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Moralis v. Flageole

September 28, 2007

MATTHEW MORALIS, PLAINTIFF,
v.
JEAN FLAGEOLE AND MICHAEL DOWNEY, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, Matthew Moralis has brought this pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983 against the defendants, Jean Flageole and Michael Downey, in their individual capacities. The plaintiff claims that Flageole and Downey violated his civil rights when he was denied adequate medical treatment for dental and mental health. Before the court are the defendants' summary judgment motion [204], the plaintiff's response [216] plaintiff's declaration [217] plaintiff's additional summary judgment issues [218], plaintiff's additional summary judgment exhibits [219], plaintiff's counterstatement [220], plaintiff's additional information [221], plaintiff's medical exhibits/summary judgment [222], plaintiff's affidavit [223], plaintiff's memorandum of law [224], plaintiff's declaration in opposition [227], plaintiff's motion for leave to file amended summary judgment pleadings [228] and the plaintiff's amended counterstatement [229] and the defendants' reply [230].

As the clerk of the court filed the plaintiff's amended pleadings [227] and [229] on February 26, 2007, the plaintiff's motion for leave to file an amended summary judgment pleading [228] is rendered moot.

In their reply in support of their motion for summary judgment [230], the defendants argue that the plaintiff's response does not comply with Federal Rule 56. The defendants are correct. The court further finds that the plaintiff's response also does not comply with L. R. 7.1(D) and he does not meet the exception found in L. R. 7.1(D)(6) which provides that "Local Rule 7.1(D) does not apply to pro se litigants... upon a showing of good cause." Plaintiff has not shown good cause for not following L. R. 7.1(D). In the court's January 4, 2007 order the court stated the following:

[T]he court notes that the plaintiff has presented documents to the clerk of the court that are in disarray. The court will not use its resources to put the plaintiff's documents in order and the clerk of the court, nor this court, will perform secretarial duties for the plaintiff. The clerk of the court is directed to strike the plaintiff's response 212 , affidavit 213 , exhibit 214 and memorandum of law (plaintiff actually submitted two documents titled memorandum of law), as well as several loose attachments that perhaps are exhibits, but are not clearly marked and numbered as exhibits, nor are these documents collated into clearly identifiable documents 215. The clerk of the court is directed to return the plaintiff's documents [212-215] to him. Further, the clerk of the court is directed to enclose alongwith this minute entry a copy of Local Rule 7.1(D) that discusses Summary Judgment motion/response/reply. The plaintiff is advised that although he proceeds pro se, he must comply with Local Rule 7.1(D). The plaintiff is allowed twenty-one days from the date of this order to submit a response to the pending summary judgment motion that complies with Local Rule 7.1(D).

The plaintiff was provided with a copy of L. R. 7.1(D) and given an opportunity to submit a response that complied with the rule. He failed to do so in his first response [212 -215] which was subsequently stricken (see court's 1/4/7 order), his second response [216-224] and his amended response [227, 229].

See Fed.R.Civ.P. 56(e) ("[T]he 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.") (emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) ("Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by his own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'") (emphasis added).

United States District Court Local Rule 7.1(D) required the plaintiff, as the nonmoving party, to provide an "Introduction" without citations, briefly summarize the legal and factual basis for opposition to the motion and the exact relief sought. Then plaintiff was required to submit his Response to Undisputed Facts, and in separate subsections state the (1) Undisputed Material Facts (2) Disputed Material Facts (3) Immaterial Facts and (4) Additional Material Facts. The plaintiff was required to list by number each fact from the defendants' Undisputed Material Facts of the summary judgment motion which is conceded to be undisputed and material. Further, the plaintiff was required to list by number each fact from defendants' undisputed material fact of the summary judgment motion which is claimed to be disputed. Each such claim of disputed fact must be supported by evidentiary documentation, referenced by specific page. The plaintiff was required to include as exhibits all cited documentary evidence not already submitted by the movant. Plaintiff was also required to list by number each fact from defendants' undisputed material facts of the summary judgment motion that is claimed to be immaterial (if any) and the reason for such claim. Finally, the plaintiff was required to list and number each additional material fact raised in opposition to summary judgment motion. Each additional fact must be supported by evidentiary documentation, referenced by specific page. The plaintiff was required to include as exhibits all relevant documentary evidence not already submitted by the movant.

Either rule violation could support summary judgment. See Fed.R.Civ.P. 56(e) ("If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."). USDC Local Rule 7.1(D) provides that:

All motions for summary judgment and responses and replies thereto shall comply with the requirement of this rule. Any filing not in compliance may be stricken by the court. The consequences for failing to comply are discussed thoroughly in Waldridge v. American Hoechst Corp., 24 F.3d 918 (7th Cir. 1994). The court will assume that the facts as claimed by the moving party are admitted to exist without controversy, except as and to the extent that such facts are actually in good faith controverted in the 'statement of genuine issues' filed in opposition to the motion, as supported by the depositions, answers to interrogatories, admissions, and affidavits on file.

Further, pro se litigants are presumed to have full knowledge of applicable court rules and procedures. Therefore, although the plaintiff is proceeding pro se, he must follow the Federal Rules and procedural rules of the Central District of Illinois. See Metro Life Ins. Co. V. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). The defendants are correct. Local rules serve an important function in the summary judgment process. "Such rules assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a dispute fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. Of Trustees, 233 F.3d 524, 527, citing Markham v. White, 172 F3d 486, 490 (7th Cir. 1999). The Seventh Circuit has consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.2000)(upholding the district court's decision to strike response in its entirety rather than selectively due to failure to comply with local rules); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir 1995); Waldridge v. American Hoechst Corp., 24 F3d 918, 922 (7th Cir. 1994)(collecting cases).

The plaintiff has filed numerous filings in opposition to the defendants' summary judgment motion. The plaintiff's counter statements listing material facts contains generalized arguments and conclusion, rather than particularized statements of fact. His affidavit and declaration contain hearsay statements, as well as legal arguments and conclusion. Further, hundreds of pages of exhibits are not referenced in his counter statement. Plaintiff did not respond particularly to each numbered paragraph. He did not identify each fact from the defendants' statement of facts and clarify whether it is conceded to be undisputed and material, disputed and material or immaterial. The plaintiff's statement is wholly disjointed, contains evasive and contradictory answers, legal conclusions and argument. Further, his evasive denials do not fairly meet the substance of the material facts asserted and his citations to the record merely support legal argument rather than the controverted material facts. See Bordelon, 233 F.3d at 528. Further, additional facts beyond the movant's statement must be submitted in a separate subsection. See L.R. 7.1(D)(2)(b). The plaintiff did not list additional material facts in opposition to the defendants' summary judgment motion. This court is not required to and will not wade through the plaintiff's improper denials, legal argument and unreferenced exhibits in search of a genuinely disputed fact. See Borden at 529. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). "Courts are entitled to assistance from counsel, and an invitation to search without guidance is no more useful than a litigant's request to a district court at the summary judgment state to paw through the assembled discovery material. 'Judge are not like pigs, hunting for truffles buried in' the record." Albrechtsen v. Bd. of Regents,2002 WL 31397690 (7th Cir. 2002), quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

Further, the plaintiff's affidavits and declaration do not comply with Fed. R. Civ. Pro. Rule 56(e) which requires that an affidavit in opposition to summary judgment "shall be on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testy to the matters stated therein. Further under Fed. Rule of Evidence 602, 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. Affidavits must present concrete facts; mere conjecture or speculation is insufficient. Johal v. Little Lady Foods, Inc., 434 F.3d 943, 947 (7th Cir. 2006). Personal knowledge may include reasonable inference, however, the inferences must be grounded in observation or other first-hand personal experience. See Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003). The evidence relied upon must be competent evidence of a type admissible at trial; thus a party may not rely on inadmissible hearsay in an affidavit to oppose a summary judgment motion. Bombard v. Ft. Wayne Newspapers, 92 F3d 560, 562 (7th Cir. 1996). Furthermore, legal argumentation is an expression of legal opinion and is not a recitation of fact, to which an affiant is competent to testify and therefore do not belong in a Local Rule 7.1(D) response. Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.1985). It is also improper to manufacture a factual dispute through an affidavit containing conclusory allegations that contradict prior deposition testimony. See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001).

The plaintiff's affidavit [223] is replete with speculation, argument and legal conclusions. See plaintiff's affidavit at pars. 6-9, 11, 12, 15, 18, 20-22, 23-27, 29-30, 33, 36, 37-38, 40, 41, 45-46, 48-50, Argument & Case Law, Proof of Damage, Casual Relations to Injuries, Conclusion. His affidavit contains statements not made on personal knowledge. See Id. at pars. 1, 3, 6, 11-12, 15, 17, 26, 29, 31, 38, 40, 45, 47. His affidavit contains hearsay statements. See Id. at pars. 3, 5, 14, 16 and 45. His affidavit contains statements that contradict the plaintiff's prior deposition testimony regarding his alleged suicide attempt, see Id. at par.44 and Moralis Dep., p. 17, and medical treatment, see plaintiff's affidavit at pars. 7, 8, 9, 29, 35, 46 and Moralis Dep. At pp. 39, 43-44, 47-50, 56, 60-61, 83, 85, 98-100, 104-108. In his affidavit, the plaintiff states that he "clearly received no care in regards to extreme pain and infections," and that all his requests for dental care were denied. However, in his deposition, the plaintiff testified that he saw the dentist on two occasions, received a medicated mouthwash on several occasions, received pain medication, anti-inflammatory medication and an antiobiotic used to help treat periodontal disease. See Moralis Dep., pp. 39, 43-44, 47-50, 56, 60, 83, 85, 98-100, 104-108.

Further the plaintiff's separate declarations [217] and [227] are not based on personal knowledge and is wholly argumentative, speculative, based on hearsay, contradicts his prior deposition and contains legal conclusion.

In his Memorandum [224], the plaintiff does not directly respond to the defendants' argument in support of summary judgment. He merely recites case law relative to inadequate medical care and makes sweeping conclusions that his medical need was sufficiently serious and the defendants were deliberately indifferent. He does not discuss the law in light of the facts of this case, nor why the law and those facts should preclude summary judgment. L. R. 7.1(D)(2)(c) outlines the requirements of an adequate response to the argument section. The non-movant is required to:

With or without additional citations to authorities, respond directly to the argument in the motion for summary judgment, for example, by explaining any disagreement with the movant's explanation of each point of law, why a point of law does not apply to the undisputed material facts, why its application does not entitled movant to relief or why, for other reasons, summary judgment should not be granted.

The clerk of the court mailed a notice to the plaintiff setting forth Fed. R. Civ. Pro. Rule 56(3) requirements and provided to him a copy of that rule [207] on November 29, 2006. Then on January 4, 2007, the clerk of the court provided a copy of L. R. 7.1(D) to the plaintiff. The plaintiff's pro se status does not serve as a license to completely ignore the Federal Rules of Civil Procedure or the Local Rules. See Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) ("[procedural] rules apply to uncounseled litigants"); Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir.1996)( "pro se litigants are not entitled to a general dispensation from the rules of procedure"). Therefore, clerk of the court is directed to strike the plaintiff's responses: [216] plaintiff's declaration [217] plaintiff's additional summary judgment issues [218], plaintiff's additional summary judgment exhibits [219], plaintiff's counterstatement [220], plaintiff's additional information [221], plaintiff's medical exhibits/summary judgment [222], plaintiff's affidavit [223], plaintiff's memorandum of law [224], plaintiff's declaration in opposition [227], and the plaintiff's amended counterstatement [229] to defendants' summary judgment motion, forthwith.

Now that the above is out of the way, the court will consider the defendants' summary judgment motion [204].

Background

In his amended complaint [38 ], the plaintiff claims the defendants were deliberately indifferent to his serious medical needs when: (1) they denied him adequate dental care although he suffered from extreme pain, periodontal disease, recurring infections on his upper and lower gums, inability to eat or sleep without severe pain, trouble chewing and extreme bleeding of his gums daily and (2) they denied him adequate mental health care when they denied treatment by a qualified or licensed psychologist. Jean Flageole and Michael Downey moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 and Central District of Illinois Local Rule 7.1. The defendants assert that plaintiff's claims fail because there is no evidence that Flageole and Downey were, in fact, deliberately indifferent to the plaintiff's medical needs and that to the contrary, the evidence shows that they acted reasonably in attempting to treat plaintiff's dental and mental health conditions in light of the circumstances. Further, the defendants assert that they are entitled to qualified immunity because the plaintiff has not proven that they violated the plaintiff's constitutional rights and because the constitutional standards surrounding the plaintiff's claims were not sufficient to put the defendants on notice that their conduct was unconstitutional.

Standard

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); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues 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). Further, 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). Credibility questions "defeat summary judgment only '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other citations omitted).

Fed. Rule Civ. Pro. 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." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986) and Vukadinovich v. Board of Sch. Tr. of North Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir.2002).

Undisputed Facts*fn1

1. The defendant, Jean Flageole is the head nurse at the Kankakee County Jail, Jerome Combs Detention Center, in Kankakee county, Illinois (Flageole Aff., para. 1).

2. The defendant Michael Downey is the Chief of Corrections in Kankakee County, Illinois (Downey Aff., para. 1).

3. The plaintiff, Matthew Moralis, who was in custody of the United States Marshals Service (hereinafter USMS) at all relevant times, was housed at the Kankakee County Jail from February 24, 2005, to March 10, 2006, pursuant to an Intergovernmental Service Agreement ("ISA") (Shaw Aff., paras. 2-3).

4. At all relevants times, Christopher Shaw served as the USMS liaison to the Kankakee County Jail (Id., para. 4).

5. Under the ISA, the Kankakee County Jail receives from the USMS a per diem fee for housing each federal inmate, which covers the cost of housing, food and all necessary on-site medical care (Id., para. 6).

6. All medical and dental treatment provided to a USMS detainee off-site is initially paid for by the Jail; the Jail is subsequently reimbursed by the USMS for any authorized treatment (Id., para. 9).

7. USMS policy provides that the USMS will provide USMS detainees with all medically necessary health care, generally through the local jail facilities under contract with the USMS (Id., para. 10).

8. In accordance with the ISA, the Kankakee County Jail is instructed to provide all emergency medical care to detainees immediately without USMS authorization. Prior authorization is only required in instances where non-emergency medical care must be provided at facilities outside the Jail (Id., para. 8).

9. USMS Publication 100 defines reasonable and medically necessary health care as being medical treatment that cannot be delayed until after the prisoner's judicial status is resolved, meaning until the prisoner is remanded to the custody of the Federal Bureau of Prisons or is released following acquittal, without health risk to the prisoner (Id,, para. 10).

10. The USMS will not authorize a request for non-emergency medical care at facilities outside the local jail when the treatment is not reasonable and medically necessary under USMS Publication 100 (Id.).

11. According to USMS Publication 100, treatment of pre-existing conditions, which are not life-threatening or medically necessary, should be delayed until after the prisoner's judicial status is resolved (Id., para. 14).

12. According to USMS Publication 100, periodontal treatment is not authorized for payment by the USMS (Id., para. 15).

13. According to USMS Publication 100, psychological or psychiatric testing, counseling or psychotherapy is not authorized for payment by the USMS unless ordered by the Court (Id., para. 16).

14. The USMS relies on the medical assessment of the local jail's physicians to determine whether a detainee is in need of medical attention, whether specific medical care is of an emergency or non-emergency nature, whether the treatment can be postponed until the resolution of the detainee's criminal proceeding, and whether the treatment can be provided within the jail (Id., para. 11).

15. When a local jail determines that a USMS detainee may be in need of non-emergency medical care that cannot be provided within the jail and the treatment cannot be reasonably postponed until disposition of the detainee's criminal matter, the local jail ...


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