Hildreth v. Butler et al

Filing 65

ORDER: The Court ADOPTS 61 Report and Recommendation in its entirety and GRANTS in part, DENIES in part, and finds MOOT in part 40 Motion for Summary Judgment filed by Defendants Butler, Schwarz, Lashbrook, Oakley, Bochantin, Marcinkowska, and Dw ight. Count 1 is DISMISSED without prejudice as to Defendants Marcinkowska and Dwight, and Count 2 is DISMISSED without prejudice in its entirety. Furthermore, the Motion for Summary Judgment, as it pertains to Defendants Schwarz, Lashbrook, and Bochantin, is MOOT. The 42 Motion for Summary Judgment filed by Defendant Wexford Health Sources, Inc. is DENIED. Signed by Judge Nancy J. Rosenstengel on 6/16/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SCOTT HILDRETH,
Plaintiff,
vs.
KIM BUTLER, LORI OAKLEY,
MARVIN BOCHANTIN, DAWN
MARCINKOWSKA, DAVID L.
DWIGHT, WEXFORD HEALTH, JANE
DOE, and LT. JOHN DOE,
Defendants.

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Case No. 3:15-CV-831-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 61), which recommends granting in part,
denying in part, and finding moot in part the Motion for Summary Judgment on the
Issue of Exhaustion of Administrative Remedies filed by Defendants Butler, Schwarz,
Oakley, Bochantin, Lashbrook, Marcinkowska, and Dwight (Doc. 40) and denying the
Motion for Summary Judgment filed by Defendant Wexford Health Sources, Inc.
(Doc. 42). For the reasons explained below, the Court adopts Magistrate Judge
Wilkerson’s Report and Recommendation.
On April 13, 2016, Plaintiff Scott Hildreth filed a three-count Amended Complaint
pursuant to 42 U.S.C. § 1983 (see Doc. 26), alleging Defendants violated his constitutional
rights while he was an inmate at Menard Correctional Center. Specifically, Hildreth

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claims Defendants Butler, Schwarz, Lashbrook, Oakley, Marcinkowska, and Dwight
discriminated against him and denied him reasonable accommodations for his
Parkinson’s disease, in violation of the Americans with Disabilities Act and 42 U.S.C.
§ 1983 (Count 1); Defendants Butler, Schwarz, and Oakley failed to timely refill his
necessary prescription medications, causing his symptoms to worsen as well as serious
withdrawal side effects, in violation of the Eighth and Fourteenth Amendments
(Count 2); and, Defendant Wexford maintained policies and customs that caused the
violations in Count 2 (Count 3).
On September 29, 2016, Defendants Butler, Schwarz, Lashbrook, Oakley,
Bochantin, Marcinkowska, and Dwight filed a motion for summary judgment on the
issue of exhaustion of administrative remedies (Doc. 40). The following day, Defendant
Wexford filed its own motion for summary judgment on the issue of exhaustion
(Doc. 42). In their motions, Defendants argue that Hildreth failed to exhaust his
administrative remedies prior to filing suit; thus, they are entitled to summary
judgment.
On April 18, 2017, Magistrate Judge Wilkerson held a hearing pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), and subsequently issued the Report and
Recommendation currently before the Court. Objections to the Report and
Recommendation were due on or before June 1, 2017. See 28 U.S.C. § 636(b)(1); FED. R.
CIV. P. 72(b)(2); SDIL-LR 73.1(b). No objections were filed.
In the Report and Recommendation, Magistrate Judge Wilkerson found that
Hildreth’s July 7, 2012, April 8, 2014, October 25, 2014, October 30, 2014, and May 29,

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2015 grievances were sufficiently exhausted, despite the fact that he did not appeal these
grievances to the Administrative Review Board (“ARB”), because Hildreth received the
relief he was requesting from prison officials. Since there was no further relief available,
there was no requirement that Hildreth appeal those grievances. Magistrate Judge
Wilkerson further found that Hildreth’s November 16, 2015 grievance was sufficiently
exhausted when Hildreth attempted to appeal the Warden’s decision to the ARB one
week after the Warden responded. Although the ARB did not receive the grievance until
after the time period to appeal expired, Defendants presented no evidence that any
delay in the receipt of the grievance was attributable to Hildreth.
Having found that Hildreth exhausted his administrative remedies with regard to
these grievances, Magistrate Judge Wilkerson then examined whether the grievances
sufficiently complained about the actions taken by Defendants in this lawsuit.
Magistrate Judge Wilkerson found that Hildreth’s May 29, 2015 grievance was sufficient
to identify Defendants Oakley and Butler and, thus, exhaust his claim as to these
Defendants in Count 1. The grievances did not, however, sufficiently identify or describe
Defendants Marcinkowska or Dwight such that his claims against these Defendants
were exhausted. Thus, Magistrate Judge Wilkerson recommended that Defendants
Marcinkowska and Dwight be dismissed from this action without prejudice. 1
Likewise, Magistrate Judge Wilkerson found that Hildreth failed to exhaust his
claims as to Defendants Oakley and Butler in Count 2 when no grievance complained
1 With regard to Defendants Schwarz and Lashbrook, Magistrate Judge Wilkerson recommended that the
undersigned find their arguments moot because they were dismissed from this action subsequent to filing
their motion for summary judgment on exhaustion (see Doc. 49). Magistrate Judge Wilkerson also
recommended striking Defendant Bochantin’s filings in this matter and finding his motion for summary
judgment moot because the Amended Complaint sets forth no claims against him.

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that these Defendants contributed to the delay in Hildreth’s receipt of prescription
medications. Therefore, Magistrate Judge Wilkerson recommended dismissing Count 2
without prejudice.
Finally, Magistrate Judge Wilkerson found that Hildreth’s grievances dated April
8, 2014, October 25, 2014, and November 16, 2015 were sufficient to exhaust his claim in
Count 3 against Defendant Wexford when a plain reading of the grievances indicates
Hildreth was complaining about Wexford’s insufficient policies regarding the
distribution of medication.
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 carefully reviewed the
evidence and Magistrate Judge Wilkerson’s Report and Recommendation for clear error.
Following this review, the Court fully agrees with the findings, analysis, and conclusions
of Magistrate Judge Wilkerson. Hildreth’s May 29, 2015 grievance stated that Hildreth

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had asked for assistance in filing for ADA accommodations and was refused/denied
such help (Doc. 46-10). Because Defendants Oakley and Butler were the ones who
refused/denied Hildreth’s previous grievance asking for such help (Docs. 46-8, 46-9),
Hildreth’s May 29, 2015 grievance put these Defendants on notice about the complained
of conditions. Because Defendants Marcinkowska and Dwight were not mentioned in
the grievance, however, and because they had no hand in denying Hildreth’s previous
grievance related to his request for ADA accommodations, they were not put on notice
of Hildreth’s claims and, thus, are properly dismissed from this action. Similarly, no
grievance complains that Defendants Oakley and Butler contributed to the delay in
Hildreth’s receipt of medical care for his Parkinson’s disease. Thus, dismissal of Count 2
is appropriate. Finally, Hildreth’s grievances regarding the lapses in his prescriptions for
his Parkinson’s disease were sufficient to put Wexford on notice that Hildreth was
complaining about its policies for distributing prescription medication. (Docs. 43-4, 46-4,
46-6).
The Court finds no clear error in Magistrate Judge Wilkerson’s Report and
Recommendation. Thus, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 61) in its entirety and GRANTS in part, DENIES in part, and
finds MOOT in part the Motion for Summary Judgment filed by Defendants Butler,
Schwarz, Lashbrook, Oakley, Bochantin, Marcinkowska, and Dwight (Doc. 40). Count 1
is DISMISSED without prejudice as to Defendants Marcinkowska and Dwight, and
Count 2 is DISMISSED without prejudice in its entirety. Furthermore, the Motion for
Summary Judgment, as it pertains to Defendants Schwarz, Lashbrook, and Bochantin, is

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MOOT. The Motion for Summary Judgment filed by Defendant Wexford Health
Sources, Inc. (Doc. 42) is DENIED.
IT IS SO ORDERED.
DATED: June 16, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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