Fisher v. Larson et al

Filing 61

ORDER ADOPTING 39 Report and Recommendation and DENYING 39 Motion for Partial Summary Judgment for Plaintiff's Failure to Exhaust filed by Defendants Wexford Health Sources, Inc. and Gary Gerst. Signed by Judge Nancy J. Rosenstengel on 3/9/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SAM FISHER,
Plaintiff,
vs.
DENNIS LARSON, GARY GERST,
WEXFORD HEALTH SOURCES, INC.,
LOUIS SCHICKER, and DEBORAH
ISAACS,
Defendants.

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Case No. 3:15-CV-00301-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. 60), which recommends denying the
Motion for Partial Summary Judgment on the issue of exhaustion of administrative
remedies filed by Defendants Gary Gerst and Wexford Health Sources, Inc. (“Wexford”).
The Report and Recommendation was entered on February 15, 2017. No objections were
filed.
Plaintiff Sam Fisher, an inmate housed at Big Muddy Correctional Center, filed
this lawsuit on March 18, 2015, asserting that Defendants denied him adequate medical
treatment for an ingrown toenail for nearly a year, causing him significant pain and
suffering. After an initial review pursuant to 28 U.S.C. § 1915A of the Amended
Complaint (Doc. 8), Fisher is proceeding on two counts. First, in Count 1, Fisher claims
that Defendants Gary Gerst, Debbie Isaacs, and Dennis Larson were deliberately
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indifferent to his serious medical condition when they knew of his condition but refused
to provide him with adequate care. He also alleges that Defendants Louis Schicker and
Wexford were responsible for an unwritten policy or practice designed to deny inmates
nearing their release date appropriate medical care, thereby causing Defendants Gerst,
Issacs, and Larson to refuse to treat him. In Count 2, a retaliation claim, Fisher alleges
that Defendant Gerst threatened to withhold medical care and to send him to
segregation if he complained about the medical care he received.
On May 20, 2016, Defendants Gerst and Wexford filed a motion for summary
judgment arguing that Fisher failed to exhaust his administrative remedies pursuant to
the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq., prior to commencing this
lawsuit (Doc. 39). Defendants argue that Fisher failed to file any grievances about the
alleged retaliatory conduct by Defendant Gerst or his policy and practice claim against
Defendant Wexford. Furthermore, Defendants argue that any claim by Fisher that such
grievances “disappeared” is disingenuous because Fisher often followed up on missing
grievances, and there is no evidence that he did so with regard to these complaints.
Therefore, because Fisher never filed any grievances with regard to these claims,
summary judgment must be granted to Defendant Gerst as to the claims in Count 2 and
Wexford as to the claims in Count 1.
In response, Fisher claims he submitted several grievances regarding his
retaliation claim against Defendant Gerst, as well as his policy and practice claim against
Defendant Wexford, but that the grievances went missing without any response from
prison officials. Because the Illinois Administrative Code does not provide instruction on

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how to proceed in the administrative review process under such circumstances, Fisher
asks the Court to find that he exhausted his administrative remedies.
Magistrate Judge Wilkerson held a hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008), on October 20, 2016, and issued the Report and Recommendation
currently before the Court on February 15, 2016 (Doc. 60). The Report and
Recommendation accurately states the nature of the evidence presented, 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). 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). The Court 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).
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. Magistrate Judge Wilkerson determined that Fisher was credible in his
assertion that he attempted to file grievances complaining about the circumstances that
form the basis for his policy and practice claim against Wexford and his retaliation claim

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against Defendant Gerst, but was thwarted in his efforts to exhaust these grievances
because he never received a response at the institutional level. Magistrate Judge
Wilkerson assessed the credibility of Fisher’s statements in light of Defendants’
arguments to the contrary and evidence of discrepancies in Big Muddy’s recordkeeping,
and he found Fisher’s testimony to be truthful. It is not the Court’s role at this juncture to
second-guess Magistrate Judge Wilkerson’s credibility determinations. See Pavey v.
Conley, 663 F.3d 899, 904 (7th Cir. 2011); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)
(“The district court is not required to conduct another hearing to review the magistrate
judge’s findings or credibility determinations”).
Because Fisher was thwarted in his attempts to exhaust his grievances, the
grievance process was rendered unavailable, and he is deemed to have exhausted his
administrative remedies. For these reasons, the Court ADOPTS Magistrate Judge
Wilkerson’s Report and Recommendation (Doc. 60), and DENIES the motion for
summary judgment on the issue of exhaustion filed by Defendants Gary Gerst and
Wexford Health Sources, Inc. (Doc. 39).
IT IS SO ORDERED.
DATED: March 9, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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