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Tunget v. Monahan

March 17, 2009

STEVE TUNGET, PLAINTIFF,
v.
THOMAS MONAHAN AND ANDERSON FREEMAN, 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, THOMAS MONAHAN and ANDERSON FREEMAN's summary judgment motion [25] and the plaintiff's response [28].

Plaintiff, Steve Tunget, is in the custody of the Illinois Department of Human Services (the "Department") at the Rushville Treatment & Detention Facility ("Rushville TDF") pursuant to the Sexually Violent Persons Commitment Act, 725 Ill. Comp. Stat. Ann. 207/1 et seq. (West 2007) (the "SVP Act"). Plaintiff alleges that his exposure to environmental tobacco smoke ("ETS") at the Rushville TDF is endangering his health and that the Defendants are deliberately indifferent to his serious medical need. Defendants move for summary judgment on the following grounds: First, there is insufficient evidence for a rational jury to find that Defendants were deliberately indifferent to Plaintiff's serious medical needs. Second, Defendants are entitled to qualified immunity. Third, there is no occasion to issue injunctive relief because smoking is no longer permitted at the Rushville TDF.

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.

Undisputed Material Facts

1. Plaintiff alleges that second-hand smoke at the Rushville TDF caused him to experience stress, difficulty in breathing, watery eyes, itching, sneezing, and a sore throat. (Ct. Doc. #5, pp. 4-5; Defs.' Ex. C; Pl.'s Resp. to Defs.' Interrogs., ¶¶ 1 and 4, attached hereto.)

2. Plaintiff has resided in a non-smoking room since his transfer to the Rushville TDF on June 19, 2006. (Defs.' Ex. A; Williams Aff., ¶ 2, attached hereto.)

3. As of January 1, 2008, the Rushville TDF is a tobacco free facility. No smoking or chewing tobacco, lighters, or matches are allowed within the facility. Residents are not allowed to smoke or chew tobacco anywhere on facility grounds. (Defs.' Ex. A; Williams Aff., ¶ 3.)

4. Residents were permitted to smoke inside their rooms before January 1, 2008. Residents were also permitted to smoke in the outdoor common areas before implementation of the smoking ban. However, residents were not allowed to smoke in the indoor common areas during that time. (Defs.' Ex. A; Williams Aff., ¶ 4.)

5. Plaintiff was seen by medical doctors approximately 20 times from the time he transferred to the Rushville TDF until the smoking ban took effect. (Defs.' Ex. B; Bednarz Aff., ¶ 3, attached hereto.)

6. Plaintiff was seen by nursing staff approximately 11 times from the time he transferred to the Rushville TDF until the smoking ban took effect. ...


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