Getty v. Kim et al

Filing 47

ORDER ADOPTING Report and Recommendation (Doc. 38 ): Defendant's Motion for Summary Judgment (Doc. 19 ) is GRANTED. Signed by Judge Staci M. Yandle on 9/6/2019. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

QUENTIN GETTY,
Plaintiff,
vs.
VENERIO SANTOS.,
Defendant.

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Case No. 18-CV-1134-SMY-MAB

MEMORANDUM AND ORDER
YANDLE, District Judge
This matter is before the Court on the Report and Recommendation (“Report”) of United
States Magistrate Judge Mark Beatty (Doc. 38), recommending that the Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies filed by Defendant Venerio Santos
(Doc. 19) be granted. Plaintiff filed a timely objection (Doc. 41). For the following reasons, Judge
Beatty's Report and Recommendation is ADOPTED.
Background
Plaintiff Quentin Getty, an inmate who is currently incarcerated at Centralia Correctional
Center (“Centralia”), brings the instant civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1).
Plaintiff claims Defendant Dr. Santos denied him adequate medical care for his shoulder issues.
Specifically, Plaintiff alleges he met with Dr. Santos after being transferred to Centralia in
November 2017 and told him about his history of shoulder issues and that his pain medication was
not working. Plaintiff further alleges that Dr. Santos reviewed Plaintiff's medical records and
informed him that no further treatment was needed. Dr. Santos has moved for summary judgment
on the basis that Plaintiff failed to exhaust his administrative remedies prior to filing suit.

Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Judge Beatty conducted an
evidentiary hearing on Defendant's motion during which he examined three grievances Plaintiff
filed after his transfer to Centralia; grievances dated December 2017, March 2018, and April 2018.
Following the hearing, Judge Beatty issued the Report currently before the Court, setting forth the
evidence presented by the parties on the issue of exhaustion, the applicable law, the requirements
of the administrative process, and his conclusions. Judge Beatty found that Plaintiff's testimony
was internally inconsistent, illogical, and implausible. He concluded that Plaintiff failed to exhaust
his administrative remedies as to Dr. Santos in any of the three grievances, and as a result,
recommended that Plaintiff’s claims against Dr. Santos be dismissed for failure to exhaust
administrative remedies.
Discussion
Because a timely objection was filed, the undersigned must undertake a de novo review of
the Report. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); see also Govas
v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the Court to “give fresh
consideration to those issues to which specific objections have been made” and to make a decision
“based on an independent review of the evidence and arguments without giving any presumptive
weight to the magistrate judge’s conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th
Cir. 2013). The Court “may accept, reject or modify the magistrate judge’s recommended
decision.” Id.
For his objection, Plaintiff generally reiterates the arguments made at the Pavey hearing
and in his previous filings. He concedes that he did not exhaust his administrative remedies as to
the December 2017 grievance. He contends that he never received responses back from his
counselor regarding the grievances he filed against Dr. Santos in March and April 2018. Plaintiff

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asserts that he was nervous during the Pavey hearing and that his nervousness contributed to his
inconsistent responses.
The Prison Litigation Reform Act requires prisoners to exhaust all available administrative
remedies before filing suit. 42 U.S.C. § 1997e(a). Proper exhaustion requires that inmates file
complaints and appeals in the place, at the time, and in the manner the prison’s administrative rules
require. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Under the procedures set
forth in the Illinois Administrative Code, an inmate must first attempt to resolve a complaint
informally with his counselor. Ill. Admin. Code Tit. 20, § 504.810(a). If the complaint is not
resolved, the inmate may file a grievance within 60 days after the discovery of the incident,
occurrence, or problem that gives rise to the grievance. § 504.810(b) (emphasis added).
Although Plaintiff alleges that he submitted the March and April 2018 grievances, Judge
Beatty did not find Plaintiff's assertions credible. Judges stand in the best position to assess a
witness’s credibility because they have the opportunity “to observe the verbal and nonverbal
behavior of the witnesses . . . [including their] reactions and responses to the interrogatories, their
facial expressions, attitudes, tone of voice, eye contact, posture and body movements.” Kraushaar
v. Flanigan, 45 F.3d 1040, 1052-53 (7th Cir. 1995). Clearly, Judge Beatty assessed the credibility
of Plaintiff’s assertions that he filed grievances against Dr. Santos in March and April 2018 and
found them lacking. He noted several inconsistencies in the record supporting his conclusion that
Plaintiff manufactured these grievances after-the-fact in an effort to survive summary judgment,
including: (1) Plaintiff's failure to mention the March or April grievances in any of his filings prior
to the Pavey hearing; (2) neither grievance was located in the grievance records or cumulative
counseling summary although other non-related grievances were contained in the records; and (3)
Plaintiff's questionable explanations during the Pavey hearing regarding the inconsistencies. The

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Court finds no reason in the record to second-guess Judge Beatty's credibility determinations and
finds his factual findings and rationale to be sound.
It is apparent that Plaintiff did not exhaust his administrative remedies prior to filing suit.
Accordingly, the Court adopts Magistrate Judge Beatty’s Report and Recommendation (Doc. 38)
in its entirety. Defendant's Motion for Summary Judgment (Doc. 19) is GRANTED.
IT IS SO ORDERED.
DATED: September 6, 2019

STACI M. YANDLE
United States District Judge

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