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Howard v. O'Leary

December 22, 2009

CHARLES T. HOWARD, PLAINTIFF,
v.
MICHAEL F. O'LEARY, EDWARD CASSELLO, BARBARA MILLER, KULBIR SOOD, M.D., WEXFORD HEALTH SOURCES, INC, AN OHIO CORPORATION, AND THE COUNTY OF WILL, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This case arises out an injury Plaintiff sustained while a pre-trial detainee at the Will County Adult Detention Facility ("WCADF") and his subsequent medical treatment. Plaintiff first filed a complaint pro se on September 14, 2007. Subsequently, Plaintiff was appointed counsel and amended his complaint, first on April 28, 2009 and next on June 1, 2009. Plaintiff alleges violations of his rights under the Fourteenth Amendment to the United States Constitution based on 42 U.S.C. § 1983, as well as violations to Illinois Statutes 55 ILCS/5/5-1002 and 745 ILCS 10/9-102.

Two motions for summary judgment have been filed. Defendants Warden O'Leary ("O'Leary"), Officer E. Cassello ("Cassello"), and Will County Illinois filed their motion on August 10, 2009 and Barbra Miller ("Miller") and Kul B. Sood, M.D. ("Sood")(incorrectly named as "Sude" in the complaint)filed their motion on July 31, 2009. On August 13, 2009 I indicated that the sole issue to be decided on Defendants' motions for summary judgment was whether or not Plaintiff exhausted his administrative remedies. Defendants O'Leary, Cassello and Will County Illinois raised additional arguments to support their motion for summary judgment to which Plaintiff has not responded. Plaintiff expressly reserved the right to respond to those arguments. In accordance with my prior instruction to the parties, I will limit my discussion in this Order to the issue of Plaintiff's exhaustion of administrative remedies. Because substantially similar arguments are put forth by all Defendants, I consider their motions together. For the foregoing reasons, I find that Plaintiff has not exhausted his administrative remedies and grant Defendants' motions for summary judgment.

I. PRELIMINARY ISSUES

Defendants Miller and Sood filed a motion to strike certain of Plaintiff's Responses to their Local Rule 56.1(a) statement, Plaintiff's Local Rule 56.1(b) statement of additional facts, and Plaintiff's exhibits. In their motion to strike, Miller and Sood ask that statements Nos. 5, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 24, 25, and 26 be deemed admitted. I grant Defendants' motion to deem statement 5, 12, 13, 14, 16, 17, 24, 25, and 26 admitted because I find Plaintiff's responses insufficient and unsupported by the record. I deny Defendants' motion to deem statements 18, 19 and 20 admitted. Although I acknowledge that an inmate's self-serving affidavit may not be sufficient to defeat a motion for summary judgment, I will still consider this statement when rendering my decision. Defendants' statement 21 is deemed admitted as Plaintiff admits this fact in his sworn affidavit at ¶ 26. Defendants' statement 22 is not deemed admitted as it is not a statement of fact, but a legal conclusion which is the subject of this motion.

Defendants Miller and Sood next move to strike Plaintiff's Local Rule 56.1(b) statements of additional fact Nos. 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, and 40. I deny Defendants' motion to strike statements 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, and 40 as they are supported by the record in the form of a sworn affidavit.

Defendants O'Leary, Cassello and Will County move this Court to deem admitted Defendants' statements Nos. 12, 13, 14, 15, 23, 24, 25, 26, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44. Because I agree that the Plaintiff's responses were insufficient and unsupported by the record, I deem statements 13, 14, 15, 23, 24, 25, 26, 32, 35, 36, 37, 38, 39, and 39 admitted. I decline to admit statements 40 and 42 as they are supported by Plaintiff's affidavit. As to statement 41, I deem the fact that Plaintiff never submitted an appeal of grievance admitted, as Plaintiff admits this in his response. I do not consider as admitted the fact that Plaintiff never submitted a grievance as Plaintiff disputes this fact and offers his sworn affidavit in support. I further decline to deem statements 43 and 44 admitted as they are not a statements of fact, but rather legal conclusions which are the subject of this motion.

Defendants O'Leary, Cassello and Will County next move to strike Plaintiff's Local Rule 56.1(b) statements of additional fact Nos. 1, 2, 3, 4, 5,7, 8, 9, 10, 12, and 13. I deny Plaintiff's request to strike Plaintiff's additional statement of facts Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, and 13 because these statements are supported by a sworn affidavit.

Finally, all Defendants move to strike Plaintiff's journal notes which I grant. Defendants argue that these notes were not submitted in accordance with Federal Rules of Evidence 401-04, 602, 701-02, 801-02, Federal Rule of Civil Procedure 56(e) or Local Rule 56.1. I find that Plaintiff's notes are hearsay as defined by Federal Rule of Evidence 801 and not subject to an exception under Rule 803. I specifically note that the most relevant portion of Plaintiff's notes for the purpose of this motion, the single entry describing events spanning July 20-25, does not qualify as a present sense impression. This single entry spans five days and is a summary of events that happened. It was not a contemporaneous recording of the events that occurred.

II. STATEMENT OF FACTS

From March 2006 to November 2006 Plaintiff was a pre-trial detainee at the Will County Jail. On June 24, 2006 Plaintiff and two inmates were involved in an altercation whereby Plaintiff was injured. Plaintiff alleges that at least two correctional officers were assigned to the area where the fight occurred yet failed to intervene. As a consequence of the altercation, Plaintiff suffered a fractured ankle which required open-reduction, internal-fixation surgery.

Plaintiff alleges that he complained of his injury immediately but did not receive a medical evaluation until approximately thirty minutes after the fight. He was then told he had an ankle sprain. Plaintiff continued to complain about his ankle and it was finally x-rayed on June 29, 2006, five days after he was injured. Furthermore, despite Plaintiff's complaints, Plaintiff was not referred to an outside doctor until July 12, 2006. After seeing an orthopedist Plaintiff was recommended for surgery the next morning. As part of his surgery a metal plate was internally affixed to Plaintiff's left ankle. Plaintiff alleges that Defendants Sood and Miller refused to administer Plaintiff's pain medication from July 21, 2006 to August 11, 2006, and again from September 2, 2006 to September 26, 2006.

Plaintiff asserts that he informed O'Leary on two separate occasions that his medical needs were being ignored but that O'Leary did nothing ...


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