Viverette v. Wexford Health Sources, Inc. et al

Filing 38

ORDER ADOPTING 36 REPORT AND RECOMMENDATIONS, GRANTING 29 Motion for Summary Judgment, and GRANTING 32 Motion for Summary Judgment. This action is DISMISSED without prejudice for failure to exhaust administrative remedies. Signed by Judge Nancy J. Rosenstengel on 09/06/2016. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY VIVERETTE,

)
)
Plaintiff,
)
)
vs.
)
)
CHRISTINE BROOKS, TRAVIS JAMES, )
NOREEN BAKER, and STEVE
)
DUNCAN,
)
)
Defendants.
)

Case No. 15-CV-717-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 the Motion for Summary Judgment on the Issue of Exhaustion of
Administrative Remedies filed by Defendants Christine Brooks, Travis James, and
Noreen Baker (Doc. 29) and grant the Motion for Summary Judgment filed by Defendant
Duncan (Doc. 32). The Report and Recommendation was entered on August 9, 2016
(Doc. 36). No objections have been filed.
Plaintiff Jimmy Viverette filed this case on July 1, 2015, asserting that Defendants
violated his constitutional rights while he was incarcerated at Lawrence Correctional
Center (“Lawrence”). After an initial screening of Plaintiff’s complaint pursuant to
28 U.S.C. § 1915A, Plaintiff was permitted to proceed on the following count:
Count One: Defendants Christine Brooks, Travis James, and Noreen
Baker were deliberately indifferent to Plaintiff’s serious
medical needs, in violation of the Eighth Amendment;
(Warden Steve Duncan is a defendant in his official capacity
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for purposes of injunctive relief).
Defendants Baker, Brooks, James, and Duncan have filed Motions for Summary
Judgment (Docs. 29, 32) arguing that Plaintiff failed to exhaust his administrative
remedies before bringing suit. These defendants assert that the two grievances filed by
Plaintiff related to this matter were not exhausted prior to Plaintiff filing this lawsuit on
July 1, 2015. Despite being warned of the perils of failing to respond to a motion for
summary judgment (Docs. 31, 34), Plaintiff did not respond to either motion.
On August 9, 2016, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 36). Objections to the Report and
Recommendation were due on or before August 26, 2016. As noted above, Plaintiff did
not file 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
“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

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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.
Plaintiff was properly notified that a failure to respond to a motion for summary
judgment may be considered an admission of the merits of the motion, but Plaintiff
nevertheless failed to respond to both motions. Additionally, Plaintiff was premature in
filing this lawsuit. Plaintiff’s counselor received Plaintiff’s grievance on June 22, 2015,
and Plaintiff filed suit nine days later (on July 1, 2015), prior to receiving a response.
Thus, the Court agrees with Magistrate Judge Wilkerson that Plaintiff failed to exhaust
his administrative remedies.
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 36), GRANTS the Motion for Summary Judgment filed by
Defendants Brooks, James, and Baker (Doc. 29), and GRANTS the Motion for Summary
Judgment filed by Defendant Duncan (Doc. 32). This action is DISMISSED without
prejudice for failure to exhaust administrative remedies.
IT IS SO ORDERED.
DATED: September 6, 2016
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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