Watford v. Newbold et al

Filing 67

ORDER ADOPTING in part and REJECTING in part 51 REPORT AND RECOMMENDATION. Defendant Dr. Veera Kaja is DISMISSED without prejudice for Plaintiff's failure to exhaust his administrative remedies. Dr. Steven Newbold remains a Defendant in this case, but the parties are ORDERED to respond to the Court's proposed entry of judgment as a matter of law in favor of Dr. Newbold by June 3, 2019. See attached Order for further details. Signed by Chief Judge Nancy J. Rosenstengel on 5/2/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARLON WATFORD,
Plaintiff,
vs.
STEVEN NEWBOLD, DR. VEERA
KAJA, and WARDEN OF MENARD
CORRECTIONAL CENTER, 1
Defendants.

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Case No. 3:17-CV-1252-NJR-GCS

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter, which was transferred to the undersigned on April 1, 2019, following
the retirement of District Judge Michael J. Reagan, is before the Court on the Report and
Recommendation of former Magistrate Judge Stephen C. Williams (Doc. 51). Judge
Williams recommended the Court grant the motion for summary judgment on the issue
of exhaustion of administrative remedies filed by Defendants Dr. Steven Newbold and
Dr. Veera Kaja (Doc. 39). Plaintiff Marlon Watford timely objected to the Report and
Recommendation (Doc. 52). For the reasons set forth below, the Court adopts in part and
rejects in part the Report and Recommendation .
BACKGROUND
Plaintiff Marlon Watford, an inmate of the Illinois Department of Corrections
housed at Menard Correctional Center, filed this case pursuant to 42 U.S.C. § 1983 on

1

The Clerk of Court is DIRECTED to correct Dr. Kaja’s name on the docket to Dr. Veera Kaja.

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November 17, 2017, alleging Defendants violated his constitutional rights (Doc. 1). After
threshold review of his complaint pursuant to 28 U.S.C. § 1915A, Watford was permitted
to proceed against Defendants Dr. Newbold and Dr. Kaja, 2 both dentists, on one count
of deliberate indifference to his serious dental condition in violation of the Eighth
Amendment (Doc. 5). 3 Specifically, Watford claims Dr. Newbold diagnosed him with a
cavity in tooth #31 in early 2014, but concealed that fact from him until May 23, 2016
(Doc. 1 at pp. 3-4). And despite Watford’s requests for a permanent filling, Defendants
refuse to treat the cavity (Id.). He claims that on November 3, 2016, Dr. Kaja performed
an x-ray and then told her assistant to tell Watford he would not be getting a filling that
day (Id. at p. 6). When Watford pressed Dr. Kaja for a reason why, she told him Dr.
Newbold instructed her not to give him a filling (Id.).
On July 23, 2018, Dr. Newbold and Dr. Kaja filed a motion for summary judgment
asserting Watford did not properly exhaust his administrative remedies before filing this
lawsuit, as required by the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e, et seq.
(Doc. 39). Defendants contend there is only one relevant grievance in the record, dated
May 24, 2016 (Id.). Because the grievance complains of conduct that occurred in 2014,
however, it was filed outside of the 60-day timeframe required by the Illinois
Administrative Code and cannot be used to exhaust Watford’s administrative remedies.
Furthermore, even if Watford filed the grievance within 60 days of discovering the alleged
concealment of the cavity, the grievance does not mention either Dr. Newbold or Dr. Kaja.
The Warden of Menard Correctional Center was added as a defendant to carry out any injunctive relief
ultimately ordered in this case (Doc. 5).
3 Additional claims passed threshold review but were severed into a new case (Doc. 5).
2

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Nor could it refer to them, as Dr. Newbold did not see Watford until April 2, 2015, and
Watford’s dental records confirm that the dentist who examined him at his bi-annual
exam in 2014 was Dr. Stroh (Doc. 40-5).
In response, and as anticipated by Defendants, Watford argues his May 24, 2016
grievance was timely filed when he did not discover he had a cavity in tooth #31 until
May 23, 2016, due to Defendants’ concealment of his diagnosis (Doc. 43). He claims the
cavity diagnosis was not written in his chart after his 2014 exam but rather was only
drawn on the tooth diagram (Id. at p. 27). While Watford acknowledges he did not name
Dr. Newbold directly, he argues that Dr. Newbold “adopted the practice and pattern of
other staff members (e.g., Dr. Stroh) of concealing my cavity.” (Id.). With regard to Dr.
Kaja, Watford asserts she is also the subject of his May 24, 2016 grievance,
notwithstanding the fact that she did not see him until November 3, 2016. He argues that
Dr. Kaja willingly covered up the conspiracy to hide his cavity and that makes her one of
the “dental staff” members he complained of in his grievance. Thus, he contends, he has
properly exhausted his administrative remedies.
THE REPORT AND RECOMMENDATION
On December 18, 2018, Judge Williams entered the Report and Recommendation
that is currently before the Court (Doc. 51). Judge Williams found that Watford’s May 23,
2016 grievance is the only grievance relevant to Watford’s claims in this case (Id.; Doc. 11). That grievance, however, was not fully exhausted because the prison and the
Administrative Review Board rejected the grievance as untimely. Furthermore, even if
the grievance was deemed timely filed since Watford did not discover the concealed
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cavity until May 23, 2016, the grievance did not grieve any conduct or treatment by Dr.
Newbold or Dr. Kaja. In fact, a letter Watford sent with his grievance to the Grievance
Officer specifically states that he was only complaining about conduct that occurred in
2014. Because Watford’s grievance only complained about the misdiagnosis of his cavity
in 2014 and not his care in 2016 by Dr. Newbold or Dr. Kaja, Judge Williams
recommended that this Court find the grievance did not exhaust Watford’s claims against
Defendants. Watford timely objected to the Report and Recommendation.
LEGAL STANDARDS
When timely objections are filed, the Court must undertake 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). This requires the Court to look at all evidence
contained in the record, give fresh consideration to those issues to which specific
objections have made, and make a decision “based on an independent review of the
evidence and arguments without giving any presumptive weight to the magistrate
judge’s conclusion.” Harper, 824 F.Supp. at 788 (citing 12 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part));
Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). 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).
Summary judgment must be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes
Wheels Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008). The moving party bears the burden
of establishing that no material facts are in genuine dispute; any doubt as to the existence
of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 160 (1970).
A genuine issue of material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact only exists if “a
fair-minded jury could return a verdict for the [nonmoving party] on the evidence
presented.” Anderson, 477 U.S. at 252.
DISCUSSION
As an inmate in the IDOC, Watford was required to follow the regulations
contained in the IDOC’s Grievance Procedures for Offenders to properly exhaust his
claims. 20 ILL. ADMIN. CODE § 504.800 et seq. The grievance procedures first require
inmates to file their grievance with the counselor within 60 days of the discovery of an
incident. Id. § 504.810(a). The grievance form must contain factual details regarding each
aspect of the offender’s complaint, including what happened, when, where, and the name
of each person who is the subject of or who is otherwise involved in the complaint. Id.
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§ 504.810(c). This provision does not preclude an offender from filing a grievance when
the names of individuals are not known, but the offender must include as much
descriptive information about the individual as possible. Id. Grievances that are unable
to be resolved through routine channels are then sent to the grievance officer. Id.
§ 504.820(a). The Grievance Officer will review the grievance and provide a written
response to the inmate. Id. § 504.830(a). “The Grievance Officer shall consider the
grievance and report his or her findings and recommendations in writing to the Chief
Administrative Officer within two months after receipt of the grievance, when reasonably
feasible under the circumstances.” Id. § 504.830(e). “The Chief Administrative Officer
shall review the findings and recommendation and advise the offender of his or her
decision in writing.” Id.
If the inmate is not satisfied with the Chief Administrative Officer’s response, he
or she can file an appeal with the Director through the Administrative Review Board.
“The Administrative Review Board shall submit to the Director a written report of its
findings and recommendations.” Id. § 504.850(d). “The Director shall review the findings
and recommendations of the Board and make a final determination of the grievance
within 6 months after receipt of the appealed grievance, when reasonably feasible under
the circumstances. The offender shall be sent a copy of the Director’s decision.” Id.
§ 504.850(e).
Here, there is no dispute that Watford filed a grievance and appealed the rejection
of that grievance through the Administrative Review Board. Watford objects, however,
to Judge Williams’s conclusion that his grievance was untimely given that Watford filed
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the grievance within 60 days of the discovery of the concealment of the cavity. Watford
contends that Judge Williams incorrectly found he was grieving the “misdiagnosis” of
his cavity as a food stain as opposed to the “concealment” of the correct diagnosis.
Watford also objects to Judge Williams’s conclusion that he failed to name Dr. Newbold
or Dr. Kaja and, thus, did not exhaust his claims as to these Defendants. Watford argues
that Dr. Newbold first reviewed his file on January 20, 2014, which means Dr. Newbold
must have been the dentist he saw at his 2014 bi-annual exam. And, he argues, there is
no requirement in the Illinois Administrative Code that he specifically name Defendants
in a grievance if their names were unknown to him at the time.
In response to Watford’s objection, Defendants argue that Watford never even
had a cavity on tooth #31. Rather, as revealed during a hearing on Watford’s motion for
preliminary injunction, the cavity found in 2014 was on tooth #13. Additionally, while
Watford claims Dr. Newbold must have been the dentist who detected the cavity in 2014,
his dental records show otherwise. Thus, Watford’s grievance could not have exhausted
his claims against Dr. Newbold and Dr. Kaja.
After reviewing the record de novo, the Court agrees with Judge Williams that
Watford has not exhausted his administrative remedies as to Dr. Kaja. In his May 24, 2016
grievance, Watford alleges that at his bi-annual dental check-up on May 23, 2016, he
discovered he had a cavity in his tooth that apparently had been diagnosed at his
previous bi-annual check-up in 2014 (Doc. 40-1 at pp. 4-6). He further grieved that the
2014 dentist told him it was not a cavity but a food stain—while also telling the dental
assistant (in dental terminology he did not understand) to write down that he had a cavity
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(Id.). Watford did not grieve any failure to treat the cavity after May 23, 2016, nor did he
mention any conduct by Dr. Kaja (Id.). Indeed, Watford alleges that Dr. Kaja saw him
only one time—on November 3, 2016—which is after he filed his grievance (Docs. 1, 52).
And while it is true that a prisoner need not file multiple, successive grievances raising
the same issue, Watford’s claim that Dr. Kaja failed to treat his cavity is different from his
claim in his grievance that the 2014 dentist concealed the cavity from him. Thus, the May
24, 2016 grievance is insufficient to exhaust Watford’s claim against Dr. Kaja, and she will
be dismissed without prejudice.
The Court does not agree with Judge Williams, however, that Watford failed to
exhaust his administrative remedies as to Dr. Newbold. Regardless of whether Watford
actually had a cavity on tooth #31, he alleges he discovered Dr. Newbold’s fraudulent
concealment of that cavity on May 23, 2016. Thus, his May 24, 2016 grievance was filed
within 60 days of his discovery of the incident, occurrence, or problem that gave rise to
the grievance. 20 ILL. ADMIN. CODE § 504.810(a).
Furthermore, Watford was not required to specifically name Dr. Newbold in his
grievance. Id. § 504.810(c). Watford stated in his grievance that the “2014 Dentist”
fraudulently concealed the existence of a cavity on tooth #31. 4 This description was
sufficient to put the prison on notice that the dentist who performed Watford’s 2014 exam
allegedly fraudulently concealed a cavity from him and left him to suffer with pain for
more than two years. Whether Dr. Newbold was actually the dentist who performed the

4

Watford then alleges in his Complaint that the 2014 dentist was, indeed, Dr. Newbold.

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2014 exam goes to the merits of the case, not to whether Watford exhausted his
administrative remedies. Accordingly, the Court finds that Watford exhausted his
administrative remedies as to his claim that Dr. Newbold fraudulently concealed his
alleged cavity. For the same reason the Court dismissed Dr. Kaja, however, the grievance
does not exhaust Watford’s claim that Dr. Newbold then failed to treat the cavity after its
alleged existence was uncovered on May 23, 2014.
Despite this conclusion regarding exhaustion, the Court finds that summary
judgment should be granted to Dr. Newbold on the merits of this case. See FED. R. CIV. P.
56(f) (“After giving notice and a reasonable time to respond, the court may: (1) grant
summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a
party; or (3) consider summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute.”).
The evidence attached to Watford’s own response demonstrates that it was Dr.
Stroh who conducted his March 17, 2014 bi-annual dental exam, not Dr. Newbold (Doc. 43
at p. 44; see also Doc. 40-5, p. 2). Watford appears to admit this fact in his summary
judgment response when he argues that Dr. Newbold “adopted the practice and pattern
of other staff members (e.g., Dr. Stroh) of concealing my cavity.” (Doc. 43 at p. 27). In
other words, Watford cannot genuinely dispute that it was Dr. Stroh who allegedly hid
his cavity diagnosis and failed to refer him for a filling in 2014, thereby causing him to
suffer in pain for two years. The Court is not convinced otherwise by Watford’s assertion
that Dr. Newbold must have become his primary dentist beginning on January 30, 2014,
just because Dr. Newbold wrote “writ return” in his records on that date (See id. at p. 44).
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Dr. Newbold also testified at the preliminary injunction hearing that on November
3, 2016, Dr. Kaja determined that Watford’s x-ray showed no radiographic evidence of a
cavity (Doc. 29 at p. 10). Dr. Newbold explained Watford had a defect in the form of a
groove that turned brown, which would look like a cavity upon clinical examination but
is not actually a serious dental issue needing immediate treatment (Id.). When Dr.
Newbold next saw Watford on June 13, 2017, he found that tooth #32, his wisdom tooth,
was impacted (Id. at pp. 10-13). Dr. Newbold testified that the pain Watford described as
cavity pain from tooth #31 could actually be coming from tooth #32 (Id. at p. 13).
Dr. Newbold did not note any problems, including a cavity, with tooth #31 other than
the minor defect. Dr. Newbold then added Watford to the list to fix the defect on tooth
#31, although he noted that the procedure was elective (Id. at p. 17).
Based on this evidence, the Court finds Watford cannot genuinely dispute that
(1) Dr. Stroh performed the March 17, 2014 exam, not Dr. Newbold; and (2) Watford never
had a cavity on tooth #31 in the first place, but rather a slight defect on the tooth. And
based on those facts, no reasonable jury could find that Dr. Newbold was deliberately
indifferent to a serious dental need. See Anderson, 477 U.S. at 252. Accordingly, the Court
believes summary judgment in favor of Dr. Newbold is appropriate.
Under Federal Rule of Civil Procedure 56(f), before the Court may grant summary
judgment, it must provide the parties with notice and a reasonable time to respond.
Accordingly, the Court ORDERS Plaintiff Marlon Watford and Defendant Dr. Steven
Newbold to respond to the Court’s proposed entry of judgment by June 3, 2019. Any
opposition must be supported by competent evidence demonstrating a genuine issue of
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material fact exists that prevents this Court from entering judgment as a matter of law.
CONCLUSION
For these reasons, the Court ADOPTS in part and REJECTS in part the Report
and Recommendation (Doc. 51). Defendants’ motion for summary judgment on the issue
of exhaustion of administrative remedies (Doc. 39) is GRANTED in part and DENIED
in part.
Defendant Dr. Veera Kaja is DISMISSED without prejudice for Plaintiff’s failure
to exhaust his administrative remedies.
Finally, Plaintiff Marlon Watford and Defendant Dr. Steven Newbold are
ORDERED to respond to the Court’s proposed entry of judgment as a matter of law in
favor of Dr. Newbold. Responses shall be filed by June 3, 2019.
IT IS SO ORDERED.
DATED: May 2, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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