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Gardner v. Shah

August 24, 2006

MARVIN GARDNER, PLAINTIFF
v.
YIPIN SHAH, DEFENDANT.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

Order Granting Summary Judgment

Before the court is the defendant's motion for summary judgment (d/e 39). After careful consideration of the parties' submissions, the court concludes that no reasonable inference arises that Dr. Shah was deliberately indifferent under applicable Eighth Amendment standards. Accordingly, summary judgment must be granted to the defendant and this case terminated.

Standard

A party moving for summary judgment must show, from the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . ." that there is no genuine issue of material fact and that the "moving party is entitled to judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Fed. R. Civ. P.56©. This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). More than "broad-brushed, conclusory allegations" are necessary to show the existence of a triable issue--"[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Scaife v. Cook County, 446 F.3d. 735, 740 (7th Cir. 2006).

In determining whether material factual disputes exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). 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. The question is " . . . whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Facts*fn1

1. In 1989, the plaintiff was shot in the chest. At that time, the plaintiff received treatment at Mt. Sinai Hospital, but physicians decided to let the bullet remain in the plaintiff's side.

2. In October, 2002, the plaintiff was incarcerated in the Illinois Department of Corrections to serve sentences for drug convictions.

3. In December, 2002, the plaintiff was transferred to Graham Correctional Center.

4. Defendant Dr. Shah was one of the physicians who treated inmates during the plaintiff's incarceration at Graham.

5. While in Graham, the plaintiff complained to Dr. Shah about the bullet from the 1989 incident, which was still lodged in the plaintiff's side. In response to the plaintiff's complaint about the bullet in his side, Dr. Shah physically examined the plaintiff's gunshot wound and advised the plaintiff that the bullet needed to be removed. The plaintiff questioned Dr. Shah's medical judgment because, in the plaintiff's view, the bullet was "coming out on its own." Dr. Shah pointed out that the plaintiff's wound had a fluid build-up and was infected. The plaintiff then consented to the removal of the bullet.

6. The parties dispute whether Dr. Shah attempted to extract the bullet on March 15, 2003, or on July 14, 2003. The dispute is material to whether the plaintiff timely exhausted his administrative remedies.

Dr. Shah offers his own affidavit and the plaintiff's medical records to support the March 15th date. The plaintiff cites to the allegations in his complaint and to his grievance attached to the Complaint, but offers no affidavit of his own or other corroborating evidence. Parties opposing summary judgment cannot rest on their pleadings to show a genuine issue of material fact. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Because the plaintiff only recounts his allegations,*fn2 the March 15th date stands undisputed. However, addressing the factual merits of the plaintiff's claim renders this dispute irrelevant. In the court's opinion, facing the merits is the stronger and preferred footing here. Accordingly, the Court does not address the parties' arguments on exhaustion of administrative remedies.

7. Dr. Shah injected a local anesthetic into the wound area and attempted to remove the bullet. This allegedly caused the plaintiff pain because, according to the plaintiff, the wound had not yet become numb from the anesthetic. Dr. Shah responded to the ...


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