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Talbert v. Loftus

February 8, 2010

MICHAEL TALBERT, PLAINTIFF,
v.
WARDEN JOSEPH LOFTUS, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court are Defendant's summary judgment motion [21], Plaintiff's response [24] and Defendant's reply [26].

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). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment .. Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.

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

Paintiff brings this action pursuant to 42 U.S.C. §1983 for alleged violations of his Eighth Amendment rights while he was at Danville Correctional Center ("Danville"). Specifically, Plaintiff alleges that Defendant, Keith Anglin was deliberately indifferent to a serious medical need by interfering with his medical care. On November 15, 2007, Plaintiff was in a fight with another inmate, who hit him in the head with a sock that contained batteries or an adapter, resulting in two small cuts to the top of his head. He claims the doctor at Danville was going to have an x-ray taken, but that Defendant refused to allow an x-ray and sent Plaintiff to segregation. Plaintiff seeks monetary damages and injunctive relief in the form of immediate medical attention.

Undisputed Material Facts*fn1

1. At all times relevant to this lawsuit, Plaintiff was incarcerated at Danville Correctional

2. At all times relevant to this lawsuit, Defendant was employed as Warden at Danville. (Complaint; Affidavit of Keith Anglin, attached hereto as Ex. B, para. 1.)

3. At all times relevant to this lawsuit, Defendant acted under color of state law. (Complaint.)

4. On November 15, 2007, Plaintiff was taken to Danville's Health Care Unit ("HCU") after he fought with another inmate, who struck him in the top of the head with a sock that contained either batteries or an adapter. (Complaint; Deposition of Michael Talbert, p. 9, relevant pages of which are attached hereto as Ex. A; Affidavit of Bashirahmed Amedji, M.D., para. 4, attached hereto as Ex. C; Affidavit of Paula Clawson, para. 2, attached hereto as Ex. D.)

5. Defendant arrived in Plaintiff's housing unit as Plaintiff and the other inmate involved in the fight were being handcuffed. Plaintiff was bleeding a little from the top of his head, and he was taken to the ...


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