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McCullough v. Dennison

United States District Court, S.D. Illinois

September 27, 2019

TIMOTHY MCCULLOUGH, SR., Plaintiff,
v.
JEFFERY DENNISON, WEXFORD HEALTH SOURCE, ETHAN WILKE, KAREN SMOOT, and SHERRY BENTON, Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Report and Recommendation (“Report”) of United States Magistrate Judge Mark Beatty (Doc. 59), recommending that Defendant Wilke’s Motion for Summary Judgment for Failure to Exhaust Administrative Remedies be denied in part and granted in part (Doc. 37), that Defendants[1] Benton, Smoot, and Dennison’s Motion for Summary Judgment for Failure to Exhaust Administrative Remedies be denied (Doc. 45), that Plaintiff McCollough’s Motion to Strike be denied (Doc. 47), and that McCollough’s Motion to Dismiss be construed as a response to the Motions for Summary Judgment (Doc. 55). Plaintiff and Wilke filed timely objections (Docs. 60 and 61). For the following reasons, Judge Beatty’s Report and Recommendation is ADOPTED in its entirety.

         Background

         Plaintiff Timothy McCollough, Sr., an inmate who is currently incarcerated at Shawnee Correctional Center (“Shawnee”), brings the instant civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff alleges that he has been denied adequate medical and mental health care at Shawnee for progressive vision loss associated with the side effects of psychotropic medication. He also claims Shawnee lacks sufficient medical staff. Following threshold review, Plaintiff was allowed to proceed on the following claims:

Count 1: Smoot, Wilkie, and Benton were deliberately indifferent to the side effects of Plaintiff’s psychotropic medication and his need for eye care in violation of the Eighth Amendment.
Count 2: Wexford Health Sources has an unconstitutional policy of failing to provide adequate optometrist staffing at Shawnee Correctional Center in violation of the Eighth Amendment.

         Defendants Ethan Wilke, Sherry Benton, Jeffrey Dennison, [2] and Karen Smoot moved for summary judgment, claiming Plaintiff failed to exhaust his administrative remedies prior to filing suit.

         Plaintiff responded by filing a “Motion to Dismiss.” Plaintiff also filed a Motion to Strike because Assistant Attorney General Clayton J. Ankney was “terminated” as an attorney of record in this matter.

         Judge Beatty issued the Report currently before the Court, setting forth the evidence presented by the parties on the issue of exhaustion, the applicable law, the requirements of the administrative process, and his conclusions. Judge Beatty concluded that Plaintiff failed to exhaust his administrative remedies only as to the claim in Count 1 related to psychotropic medication. He also found that Plaintiff’s Motion to Strike should be denied. As a result, he recommends that Plaintiff’s claim that Defendants were deliberately indifferent to the side effects of his psychotropic medications asserted against Defendants Ethan Wilke, Sherry Benton, Jeffrey Dennison, and Karen Smoot be dismissed without prejudice.

         Discussion

         Because timely objections were filed, the undersigned must undertake a de novo review of the Report. 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b); SDIL-LR 73.1(b); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the Court to “give fresh consideration to those issues to which specific objections have been made” and to make a decision “based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge’s conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept, reject or modify the magistrate judge’s recommended decision.” Id.

         For his objection, Defendant Wilke contends he was not placed on notice by McCullough’s grievance of the claims against him because he was not named in the grievance. Thus, he argues that Judge Beatty failed to properly apply § 504.810(b) of the Illinois Administrative Code which requires an inmate to name persons in his grievance.

         In his objection, Plaintiff generally reiterates the arguments made in his previous filings. Specifically, he claims his sick call requests should have alerted Defendants to his claims, that the claims made in his grievance were overlooked by prison officials – especially as to his claims about the psychotropic medication, and that he is entitled to a jury trial.

         The Prison Litigation Reform Act requires prisoners to exhaust all available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). Proper exhaustion requires that inmates file complaints and appeals in the place, at the time, and in the manner the prison’s administrative rules require. Pozo v. McCaughtry,286 F.3d 1022, 1025 (7th Cir. 2002). The relevant rule states that “[t]he grievance shall contain factual detail regarding each aspect of the offender’s complaint, including what happened, when, where, and the name of each person who is the subject of or who is otherwise involved in the complaint.” Ill. Admin. Code Tit. 20, § 504.810(c). Grievances are not meant to mirror complaints filed in federal court nor is a plaintiff required to set forth every theory of relief that he may present in a complaint or to identify ...


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