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Moore v. Liszewski

September 17, 2009

SAMMY J. MOORE, PLAINTIFF,
v.
PETER LISZEWSKI; MARK G. COLEAS; D. CATION; SYLVIA MAHONE, M.D.; MED TECH BEASLY, IN THEIR INDIVIDUAL CAPACITIES, 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 defendant SYLVIA MAHONE's summary judgment motion [78], the plaintiff's response [101] and the defendant's reply [107].

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, a state prisoner, filed a complaint pursuant to 42 U.S.C. §1983, alleging that the defendant violated his rights under the Eighth Amendment to the United States Constitution. The plaintiff filed a claim against Dr. Mahone alleging deliberate indifference to a serious medical need. The plaintiff claims that Dr. Mahone was deliberately indifferent to an injury he sustained while he was an inmate at the Pinckneyville Correctional Center. The defendant Mahone denies that the plaintiff suffers from a serious medical need and further denies that any act or omission on her part constitutes deliberate indifference. The court has jurisdiction pursuant to 28 U.S.C. §§1331 and 1343.

Undisputed Material Facts*fn1

1. The plaintiff was transferred to the Pontiac Correctional Center on March 2, 2007. (Mahone Aff., par. 3.)

2. Prior to being transferred to Pontiac Correctional Center, the plaintiff had been incarcerated at the Pinckneyville Correctional Center. (Mahone Aff., par. 4.)

3. Prior to arriving at the Pontiac Correctional Center, the defendant had little to no contact with the plaintiff. (Mahone Aff., par. 5.)

4. The plaintiff's transfer summary sheet indicates that the plaintiff had two lacerations on his head which required a number of sutures. (Mahone Aff., par. 6.)

5. The defendant was contacted by a nurse regarding the plaintiff's sutures. (Mahone Aff., par. 7.)

6. The defendant gave a telephone order to this nurse advising that the plaintiff's sutures be removed in seven days. (Mahone Aff., par. 7.)

7. The defendant ordered Keflex, an antibiotic, and Tylenol for pain for the plaintiff on the same date that she advised the nurse of when to remove the plaintiff's sutures. (Mahone Aff., par. 7.)

8. The defendant is aware that the plaintiff's complaints against her relate to her prescription orders for Keflex and Tylenol written on March 2, 2007. (Mahone Aff., par. 8.)

9. The defendant's order was given via telephone to a nurse to renew or approve the plaintiff's previously written order for Keflex and Tylenol. (Mahone Aff., par. 8.)

10. As the defendant read the order, written by someone who appears to be either a physician or a physician's assistant, the plaintiff was given a tetanus shot at the Pickneyville Correctional Center. (Mahone Aff., par. 8.)

11. The order that was read by the defendant further indicated that the plaintiff was to receive Keflex 500 mg p.o. (orally), qid (4 times per day) with 28 pills prescribed. (Mahone Aff., par. 9.)

12. Giving the plaintiff Keflex as written would have lasted seven days. (Mahone Aff., par. 10.)

13. The defendant's order written on March 2, 2007, provided the plaintiff with two doses of Keflex in 500 mg doses for ten days as she believed this dosage would be more effective for him. (Mahone Aff., par. 10.)

14. With respect to the Tylenol, the prior medical provider indicated the plaintiff was to receive his pain medication every six hours as needed for pain, allowing the plaintiff to receive medication four times per day. (Mahone Aff., par. 11.)

15. The prior physician noted that twelve pills would be available, (as indicated by the #12) which would have lasted three days. (Mahone Aff., par. 11.)

16. The defendant also wrote a prescription for the plaintiff to receive Tylenol 325 mg twice a day for three days. (Mahone Aff., par. 12.)

17. Although the prescriptions were not identical, they were very similar. (Mahone Aff., par. 13.)

18. In the defendant's medical opinion, she believed the prescription as she wrote it was the most effective for the plaintiff. (Mahone Aff., par. 13.)

19. The plaintiff did not suffer from any infection of his wounds and the defendant believes that the prescriptions as provided were ...


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