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Getz v. Kinderman

July 9, 2009


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

Order Granting Summary Judgment and Terminating Case

The plaintiff alleges that the defendants were deliberately indifferent to his serious medical need--asthma-during his incarceration in Christian County Correctional Center. For the reasons below, the court grants the defendants' motion for summary judgment.

Legal Standard on Summary Judgment

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).

"Summary judgment is . . . , 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).

Undisputed Facts

These facts are taken, often verbatim, from the defendants' proposed undisputed material facts, to the extent not disputed by the plaintiff.

1. The plaintiff was incarcerated at the Christian County Jail (the "Jail") from November 6, 2006 to November 29, 2007.

2. On intake, the plaintiff answered "no" to the following questions: Have you recently fainted or had a head injury? Are you presently taking any medication? Are you supposed to be taking meds for a mental/emotional condition?Have you recently seen a doctor for any illness? The plaintiff does not dispute that he did not tell the booking officer that he had asthma.

3. On January 22, 2007, the plaintiff felt dizzy and short of breath. He recalls waking up on the floor. He stated in his deposition that he had passed out. However, the plaintiff's cellmates testified that they did not see the plaintiff pass out and that the plaintiff was not struggling to breathe. Since the posture of this case is summary judgment, the court accepts the plaintiff's description of what happened.

4. Immediately after this incident, the plaintiff was taken to the emergency room. The emergency center medical note states that the plaintiff reported "chest pain, headache and difficulty breathing for the last two months." The plaintiff also reported that he had a nebulizer at home because of his history of asthma. The physical examination of the plaintiff's chest showed: "Occasional expiratory wheeze. Nonlabored breathing. Increased pain and reproducible pain over the left anterior chest wall with palpation. No bruising, swelling, or erythema noted." The plaintiff was given Ativan and albuterol nebulizer and improved on reevaluation, with "no appreciable wheezes." The plan was to put the plaintiff on albuterol "as needed", along with Motrin and a prescription for Ativan (used for anxiety disorders).

5. Marvin Bland and Kenny Shuff both testified that the plaintiff received breathing treatments at least once a day after January 22, 2007. The defendants maintain that, after January 22, 2007, the plaintiff had an albuterol inhaler on his person, but the plaintiff disputes that, as discussed below.

6. On January 29, 2007, the plaintiff had a follow up visit with Dr. Kiel at the Springfield Clinic. The physical exam record revealed:

. . .a moderately well kept male patient who does not appear in any acute distress. He states he has taken medications for this in the past, cannot remember what it was but believes it was Paxil. HEENT basically unremarkable. Cardiac, S1 and S2 is regular. Lungs are clear ...

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