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DRAGHI v. COUNTY OF COOK

February 10, 1998

THOMAS DRAGHI, M.D., M.P.H., Plaintiff,
v.
COUNTY OF COOK, et al., Defendants.



The opinion of the court was delivered by: SHADUR

 Until now Dr. Thomas Draghi ("Draghi") has been able to dodge the bullets fired by the numerous defendants in this action--County of Cook ("County"), Cook County Board ("Board") and its members, and several members of the top echelon at Cook County Hospital ("Hospital")--that could prove fatal to Draghi's efforts to claim a violation of his constitutional rights caused by the termination of his employment and his medical staff privileges at Hospital. Now, however, defendants' earlier-filed Fed. R. Civ. P. ("Rule") 56 motion has inflicted a mortal wound on Draghi's still-surviving claims.

 This Court's November 10, 1997 memorandum opinion and order ("Opinion," 1997 WL 711430) had granted defendants' then-pending Rule 56 summary judgment motion in material part by dispatching Counts I, IV, VI, VII, IX and part of Count V of Draghi's Amended Complaint ("AC"). But as to the remaining federal-question claims advanced by Draghi under 42 U.S.C. ยง 1983 ("Section 1983"), Opinion at *4-*5 directed Draghi's counsel to provide facts rather than mere allegations (the latter being insufficient under Rule 56(e)) to support the existence of a claimed property or liberty interest, which is an essential ingredient of any claim based on an asserted violation of the Due Process Clause. Although the Opinion contained no express reference to Draghi's only remaining state law claim in AC Count VII, that claim sounds in breach of contract, so that a negative answer to the property interest question (and the related contract issues) for Draghi's Section 1983 claims (questions that also implicate matters of state contract law) will dispose of the Count VII claim too.

 Draghi has sought to respond to the Opinion's directive by filing a response (here cited as "Draghi 12(N) Response") under this District Court's General Rule ("GR") 12(N), one part of the GRs that have been adopted to facilitate the smoking out of any contested issues of material fact (or of the absence of any such issues) under Rule 56. Now defendants have filed their Reply to that most recent filing by Draghi. Accordingly defendants' remaining Rule 56 motion is ripe for resolution.

 Facts

 As stated earlier, both Rule 56(e) and the uniform case law applying it teach that when a lawsuit moves from the pleading stage to the consideration of a Rule 56 motion (the latter, as this Court has frequently stated, being a substitute for trial), plaintiff can no longer rest on the generalized assertions that are sufficient under the federal system of notice pleading. Here is Rule 56(e)'s unambiguous mandate:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

 In this instance Draghi has tried to take an end run around that prohibition by tendering a purported affidavit (his 12(N) Response Ex. A) that attempts to bootstrap his AC allegations into admissible evidence:

 
2. Affiant has read his Amended Complaint as filed herein and, to the best of his personal knowledge and belief, the statements of fact made therein are true.
 
3. If called to testify herein, Plaintiff would competently testify as to the matters within his personal knowledge as set forth in his Amended Complaint.

 But we are taught in law school (or we should be) that any statement that things are true "to the best of [someone's] personal knowledge and belief" is really not an affidavit at all--it is wholly ineffective as a sworn statement of the actual truthfulness of the assertions referred to. *fn1" And Draghi's similar bootstrapping assertion in Ex. A P3 stands in no better stead.

 Hence the Ex. A "affidavit" (or, more accurately, nonaffidavit) can and must be disregarded for Rule 56 purposes. And even though Draghi's other submitted affidavit (his 12(N) Response Ex. B) is more detailed in its framing, it fares no better for present purposes. On the issues that are critical to the property and liberty interest questions on which this opinion focuses, here are Ex. B PP3, 6 and 7:

 
3. When, on July 21, 1993, the County of Cook employed Draghi as a physician on the medical staff of Cook County Hospital, Draghi was told, understood, and believed, that he was employed pursuant to a contract, formed by oral offer and acceptance, that was partially written, particularly as to terms and conditions of employment discipline and corrective actions; and that the Bylaws were part of, and qualified and conditioned, the employment contract by and between Draghi and the County of Cook, and conferred rights, privileges, and duties upon each of Draghi and the County of Cook.
 
6. Draghi never committed any act that endangered the life or safety of a patient ...

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