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.
145), which recommends denying the motion for summary
judgment on the issue of exhaustion of administrative
remedies filed by Defendant Dr. Francis Kayira (Docs. 127).
No objections to the Report and Recommendation were filed.
For the reasons explained below, the Court adopts Magistrate
Judge Wilkerson's Report and Recommendation and denies
the motions for summary judgment.
Curtis Pendegraft, an inmate of the Illinois Department of
Corrections currently incarcerated at the East Moline
Correctional Center, filed this pro se lawsuit
pursuant to 42 U.S.C. § 1983 on July 28, 2015, alleging
that he received inadequate medical care in violation of the
Eighth Amendment while he was incarcerated at the Clinton
County Jail, Graham Correctional Center, and Vienna
Correctional Center (Doc. 1). Following a threshold review of
the complaint under 28 U.S.C. § 1915A, Pendegraft was
permitted to proceed on a claim of deliberate indifference
against a number of Defendants, including a John Doe, and a
First Amendment claim of retaliation (Doc. 11).
2016, Defendant John Doe was identified as Dr. Francis
Kayira, a physician at Graham Correctional Center (Doc. 95;
Doc. 104). After Dr. Kayira entered the case, he was given
time to file a motion for summary judgment on the issue of
exhaustion (Doc. 126). He filed his motion on October 12,
2016 (Doc. 127). Pendegraft filed a timely response in
opposition to the motion (Doc. 130). Magistrate Judge
Wilkerson determined that an evidentiary hearing was not
necessary, and he issued the Report and Recommendation
currently before the Court on March 8, 2017 (Doc. 145).
Objections to the Report and Recommendation were due on or
before March 22, 2017. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(2); SDIL-LR 73.1(b). As
previously mentioned, neither party filed an objection.
timely objections are filed, the 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, the court need not conduct
a de novo review. 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).
undersigned has carefully reviewed the briefs and exhibits
submitted by the parties, as well as Magistrate Judge
Wilkerson's Report and Recommendation. Following this
review, the undersigned fully agrees with the conclusions of
Magistrate Judge Wilkerson.
2015, Pendegraft was very briefly housed at Graham
Correctional Center from January 29th to February
17th (Doc. 145). During that time, he had contact
with Dr. Kayira on one occasion: January 30, 2015 (Doc. 145).
While Pendegraft's cumulative counseling summary does not
indicate that he submitted a grievance during the relevant
time period, he submitted an affidavit in which he swore that
he filed a grievance on January 31, 2015, because he
didn't receive his medication or bandages from Dr. Kayira
(Doc. 145). Pendegraft further swore that he did not receive
a response to the January 31st grievance (Doc. 145).
Magistrate Judge Wilkerson determined that Pendegraft was
credible, and that credibility determination is entitled to
deference. See Pavey v. Conley, 663 F.3d 899, 904
(7th Cir. 2011).
prison officials failed to respond to Pendegraft's
grievance, the grievance process was rendered unavailable.
Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir.
2005) (citing Lewis v. Washington, 300 F.3d 829, 833
(7th Cir. 2002)). Therefore, Pendegraft is deemed to have
exhausted his administrative remedies. Lewis, 300
F.3d at 833.
Court ADOPTS Magistrate Judge Wilkerson's Report and
Recommendation (Doc. 145) and DENIES the motion for summary
judgment on the issue of exhaustion filed by Defendant
Francis Kayira (Doc. 127).