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Nicholl v. Wexford Health Care Source, Inc.

United States District Court, N.D. Illinois, Western Division

October 4, 2019

Bernard Nicholl, Plaintiff,
v.
Wexford Health Care Sources, Inc., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE

         Plaintiff Bernard Nicholl alleges that health care providers or administrators Amber Allen, Tim Chamberlain, Susan Tuell, Lisa Wick, Kristina Mershon, Bessie Dominguez and Wexford Health Care Sources, Inc. (“Defendants”) were deliberately indifferent to his medical needs while he was an inmate at Dixon Correctional Center. Defendants asserted the affirmative defense of Nicholl's failure to exhaust his administrative remedies prior to filing suit. Before the Court are the Reports and Recommendations (“R & Rs”) of Magistrate Judge Iain D. Johnston and Lisa A. Jensen which taken together recommend the dismissal of each of the individual defendants. R. 103; R. 143. For the following reasons, the Court adopts the R & Rs to the extent they recommend dismissal of the individual defendants, and also dismisses Wexford from the case.

         Background[1]

         In his second amended complaint (“SAC”), Plaintiff Bernard Nicholl alleges that while he was an inmate at Dixon Correctional Center: (1) the individual defendants were deliberately indifferent to his chronic pulmonary disease (“COPD”) (Count I); (2) the individual defendants were deliberately indifferent to his bone spurs (Count II); and (3) Wexford failed to provide timely and adequate medical treatment for the same conditions (Count III). Defendants asserted the affirmative defense of failure to exhaust administrative remedies. Magistrate Judge Johnston conducted an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) on that issue (“Initial Pavey Hearing”). Subsequently, Judge Johnston issued an R & R finding that except for Nicholl's claim that Dominguez was deliberately indifferent in her treatment of Nicholl's COPD, Plaintiff had failed to exhaust his claims against the individual defendants (the “Initial R & R”). R. 103. Judge Johnston determined that a grievance dated January 19, 2016 and concerning Dominguez's conduct “fairly raise[d] the issue of the symptoms” of COPD, and that Nicholl was excused from appealing the response to his grievance because there was no evidence that he had received one. Id. at 5-6. But Judge Johnston determined that no other grievance fairly raised any defendant's deliberate indifference to his bone spurs, COPD, or any related symptom. Id. 4-5. The Initial R & R did not mention Wexford.

         Thereafter, Defendants obtained additional records suggesting that contrary to his testimony at the Initial Paving Hearing, not only had Nicholl received a response to his January 2016 grievance, but also he had appealed the response. But the records also suggested that Nicholl failed to complete the grievance process by appealing to the Administrative Review Board as required under Illinois law. R. 143 at 3-4, 8. Accordingly, Defendants timely objected to the Initial R & R on the ground that Nicholl had failed to exhaust his administrative remedies with respect to Dominguez after all. The Honorable Frederick J. Kapala-assigned to the case at the time-returned the matter to Magistrate Judge Johnston to issue a revised R & R. R. 121. Judge Johnston ordered another Pavey hearing (the “Second Pavey Hearing”). R. 122. Before the hearing, the case was reassigned to Magistrate Judge Jensen and the undersigned judge. R. 131; R. 134. Following the hearing, Judge Jensen issued an R & R dismissing Dominguez for Nicholl's failure to exhaust the COPD claim against her (the “Second R & R”). But Judge Jensen recommended without more that the “[t]he case . . . continue as to Defendant Wexford” (the “Second R & R”). R. 143 at 9. Nicholl did not file an objection, but Defendants objected to the extent the Second R & R recommended that Wexford remain in the case. R. 144.

         Analysis

         The Court addresses the recommendations in the R & Rs for the dismissal of the individual defendants before discussing whether the case should proceed against Wexford.

         I. Individual Defendants

         Neither party offered any objection to the recommendation in the Initial R & R that the Court dismiss individual defendants Allen, Chamberlain, Tuell, Wick and Mershon from the case after being afforded a sufficient opportunity to do so. Accordingly, having reviewed the Initial R & R, which is well-reasoned and supported, the Court adopts it to that extent and hereby dismisses these defendants from the case for Nicholl's failure to exhaust his claims as to each of them.

         Nor did any party offer any objection to the recommendation in the Second R & R that the Court dismiss Dominguez, the only remaining individual defendant. The Court reviewed the Second R & R, and finds that it also is well-reasoned and supported, and therefore adopts the recommendation to dismiss Dominguez from the case.

         II. Wexford

         What remains is Nicholl's claim against Wexford. In Count III of the SAC, Nicholl alleges that the purportedly unconstitutional medical care he received for bone spurs and COPD was caused by Wexford's failures to: (a) “employ adequate numbers of doctors, nurses, specialists, and other medical providers to ensure the delivery of constitutionally required medical care;” (b) “provide reasonably prompt medical care;” (c) “provide timely emergency treatment;” (d) “properly manage medications;” and (e) “identify and correct incompetent medical treatment.” R. 23 ¶ 55.

         Defendants argue that dismissal of Wexford is proper because “no grievance mentions Wexford or the alleged systemic deficiencies alleged in his [SAC]” and “no aspect of [Nicholl's] cause of action was properly exhausted” in any case. See generally R. 144 (emphasis in original). Defendants' argument flounders on the first point but succeeds on the second. Indeed, Defendants are correct that Nicholl's grievances do not specifically mention Wexford and do not detail problems with its policies or practices. But as Defendants themselves later acknowledge, Nicholl need not name Wexford in a grievance in order to exhaust his claims against it, and his grievance need only put administrators on notice of the alleged problem with a fair opportunity to respond. See R. 149 at 5 (for “institutional defendants such as Wexford, the inmate merely needs to provide sufficient descriptive information about the underlying claim” (emphasis in original)); see also Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002) (“a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought”); Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011) (failure to name defendants in grievance was a “mere technical defect” and didn't require dismissal).

         Thus, the real problem here is not the grievance's lack of specificity, but rather Nicholl's utter failure to exhaust any relevant grievances, as detailed in the R & Rs and discussed supra. Without a properly exhausted claim of a constitutional violation, Nicholl's claim against Wexford dies on the vine. Cf. Orozco v. Wexford Health Sources, Inc., 2018 WL 306923, at *4 (S.D. Ill. Jan. 5, 2018 (allowing claim against Wexford to go forward despite failure to identify Wexford or ...


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