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Glass v. Rodriguez

January 9, 2006

DARRYL GLASS (#K-1796), PLAINTIFF,
v.
DR. SERGIO RODRIGUEZ, DEFENDANT.



The opinion of the court was delivered by: Michael T. Mason United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, currently a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendant, a physician at the Cook County Correctional Center, violated the plaintiff's constitutional rights by acting with deliberate indifference to his serious medical needs. More specifically, the plaintiff alleges that while he was held at the jail as a pretrial detainee, the defendant failed to provide adequate care for back problems. The parties have consented to have this case heard by a magistrate judge pursuant to 28 U.S.C. § 636(c). This matter is before the court for consideration of the defendant's motion for summary judgment. For the reasons set forth in this order, the motion is granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Prime Northgate Plaza Ltd. Partnership v. Lifecare Acquisitions Corp., 985 F. Supp. 815, 817 (N.D. Ill. 1997). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Walker v. Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000).

However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 393 (7th Cir. 1997), cert. denied, 523 U.S. 1118 (1998).

FACTS

The defendant filed a statement of uncontested material facts pursuant to Local Rule 56.1 (N.D. Ill.). Together with his summary judgment motion, the defendant served on the plaintiff the required notice under Local Rule 56.2, advising the plaintiff what he needed to do to contest the motion, and specifically what he needed to do to dispute the defendant's statement of uncontested facts. Despite this, the plaintiff has not submitted a statement of contested facts; he simply disputes certain facts or elaborates on events in his opposing brief, without pointing to evidence in the record that substantiates his version of the facts. But unsupported statements in a brief are not evidence and cannot be given any weight. See, e.g., Johnson v. Spiegel, Inc., No. 02 C 0680, 2002 WL 1880137, at *4 (N.D. Ill. Aug. 15, 2002) (Pallmeyer, J.), citing In the Matter of Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985).

The plaintiff's failure to respond to the defendant's statements of material facts as directed warrants disregard of any contrary assertions he makes in his opposing brief. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003):

Local Rule 56.1's enforcement provision provides that when a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes of the motion. . . . We have consistently held that a failure to respond by the non-movant as mandated by the local rules results in an admission. See, e.g., Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir. 2000). A district court is not required to "wade through improper denials and legal argument in search of a genuinely disputed fact." Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993). Nevertheless, because the plaintiff is proceeding pro se, the court will consider the factual assertions he makes in his responsive brief, but only to the extent that the plaintiff could properly testify about the matters asserted at trial. Affidavits must concern facts about which the affiant is competent to testify, must be based on personal knowledge, and must set forth such facts as would be admissible in evidence. Fed. R. Civ. P. 56(e). A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 602. It should additionally be noted that the validity of medical records and entries in the medical records cannot be disputed in the absence of any contrary evidence. Moss v. Morman, No. 99 C 3571, 2001 WL 1491183, at *4 (N.D. Ill. Nov. 26, 2001) (Andersen, J.) The court therefore finds that the following facts, gathered from the defendant's statements of facts, the plaintiff's medical records, and his deposition testimony, are undisputed for purposes of this motion:

The plaintiff was a pretrial detainee at the Cook County Jail at all times relevant to this action. (Complaint, p. 2, Section I.) The defendant, Sergio Rodriguez, is a physician as well as the medical director of Cermak Health Services of Cook County. (Defendant's Exhibit C, Affidavit of Sergio Rodriguez, ¶ 2.)

Prior to his incarceration, the plaintiff began experiencing chronic back pain, possibly stemming from fractured vertebrae incurred during high school sports. (Defendant's Exhibit B, Deposition of Darryl Glass, p. 9; Rodriguez Affidavit, ¶ 4.)

The plaintiff arrived at the Cook County Jail on August 25, 2002. (Rodriguez Affidavit, ¶ 3.) He remained there until December 27, 2004. (Id., ¶¶ 3 and 16.)

A specialist in orthopedics ordered a "CAT scan," or computerized axial tomography, of the plaintiff's back in October 2002. (Id., ¶ 5.) The CAT scan revealed degenerative joint disease stemming from an old minimal compressed fracture. (Id.) An x-ray taken in December 2002 reflected the same injury. (Id., ¶ 6; Plaintiff's Deposition, p. 13.)

The course of treatment decided upon was to monitor the condition and continue to prescribe pain medication. ...


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