The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' motion for summary judgment. [d/e 22]
The plaintiff, a state prisoner, filed his complaint pursuant to 42 U.S.C. §1983 against five defendants at Pontiac Correctional Center including Medical Director Sylvia Mahone, Dr. Scott Baker, Medical Technician John Birkle, Medical Technician Richard Castion and Assistant Warden Marcus Hardy. The plaintiff alleges that the defendants violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical condition. The plaintiff alleges that the defendants have either denied or delayed treatment for a variety of conditions.
The defendants have filed a motion for summary judgment claiming the plaintiff has failed to exhaust his administrative remedies for his claim as required.
Jackie Miller is the Chairperson of the Office of Inmate Issues. (Def. Memo, Miller Aff, p. 1) Miller says she has searched the records of the Administrative Review Board for any grievances filed by the plaintiff concerning his medical care at Pontiac Correctional Center during the relevant time period. Miller states there are no records of any grievance submitted by the plaintiff. (Def. Memo, Miller Aff, p. 3).
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 flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.
The defendants say the plaintiff cannot demonstrate that he exhausted his administrative remedies. The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such ...