Tuduj v. Newbold et al

Filing 64

ORDER ADOPTING 63 REPORT AND RECOMMENDATIONS, DENYING 40 MOTION for Summary Judgment filed by Steven Newbold, and DENYING 45 MOTION for Summary Judgment filed by Harry George Henderson, John R. Baldwin, Kimberly Butler. Signed by Judge Nancy J. Rosenstengel on 9/1/2017. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOM TUDUJ,
Plaintiff,
vs.
STEVEN NEWBOLD,
KIMBERLY BUTLER,
HARRY GEORGE HENDERSON,
CRAIG ASSELMEIER, and
JOHN R. BALDWIN,
Defendants.

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Case No. 15-CV-1294-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. 63), which recommends denying the motions
for summary judgment on the issue of exhaustion of administrative remedies filed by
Defendants Steven Newbold, Kimberly Butler, Harry George Henderson, and John Baldwin
(Docs. 40, 45).1 None of the parties filed an objection to the Report and Recommendation.
For the reasons explained below, the Court adopts Magistrate Judge Wilkerson’s Report
and Recommendation and denies the motions for summary judgment.

Plaintiff Tom Tuduj, an inmate of the Illinois Department of Corrections
(“IDOC”) currently incarcerated at Menard Correctional Center, filed a pro se lawsuit
pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional right to adequate
dental care (Doc. 1). Specifically, Tuduj claims that he was refused cavity fillings and

Craig Asselmeier is the only Defendant who did not move for summary judgment on the issue of
exhaustion of administrative remedies.
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root canals to resolve his dental needs, which caused his teeth to further deteriorate to
the point they had to be extracted. Tuduj claims that he lost several teeth that could
have been saved had he received proper dental care. Following a threshold review of
the amended complaint pursuant to 28 U.S.C. § 1915A, Tuduj was permitted to proceed
on an Eighth Amendment claim Doctors Steven Newbold, Harry George Henderson,
and Craig Asselmeier for denying him adequate dental care (Count 1) and against
IDOC Director John Baldwin and Warden Kimberly Butler for implementing a policy
and/or practice of refusing all forms of dental care other than tooth extractions (Count
2) (Doc. 18).
Defendant Newbold filed a motion for summary judgment on February 24, 2017,
arguing that Tuduj failed to exhaust his administrative remedies prior to filing suit as
required by the Prison Litigation Reform Act (Doc. 40). Defendants Baldwin, Butler, and
Henderson then filed their own motion for summary judgment on the issue of exhaustion
on March 1, 2017 (Doc. 45). Tuduj filed responses to opposition to both motions for
summary judgment (Docs. 53, 54). In accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008), Magistrate Judge Wilkerson held an evidentiary hearing on the issue of exhaustion
on August 3, 2017 (Doc. 61). On August 10, 2017, Magistrate Judge Wilkerson issued the
Report and Recommendation currently before the Court, in which he recommends denying
the

motions

for

summary

judgment

(Doc. 63).

Objections

to

the

Report

and

Recommendation were due on or before August 24, 2017. See 28 U.S.C. § 636(b)(1); FED. R.
CIV. P. 72(b)(2); SDIL-LR 73.1(b). As previously mentioned, no objections were filed.
Where neither timely nor specific objections to the Report and Recommendation are
made, the Court need not conduct a de novo review. See Thomas v. Arn, 474 U.S. 140 (1985).

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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 findings, analysis, and conclusions of
Magistrate Judge Wilkerson. The Report and Recommendation (Doc. 63) is ADOPTED in
its entirety, and Defendants’ motions for summary judgment (Docs. 40, 45) are DENIED.
IT IS SO ORDERED.
DATED: September 1, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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