Gevas v. Shearing et al

Filing 93

ORDER ADOPTING 82 Report and Recommendations and DENYING 50 Motion for Summary Judgment. Signed by Judge Nancy J. Rosenstengel on 12/2/14. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID GEVAS,
Plaintiff,
vs.
ROBERT SHEARLING,
WEXFORD HEALTH SOURCES, INC.,
JEREMY BUTLER,
RONALD SKIDMORE,
NICKI MALLEY,
ASSISTANT WARDEN KIMBERLY
BUTLER,
WARDEN RICHARD HARRINGTON,
Defendants.

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Case No. 14-CV-134-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. 82), which recommends denial of the
Motion for Summary Judgment on the issue of exhaustion filed on August 22, 2014, by
Defendants Robert Shearing, Jeremy Butler, and Wexford Health Sources, Inc.
(“Wexford”) (Doc. 50).
Plaintiff David Gevas, an inmate in the Illinois Department of Corrections, filed
this pro se lawsuit on February 6, 2014, pursuant to 42 U.S.C. § 1983. Plaintiff claims that
while he was temporarily confined at Menard Correctional Center from August 21, 2013,
to September 4, 2013, he was denied certain medications and medical treatments
(Doc. 1).

The Court conducted a threshold review of the complaint pursuant to
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28 U.S.C. § 1915A, and the following claims survived:
Count 1 against Defendants Robert Shearling, Jeremy Butler, Ronald
Skidmore, Nicki Malley, Assistant Warden Kimberly Butler, and Warden
Richard Harrington for deliberate indifference to a serious medical need in
violation of the Eighth Amendment.
Count 2 against Robert Shearling, Jeremy Butler, Ronald Skidmore, Nicki
Malley, Assistant Warden Kimberly Butler, and Warden Richard
Harrington for violation of Plaintiff’s right to equal protection under the
Fourteenth Amendment.
Count 3 against Wexford Health Sources, Inc. for promulgating a policy,
practice, and custom that violated Plaintiff’s rights under the Eighth and
Fourteenth Amendments.
Count 4 against Wexford Health Sources, Inc. for retaliation in violation of
the Eighth Amendment.
Count 5 against Nicki Malley, Assistant Warden Kimberly Butler, and
Warden Richard Harrington for negligence under Illinois state law.
(Doc. 5).1
On August 22, 2014, Defendants Shearing, Butler, and Wexford moved for
summary judgment arguing that Plaintiff failed to exhaust his administrative remedies
as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e) (Doc. 50). Plaintiff
filed a timely response in opposition to the motion for summary judgment (Doc. 57),
Defendants filed a reply (Doc. 59), and Plaintiff filed a sur-reply (Doc. 61). Plaintiff later
filed an additional, supplemental brief (Doc. 81). As required by Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on the
issue of exhaustion on October 31, 2014. Following the Pavey hearing, on November 7,
2014, Magistrate Judge Wilkerson issued the Report and Recommendation currently
Count 6 for medical negligence under Illinois state law against Defendants Robert Shearing,
Jeremy Butler, Ronald Skidmore, and Nicki Malley was dismissed without prejudice because
Plaintiff failed to file the requisite affidavit (see Doc. 5).
1

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before the Court (Doc. 82). Objections to the Report and Recommendation were due on
or before November 24, 2014. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); SDIL-LR
73.1(b). Neither party filed an objection.
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). 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 “accept, reject, or 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 the briefs and exhibits submitted by the parties,
as well as Magistrate Judge Wilkerson’s Report and Recommendation. Following this
review, the Court fully agrees with the findings, analysis, and conclusions of Magistrate
Judge Wilkerson and adopts the Report and Recommendation in its entirety.
Plaintiff testified that he submitted three emergency grievances on August 23,
August 25, and August 29, 2013, while he was housed at Menard, but he did not receive
a response to any of those grievances. Magistrate Judge Wilkerson determined that
Plaintiff’s testimony was credible, and that credibility determination is entitled to
deference because Magistrate Judge Wilkerson actually heard the testimony and

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observed the demeanor of the witness. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir.
2011). Because prison officials failed to respond to Plaintiff’s emergency grievances,
they rendered his administrative remedies unavailable. Brengettcy v. Horton, 423 F.3d
674, 682 (7th Cir. 2005) (citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)).
Therefore, Plaintiff is deemed to have exhausted his administrative remedies. Lewis,
300 F.3d at 833.
For this reason, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 82), and DENIES Defendants’ Motion for Summary Judgment
on the issue of exhaustion (Doc. 50).
IT IS SO ORDERED.
DATED: December 2, 2014
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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