Falkner v. Shah et al

Filing 48

ORDER ADOPTING 47 Report and Recommendation, GRANTING 31 Motion for Summary Judgment, and GRANTING 35 Motion for Summary Judgment. Plaintiff's claims against Defendants Shah and Bailey are DISMISSED without prejudice. The case is now closed, and judgment will be entered accordingly. Signed by Judge Nancy J. Rosenstengel on 10/24/2016. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYREESE FALKNER,
Plaintiff,
vs.
VIPIN SHAH and SUZANN BAILEY,
Defendants.

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Case No. 15-CV-1399-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. 47), which recommends that this
Court grant Defendant Vipin Shah’s and Defendant Suzann Bailey’s Motions for
Summary Judgment (Docs. 31 and 35). The Report and Recommendation was entered on
September 20, 2016. No objections have been filed.
Plaintiff Tyreese Falkner (“Falkner”), an inmate at Pinckneyville Correctional
Center, filed this case on December 22, 2015, asserting his constitutional rights were
violated. After an initial screening of Falkner’s Complaint, Falkner was allowed to
proceed on his claim that that Defendants Shah and Bailey were deliberately indifferent
to his serious medical needs (Doc. 9).
On May 16, 2016, Defendant Shaw filed a motion for summary judgment on the
basis that Falkner failed to exhaust his administrative remedies before bringing suit
(Docs. 31 and 32). On May 19, 2016, Defendant Bailey filed a motion for summary

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judgment on the same basis (Docs. 35 and 36). Falkner did not respond to either motion
for summary judgment, despite being warned of the perils of failing to file a response
(Docs. 33 and 37).
On September 20, 2016, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 47). The Report and Recommendation
accurately states the nature of the evidence presented on the issue of exhaustion, as well
as the applicable law and the requirements of the administrative process.
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). The Court may accept, reject or
modify the magistrate judge’s recommended decision. Harper, 824 F. Supp. at 788. In
making this determination, the Court must look at all of the evidence contained in the
record and give “fresh consideration to those issues to which specific objections have
been made.” Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure
3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
Where neither timely nor specific objections to the Report and Recommendation
are made, pursuant to 28 U.S.C. 636(b), however, this Court need not conduct a de novo
review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).
While a de novo review is not required here, the Court has considered the evidence and
fully agrees with the findings, analysis, and conclusions of Magistrate Judge Wilkerson.
Based on the evidence submitted by Defendants in support of their motions for

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summary judgment, Falkner has not exhausted his administrative remedies. The Court
agrees that the October 2, 2015 grievance and the February 2016 grievance are
insufficient to establish exhaustion. As to the October 2, 2015 grievance, Falkner
prematurely filed suit before he received a final determination of the Administrative
Review Board (“ARB”) and before the six-month timeframe had elapsed. See, e.g. Randle
v. Corbitt, No. 3:13-CV-01009-SMY-PMF, 2015 WL 720578, at *3 (S.D. Ill. Feb. 18, 2015)
(finding that prisoner failed to exhaust when he filed suit prior to the end of the six
month guideline for the ARB to respond); Buie v. Lock, No. 13-1157, 2014 WL 3925058, at
*6 (C.D. Ill. Aug. 11, 2014) (same); Love v. Hardy, No. 12 C 8776, 2013 WL 3353920, at *2
(N.D. Ill. July 2, 2013) (same). As to the grievance filed sometime in February 2016, this
grievance was clearly filed after this suit was filed.
Further, Falkner has provided no evidence to dispute the evidence and assertions
set forth in Defendants’ motions for summary judgment, despite being given ample time
and opportunity to do so and despite being warned that his failure to file a response to
the motion for summary judgment may be considered an admission of the merits (See
Docs. 33 and 37). Because it is apparent to the Court that Falkner did not fully exhaust
his administrative remedies prior to filing suit, his claims against Defendants Shah and
Bailey must be dismissed.
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 47), GRANTS Defendant Shah’s Motion for Summary Judgment (Doc. 31), and
GRANTS Defendant Bailey’s Motion for Summary Judgment (Doc. 35). Falkner’s claims
against Defendants Shah and Bailey are DISMISSED without prejudice. The case is

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now closed, and judgment will be entered accordingly.
IT IS SO ORDERED.
DATED: October 24, 2016
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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