The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of Defendant Eddie Jones' motion for summary judgment. [d/e 32]
The pro se plaintiff filed his complaint pursuant to 42 U.S.C. §1983 against two defendants at the Pontiac Correctional Center: Dr. Zhang and Warden Eddie Jones. On February 25, 2008, the court conducted a merit review of the complaint and found that the plaintiff had adequately alleged that the defendants violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical condition. Specifically, the plaintiff alleged that he developed painful sores and scabs on his legs, but he was refused medical care.
On October 23, 2008, the court granted Defendant Dr. Zhang's motion for summary judgment based on failure to exhaust administrative remedies. See October 23, 2008 Summary Judgment Order. The court also informed the remaining defendant, Warden Eddie Jones, that if he also believed the plaintiff has failed to exhaust his administrative remedies for his surviving claim, then Defendant Jones must file his dispositive motion within thirty days.
Defendant Eddie Jones filed a motion for summary judgment and notice was sent to the plaintiff. [d/e 32, 33]. The plaintiff has failed to file a response.
Since the plaintiff has not responded to the dispositive motion, the following facts are taken from the defendant's motion and exhibits.
Brian Fairchild says he is the Chairperson of the Office of Inmate Issues.(Def. Mot, Fair. Aff, p. 1) Fairchild says he has searched the records of the Administrative Review Board for any grievances appealed by the plaintiff in this case concerning his medical care at Pontiac Correctional Center. Fairchild says "[t]here are no grievances regarding this issue resolved by either hearing or otherwise recorded in the log maintained by the Office of Inmate Issues." (Def. Mot, Fair. Aff, p. 2)
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. 56c. 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 ...