# Birge v. Venerio

> District Court, S.D. Illinois · December 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10155837

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** December 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10155837

## Opinion text

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BRIAN LEE BIRGE, )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-769-RJD
)
VENERIO SANTOS, M.D., LANA )
NALEWAJKA, and WEXFORD )
HEALTH SOURCES, INC., )
)
Defendants.

ORDER

DALY, Magistrate Judge:

This matter comes before the Court on Motions for Summary Judgment on the Issue of
Administrative Remedy Exhaustion filed by Defendants Wexford Health Sources, Inc., Myers,
Moseley, Godoyo, Delgado, Newcomb, and Wall (Docs. 151-154). Plaintiff filed Responses
(Docs. 157 and 158) and Defendants Wexford and Myers filed a Reply (Doc. 164). The Court
held a hearing on October 27, 2022. Summary judgment is granted in favor of Defendant Myers,
Moseley, Godoyo, Delgado, Newcomb, and Wall. Summary judgment in favor of Defendant
Wexford Health Sources, Inc. (“Wexford’) is GRANTED IN PART AND DENIED IN PART.
Wexford filed a Motion to Dismiss (Doc. 113) that is DENIED AS MOOT.
Background
Plaintiff, an inmate of the Illinois Department of Corrections (IDOC), filed this suit pro se
pursuant to 42 U.S.C. §1983 (Docs. 1, 47). Plaintiff alleged that Dr. Venerio Santos and Lana
Nalewajka were deliberately indifferent to his severe back pain at Centralia Correctional Center,
violating Plaintiff’s Eighth Amendment rights (Docs. 1, 47). The Court recruited counsel for

Page 1 of 14
claim against Wexford. Wexford contracts with IDOC to provide medical treatment for IDOC
inmates (Doc. 47). Plaintiff alleged that Wexford maintains policies and/or practices that result

in the delay or denial of necessary medical treatment for his chronic back pain.
Plaintiff filed a Motion for Preliminary Injunction on July 29, 2021, contending that
Defendants had repeatedly delayed treatment necessary to alleviate his severe back pain. The
Court held an evidentiary hearing on September 21, 2021 and ultimately granted the motion,
entering the following preliminary injunction on September 30, 2021:
Defendants are ORDERED to schedule and facilitate an appointment with
Dr. Berry (or another pain management physician who practices with Dr.
Berry). The appointment shall take place within 30 days of the date of this
Order. If Dr. Berry (or another pain management physician who practices
with Dr. Berry) has no available appointments within 30 days of the date of
this Order, Defendants shall schedule and facilitate an appointment for
Plaintiff on Dr. Berry’s (or another pain management physician who
practices at his clinic) first available date. Defendants shall provide a
Notice to the Court that advises the Court of the outcome of that
appointment, i.e., whether the doctor provided an injection for Plaintiff or
otherwise recommended further treatment. Defendants are further
ORDERED to arrange for a physician who is treating patients within the
IDOC to evaluate Plaintiff for a walker for him to use at Centralia
Correctional Center within 15 days of the date of this order. Defendants
shall provide a Notice to the Court that advises the Court of the results of
that evaluation.

(Doc. 81). Defendants subsequently filed their Notices of Compliance, informing the Court
that Plaintiff was provided a walker and saw Dr. Berry on October 13, 2021. Dr. Berry
recommended a “trial of Gabapentin and a seated walker with wheels” and a “follow-up with
neurosurgery” if Plaintiff’s condition did not improve (Doc. 89-1). After the visit with Dr. Berry,
IDOC transferred Plaintiff to Pinckneyville Correctional Center (Doc. 91).
In January 2022, Plaintiff requested and the Court granted leave to file his second amended

Page 2 of 14
against the following parties: Dr. Percy Myers, Joshua Moseley, George Godoyo, Jose Delgado,
Leonard Newcomb, and Chad Wall. Defendants Godoyo, Delgado, Newcomb, and Wall were

originally named as John Does and later identified by Plaintiff.
In the Second Amended Complaint, Plaintiff alleges that he was provided with a walker at
Centralia Correctional Center (“Centralia), but no physician evaluated him for a walker (as the
Court ordered). Moreover, the walker is large, heavy, bulky, and has no wheels or a seat (Doc.
100). Dr. Percy Myers prescribed gabapentin to Plaintiff, but discontinued all of Plaintiff’s other
pain medication (Id.). Plaintiff describes an incident at Centralia where he asked for his pain
medication, and Sergeant Moseley told him he would not be “getting the f******* medication”
(Id.). Sergeant Moseley then ordered Plaintiff into the hallway and slammed the cell door into
him (Id.). Plaintiff laid down on the floor and Sergeant Moseley kneeled on his back to place
handcuffs on him, further exacerbating Plaintiff’s back pain (Id.). Moseley and Defendants

Godoyo, Delgado, and Newcomb took Plaintiff to segregation (Id.; Doc. 119, ¶8(a)).
Two days later, Plaintiff was transferred to Pinckneyville Correctional Center
(“Pinckneyville”) and he alleges that Defendant Wall threatened him to plead guilty to assaulting
Sergeant Moseley or he would be “lost in seg” (Id.; Doc. 119, ¶8(b)). Plaintiff pleaded guilty,
spent 14 days in segregation, and was then released to general population (Doc. 100). At
Centralia, Plaintiff had been housed in the healthcare unit where he was able to sleep on a gel
mattress to alleviate his back pain (Id.). He has not been given a gel mattress at Pinckneyville,
nor several other accommodations that were made for his back pain at Centralia (Id.). Plaintiff’s
Second Amended Complaint contains the following claims:
Count I: Deliberate indifference by Nalejawka and Santos

Page 3 of 14
Count III: Deliberate indifference by Dr. Percy Myers
Count IV: Excessive use of force by Defendant Moseley

Count V: Retaliation by Wexford, Myers, Moseley, Godoyo, Delgado,
Newcomb, and Wall

Count I in the Second Amended Complaint is identical to Count I in the First Amended
Complaint. Count II in the Second Amended Complaint is nearly identical to Count II in the First
Amended Complaint, except that Plaintiff alleges that Wexford’s policies and practices continue
to cause the delay and/or denial of his necessary medical treatment. Counts III, IV, and V in the
Second Amended Complaint are all new claims.
Pursuant to 42 U.S.C. § 1997e(a), no §1983 action “shall be brought....until such
administrative remedies as are available are exhausted.” Defendants Myers, Wexford, Moseley,
Godoyo, Delgado, Newcomb and Wall move the Court to grant summary judgment in their favor
on the issue of exhaustion and dismiss all claims against them.1
Legal Standards
Summary judgment is appropriate only if the moving party can demonstrate “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-
Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is

1 Wexford did not raise the affirmative defense of administrative remedy exhaustion defense when it answered
Count II of Plaintiff’s First Amended Complaint.

Page 4 of 14
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In considering a summary judgment motion, the district court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Exhaustion Requirements
An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance within 60 days after the discovery of the incident, occurrence or problem, to his
or her institutional counselor. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not resolved
through a counselor, the grievance is considered by a Grievance Officer who must render a written
recommendation to the Chief Administrative Officer — usually the Warden — within 2 months

of receipt, “when reasonably feasible under the circumstances.” Id. §504.830(e). The CAO then
advises the inmate of a decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within
30 days to the Administrative Review Board (“ARB”) for a final decision. Id. §_504.850(a); see
also Dole v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written
report of its findings and recommendations to the Director who shall review the same and make a
final determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d)
and (e).
Where an inmate faces “a substantial risk of imminent personal injury or other serious or
irreparable harm to the offender,” his grievance is handled as an emergency. Id. §_504.840(a);

Page 5 of 14
expedites processing of the grievance and responds to the offender. Id. §_504.840(b). If the
inmate subsequently appeals the emergency grievance, the ARB also expedites its processing of

the grievance. Id. §_504.850(f).
When an inmate grieves “issues that pertain to a facility other than the facility where the
offender is currently assigned,” he must submit the grievance directly to the ARB and bypass
submitting it to the counselor and grievance officer at his current facility. Id. §_504.870(a)(4).
This rule does not apply to grievances regarding medical treatment or personal property. Id.
Inmates who intend to file suit are required to follow all steps and instructions in the
grievance process before bringing suit in order to “[allow prisons] to address complaints about the
program [they administer] before being subjected to suit, [reduce] litigation to the extent
complaints are satisfactorily resolved, and [improve] litigation that does occur by leading to the
preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). However, an inmate is

only required to exhaust the administrative remedies that are available to him. Lewis v.
Washington, 300 F.3d 829,833 (7th Cir. 2002). Administrative remedies are unavailable to an
inmate when prison officials do not respond to his grievance(s). Id.
Relevant Grievances
The parties submitted the following grievances for the Court’s consideration.
Grievance 4043-12-21, dated December 17, 2021 (Doc. 154-1, p. 7-11)
Plaintiff submitted this grievance as an emergency to the Warden at Pinckneyville
regarding Dr. Myers’ decisions to stop Plaintiff’s prescriptions. Plaintiff also grieved that he had
needed to see a “spine specialist” and that he did not have the medical equipment that he needed
to alleviate his back pain. The Warden at Pinckneyville received the grievance on December 17,

Page 6 of 14
The grievance officer recommended that the grievance be denied on February 24, 2022,
including a response from the Health Care Unit Administrator that described Plaintiff’s current

treatment plan. The Warden concurred with this recommendation on February 25, 2022.
Plaintiff appealed the grievance to the ARB, who received the grievance on March 28, 2022 and
denied the grievance because “the issue was appropriately addressed by the facility
administration.”
Grievance dated December 17, 2021 (Doc. 157-1, p. 2)
Plaintiff submitted a copy of this grievance to the Court; Defendants did not include it in
their summary judgment documents. Plaintiff marked this grievance as an emergency. He
described the disciplinary hearing at Pinckneyville, noting that it occurred on October 25, 2021 at
approximately 12:05 p.m. He wrote that at the hearing, Defendant Wall read the disciplinary
report to him and then told Plaintiff he would be “lost in seg for who knows how long” if he did

not plead guilty to the disciplinary report. According to Plaintiff’s written Response to
Defendants’ Motions for Summary Judgment, he never received a response to this grievance.
Grievance 4100-12-21, dated December 20, 2021 (Doc. 154-1, p. 2-6)
Plaintiff submitted this grievance as an emergency to the Warden at Pinckneyville
regarding the incident with Defendant Moseley. The Warden at Pinckneyville received the
grievance on December 23, 2021 and deemed it an emergency on that same date. In the grievance,
Plaintiff describes the incident at Centralia where he asked for his pain medication, Sergeant
Moseley told him he would not be “getting the f******* medication,” and a physical altercation
then ensued involving two other correctional officers. At the end of the grievance, Plaintiff writes
“two days later they transfer me to Pinckneyville with a staff assault [charge].”

Page 7 of 14
February 23, 2021, noting that she could not “address allegations against Sergeant Moseley
because the incident transpired at Centralia.” The Warden concurred with this recommendation

on February 24, 2021. Plaintiff appealed the grievance to the ARB, who did not address the
substance of Plaintiff’s grievance because they received it on March 28, 2021-more than 30 days
after the Warden’s February 24, 2021 decision.
Pavey Hearing
On October 27, 2022, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008). Plaintiff testified. When asked by counsel for Wexford whether he had ever
submitted a grievance that named Wexford, he answered “I filed so many I’m not real sure.”
When asked by counsel for the IDOC Defendants whether he had submitted grievances that named
the Defendants Godoyo, Newcomb, and Wall, Plaintiff responded “I remember writing some
grievances on some officers there at Centralia and I signed my name to it…I know for sure I did

the one with the guy that was getting ignorant with me….I turned that one in and didn’t get it back
I remember waiting and waiting for it. I submitted another one and sent it in.” When asked if he
received a response to his grievance about Defendant Wall before filing his Second Amended
Complaint, Plaintiff stated “I don’t remember if they did. If I got anything back from them, I sent
it to my attorney.”
In response to questioning by his attorney, Plaintiff explained his understanding of the
emergency grievance procedure. When an inmate submits an emergency grievance, prison
officials are supposed to “get to it sooner” and the inmate does not have “to go through the three
steps.” If the Warden agrees that the grievance constitutes an emergency, then it is handled faster
than a standard grievance. Plaintiff then testified (in response to questioning by Wexford’s

Page 8 of 14
work that way. They’ve got a lot to do here.” Regarding grievances #4043-12-21 and #4100-12-
21, Plaintiff received responses “after a considerable amount of time” even though he marked them

as emergencies. He did not know that the Warden had deemed them emergencies until they were
returned to him. As soon as he received those grievances with the Warden’s decision, he mailed
them to the ARB.
Michelle Lively, a grievance officer at Pinckneyville, also testified. She did not respond
to the grievances at issue in this case but had processed a grievance for Plaintiff in the month prior
to the hearing. She testified that Plaintiff’s grievance records reflect that on December 17, 2021,
he submitted two grievances. One was deemed not an emergency and returned to Plaintiff, who
sent it to his counselor and “that was the end.” That grievance was given the number 4042-12-
21. The other grievance was deemed an emergency and then later signed by the Warden on
February 25, 2022. Ms. Lively explained that when a grievance is deemed an emergency, the

inmate is notified so that he knows it is being handled as an emergency.
Discussion
The PLRA required Plaintiff to exhaust the new claims in his amended complaint before
submitting the proposed amended complaint to the court. Chambers v. Sood, 956 F.3d 979, 984
(7th Cir. 2020); Ford v. Johnson, 362 F.3d 395, 398-99 (7th Cir. 2004) (regardless of what date
the complaint is filed, the claim is “brought” for purposes of applying §1997e(a) on the date the
complaint is submitted to the Court for consideration). Plaintiff filed his Motion for Leave and
submitted the proposed second amended complaint to the Court on January 12, 2022 (Doc. 92).
Plaintiff first submitted grievances related to the new claims in the Second Amended Complaint
on December 17 and 20, 2021. All parties agree that he did not fully exhaust those grievances

Page 9 of 14
Thus, the issue is whether administrative remedies were available to Plaintiff. The
undisputed evidence shows that the grievance process was, in fact, available to him for grievances

#4043-12-21 and #4100-12-21. Pinckneyville officials ultimately responded to those grievances
and Plaintiff then appealed them to the ARB.2 Plaintiff contends that because he waited 26 days
(from the date he submitted #4043-12-21 until the date he submitted the proposed second amended
complaint to the Court) with no response to his emergency grievances, administrative remedies
were not available to him. The regulations are silent on the length of time prison officials should
take to respond to an emergency grievance, only that it should be expedited. In general,
grievances should be addressed by the prison within sixty days “when reasonably feasible under
the circumstances.” Id. §504.830(e) (emphasis added). However, the passage of 60 days does
not “necessarily trigger the inmate’s right to sue.” Reid v. Balota, 962 F.3d 325, 331 (7th Cir.
2020) (citing Ford, 362 F.3d at 400).

To support his argument, Plaintiff cites multiple cases in which the Court found that the
amount of time the inmate’s emergency grievance(s) went unanswered indicated administrative
remedies were unavailable to him/her. Muhammed v. McAdory, 214 Fed. Appx. 610, 611 (7th
Cir. 2007); Hampton v. Baldwin, 18-cv-550-RJD, 2018 WL 5830730, *9 (S.D. Ill. Nov. 7, 2018);
Godfrey v. Harrington, 13-cv-280, 2015 WL 1228829, **1-4 (S.D. Ill. Mar. 16, 2015); Cox v.
Lashbrook,16-cv-1096, 2018 WL 4520272 *5 (S.D. Ill. Sept. 21, 2018). However, in each of
those cases, the Warden never responded to the emergency grievance.3 See id. These cases

2 Viewing the evidence in the light most favorable to Plaintiff, the Court infers that Plaintiff timely submitted his
grievances to the ARB and therefore the ARB erroneously found that decision grievance # 4100-12-21 was untimely
appealed. This inference does not change the outcome of Defendants’ Motion, however, because Plaintiff had already
submitted his proposed second amended complaint before he sent grievance #4100-12-21 to the ARB.
3 In another case cited by Plaintiff from this district, the inmate did not receive a response to an emergency grievance
regarding hernia pain for eight days. Reed v. Larson, 18-cv-1182-JPG-GCS, 2019 WL 8063919, *4 (S.D. Ill. Sept. 26,
2019). On the eighth day, Plaintiff received the grievance back from the Warden, who had marked it as a non-

Page 10 of 14
that are available to him, and remedies are unavailable when prison officials do not respond to his
grievance. Lewis, 300 F.3d at 833; Reid, 962 F.3d at 331.

Here, however, Plaintiff did receive a response. The Seventh Circuit has been unwilling
to create a bright line test and find that an inmate can file suit if he does not receive a response to
a non-emergency grievance in 60 days. Ford, 362 F.3d at 400. The undersigned is likewise
unwilling to find that after the passage of 26 days, Plaintiff could forego the exhaustion
requirement and submit his proposed second amended complaint to the Court. The emergency
grievances (#4043-12-21 and #4100-12-21) that were not fully exhausted prior to January 12, 2022
pertain to Plaintiff’s new claims in Counts III, IV, and V against Myers, Wexford, Moseley,
Godoyo, Delgado, and Newcomb. As Plaintiff did not fully exhaust any other grievances
regarding these defendants, summary judgment is therefore appropriate in favor of Defendants
Myers, Wexford, Moseley, Godoyo, Delgado, and Newcomb and Plaintiff’s claims on Counts III,

IV, and V.4
Regarding Defendant Wall, Plaintiff contends through counsel that he submitted a
grievance dated December 17, 2021 that was marked as an emergency and describes the
disciplinary hearing with Defendant Wall, but he never received a response to this grievance,
which also refers to Defendant Moseley. Plaintiff submitted this grievance to the Court (Doc.

emergency. Id. at *1. In a Report and Recommendation, Magistrate Judge Gilbert C. Sison stated in dicta that
“[g]iven the severity of [the inmate’s] complaints, not receiving a response within eight days should render the
grievance process unavailable.” Id. at *4. Ultimately, the Court found that the defendant had waived its arguments
regarding the emergency grievance. Reed v. Larson, 18-cv-1182-JPG-GCS, 2019 WL 6769319, *3 (S.D. Ill. Dec.
12, 2019).
4 Plaintiff makes general statements in a declaration signed on February 1, 2022 that grievances were not returned to
him (Doc. 100-1, p. 5). In responding to the Defendants’ Motions for Summary Judgment, he does not contend that
he submitted any grievance other than the ones discussed at the Pavey hearing and identified in the parties’ briefings
(Doc. 157, p. 10). He argues that the grievance found at Doc. 157-1 is “related to the claim of retaliation” but that
grievance only refers to Defendant Moseley and Wall. For reasons described infra, the Court does not find the
document found at Doc. 157-1 to be credible evidence.

Page 11 of 14
hearing, Plaintiff did not seem to remember that grievance nor was he able to differentiate it from
the other grievances. Grievance Officer Lively testified that Plaintiff did, in fact, submit a

grievance on December 17, 2021, that he had marked as an emergency; it was deemed a non-
emergency and reviewed by Plaintiff’s counselor. Lively testified that grievance was given the
number 4042-12-21. According to a list of grievances submitted by Defendants as part of
Plaintiff’s grievance records, grievance #4042-12-21 discussed Plaintiff’s disciplinary ticket from
Centralia (Doc. 152-2).
Plaintiff does not contend that grievance #4042-12-21 was the grievance he filed with the
Court at Doc. 157-1. At the Pavey hearing, the undersigned asked Plaintiff about Doc. 157-1:
specifically, how Plaintiff came to have a copy of it since it was purportedly never returned to him.
Plaintiff testified “I make a copy and I keep a note so I know what date I sent it out, then if it don’t
get out then I’ll rewrite it because sometimes they lose stuff and whatnot….I make a copy if

possible but I don’t always get to the library. Then I keep a handwritten copy, put the other one
in the box, then I’ll even write one and send it to my attorney if necessary.”
When Plaintiff submitted the proposed second amended complaint on January 12, 2022,
he did not know the name of the person who told him to plead guilty or he would be “lost in seg”
(Doc. 92, p. 5; see also Doc. 100-1, ¶22). However, according to his exhaustion argument, on
that same date Plaintiff was waiting on a response to a grievance (Doc. 157-1) that specifically
named Chad Wall as the individual who read his disciplinary report to him and told him he would
be “lost in seg for who knows how long” if he did not plead guilty. The grievance found at Doc.
157-1 is very specific and even includes the date and time of the October 2021 disciplinary hearing
where Defendant Wall made the alleged statement. The Court observed Plaintiff’s demeanor

Page 12 of 14
and received a response to a grievance that named Chad Wall in comparison to the very specific
grievance Plaintiff submitted to the Court at Doc. 157-1.5 The Court reaches the only logical

conclusion: that Plaintiff wrote the grievance found at Doc. 157-1 at some point after January 12,
2022. Therefore, Plaintiff failed to exhaust his administrative remedies regarding Chad Wall
prior to January 12, 2022.
Having found that Plaintiff failed to exhaust his administrative remedies in Counts III, IV,
and V against Defendants Wexford, Myers, Moseley, Godoyo, Delgado, Newcomb, and Wall, the
Court turns to Wexford’s argument that Plaintiff also did not exhaust his administrative remedies
against Wexford in Count II (an argument Wexford did not raise when it answered Plaintiff’s First
Amended Complaint). When Plaintiff submitted his original Complaint to the Court, he included
a fully exhausted grievance dated September 16, 2019 that identified a “lack of a follow-up system
for treating chronic diseases” at Centralia (Doc. 1-1, p. 23; see also Doc. 154-1, p. 1). While

Plaintiff did not apparently know Wexford was the medical provider at Centralia in September
2019, this grievance sufficiently placed the prison on notice of Plaintiff’s claim against Wexford
that is now found in Count II of Plaintiff’s Second Amended Complaint (and was also Count II in
Plaintiff’s First Amended Complaint). Wexford’s Motion for Summary Judgment on Count II is
DENIED.
Wexford also moved to dismiss Count V for failure to state a claim upon which relief could
be granted (Doc. 113). This motion is DENIED AS MOOT because Plaintiff failed to exhaust his
administrative remedies in Count V.

5 “At Pavey hearings, judges may hear evidence, find facts, and determine credibility.” Pavey v. Conley, 663 F. 3d.
899, 904 (7th Cir. 2011).

Page 13 of 14
The Motion for Summary Judgment (Doc. 151) filed by Defendants Moseley, Delgado,
Godoyo, Newcomb, and Wall is GRANTED. The Motion for Summary Judgment filed by

Defendants Wexford and Myers (Doc. 153) is GRANTED IN PART AND DENIED IN PART.
Counts III, IV, and V of Plaintiff’s Second Amended Complaint are DISMISSED
WITHOUT PREJUDICE. The Clerk of Court is directed to enter judgment accordingly at the
close of this case.
Wexford’s Motion to Dismiss (Doc. 113) is DENIED AS MOOT. This case continues on
the following claims in Plaintiff’s Second Amended Complaint:
Count I: Deliberate indifference by Nalewajka and Santos
Count II: Deliberate indifference by Wexford

IT IS SO ORDERED.
DATED: December 12, 2022

s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

Page 14 of 14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155837. Public record. Not legal advice.