United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
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.
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.
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.
Court addresses the recommendations in the R & Rs for the
dismissal of the individual defendants before discussing
whether the case should proceed against Wexford.
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
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.
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.
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
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 ...