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Smith v. Overall

United States District Court, S.D. Illinois

August 19, 2019

NATHANIEL J. SMITH, Plaintiff,
v.
LILLIAN OVERALL and C. SCHULZE, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 56) of Magistrate Judge Gilbert C. Sison recommending that the Court grant defendant Lillian Overall's motion for summary judgment (Doc. 49). Although he did not respond to Overall's summary judgment motion, plaintiff Nathaniel J. Smith has filed two objections to the Report (Docs. 57 & 58) along with a motion for an extension of time to respond to Overall's summary judgment motion (Doc. 59) and a response (Doc. 60).

         I. Report Review Standard

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         II. Background

         This case arose after Smith, an inmate at Vandalia Correctional Center at the time, developed a broken tooth. He alleges that he sought dental treatment from Overall, a prison dentist, but did not get an appointment until three months later. In the meantime, he was in pain and had trouble eating and drinking.

         In her motion for summary judgment, filed in September 2018, Overall presented evidence that Smith was seen by a nurse three days after he first reported his broken tooth on July 24, 2016, but that he refused treatment at that time. Shortly thereafter, Smith filed a grievance about his toothache, but Overall was not aware of the grievance. Overall saw Smith on August 15, prescribed pain medication, and scheduled an extraction nine days later. The extraction had to be delayed until September 7 because of a prison emergency drill on the originally scheduled date, but Overall extracted the tooth on September 7 and prescribed pain medication. She did not know Smith was in need of pain medication during the delay and was not responsible for scheduling inmate dental visits or prison emergency drills.

         Smith did not respond to Overall's summary judgment motion by the 30-day deadline established by Local Rule 7.1(c) despite being given the summary judgment warning required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). Nor did he respond before the extended deadline of June 21, 2019, granted sua sponte by the Court. In both the Lewis v. Faulkner warning and the sua sponte extension, Smith was warned that the failure to respond could be construed an admission of the merits of the motion. Nevertheless, he did not respond.

         III. The Report and Objections

         Magistrate Judge Sison recommends that the Court construe Smith's failure to respond as an admission of the merits of the motion. He found this course of action appropriate in light of Overall's convincing evidence showing that she promptly treated his dental problem once she became aware of it, that she was not responsible for any delays, and that the delays did not exacerbate Smith's dental problems.

         In his two objections, Smith complains that he did not receive any notice of any of the summary judgment documents until he received the Report. He also states that he has been in the hospital many times over the last year and cannot afford counsel.

         In his response to the summary judgment motion, Smith disputes that he refused treatment on August 27, 2016, three days after he complained about tooth pain. He also states that Overall was aware of his dental pain well before his August 15 visit. He cites the scheduling of that visit as proof that she had received his dental request slips since he began writing them in early July. He also faults Overall for not pulling his tooth on August 15 as soon as she recognized the broken tooth needed to be pulled.

         IV. ...


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