Godfrey v. Wexford Health Sources, Inc. et al

Filing 42

ORDER ADOPTING 38 REPORT AND RECOMMENDATION: The Court GRANTS the 27 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Wexford Health Sources, Inc. Wexford is DISMISSED without prejudice. The only claim remaining is Count 1 asserted against Officer Redding and C/O Soloan. Signed by Judge Nancy J. Rosenstengel on 7/10/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES GODFREY,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
OFFICER REDDING,
and C/O SOLOAN,
Defendants.

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Case No. 3:17-cv-00157-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on a Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 36), which recommends that the
Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed by
Defendant Wexford Health Sources, Inc., (“Wexford”) be granted. The Report and
Recommendation was entered on February 5, 2018. Plaintiff Charles Godfrey filed a
timely objection to the Report and Recommendation on February 13, 2018 (Doc. 38).
BACKGROUND
As stated in the Report and Recommendation, Godfrey, an Illinois Department of
Corrections

inmate,

was

incarcerated

at

Pinckneyville

Correctional

Center

(“Pinckneyville”) at the time he initiated this pro se action (Doc. 7). Wexford filed a
Motion for Summary Judgment based on failure to exhaust administrative remedies.

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The only count directed at Wexford, which is Count 2 of Godfrey’s Complaint, alleges
an Eighth Amendment claim for deliberate indifference to Godfrey’s medical need for
knee surgery and hernia surgery.
On February 2, 2018, Magistrate Judge Donald G. Wilkerson held a hearing on
Wexford’s Motion for Summary Judgment (Doc. 26). The Court found credible
Godfrey’s testimony that he filed an emergency grievance on December 28, 2016, but
never received a response (Doc. 36). This is consistent with Godfrey’s Complaint
(Doc. 1). Godfrey further testified that his emergency grievance primarily dealt with his
complaint that he was improperly placed on the “top deck,” though he also testified
that he referenced both his hernia and knee problems in the grievance as supporting
evidence (Doc. 36). Godfrey further testified that he has undergone knee and hernia
surgery since initiating this action (Doc. 36).
THE REPORT AND RECOMMENDATION
Magistrate Judge Wilkerson recommends granting Wexford’s Motion for
Summary Judgment in its entirety. Magistrate Judge Wilkerson found that Wexford has
met its burden of proving that Godfrey failed to exhaust his administrative remedies
regarding Wexford’s alleged denial of Godfrey’s knee and hernia surgeries. Even
though one document within Godfrey’s records from the Administrative Review Board
references a denial of a hernia surgery, Magistrate Judge Wilkerson concluded that this
document by itself could not be the basis for finding that Godfrey exhausted his
administrative remedies. Specifically, the document was an affidavit—dated July 28,

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2016—that appeared to have been received by the Administrative Review Board as
additional evidence considered in Godfrey’s appeal of his grievance dated June 10,
2016. Magistrate Judge Wilkerson concluded that a statement in a supplemental
document could not be a basis for finding that Godfrey grieved the issue of a denial of
surgery. The grievance did not relate to a denial of surgery, but rather to the actions of
other defendants who denied Godfrey ice necessary to reduce swelling in his knee.
Further, Magistrate Judge Wilkerson found that nothing in Godfrey’s testimony at the
Pavey hearing provided evidence that the denial of his knee and hernia surgeries was
properly exhausted.
DISCUSSION
When 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 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
made. Id. (quoting 12 Charles Alan Wright et. al, Federal Practice and Procedure § 3076.8,
at p. 55 (1st ed. 1973) (1992 Pocket Part)).
Here, Godfrey filed a timely objection to the Report and Recommendation. First,
Godfrey objects to “Exhibit F, Page 112,” noting that “[a] lot was out of order &

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certainly not true.” (Doc. 38). Godfrey notes that, “None of the dates match when my
grievance was filed & I surely, did not receive my ‘Emergency Grievance’ back from
12/28/16. None filed 1/05/17.” (Id.). The Court points out that, as part of Magistrate
Judge Wilkerson’s Report and Recommendation, the Court “found credible Godfrey’s
testimony that he filed an emergency grievance on December 28, 2016 but never
received a response.” (Doc. 36, p. 3). Therefore, Magistrate Judge Wilkerson did not
make his recommendation based on a conclusion that Godfrey received his Emergency
Grievance back. Rather, the he found credible Godfrey’s testimony that no one returned
the Emergency Grievance to him.
Godfrey also objects to the use of “Exhibit D,” stating, “1/05/2017 is not correct
again & response is totally not correct from Ms. Mercier on 1/5/2017, I never filed!”
(Doc. 38). But Godfrey fails to explain how this gives the Court cause to reject
Magistrate Judge Wilkerson’s Report and Recommendation. Magistrate Judge
Wilkerson reviewed these documents for reference to a complaint of a denial of surgery.
Godfrey also alleges that, if he were able to retrieve his Grievance from
December 28, 2016, he would be able to show the Court sufficient factual evidence that
Wexford’s denial of his surgeries was part of his complaint. Magistrate Judge Wilkerson
has already considered Godfrey’s testimony regarding the December 28, 2016 Grievance
and concluded that Godfrey did not specifically complain in that Grievance about a
denial of surgery (Doc. 36, pp. 6-7). Godfrey testified that he referenced both his hernia
and knee problems in the emergency grievance as evidence that he should not be on the

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top deck, but Godfrey did not testify that the December 2016 grievance specifically
complained about a denial of surgery.
Godfrey alleges in his Objection that “[his] testimony was only of vague memory
& that should have never been a part of determining the judgment granted to dismiss
Wexford Inc. from this case.” (Doc. 38, p. 4). Magistrate Judge Wilkerson found Godfrey
competent to testify, however, and also found his testimony concerning his December
28, 2016 grievance credible. This Court sees no reason why Godfrey’s testimony should
not have been considered in this matter.
None of Godfrey’s other arguments gives this Court cause to reject Magistrate
Judge Wilkerson’s Report and Recommendation. The Court cannot disregard applicable
law concerning the exhaustion of administrative remedies.
CONCLUSION
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 38). Wexford’s Motion for Summary Judgment (Doc. 27) is
GRANTED. Wexford is DISMISSED without prejudice for failure to exhaust
administrative remedies. The only claim remaining is Count 1 asserted against Officer
Redding and C/O Soloan.
IT IS SO ORDERED.
DATED: July 10, 2018
s/ Nancy J. Rosenstengel__________
NANCY J. ROSENSTENGEL
United States District Judge

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