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WALKER v. PETERS

October 30, 1997

DWAYNE L. WALKER, Plaintiff,
v.
HOWARD PETERS, SALVADOR GODINEZ, RICHARD GRAMLEY, HARRY SHUMAN, ANTHONY RAMOS, ARTHUR BREWER, ANDREW TILDON, GEORGE DURIAN, CHRISTINE BLUE, JEROME SPRINGBORN, JAMES SCHOMIG, FRANCIS MELVIN, RONALD SHANSKY, DR. PATEL, DR. VADE, OFFICER MILLER, OFFICER McBURNIE, JEANNA HAMMOND DEITERLE, ROBERT MONTGOMERY, ANDRE WHITE, RUTH FINNEY, and LOUIS O. LOWERY, in their individual and official capacities, Defendants.



The opinion of the court was delivered by: MORAN

 Plaintiff Dwayne L. Walker is a resident of the Illinois Department of Corrections ("IDOC") who brings this two-count action pursuant to 42 U.S.C. §§ 1983 and 1988.

 Defendants are twenty-two employees or former employees of IDOC and include Howard Peters, Salvador Godinez, Richard Gramley, Harry Shuman, Anthony Ramos, Arthur Brewer, Andrew Tildon, George Kurian, Christine Blue, Jerome Springborn, James Schomig, Francis Melvin, Rondald Shansky, Dr. Patel, Dr. Vade, Officer Miller, Officer McBurnie, Jeanna Hammond Deiterle, Robert Montgomery, Andre White, Ruth Finney and Louis O. Lowery. *fn1" On October 21, 1994, defendants Blue, Miller, McBurnie, Montgomery, White and Finney were dismissed without prejudice. In the present motion the remaining defendants, move to dismiss Count I and II of plaintiff's complaint.

 In Count I plaintiff alleges that all of the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to take the steps necessary to determine that he was HIV-positive, by failing to inform him that he was HIV-positive and by failing to treat the disease prior to December 1993. In Count II plaintiff alleges that all defendants violated his Eighth Amendment rights by failing to treat his medical needs, particularly those related to his hemophilia, while incarcerated.

 We find that plaintiff has failed to meet the minimal factual burden needed to make out a case that any of the actions listed above constitute a violation of the Eighth Amendment of the United States Constitution. Accordingly, for the reasons cited below, we enter judgment against plaintiff and for all defendants.

 BACKGROUND

 Plaintiff Dwayne Walker, inmate # N-21900, is currently in the custody of IDOC at the Dixon Correctional Center ("Dixon"). During his incarceration Walker has also resided at both Stateville and Pontiac Correctional Centers ("Stateville" and "Pontiac"). Walker has been an inmate since 1984, with his initial conviction being on charges of armed violence in 1984. He suffers from hemophilia and uses a wheelchair, although during the period of time relevant to this lawsuit the defendants assert that such use is more a matter of choice than of medical necessity. Plaintiff's medical records also indicate that for some time his treating physicians have thought that he was probably HIV-positive and might have AIDS due to the fact that he had received a hemophilia medication known as Factor VIII during the 1980s, when the medicine ran the risk of being HIV-infected. However, his HIV status was never conclusively determined because plaintiff refused to take an HIV test. Consequently, he was not placed on HIV medication (AZT) until late in 1993.

 Defendants are various former and current employees of IDOC, including both medical and non-medical personnel at Stateville and Pontiac, who defendant alleges have participated in violating his constitutional rights. *fn2" Specifically, plaintiff believes that these defendants failed to take the medically necessary steps to determine whether he was HIV-positive (ie., to administer an HIV test against plaintiff's will, as he refused to voluntarily take the test), failed to make a timely diagnosis of any HIV or AIDS condition, failed to initiate timely HIV treatment and, when treatment was administered, failed to treat appropriately. Plaintiff also claims that these defendants failed to appropriately treat his hemophilia by failing to provide Factor VIII (a hemophilia medication), failing to advise non-medical staff of the pain inherent in this condition, and failing to adequately manage plaintiff's pain.

 ANALYSIS

 A. Standard of Proof for Summary Judgment

 A motion for summary judgment may be granted where the pleadings and evidence present no genuine issues of fact and the movant is consequently entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990). The movant must point to those portions of the record that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. The reviewing court shall draw all reasonable inferences in favor of the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). When it is clear that the plaintiff cannot carry her burden of persuasion at trial on one or more elements, summary judgment is appropriate for the defendant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 B. Plaintiff's Constitutional Claims

 Plaintiff Walker has brought this action under §§ 1983 and 1988 of Title 42 of the United States Code. Section 1983 provides:

 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the ...

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