Davis v. Wahl et al

Filing 63

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 51 ; granting 42 MOTION for Summary Judgment filed by Dr Rector. Clerk of Court to enter judgment accordingly at close of case. Signed by Judge J. Phil Gilbert on 3/22/2012. (dka, )

IN UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH DAVIS,
Plaintiff,
Case No. 3:10-cv-00971

v.
DR. WAHL, et al.,
Defendants.

MEMORANDUM & ORDER
This matter comes before the Court on Magistrate Judge Philip M. Frazier’s Report and
Recommendation (“R & R”) (Doc. 51), wherein it is recommended Dr. Rector’s Motion for
Summary Judgment (Doc. 42) be granted on the basis of failure to exhaust remedies. Plaintiff
Davis has objected to the R&R (Doc. 52). After reviewing a magistrate judge’s report and
recommendation, the Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court has
discretion to conduct a new hearing and may consider the record before the magistrate judge
anew or receive any further evidence deemed necessary. Id. The Court must review de novo the
portions of the report to which specific written 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).
Davis filed this suit on December 2, 2010 pursuant to 42 U.S.C. § 1983. No party has
objected to the facts but the Court will restate them here for the purpose of readability. Davis is
an inmate at Pinckneyville Correctional Center where he claims he received inadequate
healthcare for a rectal bleeding problem. He believes the alleged conduct violated the Eighth
Amendment of the United States Constitution and filed the present complaint to rectify wrongs
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which occurred between April 2010 and August 2010. During this time period he filed numerous
grievances. Davis has admitted and the Magistrate Judge has found only one of these grievances
pertained to Dr. Rector and it was filed on February 13, 2011. This grievance forms the basis of
Davis’s objection and also was the subject of Magistrate Judge Frazier’s R&R. The grievance
did not identify Dr. Rector by name but referred to a “nurse sick call.”
Davis has objected to summary judgment being granted because he believes his grievance
of February 13, 2011 in which he refers to a “nurse sick call” is sufficient to exhaust his
administrative remedies as to Dr. Rector. In support of this he cites the Illinois Administrative
Code which governs prisoner’s exhaustion requirements in this case and allows a prisoner to file
a grievance when the name of the alleged wrongdoer is unknown. 20 Ill. Adm. Code. 504.810(b).
Davis also cites to a Seventh Circuit case which held a grievance is sufficient as long as it objects
intelligently to some asserted shortcoming. See Riccardo v. Raush, 375 F.3d 521, 524 (7th Cir.
2004).
Magistrate Judge Frazier addressed this issue in his R&R and after a de novo review the
Court finds it to be an accurate statement of the law. First and foremost, Davis filed his
complaint in this case on December 2, 2010. The grievance Davis then refers to was made on
February 13, 2011. The Seventh Circuit has unequivocally held that exhaustion must occur
before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). The Prisoner
Litigation Reform Act also requires “no action shall be brought…until such administrative
remedies as are available are exhausted…” 42 U.S.C. § 1997e(a). Davis’s grievance, regardless
of its content, therefore cannot be used to exhaust remedies against a defendant after the lawsuit
has been filed. Because Davis did not file a grievance against Dr. Rector in a timely manner, he
has failed to exhaust his administrative remedies in regards to Dr. Rector. A defendant cannot

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proceed in a suit without exhausting his remedies against each defendant. 42 U.S.C. § 1997e(a);
see also Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999). As
administrative remedies were not exhausted as to Dr. Rector, summary judgment in favor or Dr.
Rector is appropriate. Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008).
The Court therefore ADOPTS the R&R (Doc. 51) in its entirety and GRANTS Dr.
Rector’s Motion for Summary Judgment (Doc. 42). The Court DIRECTS the Clerk of the Court
to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.
DATED: March 22, 2012
s./ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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