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Lee v. Zhang

October 23, 2008

JESSE R. LEE, PLAINTIFF,
v.
DR. LIPING ZHANG, ET.AL., DEFENDANTS.



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

SUMMARY JUDGMENT ORDER

This cause is before the court for consideration of the Defendant Zhang's motion for summary judgment. [d/e 26].

I. BACKGROUND

The plaintiff, a pro se prisoner, originally filed this lawsuit pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Pontiac Correctional Center. On February 25, 208, the court conducted a merit review and found that the plaintiff had adequately alleged thatDefendants Dr. Zhang and Warden Eddie Jones violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical condition. The plaintiff says the lack of care lead to sores, scabs and scars on his legs. The claim was against the defendants in their individual capacities.

II. FACTS

The plaintiff has not directly responded to the defendant's statement of undisputed facts. The Chairperson for the Office of Inmate Issues, Sherry Benton, says she has searched the records of the Administrative Review Board (herein ARB). Benton says there is no record that the plaintiff has appealed any grievances concerning a lack of medical care by Dr. Zhang that lead to sores, scabs or scars on his legs. (Def. Memo, Benton Aff, p. 3)

III. LEGAL 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.

IV. ANALYSIS

Defendant Zhang argues that the plaintiff has failed to exhaust his administrative remedies as required for his claim against her. The Prison Litigation Reform Act provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such ...


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