United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Donald G. Wilkerson (Doc.
60), which recommends denying the Motion for Partial Summary
Judgment on the issue of exhaustion of administrative
remedies filed by Defendants Gary Gerst and Wexford Health
Sources, Inc. (“Wexford”). The Report and
Recommendation was entered on February 15, 2017. No
objections were filed.
Sam Fisher, an inmate housed at Big Muddy Correctional
Center, filed this lawsuit on March 18, 2015, asserting that
Defendants denied him adequate medical treatment for an
ingrown toenail for nearly a year, causing him significant
pain and suffering. After an initial review pursuant to 28
U.S.C. § 1915A of the Amended Complaint (Doc. 8), Fisher
is proceeding on two counts. First, in Count 1, Fisher claims
that Defendants Gary Gerst, Debbie Isaacs, and Dennis Larson
were deliberately indifferent to his serious medical
condition when they knew of his condition but refused to
provide him with adequate care. He also alleges that
Defendants Louis Schicker and Wexford were responsible for an
unwritten policy or practice designed to deny inmates nearing
their release date appropriate medical care, thereby causing
Defendants Gerst, Issacs, and Larson to refuse to treat him.
In Count 2, a retaliation claim, Fisher alleges that
Defendant Gerst threatened to withhold medical care and to
send him to segregation if he complained about the medical
care he received.
20, 2016, Defendants Gerst and Wexford filed a motion for
summary judgment arguing that Fisher failed to exhaust his
administrative remedies pursuant to the Prison Litigation
Reform Act, 42 U.S.C. §1997e, et seq., prior to
commencing this lawsuit (Doc. 39). Defendants argue that
Fisher failed to file any grievances about the alleged
retaliatory conduct by Defendant Gerst or his policy and
practice claim against Defendant Wexford. Furthermore,
Defendants argue that any claim by Fisher that such
grievances “disappeared” is disingenuous because
Fisher often followed up on missing grievances, and there is
no evidence that he did so with regard to these complaints.
Therefore, because Fisher never filed any grievances with
regard to these claims, summary judgment must be granted to
Defendant Gerst as to the claims in Count 2 and Wexford as to
the claims in Count 1.
response, Fisher claims he submitted several grievances
regarding his retaliation claim against Defendant Gerst, as
well as his policy and practice claim against Defendant
Wexford, but that the grievances went missing without any
response from prison officials. Because the Illinois
Administrative Code does not provide instruction on how to
proceed in the administrative review process under such
circumstances, Fisher asks the Court to find that he
exhausted his administrative remedies.
Judge Wilkerson held a hearing pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), on October 20,
2016, and issued the Report and Recommendation currently
before the Court on February 15, 2016 (Doc. 60). The Report
and Recommendation accurately states the nature of the
evidence presented, as well as the applicable law and the
requirements of the administrative process.
timely objections are 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); see also Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). Where
neither timely nor specific objections to the Report and
Recommendation are made, however, this Court need not conduct
a de novo review of the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985). Instead, the
Court should review the Report and Recommendation for clear
error. Johnson v. Zema Systems Corp., 170 F.3d 734,
739 (7th Cir. 1999). The Court may then “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).
de novo review is not required here, the Court has
considered the evidence and fully agrees with the findings,
analysis, and conclusions of Magistrate Judge Wilkerson.
Magistrate Judge Wilkerson determined that Fisher was
credible in his assertion that he attempted to file
grievances complaining about the circumstances that form the
basis for his policy and practice claim against Wexford and
his retaliation claim against Defendant Gerst, but was
thwarted in his efforts to exhaust these grievances because
he never received a response at the institutional level.
Magistrate Judge Wilkerson assessed the credibility of
Fisher's statements in light of Defendants' arguments
to the contrary and evidence of discrepancies in Big
Muddy's recordkeeping, and he found Fisher's
testimony to be truthful. It is not the Court's role at
this juncture to second-guess Magistrate Judge
Wilkerson's credibility determinations. See Pavey v.
Conley, 663 F.3d 899, 904 (7th Cir. 2011); Goffman
v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The
district court is not required to conduct another hearing to
review the magistrate judge's findings or credibility
Fisher was thwarted in his attempts to exhaust his
grievances, the grievance process was rendered unavailable,
and he is deemed to have exhausted his administrative
remedies. For these reasons, the Court ADOPTS Magistrate
Judge Wilkerson's Report and Recommendation (Doc. 60),
and DENIES the motion for summary judgment on the ...