United States District Court, S.D. Illinois
SALIK N. ABDULLAH, Plaintiff,
VIPEN SHAH, MARK SCOTT, JACQUELINE LASHBROOK, and ILLINOIS DEPARTMENT OF CORRECTIONS, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation of United States Magistrate Judge Donald G.
Wilkerson (Doc. 103), which recommends granting the Motion
for Summary Judgment filed by Defendant Mark Scott (Doc. 66)
and denying the Motion for Summary Judgment on the Issue of
Exhaustion of Administrative Remedies filed by Defendants
Illinois Department of Corrections (IDOC) and Jacqueline
Lashbrook (Doc. 71). For the reasons explained below, the
Court adopts Magistrate Judge Wilkerson's Report and
Recommendation in its entirety.
Salik Abdullah, an inmate in the Illinois Department of
Corrections, filed this action pursuant to 42 U.S.C. §
1983 alleging staff at Pinckneyville Correctional Center
violated his constitutional rights. After an initial
screening of his complaint pursuant to 28 U.S.C. §
1915A, Abdullah was permitted to proceed on three counts:
COUNT 1: Starting in 2015 or before and
ending in early 2016 or late 2015, Dr. Shah failed to
properly treat Abdullah's arthritis, eye, and blood
related conditions in violation of Abdullah's Eighth
COUNT 2: In 2016, Dr. Scott failed to
properly treat Abdullah's arthritis and blood-related
conditions, in violation of Abdullah's Eighth Amendment
COUNT 7: The Illinois Department of
Corrections violated Abdullah's rights under the
Americans with Disabilities Act and the Rehabilitation Act by
depriving him of access to his glasses and depriving him of
access to a “one-man shower.”
April 24, 2017, Defendant Dr. Scott filed a motion for
summary judgment for failure to exhaust administrative
remedies (Doc. 66). On April 24, 2017, Defendants IDOC and
Lashbrook also filed a motion for summary judgment on the
issue of exhaustion (Doc. 71). Abdullah responded to both
motions on May 30, 2017 (Docs. 83, 84). Magistrate Judge
Wilkerson held a hearing pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), on July 11, 2017
(Doc. 100), and subsequently issued the Report and
Recommendation currently before the Court (Doc. 109).
Objections to the Report and Recommendation were due February
23, 2018. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(2); SDIL-LR 73.1(b). No. objections were
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
carefully reviewed the evidence and Magistrate Judge
Wilkerson's Report and Recommendation for clear error.
Following this review, the Court fully agrees with the
findings, analysis, and conclusions of Magistrate Judge
regard to Abdullah's claims in Count 2 against Dr. Scott,
Abdullah argues that the grievances he filed against Dr.
Shah, six months prior to Dr. Scott arriving at
Pinckneyville, are sufficient to exhaust as to Dr. Scott
because his medical condition was an “ongoing
violation.” The Court agrees with Magistrate Judge
Wilkerson, however, that Abdullah's grievances
complaining about Dr. Shah could not have alerted the prison
to his dissatisfaction with Dr. Scott's treatment. As
Magistrate Judge Wilkerson explained, Abdullah's
grievances regarding Dr. Shah were specific to his
interactions with that doctor and the treatment he provided.
Once Dr. Scott began treating Abdullah, he reevaluated
Abdullah's conditions and ordered different treatments.
Thus, Abdullah's grievances regarding Dr. Shah could not
have provided prison officials at Pinckneyville with an
opportunity to address Abdullah's complaints as to Dr.
Scott. Those grievances, therefore, are insufficient to
exhaust Abdullah's administrative remedies with regard to
his claims against Dr. Scott in Count 2.
this conclusion would normally require dismissal of Dr. Scott
from this lawsuit, after the Motion for Summary Judgment was
filed, but before the Report and Recommendation was entered,
Magistrate Judge Wilkerson granted Abdullah leave to file an
amended complaint (Doc. 108). The amended complaint (Doc.
110), raises new claims against Dr. Scott, namely, that Dr.
Scott failed to inform Abdullah of his September 5, 2016 EKG
results and to refer him to a cardiac
specialist. Defendants will have the opportunity to
demonstrate that Abdullah did not exhaust his administrative
remedies with regard to these new claims. In the meantime,
however, Dr. Scott remains a Defendant in this lawsuit.
Court further agrees with Magistrate Judge Wilkerson's
conclusions regarding Abdullah's “one-man
shower” claim in Count 7. Abdullah sufficiently
exhausted this October 17, 2011 grievance when his appeal to
the ARB was denied. To the extent this claim is raised in the
amended complaint, it may be subject to other defenses.
the Court finds no clear error in Magistrate Judge
Wilkerson's conclusion that the administrative process
was rendered unavailable when Abdullah attempted to grieve
the lack of access to his glasses. While marked as an
emergency, Abdullah's grievance was not treated as such
at the institutional level, and the ARB required more of
Abdullah than that required by the Illinois Administrative
Code. Thus, Abdullah is deemed to have exhausted his
administrative remedies with regard to his claims in Count 7.
found no clear error, the Court ADOPTS
Magistrate Judge Wilkerson's Report and Recommendation
(Doc. 106). The Motion for Summary Judgment filed by
Defendant Mark Scott (Doc. 66) is GRANTED.
The Motion for Summary Judgment on the Issue of Exhaustion of
Administrative Remedies filed by Defendants Illinois
Department of Corrections and Jacqueline Lashbrook (Doc. 71)
is DENIED. ...