Pendegraft v. Kreke et al

Filing 160

ORDER ADOPTING 145 REPORT AND RECOMMENDATIONS and DENYING 127 Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendant Francis Kayira. Signed by Judge Nancy J. Rosenstengel on 4/10/17. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CURTIS PENDEGRAFT,
Plaintiff,
vs.
DR. ALBERTO BUTALID,
MIKE ARNOLD, MARK ETTER,
LUKE BRANDMEYER, KYLE THOLE,
MICHELLE NORDIKE,
JAYCE FAULKNER, PENNY GEORGE,
KEVIN MURPHY, BRANDI BEASLEY,
and DR. FRANCIS KAYIRA,
Defendants.

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Case No. 15-CV-816-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. 145), which recommends denying
the motion for summary judgment on the issue of exhaustion of administrative
remedies filed by Defendant Dr. Francis Kayira (Docs. 127). No objections to the Report
and Recommendation were filed. For the reasons explained below, the Court adopts
Magistrate Judge Wilkerson’s Report and Recommendation and denies the motions for
summary judgment.
BACKGROUND
Plaintiff Curtis Pendegraft, an inmate of the Illinois Department of Corrections
currently incarcerated at the East Moline Correctional Center, filed this pro se lawsuit
pursuant to 42 U.S.C. § 1983 on July 28, 2015, alleging that he received inadequate
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medical care in violation of the Eighth Amendment while he was incarcerated at the
Clinton County Jail, Graham Correctional Center, and Vienna Correctional Center
(Doc. 1). Following a threshold review of the complaint under 28 U.S.C. § 1915A,
Pendegraft was permitted to proceed on a claim of deliberate indifference against a
number of Defendants, including a John Doe, and a First Amendment claim of
retaliation (Doc. 11).
In June 2016, Defendant John Doe was identified as Dr. Francis Kayira, a
physician at Graham Correctional Center (Doc. 95; Doc. 104). After Dr. Kayira entered
the case, he was given time to file a motion for summary judgment on the issue of
exhaustion (Doc. 126). He filed his motion on October 12, 2016 (Doc. 127). Pendegraft
filed a timely response in opposition to the motion (Doc. 130). Magistrate Judge
Wilkerson determined that an evidentiary hearing was not necessary, and he issued the
Report and Recommendation currently before the Court on March 8, 2017 (Doc. 145).
Objections to the Report and Recommendation were due on or before March 22, 2017.
See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); SDIL-LR 73.1(b). As previously
mentioned, neither party filed an objection.
ANALYSIS
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 298, 301 (7th Cir. 1992). Where neither timely nor
specific objections to the Report and Recommendation are made, however, the court

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need not conduct a de novo review. 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).
The undersigned 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 undersigned fully agrees with the conclusions of Magistrate
Judge Wilkerson.
In 2015, Pendegraft was very briefly housed at Graham Correctional Center from
January 29th to February 17th (Doc. 145). During that time, he had contact with Dr.
Kayira on one occasion: January 30, 2015 (Doc. 145). While Pendegraft’s cumulative
counseling summary does not indicate that he submitted a grievance during the
relevant time period, he submitted an affidavit in which he swore that he filed a
grievance on January 31, 2015, because he didn’t receive his medication or bandages
from Dr. Kayira (Doc. 145). Pendegraft further swore that he did not receive a response
to the January 31st grievance (Doc. 145). Magistrate Judge Wilkerson determined that
Pendegraft was credible, and that credibility determination is entitled to deference. See
Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011). 1

This credibility determination was based on a previous evidentiary hearing held in connection with the
other Defendants’ motions for summary judgment on the issue of exhaustion (Doc. 145). Pendegraft
submitted the same affidavit in response to those motions that he submitted in response to Dr. Kayira’s
motion (Doc. 145). Magistrate Judge Wilkerson previously found that Pendegraft’s assertions in his
affidavit related to the other Defendants were credible (Doc. 105), and based on that finding, likewise
found that his assertions related to Dr. Kayira were credible (Doc. 145).
1

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Because prison officials failed to respond to Pendegraft’s grievance, the
grievance process was rendered 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,
Pendegraft is deemed to have exhausted his administrative remedies. Lewis, 300 F.3d at
833.
CONCLUSION
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 145) and DENIES the motion for summary judgment on the issue of exhaustion
filed by Defendant Francis Kayira (Doc. 127).
IT IS SO ORDERED.
DATED: April 10, 2017
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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