Malone v. IDOC

Filing 96

ORDER ADOPTING 87 Report and Recommendation. The "Emergency Motion Pertinent to Non-Compliance of the Preliminary Injunction" filed by Plaintiff William Malone (Doc. 74 ) is DENIED. The Motion for Summary Judgment filed by Wexford Health Sources, Inc. (Doc. 69 ) is GRANTED. The Clerk of Court is DIRECTED to TERMINATE Wexford as a party to this action. Furthermore, the Joint Motion for Extension of Time (Doc. 94 ) and the Motion to Vacate Scheduling Order (Doc. 95 ) filed by Defendants Christine Brown and Karen Jaimet are GRANTED. The discovery deadline is hereby extended to October 9, 2019. Dispositive motions shall be filed by November 25, 2019. Signed by Chief Judge Nancy J. Rosenstengel on 9/9/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. MALONE,
Plaintiff,
v.

Case No. 3:17-CV-952-NJR-MAB

WEXFORD HEALTH SOURCES, INC.,
CHRISTINE BROWN, and
KAREN JAIMET,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on the Report and Recommendation of Magistrate
Judge Mark A. Beatty, which recommends the undersigned grant the Motion for
Summary Judgment on the issue of exhaustion of administrative remedies filed by
Defendant Wexford Health Sources, Inc. (Doc. 69) and deny the “Emergency Motion
Pertinent to Non-Compliance of the Preliminary Injunction” filed by Plaintiff William
Malone (Doc. 74).
On September 6, 2017, Malone filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging various deprivations of his constitutional rights (Doc. 1). Although Malone has
accumulated at least ten “strikes” for filing frivolous lawsuits and is prohibited from
proceeding in forma pauperis under 28 U.S.C. § 1915(g), the Court permitted Malone to
proceed after finding the imminent danger exception applied to his Eighth Amendment
deliberate indifference claim (Doc. 11). In July 2018, the Court further granted Malone
injunctive relief and ordered Defendants to schedule Malone to be evaluated by an
orthopedic specialist for potential treatment (Doc. 59).
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Although Malone acknowledges that he underwent surgery in October 2018 after
seeing that specialist, he now claims that Defendants are not complying with the
preliminary

injunction

because

he

missed

pre-operative

and

post-operative

appointments with the orthopedist (Doc. 74). 1 He also claims he was prematurely
released from the hospital after the surgery (Id.). Defendants filed responses in opposition
detailing Malone’s appointments with the specialist, as well as his post-operative care
(Docs. 81, 82).
Defendant Wexford Health Sources, Inc., also has filed a motion for summary
judgment arguing that Malone failed to exhaust his administrative remedies prior to
filing this lawsuit (Doc. 69). Because Malone is subject to a filing ban, he was prohibited
from filing a response in opposition.
On July 1, 2019, Judge Beatty entered the Report and Recommendation currently
before the Court (Doc. 87). Judge Beatty recommends denying Malone’s “Emergency
Motion Pertinent to Non-Compliance of the Preliminary Injunction” because the
evidence demonstrates that Defendants clearly complied with the preliminary injunctive
relief ordered by the Court. Judge Beatty further recommends granting the motion for
summary judgment filed by Wexford because Malone failed to fully exhaust his claims
against Wexford at the institutional level. Objections to the Report and Recommendation
were due July 15, 2019; no objections were filed. 2
Where timely objections are filed, this Court must undertake a de novo review of

Although Malone is subject to a filing ban instituted by the Seventh Circuit Court of Appeals until he
pays in full all outstanding filing fees and sanctions in his civil cases, the undersigned permitted him to file
this motion as it appeared to relate to the injunctive relief previously ordered by the Court.
2 Malone attempted to file an objection through a fellow inmate, but due to the aforementioned filing ban,
the objection was stricken.
1

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the Report and Recommendation. 28 U.S.C. 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDILLR 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). But, where neither timely nor specific
objections to the Report and Recommendation are made, this Court should only 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).
While de novo review is not required here, the Court has reviewed Judge Beatty’s
Report and Recommendation for clear error. Following this review, the Court agrees with
his findings, analysis, and conclusions. Accordingly, the Court ADOPTS Judge Beatty’s
Report and Recommendation in its entirety (Doc. 87). The “Emergency Motion Pertinent
to Non-Compliance of the Preliminary Injunction” filed by Plaintiff William Malone
(Doc. 74) is DENIED. The Motion for Summary Judgment filed by Wexford Health
Sources, Inc. (Doc. 69) is GRANTED. The Clerk of Court is DIRECTED to TERMINATE
Wexford as a party to this action.
Furthermore, the Joint Motion for Extension of Time (Doc. 94) and the Motion to
Vacate Scheduling Order (Doc. 95) filed by Defendants Christine Brown and Karen Jaimet
are GRANTED. The discovery deadline is hereby extended to October 9, 2019.
Dispositive motions shall be filed by November 25, 2019.
IT IS SO ORDERED.
DATED: September 9, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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