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Sanchez v. Ciolli

August 21, 2007

MARCO SANCHEZ, PLAINTIFF,
v.
MIKE CIOLLI, ET AL., DEFENDANTS.



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

ORDER AND MEMORANDUM OPINION

Before the court is the defendants', Mike Ciolli, Jack Atherton, Ferdinand Samalio, Angel Ortiz, Dr. Dalmasi, Harris Hansen and Ted Walls' unopposed summary judgment motion [41].

Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the 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." In ruling on a motion for summary judgment, the court is to construe all justifiable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of fact exists only when, based on the record as a whole, a reasonable jury could find for the non-movant. See Pipitone v. United States, 180 F.3d 859, 861 (7th Cir.1999).

Where the material facts are not in dispute, the sole issue is whether the moving party is entitled to a judgment as a matter of law. ANR Advance Transp. Co. v. Int'l Bhd. of Teamsters, Local 710, 153 F.3d 774, 777 (7th Cir.1998). On a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (internal quotation omitted). Summary judgment is the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.) (internal quotation omitted), cert. denied, 126 S.Ct. 746 (2005).

A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). There is no is sue for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249.

Statement of Undisputed Facts*fn1

1. The plaintiff, Marco Sanchez ("plaintiff"), was at the time of the incidents alleged in the suit an inmate at the Federal Correctional Institute in Pekin, Illinois ("FCI Pekin"). The plaintiff filed a complaint against Mike Ciolli, Jack Atherton, Ferdinand Samalio, Angel Ortiz, Dr. Dalmasi, Harris Hansen and Ted Walls (hereinafter collectively referred to as "defendants"). The defendants at the time of the incidents alleged in the complaint were employed at FCI Pekin. (Complaint,¶4-10)

2. The plaintiff's complaint alleges that he suffered gunshot wounds in 1992 prior to his incarceration. (Complaint, ¶24) Further, the plaintiff states that he had surgery in 1994 and 1995 to remove bullet fragments that were causing him pain. (Complaint,¶25-26)

3. On March 7, 2003 plaintiff was injured while engaged in a sports activity. This aggravated his injury regarding the gunshot and resulted in pain to his back. (Complaint,¶28-29)

4. Plaintiff alleges that the defendants were deliberately indifferent to his back pain, including abdominal and groin pain. Plaintiff asserts that while he received treatment for his hip, back and spinal condition, the treatment he received did not relieve his pain which was due to "inadequate medications, treatment, testing and rehabilitation." (Complaint,¶32-33) Plaintiff does not state in his complaint what he believes the appropriate treatment should be.

5. Plaintiff limited his complaint to the treatment he received from February 7, 2003 through February 18, 2004. (Complaint, ¶10, 31)

6. Plaintiff concludes that each of the defendants was deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. (Complaint,¶11, 36)

7. By letter dated July 19, 2006, the plaintiff notified the court that he was being deported to Mexico.

8. By letter dated August 24, 2006, the plaintiff notified the court that he was released from United States custody and was deported to Mexico. His new address is "E. Carranza 602 pte., Col. 10 de Mayo, Cd. Madero, Tamaulipas, C.P. 89450, Mexico."

9. On September 22, 2006, counsel for the defendants sent to the plaintiff a letter at his stated address informing him that in order to complete discovery in this matter, the plaintiff's deposition needed to be taken. Counsel asked the plaintiff to state what arrangements he intended to make for his deposition in light of his deportation. (Ex. A)

10. Counsel included with the September 22nd letter the United States' First Set of Requests for Admissions, Interrogatories and Requests for Production to Plaintiff (Exhibit B). Underlined on the first page are the words "under Rule 36, a matter is deemed admitted unless it is denied within 30 days after service of the requests." (Ex.B)

11. Plaintiff did not respond to the discovery requests. (Declaration of Counsel is attached as Exhibit D)

12. On November 3, 2006, counsel for the defendants sent another letter to the plaintiff again reminding him that he needed to respond immediately to the outstanding discovery requests and that Federal Rule 36 deemed the matters in the requests for admissions to be admitted unless they are denied within 30 days. The letter again sought to discover what arrangements the plaintiff intended to make for his deposition and how he intended to prosecute the case in light of his deportation. (Ex.C)

13. Again, the plaintiff failed to respond. (Ex.D)

14. By his failure to respond to the Requests for Admission, the plaintiff has admitted that, inter alia, the following facts are true:

a. Plaintiff's allegations in his complaint are limited to the time period between March 7, 2003 and February 18, 2004. (Ex.B,¶4)

b. Plaintiff has no medical evidence to support the allegations contained in his complaint. (Ex.B,¶5)

c. Plaintiff does not have any written medical opinion by a qualified medical professional that supports his claims. (Ex.B,¶6)

d. Although plaintiff complained of a sports related injury on March 7, 2003, he did not visit the medical unit until March 11, 2003 at which time his sole complaints were regarding a headache, foot fungus abdominal pain and hemorrhoids which were all properly treated by the medical staff. (Ex.B,¶38-41)

e. Plaintiff was provided with a refill of his Naproxen whenever he reported a need for a refill to staff. (Ex.B,¶44)

f. Although plaintiff went to the medical unit on numerous occasions between March 7, 2003 and February 18, 2004, he was never refused to be seen by staff and was always evaluated by staff for his complaints. (Ex.B,¶54)

g. Plaintiff admitted that although he always received medical treatment from March 2003 through February of 2004, he disagreed with the treatment prescribed by the defendants. (Ex.B,¶56)

h. Plaintiff admitted that he has no evidence to establish that any of the named defendants had been deliberately indifferent to his medical needs. (Ex.B¶,8,16,24,28,31,34,37)

Defendant Mike Ciolli

15. Ciolli was employed by the Federal Bureau of Prisons and is now retired. He served as Warden at FCI Pekin from June 2, ...


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