Newcomb v. Wexford Health Services, Inc. et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth in the attached Memorandum and Order, the undersigned District Judge ADOPTS in its entirety Judge Williams' Report and Recommendation (Doc. 63 ), GRANTS Defendants' exhaustion-based summary judgment motion (Doc. 45 ), and DISMISSES without prejudice Plaintiff's claims against Defendants Duncan and Tredway. Signed by Chief Judge Michael J. Reagan on 2/27/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN NEWCOMB,
Plaintiff,
vs.
WEXFORD HEALTH SERVICES, INC.,
JOHN COE,
BETH TREDWAY,
and STEPHEN B. DUNCAN,
Defendants.

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Case No. 15-cv-1363-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Kevin Newcomb, who suffers from cerebral palsy and is confined at Lawrence
Correctional Center, filed this lawsuit under 42 U.S.C. 1983, alleging violations of his
federally-secured constitutional rights by three correctional officials (Warden Duncan,
Assistant Warden Tredway, and Medical Director Coe) and the private corporation that
contracts to provide medical care to inmates in the Illinois Department of Corrections
(Wexford Health Services). On threshold review of the complaint, the undersigned
concluded that Plaintiff’s complaint stated cognizable claims for deliberate indifference
to his medical needs and unconstitutional conditions of confinement. The case was
referred to the Honorable Stephen C. Williams, United States Magistrate Judge, for
pretrial proceedings. Defendants entered, and motions were filed.
On July 25, 2016, Defendants Duncan and Tredway moved for summary
judgment on the basis that Plaintiff had failed to exhaust all administrative remedies
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against them before filing this action (Doc. 45, 46), as required by the Prisoner Litigation
Reform Act or PLRA, 42 U.S.C. 1997e. Under the PLRA, if an inmate fails to exhaust
administrative remedies before filing suit in federal court, the district court must
dismiss the lawsuit. See Jones v. Bock, 549 U.S. 199, 223 (2007); Burrell v. Powers, 431
F.3d 282, 284-85 (7th Cir. 2005).1
Plaintiff filed a response (Doc. 54) opposing summary judgment, and Judge
Williams undertook to resolve the issue. Three grievances were attached to Plaintiff’s
complaint – two dated October 25, 2015 and an emergency grievance dated October 27,
2015. The record indicated Plaintiff had sent a letter and requests for status updates on
the grievances. Plaintiff maintained he sent another emergency grievance stating that
he was being threatened by gang members. Plaintiff also asserted (and offered an
affidavit suggesting) that a counselor tore up grievances Plaintiff submitted.
Because there was a dispute of fact regarding whether Plaintiff was thwarted in
his effort to exhaust remedies, Judge Williams conducted an evidentiary hearing on
January 20, 2017 and ordered the transcript of that hearing immediately prepared.
Because Plaintiff’s testimony in that hearing plainly changed the position reflected in
Plaintiff’s response to summary judgment, Judge Williams also ordered Plaintiff to
submit the signed copies of the October 25, 2015 grievances for review. He did so on
February 3, 2017.
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Although dismissal is the procedural step the district court takes if a
plaintiff failed to exhaust prior to filing suit, the issue of exhaustion most often is
raised via summary judgment motion, so that the Court can consider evidence
“outside the pleadings,” such as affidavits, grievances, responses, appeals, and
related documentation. See Fed. R. Civ. P. 12(d).
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Having heard the testimony at the hearing and reviewed all the evidence in the
record, Judge Williams submitted a Report and Recommendation on February 6, 2017
(“R&R” – Doc. 63). The detailed and thorough R&R recommends that the undersigned
grant Defendant Duncan and Tredway’s motion, dismiss Plaintiff claims against those
two Defendants without prejudice, and allow the case to proceed against Defendants
Wexford and Coe (Doc. 63, p. 14). The R&R clearly states that any objections to Judge
Williams’ recommendations must be filed “on or before February 23, 2017” (id.).
No objections were filed by that deadline. Nor did Plaintiff move for additional
time to file objections prior to the deadline elapsing. This Court need not conduct de
novo review. See 28 U.S.C. 636(b)(1)(“A judge of the court shall make a de novo
determination

of

those

portions

of

the

report

or

specified

findings

or

recommendations to which objection is made.”); Fed. Rule Civ. P. 72(b)(3)(“The
district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.”).

See also Thomas v. Arn, 474 U.S. 140 (1985);

Johnson v. Zema Systems Corp., 170 F.3d 734, 741 (7th Cir. 1999); Video Views Inc., v.
Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986).
Accordingly, the undersigned District Judge ADOPTS in its entirety Judge
Williams’ Report and Recommendation (Doc. 63), GRANTS Defendants’ exhaustionbased summary judgment motion (Doc. 45), and DISMISSES without prejudice
Plaintiff’s claims against Defendants Duncan and Tredway.

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Following entry of this Order, remaining herein are Plaintiff’s deliberate
indifference and conditions of confinement claims against Defendants Wexford and
Coe.
IT IS SO ORDERED.
DATED: February 27, 2017.

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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