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Ernst v. Hardy

February 16, 2010

BRUNO ERNST, PLAINTIFF,
v.
ASSISTANT WARDEN HARDY, ET.AL., DEFENDANTS



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

SUMMARY JUDGMENT ORDER #2

This cause is before the court for consideration of Defendant Mahone's motion for summary judgment [d/e 53]

I. BACKGROUND

The pro se plaintiff filed this action pursuant to 42 U.S.C. 1983 claiming that his constitutional rights were violated . After merit review of the plaintiff's amended complaint, the court found that the plaintiff had stated the following claim: Defendants Marcus Hardy and Sylvia Mahone were deliberately indifferent to his serious medical conditions in violation of the Eighth Amendment. December 22, 2008 Merit Review Order.

On April 13, 2009, the court dismissed the claims against Defendant Hardy. See April 13, 2009 Case Management Order. The defendant claimed the plaintiff had not exhausted his administrative remedies for his claim and the plaintiff failed to file a response.

Defendant Mahone has now filed a similar motion for summary judgment. The plaintiff was notified that a dispositive motion had been filed [d/e 54], but again failed to file a response.

II. FACTS

Since the plaintiff did not respond to the statement of undisputed facts, the following facts were taken from the defendant's motion.

Sherry Benton is the Chairperson of the Office of Inmate Issues. (Def. Memo, Benton Aff., p. 1) Benton says she has searched the records of the Administrative Review Board (herein ARB). The records reveal that the plaintiff mailed a grievance to the office on November 23, 2008 which was received on December 16, 2008. The plaintiff was complaining that Dr. Mahone was refusing to provide him pain pills. (Def. Memo, Benton Aff., p. 12)

On January 5, 2009, a letter was sent to the plaintiff advising him that he must also send a grievance officer's report before the ARB could review a grievance. All paperwork was returned to the plaintiff. "To date, this office has yet to receive a finalized grievance from Offender Ernst on this issue..." (Def. Memo, Benton Aff., p. 12).

III. LEGAL 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 ...


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