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Ware v. Randolph

September 24, 2008

ERIC WARE, PLAINTIFF,
v.
AUSTIN RANDOLPH, ED HUGGINS, DR. OSAFO, AND NURSE NEUENDOF, C/O ENDRESS, C/O WOODS, MAJOR RAINES, AND LIEUTENANT BROWN, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the court are the defendants', Seth Osafo, M.D. and Tracy Neuendorf, L.P.N., motion for summary judgment [102], the plaintiff's response [111] and the defendants' reply [120].

Standard

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.

Background

The plaintiff in this case has brought a cause of action against the defendants for deliberate indifference with respect to care and treatment provided to him for skin conditions he suffered while incarcerated at the Illinois River Correctional Center. Mr. Ware was transferred to the Illinois River Correctional Center from the Hill Correctional Center on August 24, 2006. He was transferred out of the Illinois River Correctional Center to the Danville Correctional Center on April 18, 2007. The dates in question relate only to the time that Mr. Ware was incarcerated at the Illinois River Correctional Center. Accordingly, this lawsuit relates only to this eight-month period that Mr. Ware was incarcerated at the Illinois River Correctional Center. During this time, Mr. Ware presented to Dr. Osafo and Nurse Neuendorf on few occasions with complaints concerning a skin disorder on his head and on his back and arms. The evidence in this case reflects that Mr. Ware was treated with medications and was evaluated for his conditions as they were presented. Since the time that Mr. Ware has left the Illinois River Correctional Center, he is no longer under the care and treatment of these Defendants. Dr. Osafo diagnosed Mr. Ware as having dermatitis. He was treated for that condition. Ms. Neuendorf considered this condition on his back to be acne. She treated this per the protocol sheet directing care for this condition.

The defendants assert that the evidence shows that Mr. Ware's problems are not serious medical needs, despite the fact that they may be a frustration or annoyance to Mr. Ware. The defendants further assert that here is no evidence to indicate that he is at a substantial risk of serious harm. Further, the defendants assert that there is no evidence to indicate that Mr. Ware requires a certain course of medical treatment to treat his skin conditions. Therefore the defendants bring this summary judgment motion and ask that the court to enter judgment in their favor.

Undisputed Material Facts*fn1

1. The Plaintiff was incarcerated at the time he filed his cause of action against the Defendants. (See Plaintiff's Complaint.)

2. Mr. Ware has been incarcerated at the Danville Correctional Center since April 24, 2007. (Plaintiff's deposition, p. 3.)

3. Mr. Ware was at the Illinois River Correctional Center from either April of 2006 through April of 2007 or August 2006 through April 2007. (Plaintiff's deposition, p. 3; Exhibit A-1.)

4. The claims against and interactions with Dr. Osafo and Tracy Neuendorf relate to the time that Plaintiff was incarcerated at the Illinois River Correctional Center. (Plaintiff's deposition, pp. 4-5.)

5. Mr. Ware's complaints relating to Dr. Osafo and Nurse Neuendorf relate to his skin conditions. (Plaintiff's deposition, p. 6.)

6. Plaintiff alleges that he is not being treated properly for his skin condition. (Plaintiff's deposition, p. 6.)

7. Mr. Ware suffered from this skin condition before he arrived at the Illinois River Correctional Center, according to him. (Plaintiff's deposition, p. 7.)

8. Mr. Ware has a skin condition on the top of his head that appears as though part of his skin has been scratched off. (Plaintiff's deposition, p. 12.)

9. It appears as though one layer of his skin has come off and is flaky as of the date of his deposition, August 13, 2007. (Plaintiff's deposition, p. 12.)

10. Mr. Ware also has a skin condition on his back and his arm. (Plaintiff's deposition, p. 13.)

11. The condition on his back and arm looks like acne as it is dark and is not like what is on his head. (Plaintiff's deposition, p. 13.)

12. However, Plaintiff does not believe the dark spots are actually acne. (Plaintiff's deposition, p. 13.)

13. It appears that Mr. Ware has dark spots on his back and does not look like what he has on his head. (Plaintiff's deposition, p. 14.)

14. The condition on Plaintiff's back is pretty much the same as what he has on his arm. (Plaintiff's deposition, p. 14.)

15. Other than being discolored, the Plaintiff asserts that his condition itches. (Plaintiff's deposition, p. 15.)

16. Mr. Ware asserts that the condition on the top of his head burns when he puts water on his head. (Plaintiff's deposition, p. 19.)

17. As long as Mr. Ware does not touch his head or put water on it or grease on it, then he is okay. (Plaintiff's deposition, p. 19.)

18. Mr. Ware does not suffer from any physical problems so long as he does not aggravate the skin condition. (Plaintiff's deposition, pp. 20-21.)

19. Mr. Ware complains that Dr. Osafo gave him Selsun Blue after Plaintiff told him this product had not helped before. (Plaintiff's deposition, p. 22.)

20. Mr. Ware does not recall seeing Dr. Osafo again for problems relating to his skin. (Plaintiff's deposition, p. 23.)

21. Plaintiff asserts no one ever saw him again for this condition. (Plaintiff's deposition, p. 23.)

22. Mr. Ware's complaint against Nurse Neuendorf is that he told her he was having a skin problem. He admits that she gave him medical treatment. (Plaintiff's deposition, p. 23.)

23. Plaintiff claims that he advised her that he had tried this before and that it did not work. Plaintiff complains that he did not want to use the medicine that she was giving him. (Plaintiff's deposition, p. 24.)

24. Plaintiff asserts that Nurse Neuendorf gave him Benzoyl peroxide. (Plaintiff's deposition, p. 24.)

25. The Plaintiff asserts that both on January 2 and January 5, he was given Benzoyl peroxide for his complaints. He claims that this did not work. (Plaintiff's deposition, p. 25.)

26. He did not see anyone else at the Illinois River Correctional Center for this condition. (Plaintiff's deposition, pp. 25-26.)

27. He was transferred shortly thereafter to the Danville Correctional Center. (Plaintiff's deposition, p. 26.)

28. The Plaintiff claims that he is not physically restricted as a result of his skin condition. (Plaintiff's deposition, p. 27.)

29. He claims that he is embarrassed and does not like to take off his shirt because of the spots on his head and on his back. (Plaintiff's deposition, p. 27.)

30. Plaintiff claims that his skin condition causes itching, scratching, and bleeding from the bumps on his back. (Plaintiff's deposition, p. 28.)

31. The spot on Mr. Ware's head was the size of nickel when it first began at the Lawrence Correctional Center. (Plaintiff's deposition, p. 28.)

32. It now appears as though there is one patch that is approximately the size of a nickel and another that is the size of a quarter. (Plaintiff's deposition, p. 29.)

33. The skin condition does not affect Mr. Ware's ability to breath. (Plaintiff's deposition, p. 30.)

34. The skin condition does not affect Mr. Ware's ability to walk. (Plaintiff's deposition, p. 30.)

35. The skin condition does not affect Mr. Ware's ability to conduct his daily living activities other than to cause him frustration. (Plaintiff's deposition, p. 30.)

36. Mr. Ware now uses tar shampoo on his head. It does not make his head darker when he uses it. (Plaintiff's deposition, p.78.)

37. The plaintiff believes that the tar shampoo clears up the pustules. (Plaintiff's deposition, p. 79.)

38. Mr. Ware was diagnosed with having acne on his back when at the Western Illinois Correctional Center prior to arriving at the Illinois River Correctional ...


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