United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge
Newcomb, who suffers from cerebral palsy and is confined at
Lawrence Correctional Center, filed this lawsuit under 42
U.S.C. 1983, alleging violations of his federally-secured
constitutional rights by three correctional officials (Warden
Duncan, Assistant Warden Tredway, and Medical Director Coe)
and the private corporation that contracts to provide medical
care to inmates in the Illinois Department of Corrections
(Wexford Health Services). On threshold review of the
complaint, the undersigned concluded that Plaintiff's
complaint stated cognizable claims for deliberate
indifference to his medical needs and unconstitutional
conditions of confinement. The case was referred to the
Honorable Stephen C. Williams, United States Magistrate
Judge, for pretrial proceedings. Defendants entered, and
motions were filed.
25, 2016, Defendants Duncan and Tredway moved for summary
judgment on the basis that Plaintiff had failed to exhaust
all administrative remedies against them before filing this
action (Doc. 45, 46), as required by the Prisoner Litigation
Reform Act or PLRA, 42 U.S.C. 1997e. Under the PLRA, if an
inmate fails to exhaust administrative remedies before filing
suit in federal court, the district court must dismiss the
lawsuit. See Jones v. Bock, 549 U.S. 199, 223
(2007); Burrell v. Powers, 431 F.3d 282, 284-85
(7th Cir. 2005).
filed a response (Doc. 54) opposing summary judgment, and
Judge Williams undertook to resolve the issue. Three
grievances were attached to Plaintiff's complaint - two
dated October 25, 2015 and an emergency grievance dated
October 27, 2015. The record indicated Plaintiff had sent a
letter and requests for status updates on the grievances.
Plaintiff maintained he sent another emergency grievance
stating that he was being threatened by gang members.
Plaintiff also asserted (and offered an affidavit suggesting)
that a counselor tore up grievances Plaintiff submitted.
there was a dispute of fact regarding whether Plaintiff was
thwarted in his effort to exhaust remedies, Judge Williams
conducted an evidentiary hearing on January 20, 2017 and
ordered the transcript of that hearing immediately prepared.
Because Plaintiff's testimony in that hearing plainly
changed the position reflected in Plaintiff's response to
summary judgment, Judge Williams also ordered Plaintiff to
submit the signed copies of the October 25, 2015 grievances
for review. He did so on February 3, 2017.
heard the testimony at the hearing and reviewed all the
evidence in the record, Judge Williams submitted a Report and
Recommendation on February 6, 2017 (“R&R” -
Doc. 63). The detailed and thorough R&R recommends that
the undersigned grant Defendant Duncan and Tredway's
motion, dismiss Plaintiff claims against those two Defendants
without prejudice, and allow the case to proceed against
Defendants Wexford and Coe (Doc. 63, p. 14). The R&R
clearly states that any objections to Judge Williams'
recommendations must be filed “on or before
February 23, 2017” (id.).
objections were filed by that deadline. Nor did Plaintiff
move for additional time to file objections prior to the
deadline elapsing. This Court need not conduct de novo
review. See 28 U.S.C. 636(b)(1)(“A judge of
the court shall make a de novo determination of those
portions of the report or specified findings or
recommendations to which objection is made.”); Fed.
Rule Civ. P. 72(b)(3)(“The district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”).
See also Thomas v. Arn, 474 U.S. 140 (1985);
Johnson v. Zema Systems Corp., 170 F.3d 734, 741
(7th Cir. 1999); Video Views Inc., v. Studio 21,
Ltd., 797 F.2d 538 (7th Cir. 1986).
the undersigned District Judge ADOPTS in its entirety Judge
Williams' Report and Recommendation (Doc. 63), GRANTS
Defendants' exhaustion-based summary judgment motion
(Doc. 45), and DISMISSES without prejudice Plaintiff's
claims against Defendants Duncan and Tredway.
entry of this Order, remaining herein are Plaintiff's
deliberate indifference and conditions of confinement claims
against Defendants Wexford and Coe.
 Although dismissalis the
procedural step the district court takes if a plaintiff
failed to exhaust prior to filing suit, the issue of
exhaustion most often is raised via summary judgment motion,
so that the Court can consider evidence “outside the
pleadings, ” such as affidavits, grievances, ...