Brand v. Wexford Health Care Serv et al

Filing 47

ORDER ADOPTING 43 Report and Recommendation and GRANTING 38 Motion for Summary Judgment on the Issue of Exhaustion filed by Defendants Mary Klein, Seth Townsend, and Jacy Fulk. Signed by Judge Nancy J. Rosenstengel on 8/28/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OLSEN BRAND,
Plaintiff,
vs.
MARY KLEIN, DR. EMMANUEL
AFUWAPE, SETH TOWNSEND, and
JACY FULK,
Defendants.

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Case No. 3:16-CV-00161-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. 43), which recommends granting the
Motion for Summary Judgment on the issue of exhaustion filed by Defendants Mary
Klein, Seth Townsend, and Jacy Fulk (Doc. 38).
On February 12, 2016, Plaintiff Olsen Brand initiated this lawsuit pursuant to
28 U.S.C. § 1983, alleging Defendants violated his constitutional rights while he was
incarcerated at Vandalia Correctional Center. After a screening of the amended
complaint (Doc. 12) pursuant to 28 U.S.C. § 1915A, Brand was permitted to proceed on
two counts. Specifically, Brand alleges Defendants Klein, Afuwape, Townsend, and Fulk
were deliberately indifferent to his medical needs by failing to adequately treat his
asthma and chronic obstructive pulmonary disease (Count One) and that Defendant
Klein placed him in segregation in retaliation for filing medical grievances, in violation
of the First Amendment (Count Three).
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On February 3, 2017, Defendants Klein, Townsend, and Fulk filed a motion for
summary judgment (Doc. 38) arguing Brand failed to exhaust his administrative
remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq., prior to
filing this suit. Defendants argue that the only grievance in the record related to medical
care Brand received at Vandalia during the relevant timeframe was rejected by the
Administrative Review Board (“ARB”) because it did not include the necessary
institutional responses. Defendants note that by Brand’s own admission, by the time he
filed his amended complaint, he was still “waiting on a response from grievance officer,
administrative review board . . . .” (Doc. 12, p. 4). Accordingly, Defendants argue, Brand
did not exhaust his administrative remedies, and Defendants must be dismissed.
Brand did not file a response to Defendants’ Motion for Summary Judgment
despite being warned of the consequences for failing to do so and sua sponte being given
additional time to respond (Docs. 40, 41). The Report and Recommendation was entered
on July 10, 2017. No objections 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).
The Court has carefully reviewed the briefs and exhibits submitted by
Defendants, as well as Magistrate Judge Wilkerson’s Report and Recommendation.
Magistrate Judge Wilkerson thoroughly discussed his conclusion that Brand failed to
exhaust his administrative remedies as to Defendants Klein, Townsend, and Fulk prior
to filing this lawsuit. There is evidence that Brand initially submitted the relevant
grievance as an emergency grievance to the warden. When the warden rejected the
emergency nature of the grievance, however, Brand chose to submit the grievance to his
counselor using the normal grievance procedure (rather than immediately appealing to
the ARB). Once Brand decided to follow the normal channels of exhaustion, he had to
obtain the required institutional responses before appealing to the ARB. His failure to do
so means he has not exhausted his administrative remedies.
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 43) and GRANTS the Motion for Summary Judgment on the
issue of exhaustion filed by Defendants Mary Klein, Seth Townsend, and Jacy Fulk
(Doc. 38). Defendants Klein, Townsend, and Fulk are DISMISSED without prejudice.
Brand shall now proceed in this action solely on Count One, a claim of deliberate
indifference against Defendant Afuwape.
IT IS SO ORDERED.
DATED: August 28, 2017
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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