The opinion of the court was delivered by: Proud, Magistrate Judge
This matter is before the Court on defendants' Motion for Summary Judgment. (Doc. 42). The motion is supported by exhibits consisting of plaintiff's deposition, plaintiff's answers to interrogatories, and plaintiff's interrogatories directed to defendants. Defendants served the notice required by Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). (Doc. 43). Plaintiff filed a memorandum and exhibits in opposition at Doc. 45.
Nature of Plaintiff's Claim
Plaintiff Ronald Tellez is an inmate in the custody of the IDOC. He brings suit pursuant to 42 U.S.C. §1983. From March, 2005, through February, 2006, plaintiff was housed in the protective custody unit at Menard Correctional Center. He alleges that, at that time, there were no designated non-smoking cells in the protective custody unit. Plaintiff is a non-smoker, but, except for six weeks, he was housed with cellmates who smoked. On preliminary review, the Court found that plaintiff stated two claims. First, he stated a claim for violation of his Eighth Amendment rights due to exposure to environmental tobacco smoke ("ETS"). Plaintiff does not claim that this exposure has caused him a present injury. Rather, his claim is for future injury arising from such exposure. Secondly, he has stated a claim for retaliation for his exercise of his First Amendment rights in that he alleges that defendants celled him with smokers in retaliation for his filing of grievances and making complaints about being exposed to ETS. See, Doc. 7.
Grounds for Summary Judgment
Defendants argue that they are entitled to summary judgment on Count 1 because plaintiff cannot produce competent medical evidence that he faces a defined level of increased risk of developing a serious medical condition caused by exposure to ETS during the period in question.
As to Count 2, they argue that plaintiff's deposition testimony and answers to interrogatories establish that he has no evidence that any defendant retaliated against him.
Standard for Summary Judgment
Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 563 (7th Cir. 2009), citing Fed. R. Civ. P. 56(c). Accord, Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. Cir. 2008); Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008).
In ruling on a summary judgment motion, the Court construes all facts and reasonable inferences in the light most favorable to the non-moving party (here, plaintiff). Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir. 2009); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
In response to summary judgment, the non-movant cannot rest on his pleadings. Rather, the non-movant must provide evidence on which the jury or court could find in his favor. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). As the Seventh Circuit recently explained:
[T]he non-moving party must submit evidence that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Ptasznik v. St.Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006). The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmoving party.
Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 531-32 (7th Cir. 2009).
Stated another way, to counter a summary judgment motion, the nonmoving party may not simply reiterate the allegations contained in his pleadings; more substantial evidence must be presented. And a genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), or "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Anderson, 477 U.S. at 252.