DAVID R. HERNDON, District Judge.
Pending before the Court is an August 24, 2018 Report and Recommendation ("the Report") issued by Magistrate Judge Donald G. Wilkerson (Doc. 114). Magistrate Judge Williams recommends that the Court deny a motion for summary judgment on the issue of exhaustion of administrative remedies filed by defendants Dr. Vipin Shah, Angel Rector, Dr. Francis Kayira, Robert Blum, Dr. Michael Scott, and Dr. Hughes Lochard (Docs. 91 & 106). The parties were allowed time to file objections to the Report. On September 13, 2018, defendants Scott, Kayira, Blum and Lochard filed objections to the Report (Doc. 120). Based on the applicable law, the record and the following, the Court
Plaintiff Nathaniel Todd brought this pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 (Doc. 1). On May 2, 2017, the Court entered a Memorandum and Order granting Todd leave to proceed in forma pauperis and appointing counsel Kaitlin Bridges to represent Todd in this matter (Doc. 21). The Court allowed Todd, by and through counsel, to file an amended complaint on or before June 30, 2017. After an extension of time, Todd filed the amended complaint on July 31, 2017 (Doc. 26). The amended complaint alleges that defendants either refused to put him on an appropriate diabetic diet or after order that he be placed on such diet plaintiff did not receive such diet and defendants failed to investigate or take action regarding plaintiff's diabetic diet. The amended complaint contained the following claims:
Thereafter, the Court conducted its preliminary review of the amended complaint pursuant to 28 U.S.C. § 1915A and found that all the claims contained in the nine counts survived review (Doc. 29). On March 20, 2018, Magistrate Judge Wilkerson granted Todd's motion to dismiss without prejudice defendant Schultz (Doc. 82).
Next, defendants filed a motion for summary judgment as to the issue of exhaustion of administrative remedies (Docs. 91 & 106). Defendants contend that Todd did not exhaust his administrative remedies to any of his claims against defendants because Todd failed to properly file and appeal a grievance concerning defendants alleged violations of his rights. Specifically, defendants argue that plaintiff failed to properly file and properly appeal any grievances which names or describes defendants or their conduct. Todd filed an opposition to the motion (Docs. 98 & 109). On July 19, 2018, Magistrate Judge Wilkerson held a Pavey
The facts set forth in this section are limited to those necessary for this Court to review the Report.
On October 10, 2015, Todd submitted a grievance as an emergency. This grievance specifically named Shah and Rector and also referred to "Wexford Health Care staff." The grievance was reviewed a month later on November 10, 2015 and the Chief Administrative Officer ("CAO") found it to be an emergency. On November 21, 2015, grievance officer Flatt recommended that the grievance be denied. The COA concurred on December 1, 2015. Todd signed his appeal 42 days later, on January 12, 2016. The Administrative Review Board ("ARB") denied Todd's appeal as untimely because it was signed more than thirty days after the CAO's decision.
Subsequently, on December 4, 2015, Todd submitted an emergency grievance about not getting adequate nutritious meals for his diabetes and ties the failure to get appropriate meals to his inability to get proper medical treatment. This grievance, while hard to read, contains references to Angel Rector, "nurses" and "health care officers." On December 9, 2015, the CAO determined it was not an emergency grievance. Almost two months later, the grievance counselor recommended denial of the grievance and did not address any of the claims regarding diabetic meals. On February 16, 2016, the CAO agreed with the grievance counselor and denied the grievance. Thereafter, Todd signed for an appeal on February 21, 2016 and mailed the appeal within a few days of signing the appeal. However, the ARB did not receive the appeal until May 19, 2016 and as a result denied the appeal as untimely.
Defendant Blum alleges that he did not begin working at Pinckneyville until May 22, 2017.
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1), which provides in part:
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de novo determination of those portions of the report and recommendation to which specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the Court reviews those unobjected portions for clear error. Id. In addition, failure to file objections with the district court "waives appellate review of both factual and legal questions." Id. Under the clear error standard, the Court can only overturn a Magistrate Judge's ruling if the Court is left with "the definite and firm conviction that a mistake has been made." Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
"The court shall grant summary judgment 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." Fed. R. Civ. P. 56(a). Whether a fact is material depends on the underlying substantive law that governs the dispute. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citation omitted).
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act ("PLRA"). 42 U.S.C. § 1997e(a). The PLRA provides:
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535 (7th Cir. 1999) (stating that § 1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id. The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. "[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating." Id.
In Pavey, the Seventh Circuit instructed district courts to conduct a hearing where "exhaustion is contested" to determine whether a plaintiff has exhausted his administrative remedies. Pavey, 544 F.3d at 742. And in holding that hearing, a court may credit the testimony of one witness over another. See Pavey v. Conley (Pavey II), 663 F.3d 899, 904 (7th Cir. 2011)(affirming factual findings of a magistrate judge, whose Report included factual findings that the plaintiff was not credible). In other words, and unlike other summary judgment motions, the very purpose of Pavey is to allow a judge to resolve swearing contests between litigants. So while courts typically undertakes de novo review of the portions of the Report to which a party objects, the courts will give great deference to factual findings and credibility determinations made in the Report. Pavey II, 663 F.3d at 904. See also Towns v. Holton, 346 Fed.Appx 97, 100 (7th Cir. 2009)(great deference to credibility findings based on demeanor); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)("De novo determination is not the same as a de novo hearing. The district court is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations).
Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, Pavey set forth the following recommendations:
Id. at 742.
Here, defendants Scott, Kayira, Blum and Lochard object to the Report's conclusions that Todd exhausted his administrative remedies against defendants Kayira, Blum, Scott and Lochard because they were not properly named in Todd's grievances; that Todd exhausted his administrative remedies against Lochard on the basis that Todd allegedly requested a diabetic diet from Dr. Lochard and he refused to provide it and that Todd exhausted his administrative remedies against Blum on the basis of continuing violation doctrine. The Court notes that defendants' objections to the Report largely reiterates things already argued in the motion for summary judgment. Further, the Court finds that the objections merely takes umbrage with the Report in that defendants argue that the fault lies with Todd in failing to exhaust and not them. After reviewing the motion for summary judgment, the Report and the objections, the Court finds no error or deficiency in Judge Wilkerson's credibility determinations, findings of fact and conclusions of law. In fact, Judge Wilkerson provided a sound analysis. Specifically, Judge Wilkerson as to the October 10, 2015 grievance found:
(Doc. 114, ps. 6-7, footnote omitted). Furthermore, as to the December 4, 2015 grievance the Report held:
(Doc. 114, ps. 7-8, footnote omitted). Lastly, as to Lochard and Blum the Report concluded:
(Doc. 114, ps. 8-12).
The record before the Court provides no reason for the Court to doubt or find error in Judge Wilkerson's determination. Furthermore, based on the record, it is clear to the Court that defendants did not carry their burden with regard to the exhaustion issue. Todd took all procedural steps required of him in exhausting the grievances listed above. And those grievances sufficiently placed defendants and other Wexford Healthcare officials on notice that Todd was failing to receive a medically necessary diabetic meal — a problem which Todd alleges defendants Shah, Scott, Kayira, Blum, Lochard, Fisher, Harris and Rector took part in creating and/or continuing.
Accordingly, the Court