judge dismissed the named Defendants but added (and ordered service on) others mentioned in the body of the complaint, construing them as the Defendants whom Conley meant to sue. The "new" Defendants included various individuals (some named, and some "John Does"/"Jane Does") and Wexford Health Sources, Inc., the contractor for health care services at Vienna Correctional Center. Subsequent Orders resulted in the dismissal of several of the individual Defendants.
Remaining at this time are seven Defendants -- six individuals (Dr. Birch, Nurse Brown, Nurse Daymon, Nurse Stanford, Carol Fauless, and Penny George) plus Wexford Health Sources, Inc. (Wexford). On January 9, 2012, Wexford moved for summary judgment based on Conley's failure to exhaust administrative remedies prior to filing this suit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e(a). The parties filed memoranda of law supporting and opposing that motion.
On May 2, 2012, Magistrate Judge Stephen C. Williams conducted an evidentiary hearing (a "Pavey" hearing) on the issue of exhaustion. On July 31, 2012, Judge Williams submitted a thorough Report and Recommendation ("the Report"). The Report recommends that the undersigned District Judge deny Wexford's motion for summary judgment. Wexford filed objections to the Report on August 17, 2012. The deadline to respond to the objections has elapsed.
Timely objections having been filed, the District Judge undertakes de
novo review of the portions of the Report to which Wexford
specifically objected. 28 U.S.C. 636(b)(1);
FED.R.CIV.P. 72(b); SOUTHERN DIST. OF ILLINOIS LOCAL RULE 73.1(b). The undersigned can accept, reject, or modify the recommendations made by
Judge Williams, receive further evidence, or recommit the matter to Judge Williams with instructions.Id.For the reasons stated below, the Court adopts Judge
Williams' Report. Analysis begins with reference to the applicable legal standards
► Overview of Exhaustion Requirement
The Prison Litigation Reform Act of 1995 (PLRA), Pub. L. 104-134, 110 Stat. 1321 (1996), requires prisoners to exhaust administrative remedies before they file suit in federal court. 42 U.S.C. 1997e(a). The exhaustion requirement applies to all lawsuits challenging prison conditions under 42 U.S.C. 1983 and actions under any other federal law brought by a prisoner confined in any jail or correctional facility. See Porter v. Nussle, 534 U.S. 516, 532 (2002)(the PLRA exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong").
As the United States Court of Appeals for the Seventh Circuit summarized in Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011):
A prisoner may not bring a federal suit about prison conditions unless he first has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a)..; Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010). A remedy is not exhausted if the prisoner has failed to abide by the procedures for pursuing relief. Woodford v. Ngo, 548 U.S. 81, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006);.. Burrell v.
Powers, 431 F.3d 282, 285 (7th Cir. 2005). The exhaustion requirement is an affirmative defense, which the defendants bear the burden of proving.
Exhaustion is a condition precedent to suit in federal court, so the inmate must exhaust before he commences his federal litigation; he cannot exhaust while his lawsuit is pending. See Perez v. Wisconsin Department of Corr., 182 F.3d 532, 535 (7th Cir. 1999); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). If the inmate fails to exhaust before filing suit in federal court, the district court must dismiss the suit or dismiss any claims not fully exhausted. See Jones v. Bock, 549 U.S. 199, 223 (2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005).*fn1 Exhaustion-based dismissals are made without prejudice. Burrell, 431 F.3d at 285, citing Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. ...