Thompson v. Wexford Health Sources, Inc. et al

Filing 94

ORDER ADOPTING 87 REPORT AND RECOMMENDATION: The Court GRANTS Defendants' 60 Motion for Summary Judgment. All other motions are DENIED as MOOT. The Clerk's Office is DIRECTED to update the docket sheet to reflect the true and accurat e names of Defendants as listed on page 1 of this Order. This action is DISMISSED without prejudice for failure to exhaust administrative remedies. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 9/11/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL THOMPSON,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES,
DOCTOR RITZ, DOCTOR
FEINERMAN, DOCTOR SHEPHERD,
DOCTOR FAHIM, DOCTOR
SHEARING, DOCTOR TROST, and
JACQUELINE LASHBROOK,
Defendants.

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Case No. 17-CV-329-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. 87) regarding the motion for
summary judgment filed by Defendants John Shepherd, M.D., Magid Fahim, M.D.,
Adrian Feinerman, M.D., Robert Shearing, M.D., John Trost, M.D., Stephen Ritz, D.O.,
and Wexford Health Sources, Inc. (collectively “Defendants”) (Doc. 61). 1 The motion
seeks summary judgment on the issue of exhaustion of administrative remedies. The
Report and Recommendation was entered on August 3, 2018; it recommends granting
the motion for summary judgment filed by Defendants (Doc. 81). Plaintiff Michael

The Clerk’s Office is DIRECTED to update the docket sheet to reflect the true and accurate names of
Defendants as listed above.
1

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Thompson (“Thompson”) did not file an objection to the Report and Recommendation. 2
Thompson, an inmate of the Illinois Department of Corrections (“IDOC”)
currently incarcerated at Menard Correctional Center, filed a pro se lawsuit pursuant to
42 U.S.C. § 1983 for deprivations of his constitutional rights (Doc. 1). Following a
threshold review of the complaint pursuant to 28 U.S.C. § 1915A, Thompson was
permitted to proceed on the following claims:
Count 1 –

Eighth Amendment deliberate indifference to serious
medical needs claim against Ritz, Feinerman, Shepherd,
Fahim, Shearing, and Trost in relation to Thompson’s
Crohn’s disease.

Count 2 –

Eighth Amendment deliberate indifference claim against
Wexford Health Sources, Inc. for instituting and following
cost-saving policies and practices which delayed the
provision of medical care and resulted in inadequate
treatment, and which caused Menard Correctional Center
providers to fail to treat Thompson’s Crohn’s disease.

(Doc. 6, p. 4-6). Jacqueline Lashbrook, the warden of Menard Correctional Center, was
added as a defendant in her official capacity only, due to Thompson’s claim for
injunctive relief.
Defendants filed a motion for summary judgment in February 2018, arguing that
Thompson failed to exhaust his administrative remedies prior to filing suit (Docs. 60,
61). Thompson filed a response in opposition to the motion (Docs. 68 and 70). In
accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on the issue of exhaustion on August 2, 2018
(Docs. 85 & 91). On August 3, 2018, Magistrate Judge Wilkerson issued the Report and
The Report and Recommendation is directed to United States District Judge J. Phil Gilbert, however, on
August 24, 2018, this case was reassigned from Judge Gilbert to the undersigned pursuant to
Administrative Order No. 188 (Doc. 90).
2

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Recommendation currently before the Court, in which he concluded that Thompson
failed to exhaust his administrative remedies.
Specifically, as to the grievance dated January 24, 2016, Magistrate Judge
Wilkerson found that Thompson did not fully exhaust his administrative remedies
because he failed to wait for a final determination from the chief administrative officer
(“CAO”) before appealing to the Administrative Review Board (“ARB”) (Doc. 87, p. 6).
As to the April 5, 2016 grievance, Magistrate Judge Wilkerson found that Thompson did
not fully exhaust his administrative remedies because he sent this grievance directly to
the ARB, without first submitting it to his grievance counselor and the CAO (Id.). As to
the July 7, 2016 grievance, Magistrate Judge Wilkerson found that Thompson did not
fully exhaust his administrative remedies because he failed to send that grievance to the
ARB (Id.).
Finally, as to the December 18, 2016 grievance, Magistrate Judge Wilkerson
found that Thompson did not fully exhaust his administrative remedies because he
filed this lawsuit before the ARB issued its decision (Id.). In his Report and
Recommendation, Magistrate Judge Wilkerson advised Thompson that the statute of
limitations on his claim runs two years after he has exhausted his administrative
remedies (June 6, 2017) and that there appears to be no bar to Thompson refiling this
action based on the allegations contained within the December 18, 2016 grievance.
Objections to the Report and Recommendation were due on or before August 20,
2018. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); SDIL-LR 73.1(b). No objections
were filed. Where neither timely nor specific objections to the Report and

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Recommendation are made, the Court need not conduct a de novo review. 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 “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 undersigned has reviewed Magistrate Judge Wilkerson’s Report and
Recommendation and finds there is no clear error in his findings of fact or conclusions
of law. Accordingly, the Report and Recommendation (Doc. 87) is ADOPTED in its
entirety. The motion for summary judgment filed by Defendants Fahim, Ritz,
Feinerman, Shearing, Trost, Shepherd, and Wexford (Doc. 60) is GRANTED. This
action is DISMISSED without prejudice for failure to exhaust administrative remedies.
The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 11, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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