MEMORANDUM AND ORDER
G. PATRICK MURPHY United States District Judge
This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 60), recommending the motion for summary judgment for failure to exhaust administrative remedies filed by Defendant Fuentes (Doc. 42) be granted. The Report and Recommendation was entered on April 18, 2013 (Doc. 60). Plaintiff filed his objections to the Report and Recommendation on April 26, 2013 (Doc. 62).
In this 42 U.S.C. § 1983 case, Plaintiff Michael Blakes claims that in October of 2010 at the healthcare unit of Menard Correctional Center, Defendants Foutch and Fuentes were deliberately indifferent to his medical needs (Doc. 1). Specifically, Plaintiff claims Defendants denied him post-surgical care for three days while he was in segregation after surgery, and that Defendants were aware Plaintiff was improperly placed in segregation.
The motion for summary judgment before the Court relates only to Defendant Fuentes (“Fuentes”). Defendant Foutch (“Foutch”) filed a motion for summary judgment on May 6, 2013, which was denied as untimely.
On January 11, 2013, Fuentes moved for summary judgment on the basis that Plaintiff had failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a) (Doc. 42). Plaintiff filed a response to the motion on February 13, 2013. Fuentes replied to Plaintiff’s response on February 21 (Doc. 55), to which Plaintiff replied on February 25 (Doc. 56). As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on Fuentes’s summary judgment motion on May 9, 2013 (Doc. 68). Following the Pavey hearing, the Magistrate Judge issued the Report and Recommendation currently before this Court (Doc. 60). The Report and Recommendation accurately states the nature of the evidence presented on the issue of exhaustion, including the testimony heard during the Pavey hearing, as well as the applicable law and the requirements of the administrative process. This Order addresses only the conclusions of law to which Plaintiff has lodged a specific objection.
Fuentes’s motion for summary judgment points to several grievances filed by Plaintiff (Doc 60, p. 4-9). However, only two grievances are really at issue here: 1) a grievance filed on October 11, 2010 and 2) a grievance Plaintiff allegedly wrote with his mouth while in segregation.
The first grievance was filed by Plaintiff on October 11, 2010 against Foutch about treatment for his right foot (Doc. 52, Exhibit C). Plaintiff alleged in the grievance that Foutch was deliberately indifferent to his medical needs (see Doc. 52, Exhibit C). The Administrative Review Board (“ARB”) received this grievance on October 14, 2010 (Doc. 52, Exhibit C).
Plaintiff’s second grievance alleged he was improperly placed in segregation from October 14, 2010 until October 26, 2010, after undergoing surgery on his thumbs for an injury he sustained through an altercation with his cellmate (Doc. 68, p. 10-11). Plaintiff attempted to write a grievance against Fuentes for placing him in segregation on October 15th or 16th (Doc. 68, p. 14). However, Plaintiff’s thumbs were not yet healed and he requested assistance from the prison guard (Doc. 63, p. 2). After the prison guard allegedly denied Plaintiff assistance, Plaintiff attempted to write the grievance with a pen in his mouth (Doc. 63, p. 2). Plaintiff alleges he gave the grievance to the prison guard with instructions to deposit the grievance in the grievance box (Doc. 63, p. 2). Plaintiff did not receive a response to his grievance, and later discovered his counselor did not receive the grievance (Doc. 63, p. 2).
At the Pavey hearing, defense counsel presented a furlough agreement Plaintiff to demonstrate Plaintiff’s thumbs were healed within the sixty-day window to file a grievance (Doc. 68, p. 11-15). When asked why he did not submit a timely grievance, Plaintiff explained that his counselor told him he could not submit a grievance once out of segregation (Doc. 68, p. 16). At the hearing, Plaintiff noted he did not want to defy his counselor’s statements for fear of being punished for insubordination (Doc. 68, p. 16).
Conclusions of the Report and Recommendation
The Report and Recommendation focused primarily on Plaintiff’s grievance filed on October 11, 2010. Judge Wilkerson found the October 11, 2010 grievance did not relate to Fuentes because a grievance against Fuentes could only be filed after Plaintiff was placed in segregation on October 14, 2010 (Doc. 60, p. 5). Additionally, Judge Wilkerson noted the October 11th grievance pertained only to Foutch, and concerned Plaintiff’s right foot (Doc. 60, p. 6). Neither Foutch nor Plaintiff’s foot are at issue.
Finally, Judge Wilkerson found Plaintiff failed to follow proper procedures as required under the Illinois Administrative Code because Plaintiff submitted the grievance directly to the ARB “which circumvents the required process” (Doc. 60, p. 6). As to Plaintiff’s mouth-written grievance, Judge Wilkerson found that ...