Smith v. Rector et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS and GRANTING 30 Motion for Summary Judgment. Plaintiff's claims against Defendant Rector and Defendant Shah are DISMISSED without prejudice. The case is CLOSED. Signed by Judge Nancy J. Rosenstengel on 03/12/2015. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRELL SMITH,
Plaintiff,
vs.
ANGEL RECTOR and DR. VIPIN
SHAH,
Defendants.

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Case No. 13-CV-837-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. 36), which recommends that this
Court grant Defendant Angel Rector’s and Defendant Dr. Vipin Shaw’s Motion for
Summary Judgment (Doc. 30).

The Report and Recommendation was entered on

December 23, 2014. No objections have been filed.
Plaintiff Darrell Smith, an inmate at Pinckneyville Correctional Center
(“Pinckneyville”), filed this case on August 15, 2013, asserting that Defendants Rector
and Shah were deliberately indifferent to his serious medical needs. Plaintiff’s original
complaint was dismissed without prejudice, and Plaintiff filed an Amended Complaint
on October 11, 2013 (Doc 8). Plaintiff’s deliberate indifference claim against Defendants
Rector and Shah for denying Plaintiff treatment of his toenail fungus survived threshold
review (Doc. 9).
On August 25, 2014, Defendants Rector and Shaw filed a motion for summary
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judgment on the basis that Plaintiff failed to exhaust his administrative remedies before
bringing suit (Doc. 30). Plaintiff did not respond to the motion for summary judgment,
despite being warned of the perils of failing to file a response to the motions for
summary judgment (Docs. 32).

Due to Plaintiff’s failure to submit any response,

Magistrate Judge Wilkerson extended the response deadline, sua sponte, to December 1,
2014 (Plaintiff’s original response deadline was September 29, 2014) (Doc. 33).

A

response was never filed. Because Plaintiff never contested the issue of exhaustion,
Magistrate Judge Wilkerson canceled the Pavey hearing that was scheduled for
December 18, 2014 (Doc. 34).
On December 23, 2014, Magistrate Judge Wilkerson issued the Report and
Recommendation

currently

before

the

Court

(Doc.

36).

The

Report

and

Recommendation accurately states the nature of the evidence presented on the issue of
exhaustion, as well as the applicable law and the requirements of the administrative
process.
Where timely objections are filed, this 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 298, 301 (7th Cir. 1992). The Court may accept, reject or
modify the magistrate judge’s recommended decision. Harper, 824 F. Supp. at 788. In
making this determination, the Court must look at all of the evidence contained in the
record and give “fresh consideration to those issues to which specific objections have
been made.” Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure

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3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
Where neither timely nor specific objections to the Report and Recommendation
are made, pursuant to 28 U.S.C. 636(b), however, this Court need not conduct a de novo
review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).
While a de novo review is not required here, the Court has considered the evidence and
fully agrees with the findings, analysis, and conclusions of Magistrate Judge Wilkerson.
Based on the evidence submitted by Defendants in support of their motions for
summary judgment, Plaintiff has not exhausted his administrative remedies. The Court
agrees that the grievances dated April 17, 2013, August 20, 2013, and October 7, 2013, are
insufficient to establish exhaustion. As to the grievances dated April 17, 2013, and
August 20, 2013, Plaintiff prematurely filed suit before he received a final determination
of the ARB and before the six-month timeframe had elapsed. See, e.g. Randle v. Corbitt,
No. 3:13-CV-01009-SMY-PMF, 2015 WL 720578, at *3 (S.D. Ill. Feb. 18, 2015) (finding that
prisoner failed to exhaust when he filed suit prior to the end of the six month guideline
for the ARB to respond); Buie v. Lock, No. 13-1157, 2014 WL 3925058, at *6 (C.D. Ill. Aug.
11, 2014) (same); Love v. Hardy, No. 12 C 8776, 2013 WL 3353920, at *2 (N.D. Ill. July 2,
2013) (same). As to the grievance dated October 7, 2013, it was not received by the ARB
until after this suit was filed.
Further, Plaintiff has provided no evidence to dispute the evidence and assertions
set forth in Defendants’ motion for summary judgment, despite being given ample time
and opportunity to do so and despite being warned on two occasions that his failure to
file a response to the motion for summary judgment may be considered an admission of

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the merits (See Docs. 32 & 33). Because it is apparent to the Court that Plaintiff did not
fully exhaust his administrative remedies prior to filing suit, his claims against
Defendants Rector and Shah must be dismissed.
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 36) and GRANTS Defendant Rector’s and Defendant Shah’s Motion for Summary
Judgment (Doc. 30).

Plaintiff’s claims against Defendants Rector and Shah are

DISMISSED without prejudice. The case is now closed, and judgment will be entered
accordingly.
IT IS SO ORDERED.
DATED: March 12, 2015
s/ Nancy J. Rosenstengel__________
NANCY J. ROSENSTENGEL
United States District Judge

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