United States District Court, S.D. Illinois
JEREMY A. BRECKENRIDGE, Plaintiff,
VENERIO SANTOS, Defendant.
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge.
August 2016, Jeremy Breckenridge filed a pro se civil rights
complaint in this Court under 42 U.S.C. 1983, against two
Defendants - a physician (Venerio Santos) and an
administrator (Lisa Krebs) at Centralia Correctional Center,
where he was confined. On threshold review of the complaint
under 28 U.S.C. 1915A the next month, the undersigned
District Judge dismissed certain claims and allowed other
claims to proceed (Doc. 8). Specifically, a claim for
deliberate indifference to serious medical needs was allowed
to go forward against Defendant Santos. Defendant Krebs was
dismissed from the lawsuit with prejudice. Claims for medical
malpractice were dismissed without prejudice, because
Breckenridge had not complied with the affidavit or
healthcare professional report requirements of 735 ILCS
5/2-622 (see Doc. 8, pp. 8-9).
central allegations of the deliberate indifference claim
which went forward are as follows. Breckenridge (Plaintiff)
has a documented allergy to the drug “Cipro.”
Despite being aware of that fact, on December 29, 2015, Dr.
Santos prescribed Plaintiff the medication Bactrim, when
Plaintiff presented with a urinary tract infection. Bactrim
is in the same class of drugs as Cipro, and it caused a
similar allergic reaction in Plaintiff. After Plaintiff
returned to the healthcare unit and advised Dr. Santos that
he was experiencing allergic reactions, Santos gave Plaintiff
Benadryl and sent him back to his cell. Plaintiff's
symptoms worsened there (e.g., swelling, shaking, skin
turning dark red). Ultimately, Plaintiff was admitted to a
local hospital, diagnosed with Stevens-Johnson syndrome, and
stayed four and one-half days while his skin blistered.
Plaintiff claims that Dr. Santos was deliberately indifferent
to Plaintiff's serious medical condition and delayed
medical treatment when Plaintiff presented with symptoms of
Santos answered in November 2016, raising the affirmative
defense of failure to exhaust administrative remedies (Doc.
13, p. 13). A trial practice scheduling order was entered,
and the case was set for trial on January 7, 2019
(see Docs. 18-19). On March 8, 2017, Santos moved
for summary judgment on the ground of lack of exhaustion
(Docs. 22-23). Plaintiff timely responded thereto (Doc. 26).
Honorable Stephen C. Williams, United States Magistrate
Judge, held an evidentiary hearing on the motion on November
27, 2017 (Docs. 32, 34). Now before the Court is a Report and
Recommendation (“R&R” - Doc. 33) issued by
Judge Williams, recommending that the undersigned District
Judge grant Santos' summary judgment motion. Plaintiff
objected thereto on December 11, 2017 (Doc. 37), and
Defendant Santos responded on December 29, 2017 (Doc. 39).
objections having been filed, the undersigned District Judge
must review de novo the portion of the R&R to
which Plaintiff specifically objected. 28 U.S.C. 636(b)(1);
Fed.R.Civ.P. 72(b); Southern Dist. of Illinois Local Rule
73.1(b). The undersigned can accept, reject, or modify Judge
Williams' recommendations, receive further evidence, or
recommit the matter to Judge Williams with instructions.
Id. For the reasons stated below, the Court adopts
Judge Williams' R&R in its entirety.
begins with the standards governing analysis of
Applicable Legal Standards
judgment is proper only “if the admissible evidence
considered as a whole shows there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Dynegy Mktg. & Trade v. Multi
Corp., 648 F.3d 506, 517 (7th Cir. 2011)
(internal quotation marks omitted), citing Fed. R.
Civ. P. 56(a). See also Ruffin-Thompkins v. Experian
Info. Solutions, Inc., 422 F.3d 603, 607
party seeking summary judgment bears the initial burden of
showing --based on the pleadings, affidavits, and/or
information obtained via discovery -- the lack of any genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). After a properly supported motion
for summary judgment is made, the adverse party “must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986), quoting Fed R.
Civ. P. 56(e)(2). A fact is material if it is outcome
determinative under applicable law. Anderson, 477
U.S. at 248; Ballance v. City of Springfield, Ill. Police
Department, 424 F.3d 614, 616 (7th Cir.
2005); Hottenroth v. Village of Slinger, 388 F.3d
1015, 1027 (7th Cir. 2004). A genuine issue of
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
a district court's role on summary judgment is not to
evaluate the weight of the evidence, judge witness
credibility, or determine the truth of the matter. It is only
to determine whether a general issue of triable fact exists.
Nat'l Athletic Sportwear Inc. v. Westfield Ins.
Co., 528 F.3d 508, 512 (7th Cir. 2008). A
slightly different standard applies to summary judgment on
the issue of exhaustion.
motion for summary judgment based on failure to exhaust
administrative remedies often involves a hearing to determine
contested issues regarding exhaustion, and the judge may make
limited findings of fact at that time. Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008).
The case proceeds on the merits only after any contested
issue of exhaustion is resolved. Pavey, 544 F.3d at
742. In the case at bar, Judge Williams conducted a hearing
in light of contested factual issues (see Doc. 33,
Exhaustion Under the PLRA
brought by prisoners are governed by the Prison Litigation
Reform Act (PLRA), 42 U.S.C 1997e. The PLRA requires that
“no action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until … administrative
remedies as are available are exhausted.” 42 U.S.C.
is a condition precedent to suit in federal court, so the
inmate must exhaust before he commences his federal
litigation; he cannot exhaust while his lawsuit is
pending. See Perez v. Wisconsin Department of
Corrections, 182 F.3d 532, 535 (7thCir.
1999); Dixon v. Page, 291 F.3d 485, 488
(7th Cir. 2002). If the inmate fails to exhaust
before filing suit in federal court, the district court must