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Cross v. Kowlakowski

August 19, 2008


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


Before the court is the defendant, Dr. Andrew Kowalkowski's unopposed summary judgment motion [96] brought pursuant to Rule 56 of the Federal Rules of Civil Procedure.


Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"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 events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.

Summary judgment is a tool in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact. Mills v. First Federal Savings & Loan Association, 83 F.3d 833 (7th Cir. 1996). Affidavits are evidence for purposes of determining whether a genuine issue of material fact exists. Wilson v. Williams, 997 F .2d 348 (7th Cir. 1993). Summary judgment should be granted when no reasonable jury could return a verdict for the nonmoving party. U.S. Gypsum Co. v. National Gypsum Company. 74 F.3d 1209 (C.A.Fed 1996). Further. U. S. D. C. Local Rule 7.1(D)(2) provides that a failure to respond shall be deemed an admission of the motion.


The plaintiff has brought this action alleging various theories against various individuals regarding his treatment while incarcerated at Pontiac Correctional Center. Dr. Kowzalkowski filed an Answer denying those allegations directed at him, along with Affirmative Defenses which raise the same issues addressed in the Motion for Summary Judgment. The plaintiff's complaint contains a myriad of allegations regarding various medical and health issues. The majority of these claims*fn1 are not directed at Dr. Kowalkowski and will not be addressed for purposes of this motion. The plaintiff's complaint, as it relates to Dr. Kowalkowski, alleges:

[p.44] Plaintiff filed various of grievances on mental health issues and would not get any response.

Plaintiff told officials, including Dr. Kowalkowski, psy. 1, and Alton Angus, psy. 2.

Both Doctors/psychs told plaintiff that he was 'mentally ill' and 'delusional.'

"82. Plaintiff even told psy # I and psy #2 that officials threaten to kill him 'plaintiff,' for exercising plaintiffs first Amendment right to grieve matters, unjustly and unlawfully committed against plaintiff.

Inadequate mental health needs. Plaintiff alleges officials knew that plaintiff was chronically depressed, dejected and suicidal and legally insane but did not move plaintiff to a mental ward or unit, ...

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