Wimberly v. Wexford Health Sources Inc. et al

Filing 74

ORDER ADOPTING 64 Report and Recommendation, GRANTING in part and DENYING in part 38 Motion for Summary Judgment, and GRANTING in part and DENYING in part 41 Motion for Summary Judgment. The claims against Defendants Trost, Godinez, Walls, Al lsup, and Oakley are DISMISSED without prejudice. The Clerk's Office is DIRECTED to terminate these defendants from this action. The Clerk's Office is also DIRECTED to update the docket sheet to reflect the true and accurate names of the fo llowing defendants: "Trost" should be "John Trost, M.D," and "Dr. Strow" should be "Dr. Wallace Strow." In light of the Court's ruling, the action will proceed as to Count One of Plaintiff's Complaint against Defendants Strow, Butler, 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
DARRELL WIMBERLY,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
TROST, DR. STROW, KIMBERLY
BUTLER, SALVADOR GODINEZ,
GAIL WALLS, K. ALLSUP, and LORI
OAKLEY,
Defendants.

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Case No. 16-CV-202-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. 64), which recommends that this
Court grant in part and deny in part the Motion for Summary Judgment filed by
Defendants Kimberly Butler, Salvador Godinez, Gail Walls, K. Allsup, and Lori Oakley
(Doc. 38) and grant in part and deny in part the Motion for Summary Judgment filed by
John Trost, M.D. and Wexford Health Sources, Inc. (Doc. 41). 1 The Report and
Recommendation was entered on November 2, 2016. No objections were filed.
Plaintiff Darrell Wimberly filed this case on February 25, 2016, asserting that
Defendants violated his constitutional rights while he was incarcerated at Menard
Correctional Center. Plaintiff is proceeding on one count of deliberate indifference
The Clerk’s Office is DIRECTED to update the docket sheet to reflect the true and accurate names of the
following defendants: “Trost” should be “John Trost, M.D,” and “Dr. Strow” should be “Dr. Wallace
Strow.”
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relating to his serious oral health issues, in violation of the Eighth Amendment, against
all Defendants.
Defendants Butler, Godinez, Walls, Allsup, Oakley, Wexford, and Trost have filed
Motions for Summary Judgment (Docs. 38, 41) arguing that Plaintiff failed to exhaust his
administrative remedies before bringing suit. Specifically, Defendants Butler, Godinez,
Walls, Allsup, and Oakley argue that Plaintiff failed to include complaints of any of
these defendants in his March 6th and March 9th grievances, and all Defendants argue
that that Plaintiff’s appeal to the ARB was untimely.
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on Defendants’ motions on October 26, 2016.
Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 64). Objections to the Report and
Recommendation were due on or before November 21, 2016. 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

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“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. Plaintiff failed to exhaust his administrative remedies concerning
his claims against Defendants Trost, Godinez, Walls, Allsup, and Oakley. He did,
however, sufficiently exhaust his deliberate indifference claim against Defendant Butler,
as well as his policy and practice claim against Defendant Wexford.
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 64) in its entirety, GRANTS in part and DENIES in part the
Motion for Summary Judgment (Doc. 38) filed by Defendants Allsup, Butler, Godinez,
Oakley, and Walls, and GRANTS in part and DENIES in part the Motion for Summary
Judgment (Doc. 41) filed by Defendants Trost and Wexford. The claims against
Defendants Trost, Godinez, Walls, Allsup, and Oakley are DISMISSED without
prejudice. The Clerk’s Office is DIRECTED to terminate these defendants from this
action.
In light of this ruling, the action will proceed as to Count One of Plaintiff’s
Complaint against Defendants Strow, Butler, and Wexford.
IT IS SO ORDERED.
DATED: March 1, 2017
s/ Nancy J. Rosenstengel___________
NANCY J. ROSENSTENGEL
United States District Judge
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