Laktas v. Wexford health Sources, Inc., et al

Filing 73

ORDER ADOPTING 69 REPORT AND RECOMMENDATION, OVERRULING Wexford Defendants' 70 Objection, DENYING 56 Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies, GRANTING in part and DENYING in part 61 Moti on for Summary Judgment on the Issue of Exhaustion of Administrative Remedies, and DENYING as moot 72 Motion for Judicial Notice. Defendant Louis Shicker is DISMISSED without prejudice for failure to exhaust administrative remedies. The Clerk 9;s Office is DIRECTED to TERMINATE Louis Shicker as a defendant to this action. The Clerk's Office is further DIRECTED to change Defendants' names in accordance with footnote 1 and the caption of this Order. Signed by Chief Judge Nancy J. Rosenstengel on 8/20/2019. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANISLAUS LAWRENCE LAKTAS,
Plaintiff,
Case No. 18-cv-1299-NJR-RJD

v.
WEXFORD HEALTH SOURCES, INC.,
DR. VIPIN SHAH, DR. MICHAEL
SCOTT, DR. ALBERTO BUTALID,
CHRISTINE BROWN, DR. RODERICK
MATTICKS, and LOUIS SHICKER, 1
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on a Report and Recommendation of United States
Magistrate Judge Reona J. Daly (Doc. 69), which recommends that the Motion for
Summary Judgment Based on Exhaustion filed by Defendants Dr. Alberto Butalid,
Dr. Roderick Matticks, Dr. Michael Scott, Dr. Vipin Shah, and Wexford Health Sources,
Inc. be denied and the Motion for Summary Judgment on the Issue of Exhaustion filed
by Defendants Christine Brown and Louis Shicker be granted in part and denied in part.
The Report and Recommendation was entered on March 29, 2019. Defendants Dr.
Butalid, Dr. Matticks, Dr. Scott, Dr. Shah, and Wexford have filed an Objection to the
Report and Recommendation (Doc. 70). Plaintiff Stanislaus Lawrence Laktas (“Laktas”)
has filed a Response to that Objection (Doc. 71).

1

The Clerk’s Office is DIRECTED to update the docket sheet to reflect the true and accurate names of the
defendants as set forth in the caption and first paragraph of this Order.

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BACKGROUND
Laktas, an inmate of the Illinois Department of Corrections (“IDOC”), was
incarcerated at Pinckneyville Correctional Center (“Pinckneyville”) at the time he
initiated this action. Laktas proceeds on the following counts:
Count 1:

Eighth Amendment deliberate indifference claim against Dr.
Shah, Dr. Scott, and Dr. Butalid, for failing to provide
treatment for Laktas’s pain, including failing to request
servicing of his implanted neurostimulation device;

Count 2:

Eighth Amendment deliberate indifference claim against Dr.
Shah, Dr. Scott, Dr. Butalid, and Dr. Matticks for failing to
refer Laktas for carpal tunnel surgery;

Count 3:

Eighth Amendment deliberate indifference claim against
Wexford for failing to have Laktas’s implant serviced, and for
delaying and failing to approve Laktas’s recommended
carpal tunnel surgery;

Count 4:

Eighth Amendment deliberate indifference claim against
Brown and Shicker, for failing to take any action to assist
Laktas in obtaining pain relief or servicing of his
neurostimulation implant after Laktas wrote to them about
the other Defendants’ lack of care; and against Shicker for
failing to take action regarding Laktas’s need for carpal tunnel
surgery.

On January 28, 2019, Defendants Dr. Butalid, Dr. Matticks, Dr. Scott, Dr. Shah, and
Wexford (the “Wexford Defendants”) filed a Motion for Summary Judgment based on
failure to exhaust administrative remedies (Docs. 56 and 57) arguing that Laktas’s
grievances were untimely and the continuing violation doctrine does not apply. On
February 13, 2019, Defendants Brown and Shicker filed Motion for Summary Judgment
based on failure to exhaust administrative remedies (Docs. 61 and 62) arguing that Laktas
did not specifically name them in the grievances and the grievances he filed were
untimely.
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THE REPORT AND RECOMMENDATION
Judge Daly recommends denying the motion for summary judgment filed by the
Wexford Defendants and granting in part and denying in part the motion for summary
judgment filed by Defendants Brown and Shicker. Judge Daly found the following
grievances to be relevant to the issue of exhaustion of administrative remedies:
December 29, 2014 grievance; December 31, 2015 grievance; and February 11, 2018
grievance.
Judge Daly noted that all of these grievances were denied by the Administrative
Review Board (“ARB”) as untimely because they were submitted outside the 60-day
timeframe outlined in Department Rule 504. Judge Daly found that, because Laktas was
complaining of the ongoing denial of medical treatment, the continuing violation
doctrine does not require that he file a grievance within 60 days of the first violation,
rather a grievance can be filed at any time, as long as the violation continues. Because the
alleged violations were continual, Judge Daly concluded that the grievances filed on
December 29, 2014, December 31, 2015, and February 11, 2018 were timely filed. Thus,
she recommends denying summary judgment as to the Wexford Defendants.
Judge Daly recognized, however, that Defendant Shicker was not named or
identified in any of these grievances. Thus, she recommends granting summary judgment
as to Defendant Shicker based on Laktas’s failure to exhaust his administrative remedies
against her.
DISCUSSION
The Wexford Defendants filed a timely objection to portions of the Report and
Recommendation (Doc. 70). Laktas has filed a response to this objection (Doc. 71). When
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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). This requires the Court to look at all evidence
contained in the record and give fresh consideration to those issues to which specific
objections have been 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). If only a “partial objection is
made, the district judge reviews those unobjected portions for clear error.” Johnson v.
Zema Systems Corp., 170 F.3d 734,739 (7th Cir. 1999). The Court “may accept, reject or
modify the magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788.
The Wexford Defendants object to Judge Daly’s application of the continuing
violation doctrine as a basis to find that Laktas was not required to file a grievance within
60 days as required by the Illinois Administrative Code. The Wexford Defendants argue
that the continuing violation doctrine cannot be triggered until a plaintiff has complied
with the grievance process on at least one occasion.
The continuing violation doctrine provides that prisoners do not need to file
multiple, successive grievances when they are complaining about the same issue if it is
continuing. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). Instead, a grievance may
be sufficient when it provides the prison with notice and an opportunity to correct the
problem. Id. In the deliberate indifference context, the Seventh Circuit has found that the
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refusal to treat a medical condition can be a continuing violation for each day that the
prison authorities had the power to correct it. Heard v. Sheahan, 233 F.3d 316, 318 (7th Cir.
2001).
In Turley, the defendants argued that the plaintiff’s February 2009 grievance was
insufficient to exhaust the plaintiff’s claims under the Eighth Amendment alleging
repeated frivolous lockdowns because some of the lockdowns at issue occurred in 2008,
and the prison required grievances to be filed within 60 days of the occurrence. Id. The
defendants further argued that the plaintiff’s later two grievances, which he had not
received a response to at the time he filed suit, were also insufficient to exhaust his
administrative remedies. Id.
The Seventh Circuit ultimately concluded that the plaintiff did not have to grieve
each separate lockdown incident since his complaint was based on an ongoing
constitutional violation. Id. The plaintiff’s “complaints centered around continuing
prison policies . . . and one occurrence of notice from [the plaintiff] was sufficient to give
the prison a chance to correct the problems.” Id. Thus, the February 2009 grievance was
sufficient to exhaust all of the plaintiff’s complaints. Id. The Seventh Circuit found that
the defendants’ “argument that [the plaintiff’s] latter two grievances—those to which he
had not received a response when he filed suit- were not exhausted is unpersuasive since
the original grievance suffices.” Id.
Laktas’s complaints of the ongoing denial of medical treatment concern
continuing actions. The nature of these allegations are that the defendants repeatedly
denied him medical treatment regarding his spinal cord and carpel tunnel issues. Thus,
Laktas did not need to file “multiple, successive grievances raising the same issue,” but
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rather Laktas satisfies his exhaustion requirement “once [the] prison has received notice
of, and an opportunity to correct [the] problem.” Turley, 729 F.3d at 650. Even though the
grievances were ultimately denied by the ARB as being outside the 60-day timeframe,
they still accomplished the purpose of the exhaustion requirement by alerting staff to the
problem and giving them the opportunity to resolve it before being sued. Additionally,
it was improper for the ARB to find that these grievances were untimely because Laktas
could have begun the grievance process at any time that the denial of medical care was
ongoing. See, e.g., Ramirez v. Fahim, Case No. 12-cv-1197-MJR-SCW, 2013 WL 12181943, at
*3 (S.D. Ill. Dec. 20, 2013) (concluding that prison improperly determined the plaintiff’s
grievance to be untimely because the plaintiff could have begun the grievance process at
any time that the denial of medical care was ongoing); see, e.g. Arnold v. Butler, Case No.
17-cv-79-SMY-RJD, 2018 WL 966540, at *3 (S.D. Ill. Feb. 20, 2018) (“When a continuing
violation occurs, the plaintiff can file a grievance at any time, as long as the violation
continued.”).
The Wexford Defendants argue that this case is distinguishable from Turley
because, in Turley, there was at least one fully exhausted grievance. In this case, Laktas
appealed his grievances all the way to the ARB, but his grievances were denied on the
basis that they were not originally filed within the 60-day timeframe. As explained above,
the Court finds that the grievances sufficiently put Defendants on notice of the problem,
giving them the opportunity to correct it. Thus, the Court feels it appropriate to apply the
continuing violation doctrine under these particular facts, and the Wexford Defendants
have not cited any controlling case that specifically holds otherwise.
Thus, the Court overrules the objection filed by the Wexford Defendants and
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adopts Judge Daly’s Report and Recommendation on this point.
After conducting a de novo review of Defendants’ objection to Judge Daly’s Report
and Recommendation and a clear error review of the remaining unobjected portions, the
Court finds that summary judgment should be granted as to Defendant Shicker and
denied as to all other defendants.
Finally, Laktas has filed a “Motion for Judicial Notice Pursuant to Federal Rules of
Evidence 201(b).” (Doc. 72). In this motion, he expresses concern that he has missed
possible court filings and does not want the Court to dismiss his complaint for failure to
prosecute. He also asks the Court to issue an order relating to the pending Report and
Recommendation. The Court confirms with Laktas that the last filing (prior to his
“Motion for Judicial Notice”), was his Response to the Wexford Defendants’ Objection
filed at Doc. 71- so he has not missed any filings. Since the Court has now issued its ruling,
Laktas’s motion is denied as moot.
CONCLUSION
For these reasons, the Court ADOPTS Magistrate Judge Daly’s Report and
Recommendation (Doc. 69), OVERRULES Defendants’ Objection (Doc. 70), DENIES the
Motion for Summary Judgment filed by Defendants Dr. Butalid, Dr. Matticks, Dr. Scott,
Dr. Shah, and Wexford (Docs. 56 and 57) and GRANTS in part and DENIES in part the
Motion for Summary Judgment filed by Defendants Brown and Shicker (Docs. 61 and
62). Defendant Shicker is DISMISSED without prejudice for failure to exhaust
administrative remedies. Laktas’s Motion for Judicial Notice (Doc. 72) is DENIED as
moot.
The following claims remain in this case:
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Count 1:

Eighth Amendment deliberate indifference claim against Dr.
Shah, Dr. Scott, and Dr. Butalid, for failing to provide
treatment for Laktas’s pain, including failing to request
servicing of his implanted neurostimulation device;

Count 2:

Eighth Amendment deliberate indifference claim against Dr.
Shah, Dr. Scott, Dr. Butalid, and Dr. Matticks for failing to
refer Laktas for carpal tunnel surgery;

Count 3:

Eighth Amendment deliberate indifference claim against
Wexford for failing to have Laktas’s implant serviced, and for
delaying and failing to approve Laktas’s recommended
carpal tunnel surgery;

Count 4:

Eighth Amendment deliberate indifference claim against
Brown for failing to take any action to assist Laktas in
obtaining pain relief or servicing of his neurostimulation
implant after Laktas wrote to them about the other
Defendants’ lack of care.

Finally, the Clerk of Court is DIRECTED to change Defendants’ names in
accordance with footnote 1.
IT IS SO ORDERED.
DATED: August 20, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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