McClay v. Shah et al

Filing 52

ORDER ADOPTING 50 Report and Recommendation, GRANTING in part and DENYING in part 35 Motion for Summary Judgment, and GRANTING 38 Motion for Summary Judgment. Count 2 against Defendants Shah and Lashbrook is DISMISSED without prejudice. The Clerk of Court is DIRECTED to TERMINATE Defendant Lashbrook as a party to this action. This case proceeds as to Count 1 of Plaintiff's Complaint against Defendants Shah and Wexford only. Signed by Judge Nancy J. Rosenstengel on 3/1/2017. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAINE MCCLAY,
Plaintiff,
vs.
VIPIN SHAH, WEXFORD MEDICAL
SOURCES, and WARDEN
LASHBROOK,
Defendants.

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Case No. 16-CV-19-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. 50), which recommends that this
Court grant in part and deny in part the Motion for Summary Judgment filed by
Defendants Vipin Shah, M.D. and Wexford Health Sources (Doc. 35) and grant the
Motion for Summary Judgment filed by Defendant Jacqueline Lashbrook (Doc. 38). The
Report and Recommendation was entered on January 11, 2017. No objections were filed.
Plaintiff Dwaine McClay filed this action on January 6, 2016, asserting that
Defendants violated his constitutional rights while he was incarcerated at Pinckneyville
Correctional Center. Plaintiff proceeds on the following counts:
Count One: Defendants Shah and Wexford were deliberately indifferent to
Plaintiff’s medical needs by failing to diagnose or treat the
symptoms he attributes to his ongoing consumption of soy
products, and by refusing to provide him with a soy-free diet, in
violation of the Eighth Amendment; and
Count Two: Defendants Shah and Lashbrook were deliberately indifferent to
Plaintiff’s basic need for a nutritionally adequate diet, by allowing
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him to go without food for prolonged periods during which he has
suffered pain and weakness, in violation of the Eighth Amendment.
All three defendants have filed Motions for Summary Judgment (Docs. 35, 38)
arguing that Plaintiff failed to exhaust his administrative remedies before bringing suit.
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson
held an evidentiary hearing on Defendants’ motions on January 5, 2017. Following the
Pavey hearing, Magistrate Judge Wilkerson issued the Report and Recommendation
currently before the Court (Doc. 50). Objections to the Report and Recommendation
were due on or before January 30, 2017. No party has filed an objection.
Where timely objections are filed, the 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 291, 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). A judge may then
“accept, reject, modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1).
The Court has carefully reviewed Magistrate Judge Wilkerson’s Report and
Recommendation. Magistrate Judge Wilkerson thoroughly discussed the evidence and
the Court fully agrees with his findings, analysis, and conclusions with respect to the
issue of exhaustion. Magistrate Judge Wilkerson determined that Plaintiff was credible

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in his assertion that he attempted to file a grievance in the summer of 2015, and that
credibility determination is entitled to deference. See Pavey v. Conley, 663 F.3d 899, 904
(7th Cir. 2011). The Court also agrees that the content of this grievance is sufficient to
exhaust Count One of Plaintiff’s Complaint related to Plaintiff’s medical conditions
allegedly caused by consuming soy. This grievance, however, is insufficient to exhaust
Count Two of Plaintiff’s Complaint related to a nutritionally inadequate diet.
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 50) in its entirety, GRANTS in part and DENIES in part the
Motion for Summary Judgment (Doc. 35) filed by Defendants Shah and Wexford, and
GRANTS the Motion for Summary Judgment (Doc. 38) filed by Defendant Lashbrook.
Count 2 against Defendants Shah and Lashbrook is DISMISSED without prejudice.
The Clerk’s Office is DIRECTED to TERMINATE Defendant Lashbrook as a party to
this action. This case proceeds as to Count One of Plaintiff’s Complaint against
Defendants Shah and Wexford only.
IT IS SO ORDERED.
DATED: March 1, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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