Rowling v. Lifchitz et al

Filing 73

ORDER ADOPTING 66 REPORT AND RECOMMENDATION: The Court DENIES the 49 Motion for Summary Judgment filed by Dennis Larson, Alan Lifchitz, and Wexford Health Sources, Inc, and DENIES the 51 Motion for Summary Judgment filed by Jason C. Garnett and Illinois Department of Corrections. Signed by Judge Nancy J. Rosenstengel on 2/7/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLIFFORD ANTONIO ROWLING,
Plaintiff,
vs.
ALAN LIFSCHITZ, M.D., ILLINOIS
DEPARTMENT OF CORRECTIONS,
JASON C. GARNETT, DENNIS
LARSON, M.D., GARY GERST, and
WEXFORD HEALTH SOURCES, INC.,
Defendants.

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Case No. 16-CV-459-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. 66), which recommends that this
Court deny the Motion for Summary Judgment filed by Defendants Gary Gerst, Dennis
Larson, M.D., Alan Lifschitz, M.D., and Wexford Health Sources, Inc. (Doc. 49) and deny
the Motion for Summary Judgment filed by Defendants Jason C. Garnett and the Illinois
Department of Corrections (Doc. 51). The Report and Recommendation was entered on
November 14, 2017. Although Defendants Jason Garnett and the Illinois Department of
Corrections initially sought an extension of time to file an objection to the motion, no
objections were ultimately filed (See Doc. 71).
Plaintiff Clifford Rowling (“Rowling”) filed this action asserting that Defendants
violated his constitutional rights while he was incarcerated at Big Muddy River
Correctional Center (“Big Muddy”). Rowling proceeds on the following counts:

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Count One: Eighth Amendment claim against Big Muddy Medical Director Dr.
Dennis Larson, Physician’s Assistant Gary Gerst, and Dr. Alan
Lifschitz for denying Rowling medical, mental health, and
psychiatric care at Big Muddy;
Count Two: Eighth Amendment claim against Wexford for instituting several
cost-saving policies that were the “driving force” behind Rowling’s
denial of medical, mental health, and psychiatric care at Big Muddy;
and
Count Three: ADA and/or RA claims against the IDOC for discriminating against
Rowling because of his mental and psychiatric disabilities.
Jason Garnett, the Warden of Big Muddy, is a defendant in this action in his
official capacity only to carry out any injunctive relief that may be ordered.
Defendants have filed Motions for Summary Judgment (Docs. 49 and 51) arguing
that Rowling 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 the motions on August 2, 2017. Following the Pavey
hearing, Magistrate Judge Wilkerson issued the Report and Recommendation currently
before the Court (Doc. 66). Objections to the Report and Recommendation were due on
or before January 29, 2018. No objections were filed.
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

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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, upon receipt of
Rowling’s grievance, the ARB was on notice of Rowling’s complaints and his apparent
inability to follow the proper grievance procedure due to his serious mental
impairments and, by merely returning the grievance with additional instructions that
were likely beyond Rowling’s abilities, caused the administrative remedy process to be
unavailable to Rowling. The Court agrees that, in this particular factual scenario, the
administrative remedy process was unavailable to Rowling.
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 66) in its entirety and DENIES the Motions for Summary
Judgment (Docs. 49 and 51) filed by Defendants.
IT IS SO ORDERED.
DATED: February 7, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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