MEMORANDUM AND ORDER
G. PATRICK MURPHY, District Judge.
This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 57), recommending this Court grant Defendant Dr. Jon Gardner's ("Dr. Gardner") motion for summary judgment and find Plaintiff failed to exhaust his administrative remedies prior to filing this 42 U.S.C. § 1983 suit. Plaintiff timely filed his objections on April 18, 2013 (Doc. 60). Dr. Gardner did not file a response.
Since timely objections have been filed, this Court must undertake a de novo review of the Report and Recommendation. 28 U.S.C. §§ 636(b)(1)(B), (C), FED. R. CIV. P. 72(b); SDIL-LR 73(1)(b); Harper v. City of Chicago Heights 824 F.Supp. 786, 788 (N.D. Ill. 1993). In doing so, the Court "need not conduct a new hearing on the entire matter, but must give fresh consideration to those issues to which specific objections have been made.'" Id. (emphasis added) (citations omitted). The Court has the discretion to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the following reasons, the Court adopts in part and modifies in part Magistrate Judge Wilkerson's Report and Recommendation.
Plaintiff Danny Riley is currently incarcerated at Pontiac Correctional Center (Doc. 11). He filed the instant lawsuit under 42 U.S.C. § 1983 alleging Defendants were deliberately indifferent to his serious medical need while he was incarcerated at Pinckneyville Correctional Center ("Pinckeyville") (Doc. 11). Specifically, Plaintiff claimed that Dr. Gardner, the dentist at Pickneyville, ignored his complaints of extreme pain and refused to give him effective treatment (Doc. 11). Plaintiff also claimed that Dr. Gardner and his assistant, Amber, attempted to extract Plaintiff's tooth despite knowing that they could not remove it (Doc. 11). Plaintiff also claimed that Correctional Officer John Doe 1 refused to allow him out of his cell to attend a scheduled dental appointment (Doc. 11). Plaintiff's claim against Dr. Gardner, Amber, and John Doe 1 survived threshold review (Doc. 11).
Dr. Gardner subsequently moved for summary judgment claiming that Plaintiff failed to exhaust his administrative remedies before filing suit as required by the Prison Litigation Reform Act ("PLRA") because Plaintiff did not timely appeal the denial of his grievance to the Administrative Review Board ("ARB") (Docs. 37, 38). Upon consideration of Dr. Gardner's exhaustion argument, Judge Wilkerson held an evidentiary hearing on February 28, 2013 in accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
It is undisputed by the parties that Plaintiff submitted one grievance, dated October 20, 2010, concerning the dental care that he received at Pickneyville (Doc. 57). It is also undisputed that Plaintiff's grievance was reviewed by the Grievance Officer on November 16, 2010, and she recommended denying Plaintiff's grievance; the Warden concurred with the Grievance Officer's recommendation on November 18, 2010 (Doc. 57). According to Plaintiff, on November 26, 2010, he submitted an appeal of the Warden's decision to the ARB by placing a stamped envelope containing his appeal between the cell door and the frame, and he saw Correctional Officer Wanack take the envelope (Doc. 57). It is undisputed by the parties that Plaintiff did nothing to follow up on the appeal until April 25, 2012 when Plaintiff wrote a letter to the ARB inquiring about the status of his appeal (Doc. 57). On April 30, 2012, the ARB returned Plaintiff's correspondence regarding his appeal as untimely (Doc. 57).
Based on the arguments and evidence before the Court, the applicable law, and the administrative requirements, Judge Wilkerson concluded that Plaintiff did not appeal his grievance to the ARB in a timely manner, and therefore failed to exhaust his administrative remedies with respect to his claims against Dr. Gardner (Doc. 57).
A. Exhaustion of Administrative Remedies Under the PLRA
The PLRA states, in pertinent part, that "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). Exhaustion is an affirmative defense that the prison officials have the burden of proving by a preponderance of the evidence. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). "To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). As an inmate confined with the Illinois Department of Corrections ("IDOC"), Plaintiff was required to follow the regulations contained in the Illinois Administrative Code to properly exhaust his claims. ILL. ADMIN. CODE tit. 20, § 504.800, et seq. Under the procedures set forth in the Illinois Administrative Code, an inmate must generally submit their grievances through a sequential process, concluding with an appeal in writing to the Director of the IDOC, by way of the Administrative Review Board ("ARB"). See ILL. ADMIN. CODE tit. 20, §§ 504.810, 504.830, 504.850; see also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). After receiving the appeal, the Director has 6 months to issue a decision. ILL. ADMIN. CODE tit. 20, § 504.850(f).
B. The Report and Recommendation & Plaintiff's Objection
In his Report and Recommendation, Judge Wilkerson concluded that Plaintiff failed to exhaust his administrative remedies with respect to his claims against Dr. Gardner (Doc. 57). Judge Wilkerson found that Plaintiff did not in fact appeal his grievance to the ARB (Doc. 57). At the Pavey hearing, Plaintiff specifically testified that he saw Officer Wanack take the appeal out of his cell door for the mail; that the date was November 26, 2010; and that Officer Wanack was working overtime that day (Docs. 57, 59). However, time records reveal that Officer Wanack did not work on November 26, 2010 and could not have taken the envelope containing Plaintiff's appeal (Doc. 57). Judge Wilkerson implicitly found that Plaintiff was not credible because his testimony was inconsistent with the time records ( See Doc. 57).
Judge Wilkerson also found Plaintiff's assertion that he submitted an appeal to the ARB was undermined by other evidence. First, Plaintiff waited almost 18 months to follow up on his appeal to the ARB. If Plaintiff had in fact mailed his appeal to the ARB in November 2010, he should have received a response from the ARB by May 2011, but it is clear that he did not. Plaintiff then waited almost a year, until April 2012, to inquire about the status of his appeal. Second, once Plaintiff learned that his appeal was never received by the ARB, he did not file a grievance ...