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McCaleb v. Fahim

United States District Court, Seventh Circuit

May 20, 2013



J. PHIL GILBERT, District Judge.

This matter comes before the Court on the Report and Recommendation ("R & R") (Doc. 58) of Magistrate Judge Philip M. Frazier recommending this Court grant defendants Magid Fahim and Wexford Health Sources, Inc.'s ("Wexford") (collectively "Defendants") motion for summary judgment (Doc 49). Plaintiff Corbett McCaleb filed an objection (Doc. 59) to the R & R. For the following reasons, the Court grants Defendants' motion for summary judgment.

1. Facts

McCaleb, currently in the custody of the Illinois Department of Corrections ("IDOC") at Hill Correctional Center ("Hill"), brought this civil rights action pursuant to 42 U.S.C. § 1983 on November 29, 2011. McCaleb alleges that defendant Fahim, a physician at Menard Correctional Center ("Menard"), was deliberately indifferent to McCaleb's serious medical condition while McCaleb was incarcerated at Menard. Specifically, McCaleb alleges he suffered a groin hernia. McCaleb informed Fahim he was in constant pain and could not stand for more than ten to fifteen minutes. The pain prevented McCaleb from participating in outdoor exercise, some meals, and work assignments. Fahim only prescribed ibuprofen for McCaleb and would not order surgery until the hernia became strangulated. McCaleb further alleged Wexford's money-saving policies encouraged Fahim from taking steps necessary to treat McCaleb by providing Fahim with a bonus to avoid the surgery of which McCaleb was in need.

The following facts are undisputed. McCaleb fully exhausted one grievance related to medical treatment for his hernia at Menard. McCaleb filed that grievance, labeled #59-3-11, with the grievance counselor on March 15, 2011, which stated as follows:

On March 2, 2011, I have been in seg since October 24, 2010, and I have been sitting in a cell that's 5 § 10 with another person. There's no room to exercise. So, my muscle tissue got soft, when I went to the yard to get some exercise the muscle tissue torn in the groin area, and now I have a "hernia." Now since it happen here in Menard C.C. I would like to have it fixed as soon as possible before it gets any bigger. I have two years left on my sentence, and I'm not going through this like I did in Dixon in 2008. I was in discomfort for six months. I had my navel hernia that I had fixed on the streets. That's not going to happen this time or I'll start legal procedures as soon as I see the first [sign] of foul play going on.

Doc. 56-1, pp. 12-13. The grievance counselor received and signed the grievance on March 16, 2011.

After the grievance counselor returned the grievance, McCaleb added the following amendment to the grievance:

I'm writing a[n] amendment on this. On 3/17/2011 I seen (sic) the Nurses Practitioner and she said that [they're] not going to fix me, but I can put you in to see the Medical Director, and you can see what they say, but Nurses Practitioner said they will tell you the same thing that I told you.

Id. McCaleb submitted this grievance along with his first amendment to the grievance officer pursuant to step two of the grievance process. The grievance officer denied the grievance on March 21, 2011, and the chief administrative officer concurred on April 4, 2011. Doc. 50-2, p. 3. Thereafter, McCaleb added a second amendment to the grievance as follows:

I'm writing a second amendment on this. I seen (sic) [D]octor [F]ahim he tried to push my intestines into my scrotum, making my hernia bigger. I asked him if he was going to fix me, and he said "no." He told me if it falls into my scrotum, he'll give me a jockstrap to give me support, so I'm not in any discomfort. I'm in discomfort as of right now and I have been since March 2, 2011. I [hired an] attorney for this matter, because by law your responsible for my well being and my health.

Doc. 50-2, p. 5. The Administrative Review Board ("ARB") received McCaleb's grievance, containing both the first and second amendments, on April 26, 2011, and denied the grievance on June 9, 2011. Doc. 56-1, pp. 12, 14.

On January 4, 2013, Defendants filed their motion for summary judgment arguing they are entitled to judgment as a matter of law because McCaleb failed to exhaust his administrative remedies. Specifically, Defendants argue the only fully exhausted grievance, #59-3-11, did not name Wexford and did not mention a conspiracy. Further, McCaleb only mentions Fahim in an undated amendment to his grievance which was not added until after the grievance officer and chief administrator had seen the grievance.

McCaleb filed his response to Defendants' motion for summary judgment in which he argues defendants are not entitled to judgment as a matter of law. McCaleb, however, does not deny that he excluded Wexford or Fahim from any step of the grievance process. He maintains that he did not know Fahim's name and was not required to provide it under IDOC regulations. Defendants replied (Doc. 57) to McCaleb's response. The R & R recommends this Court grant Defendants' motion for summary judgment. McCaleb objected to the R & R. In his objection, McCaleb admits that he added the ...

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