Perez v. Fenoglio et al

Filing 106

ORDER ADOPTING 104 REPORT AND RECOMMENDATION, DENYING 76 Motion for Summary Judgment, and GRANTING in part and DENYING in part 80 Motion for Summary Judgment. The claims against Defendants Ryker, Moran, Vaughn, Taylor, and Fairchild are DISMISS ED without prejudice. The Clerk's Office is DIRECTED to terminate these defendants from this case. The Clerk's Office is also DIRECTED to update the docket sheet to reflect the true and accurate names of the following defendants: "C Va ughn" should be "Cecil Vaughn," and "C Brooks" should be "Christine Brooks." This case proceeds as to Counts One, Two, Three, Four, and Six of Plaintiff's Complaint. Signed by Judge Nancy J. Rosenstengel on 08/29/2016. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MIGUEL PEREZ,

)
)
Plaintiff,
)
)
vs.
)
)
JAMES FENOGLIO, DR. PHIL
)
MARTIN, WEXFORD HEALTH
)
SOURCES, INC., LEE RYKER, PAMELA )
MORAN, C. VAUGHN, GLADYSE C.
)
TAYLOR, BRIAN FAIRCHILD, and C.
)
BROOKS,
)
)
Defendants.
)

Case No. 11-CV-819-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald. G. Wilkerson (Doc. 104), which recommends that this
Court deny the Motion for Summary Judgment filed by Defendants Christine Brooks,
James Fenoglio, and Wexford Health Sources, Inc. (Doc. 76) and grant in part and deny
in part the Motion for Summary Judgment on the Issue of Exhaustion of Administrative
Remedies filed by Defendants Phil Martin, Lee Ryker, Gladyse C. Taylor, Brian
Fairchild, Pamela Moran, and Cecil Vaughn (Doc. 80).

1

The Report and

Recommendation was entered on July 20, 2016. No objections have been filed.
Plaintiff Miguel Perez filed this case on September 8, 2011, asserting that
Defendants Dr. Fenoglio, Nurse Brooks, Wexford, Lawrence Health Care Administrator
The Clerk’s Office is DIRECTED to update the docket sheet to reflect the true and accurate names of the
following defendants: “C Vaughn” should be “Cecil Vaughn,” and “C Brooks” should be “Christine
Brooks.”

1

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Martin, Counselor Vaughn, Grievance Officer Moran, Warden Ryker, Acting IDOC
Director Taylor, and ARB Officer Fairchild violated his constitutional rights while he
was incarcerated at Lawrence Correctional Center (“Lawrence”). Plaintiff is proceeding
on the following counts:
Count 1:

Defendant Dr. Fenoglio exhibited deliberate indifference
toward Plaintiff’s severe hand injury, in violation of the
Eighth Amendment, when Defendant Fenoglio failed to
provide Plaintiff with adequate, timely care and ignored
treatment recommendations of specialists at the Carle Clinic;

Count 2:

Defendant Nurse Brooks exhibited deliberate indifference
toward Plaintiff’s severe hand injury, in violation of the
Eighth Amendment, when she failed to provide Plaintiff with
adequate medical treatment for his hand injury or ensure
that others did;

Count 3:

Defendant Wexford exhibited deliberate indifference toward
Plaintiff’s severe hand injury, in violation of the Eighth
Amendment, by maintaining a policy or practice that
prevented nurses from stitching wounds or prescribing
medication unless a doctor was present, while also limiting
the time that doctors were on duty;

Count 4:

Defendant Health Care Administrator Martin exhibited
deliberate indifference toward Plaintiff’s severe hand injury,
in violation of the Eighth Amendment, by refusing to grant
Plaintiff’s referral request without explanation for four days;

Count 5:

The Grievance Defendants (i.e., Counselor Vaughn, Officer
Moran, Warden Ryker, Director Taylor, and Officer
Fairchild) displayed deliberate indifference toward Plaintiff’s
severe hand injury, in violation of the Eighth Amendment,
when they obtained actual knowledge of Plaintiff’s condition
and his inadequate medical care and still failed to intervene
on Plaintiff’s behalf to rectify the situation; and

Count 6:

Defendants Fenoglio and Administrator Martin retaliated
against Plaintiff, in violation of the First Amendment, when
they denied him adequate medical care for his hand injury
because he filed a grievance against prison officials for

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withholding his prescription medication for depression.
Defendants Brooks, Fenoglio, and Wexford (hereafter “Wexford Defendants”),
and Martin, Vaughn, Moran, Ryker, Taylor, and Fairchild (hereafter “IDOC
Defendants”) have filed Motions for Summary Judgment (Docs. 76, 80) arguing that
Plaintiff failed to exhaust his administrative remedies before bringing suit. These
defendants assert that the two grievances (dated May 20, 2010 and January 10, 2011) filed
by Plaintiff related to this matter were either not exhausted or did not sufficiently
describe or mention the individuals named as defendants. Plaintiff filed responses to
both motions.
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on Defendant’s motion on May 13, 2016.
Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 104). Objections to the Report and
Recommendation were due on or before August 8, 2016. No party has filed an objection.
Where timely objections are filed, the Court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see
also Govas v. Chalmers, 965 F.2d 291, 301 (7th Cir. 1992). Where neither timely nor specific
objections to the Report and Recommendation are made, however, this Court need not
conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S.
140 (1985). Instead, the Court should review the Report and Recommendation for clear
error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). A judge may then

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“accept, reject, modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1).
The Court has carefully reviewed Magistrate Judge Wilkerson’s Report and
Recommendation. Magistrate Judge Wilkerson thoroughly discussed the evidence and
the Court fully agrees with his findings, analysis, and conclusions with respect to the
issue of exhaustion. As to Defendant Dr. Fenoglio, this defendant concedes that the
January 10, 2011 grievance is sufficient to exhaust Plaintiff’s claim in Count 1 alleging
that Defendant Fenoglio ignored treatment recommendations of specialists at the Carle
Clinic. Further, Magistrate Judge Wilkerson determined that Plaintiff was credible in his
assertion that he took the steps required of him to informally resolve his January 10, 2011
grievance but prison officials failed to respond, and that credibility determination is
entitled to deference. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011). Thus, the Court
agrees that Plaintiff attempted to exhaust his January 10, 2011 grievance, but his efforts
were thwarted.
The Court also finds that Plaintiff sufficiently exhausted his deliberate
indifference claims against Defendant Brooks and Defendant Martin, as well as his
policy and practice claim against Defendant Wexford. Plaintiff also sufficiently
exhausted his retaliation claim against Defendant Martin. The Court finds, however, that
Plaintiff failed to exhaust his administrative remedies with respect to Defendants Ryker,
Moran, Vaughn, Taylor, and Fairchild because Plaintiff has not sufficiently named or
described the actions of these defendants in the grievances before the Court and the
continuing violation doctrine cannot be applied in this instance.

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Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 104), DENIES the Wexford Defendants’ Motion for Summary
Judgment (Doc. 76), and GRANTS in part and DENIES in part the IDOC Defendants’
Motion for Summary Judgment (Doc. 80). The claims against Defendants Ryker, Moran,
Vaughn, Taylor, and Fairchild are DISMISSED without prejudice. The Clerk’s Office is
DIRECTED to terminate these defendants from this case.
This case proceeds as to Counts One, Two, Three, Four, and Six of Plaintiff’s
Complaint.
IT IS SO ORDERED.
DATED: August 29, 2016
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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