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Moore v. Liszewski

September 28, 2009

SAMMY J. MOORE, PLAINTIFF,
v.
PETER LISZEWSKI, D. CATION, C. BEASLEY, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

INTRODUCTION

Before the court are the defendant Cation'sand defendant Beasley's motion for summary judgment [89] and the plaintiff's response [102]. Richard Cation and Christine Beasley are both employed as Correctional Medical Technicians ("CMT") at Pontiac Correctional Center ("Pontiac"). The plaintiff, Sammy J. Moore, has submitted a complaint under 42 U.S.C. § 1983 against the defendants, Cation and Beasley [1]. The plaintiff alleges the defendants violated his rights under the Eighth Amendment to the United States Constitution by denying him adequate medical treatment. The plaintiff prays for the following relief: (1) a declaration by this court that the defendants violated his rights under the United States Constitution; (2) an injunction ordering the defendants to set a date for the plaintiff to see a doctor and receive pain medication; (3) an award of compensatory and punitive damages. The defendants, Cation and Beasley, by their attorney Lisa Madigan, have moved the court for an order dismissing the plaintiff's claim for the following reasons: (1) the plaintiff is not entitled to injunctive relief because he does not allege an ongoing violation of federal law; (2) the defendants were not deliberately indifferent to a serious medical need; and (3) the defendants are entitled to qualified immunity

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 the flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.

BACKGROUND

The plaintiff, an inmate currently incarcerated at the Menard Correctional Center, filed a complaint pursuant to 42 U.S.C. § 1983. The plaintiff alleges that the defendants, Cation and Beasley violated his Eight Amendment rights under the United States Constitution by showing deliberate indifference to his migraine headaches.

UNDISPUTED MATERIAL FACTS*fn1

1. The plaintiff was transferred to Pontiac from Pinckneyville Correctional Center ("Pinckneyville") on March 2, 2007, the same day he fought with staff at Pinckneyville which resulted in two cuts in his scalp that required a total of ten stitches. (Complaint.)

2. At all times relevant to this complaint, the defendants, Cation and Beasley were employed as CMT's at Pontiac. (Complaint.)

3. At all times relevant to this complaint, defendants, Cation and Beasley acted under color of state law. (Complaint; Answer).

4. In order to see a doctor for a non emergency [treatment] at Pontiac, an inmate must ask a Pontiac CMT to refer him to sick call, and the CMT must determine that the condition warrants referral to sick call. (Beasley Aff., par. 4.)

5. Under Pontiac's protocol, headaches are not considered an emergency that requires immediate referral to sick call. Protocol for such a complaint is to provide the inmate with a card of Tylenol. (Beasley Aff., par. 5.)

6. To obtain Tylenol, the inmate must provide a completed voucher authorizing the department to withdraw a $2 co-payment from his inmate trust account. This co-payment is required for any non emergency medical treatment. Although an inmate will not be denied treatment or Tylenol because he does not have money in his ...


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