Diaz-Guillen v. Vieregge et al

Filing 88

ORDER ADOPTING 87 REPORT AND RECOMMENDATIONS and DENYING 66 Motion for Judgment on the Pleadings filed by Defendant Jay L. Swanson. Signed by Judge Nancy J. Rosenstengel on 3/19/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUIZ DIAZ-GUILLEN,
Plaintiff,
vs.
JAY SWANSON,
Defendant.

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Case No. 3:15-CV-1101-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on the Report and Recommendation of
United States Magistrate Judge Donald G. Wilkerson (Doc. 87) on the Motion for
Judgment on the Pleadings filed by Defendant Jay Swanson (Doc. 66). Although filed as
a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure, Magistrate Judge Wilkerson converted the motion to a Motion for
Summary Judgment on the issue of exhaustion of administrative remedies, pursuant to
Rule 12(d) (Doc. 80). After giving notice to the parties and allotting time to provide
additional materials in response to the summary judgment motion, Magistrate Judge
Wilkerson held a motion hearing on February 26, 2018 (Doc. 86). He then entered the
Report and Recommendation on February 27, 2018 (Doc. 87). For the reasons explained
below, the Court adopts Magistrate Judge Wilkerson’s Report and Recommendation.
Plaintiff Luis Diaz-Guillen filed this lawsuit pursuant to 42 U.S.C. § 1983 on
October 6, 2015. After the dismissal of several other defendants, Diaz-Guillen is
proceeding on one count of deliberate indifference against Defendant Dr. Jay Swanson.

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Specifically, Diaz-Guillen claims Dr. Swanson delayed treating his medical conditions
and refused to give him pain medication for a painful, cancerous mass in his mouth
(Doc. 7).
On May 19, 2017, Dr. Swanson filed a motion for judgment on the pleadings
related to Diaz-Guillen’s failure to exhaust his administrative remedies. Dr. Swanson
argued that Diaz-Guillen never filed a grievance against him regarding the medical
treatment at issue in this case. Dr. Swanson also contends that, even if a grievance could
be construed to apply to him, Diaz-Guillen failed to appeal the grievance to the ARB, as
required to properly exhaust under the Prison Litigation Reform Act (PLRA). After
holding an evidentiary hearing on exhaustion pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008), Magistrate Judge Wilkerson entered the Report and Recommendation
currently before the Court. Objections to the Report and Recommendation were due
March 16, 2018. None were filed.
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

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“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. After considering Diaz-Guillen’s testimony at the Pavey
hearing, Magistrate Judge Wilkerson concluded that Diaz-Guillen was first treated by
Dr. Swanson at the Fayette County Jail, and thus his complaints about Dr. Swanson
accrued while he was housed at Fayette. Although Diaz-Guillen also was treated by Dr.
Swanson after he was transferred to the Illinois Department of Corrections, Magistrate
Judge Wilkerson found he was not required to file multiple grievances against the same
doctor just because he had been transferred to IDOC custody. Magistrate Judge
Wilkerson further found that because Diaz-Guillen was not informed of the grievance
procedure while at Fayette, the grievance process was made unavailable, and
Diaz-Guillen is deemed to have exhausted his administrative remedies.
The Court agrees that Diaz-Guillen’s claim against Dr. Swanson accrued while he
was housed at Fayette. Furthermore, because the prison did not inform Diaz-Guillen of
the grievance procedure at Fayette, the grievance process was rendered unavailable to
Diaz-Guillen. See White v. Bukowski, 800 F.3d 392, 397 (7th Cir. 2015) (“Prisoners are
required to exhaust grievance procedures they have been told about, but not procedures
they have not been told about.”). Thus, he has exhausted his administrative remedies
with regard to Dr. Swanson.

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For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 87). The Motion for Judgment on the Pleadings filed by
Defendant Jay Swanson, which was converted to a Motion for Summary Judgment on
the issue of exhaustion of administrative remedies (Doc. 66), is DENIED.
IT IS SO ORDERED.
DATED: March 19, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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