Akins v. Wexford Health Sources, Inc. et al

Filing 56

MEMORANDUM AND ORDER, the Court ADOPTS the Report and Recommendation in its entirety (Doc. 54 ). Defendant Officer Wills Motion for Summary Judgment (Doc. 34) is GRANTED and Defendant Wills is DISMISSED without prejudice. Defendants Dr. Fuentes, Ro bert Shearing, Dr. Shepard, and Wexford Health Sources, Inc.s Motion (Doc. 41 ) for Summary Judgment is DENIED. Plaintiffs oral motion to dismiss Dr. Fuentes is GRANTED and Dr. Fuentes is DISMISSED without prejudice. The Clerk of Court is DIRECTED to enter judgment with regard to Defendants Willis and Fuentes accordingly at the conclusion of this matter. Signed by Judge J. Phil Gilbert on 11/24/2015. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCISCO AKINS,
Plaintiff,
vs.
WEXFORD HEALTH
SOURCES, INC., et al.,
Defendants.

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Case No. 14-cv-00525-JPG-PMF

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
54) of Magistrate Judge Philip M. Frazier with regard to Defendants’ Motions for Summary
Judgment (Doc. 34, 41).

Plaintiff filed a timely objection (Doc. 55) to the R & R.

The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. 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. “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).

As an objection has

been filed, the Court will review those portions of the R & R de novo.
Summary judgment must be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the

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evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The R & R recommends that Defendants Dr. Fuentes, Robert Shearing, Dr. Shepard, and
Wexford Health Sources, Inc.’s Motion (Doc. 41) for Summary Judgment be denied as the
Magistrate Judge determined at a Pavey hearing that Plaintiff’s testimony was credible with
regard to his attempts to exhaust administrative remedies.

As such, the Magistrate Judge

determined that the Plaintiff’s administrative remedies were unavailable with regard to these
defendants. Neither party filed an objection to this portion of the R & R and as such, the court
has reviewed it for clear error and finds that is not clearly erroneous.
With regard to Defendant C/O Wills’ Motion for Summary Judgment, the R & R
recommends that it be granted for plaintiff’s failure to exhaust his administrative remedies with
regard to Defendant Wills. Plaintiff filed an objection to this portion of the R & R stating that –
although the incident occurred on December 7, 2012 – he was not aware of the basis for his
grievance until he received his medical records on January 27, 2013. Therefore, Plaintiff claims
his grievance of March 17th, 20131 was within the 60 days allowed by 20 Ill.Admin.Code §
504.810(a).
As stated in the R & R, “despite his justification for the delay, Akins was not precluded
from filing separate grievance.” Further, upon de novo review, Plaintiff’s March 17, 2013
grievance makes no mention of Defendant Willis and only provides a general reference to the
December 7, 2012 incident with regard to segregation. The March 17, 2013 grievance is
sufficient with regard to Plaintiff’s medical issues, but is insufficient with regard to his allegation
against Defendant Willis.
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Plaintiff’s objection states “March 17th, 2014, but he attached the grievance which is dated March 17th, 2013.
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Based on the above, the Court hereby ADOPTS the Report and Recommendation in its
entirety (Doc. 54). Defendant Officer Wills’ Motion for Summary Judgment (Doc. 34) is
GRANTED and Defendant Wills’ is DISMISSED without prejudice. Defendants Dr. Fuentes,
Robert Shearing, Dr. Shepard, and Wexford Health Sources, Inc.’s Motion (Doc. 41) for
Summary Judgment is DENIED. Plaintiff’s oral motion to dismiss Dr. Fuentes is GRANTED
and Dr. Fuentes is DISMISSED without prejudice. The Clerk of Court is DIRECTED to enter
judgment with regard to Defendants Willis and Fuentes accordingly at the conclusion of this
matter.
IT IS SO ORDERED.
DATED: 11/24/2015

s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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