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McNeil v. Atchison

United States District Court, Seventh Circuit

December 6, 2013

STEVE McNEIL, Plaintiff,
v.
MICHAEL ATCHISON, DR. NWAOBSI, DR. FUENTAS and JANETTE KINKATE, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 53) of Magistrate Judge Philip M. Frazier recommending that the Court grant in part and deny in part the motion by defendants Dr. Nwaobsi and Dr. Fuentes to dismiss for failure to exhaust administrative remedies (Doc. 44). After holding an evidentiary hearing, Magistrate Judge Frazier found McNeil had not exhausted available administrative remedies as to Dr. Fuentes but had as to Dr. Nwaobsi. Specifically, Magistrate Judge Frazier found that McNeil had filed an emergency grievance against Dr. Fuentes, the warden notified McNeil in writing that he was not treating the grievance as an emergency, and the preponderance of the credible evidence showed McNeil did not appeal that decision to the Administrative Review Board as required by the Illinois Administrative Code, 20 Ill. Admin. Code § 504.850.

The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

McNeil objects (Doc. 54) with vague allegations that prison officials do not maintain the integrity of the grievance system and that they knew he needed medical care. He has not, however, provided any evidence or argument showing that Magistrate Judge Frazier's assessment of the evidence was inaccurate. The Court has reviewed the material on file de novo and finds that Magistrate Judge Frazier was correct in his report for the reasons stated therein. Accordingly, the Court hereby:

• ADOPTS the Report in its entirety (Doc. 53);
• GRANTS in part and DENIES in part the defendants' motion (Doc. 44);
• DISMISSES without prejudice the claims in this case against Dr. Fuentes for failure to exhaust administrative remedies; and
• DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.


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