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Escobedo v. Miller

March 3, 2010

DANIEL ESCOBEDO, PLAINTIFF,
v.
MARY MILLER, 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 Mary Miller's summary judgment motion [100], Plaintiff's response [103] and Miller's reply [107].

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

Plaintiff, Daniel Escobedo, N43563, is an inmate currently incarcerated in the Illinois Department of Corrections. Plaintiff brings this cause of action alleging that the Defendants, Wexford Health Sources, Dr. Bashir Ameji and Mary Miller have violated his 8th Amendment rights by being deliberately indifferent to his serious medical needs. Specifically, Plaintiff alleges that on April 6, 2007, he suffered tremors in his left arm and leg. Plaintiff attributed this to his prescription medication, Trazadone, having run out on April 5, 2007. Plaintiff's prescription for Trazadone was renewed and he returned to his cell house. The next morning, Plaintiff returned to the Health Care Unit on the order of a Correctional Officer due to difficulty in using his left leg. Plaintiff remained in the Health Care Unit under 24 hour observation until April 9, 2007. During that period he was not seen or examined by a physician. Against the advice of medical staff, on April 9, 2007, Plaintiff asked to sign himself out of the Health Care Unit. Plaintiff was instructed to wait to be examined by Dr. Ameji before leaving the Health Care Unit. Plaintiff refused to wait and signed himself out of the Health Care Unit against medical orders prior to being examined by Dr. Ameji on April 9, 2007. Plaintiff did not seek any medical attention at the Danville Correctional Center after April 9, 2007. Plaintiff was called to the Health Care Unit and examined by Dr. Ameji on April 17, 2007. On April 17, 2007, Dr. Ameji performed a physical examination of the plaintiff and performed a mental acuity examination. Defendant Ameji, claims the Plaintiff did not exhibit any signs of having suffered a stroke. Having experienced an stroke in the past, the Plaintiff believes he suffered a stroke again in April 2007. The plaintiff did not seek any other medical treatment while he was at the Danville Correctional Center. Mary Miller reviewed and denied a grievance written by Plaintiff about the alleged inadequate medical treatment he received in April of 2007. Plaintiff alleges Mary Miller was deliberately indifferent to his serious medical needs.

Undisputed Material Facts

1. Plaintiff is an inmate who at all relevant times was incarcerated within the Illinois Department of Corrections. (Attached to Co-Defendants' MSJ, Exhibit 1, Deposition of Plaintiff Daniel Escobedo, p. 36, lines 17-21.)

2. Plaintiff suffered a stroke on September 2, 1997 while he was incarcerated at the federal prison in Pekin, IL. (Attached to Co-Defendants' MSJ, Exhibit 1, p. 20, lines 17-24).

3. Plaintiff experienced slurred speech when he suffered his stroke on September 2, 1997*fn1 .

(Attached to Co-Defendants' MSJ, Exhibit 1, p. 33, lines 20-24.)

4. On April 5, 2007, Plaintiff's Trazadone prescription expired. (Attached to Co-Defendants' MSJ, Exhibit 1, p. 43, lines 2-5.)

5. Plaintiff had been taking Trazadone for two years. (Attached to Co-Defendants' MSJ, Exhibit 1, p. 42, lines 8-11.)

6. On April 6, 2007, Plaintiff was sent to the health care unit by a correctional officer who noticed his difficulty walking. (Attached to Co-Defendants. MSJ, Exhibit 1, Deposition of Daniel Escobedo, p. 38-39). Plaintiff presented to the Health Care Unit at 8:30 p.m. on April 6, 2007. The nurse's note from that date and time states as follows:

Subjective: "I don't know. My left arm and leg have been jumping and trembling off and on all day. I think my BP is up. My Trazadone order expired a couple days ago and I think I'm starting to feel anxious again."

Objective: Patient picked up from receiving unit via wheel chair per security request and transported to Health Care Unit for evaluation. Having gross tremors of left arm and leg. No facial drooping or slurring of speech noted. Vital signs: 97.5-106-18-212/90. SaO2 97%. Patient reports that he had similar episode "a couple years ago" when his BP got out of control. Above related to Dr. Ameji and orders received.

Assessment: Alteration in health maintenance.

Plan: Telephone orders of Dr. Ameji: 1) Restart Trazadone 15 mg by mouth for 1 month. 2) Monitor BP every 30 minutes x 2.

(Attached to Co-Defendants' MSJ, Exhibit 2, Deposition of Basher Ameji, M.D.)

7. Twenty minutes later, at 8:50 p.m. on April 6, 2007 the Registered Nurse entered the following order:

Subjective: "I'm feeling a lot better already."

Objective: Patient appears much more relaxed. No arm or leg tremors noted. Blood Pressure: 180/88.

Assessment: Alteration in Health Maintenance.

Plan: Monitor.

(Attached to Co-Defendants' MSJ, Exhibit 3.)

8. Plaintiff was again evaluated on April 6, 2007 at 9:10 p.m. the Registered Nurse's note states:

Objective: Blood Pressure down to 142/60. Escorted back to housing unit without incident.

(Attached to Co-Defendants' MSJ, Exhibit 3.)

9. Plaintiff returned to his housing unit and slept through the night. (Attached to Co-Defendants' MSJ, Exhibit 1, p. 44, lines 7-16.)

10. The next day, April 7, 2007, a different correctional officer sent the Plaintiff to the Health Care Unit after observing his impaired motor skills. The Plaintiff was limping. (Attached to Co-Defendants' MSJ, Exhibit 1, p. 44, lines 18-24, p. 45, lines 1-9.)

11. Plaintiff arrived at the Health Care Unit at 2:15 p.m. The Registered Nurse's Notes from that date states as follows:

Objective: Inmate picked up in Receiving in wheel chair with complaints of weakness to left lower extremity and shakiness to left hand. Inmate brought to Health Care Unit and evaluated. Blood Pressure: 190/72. Rate: 90. Pulse 18. Temperature 97.1 degrees. Heart Rate regular. Lungs clear. History of hypertension and stroke 10 years ago with left sided weakness. No complaints of headaches, visual changes, or chest pain. Inmate stated weakness started when he missed 2 doses of Trazadone and comes to Health Care Unit last night and was evaluated. Inmate states has improved since yesterday. Patient situation discussed with Physician's Assistant Mo. Sallah. Orders received. Left grasp weaker and left plantar flexion weaker than right.

Plan: 23 hour hold per Mo Sallah. Give Vistaril 50 mg now. Increase Atendol to 25 mg. qd. 23 hour hold. Voice Order Mo Sallah.

This order was reviewed and signed by Dr. Ameji on April 11, 2007. (Attached to Co-Defendants' MSJ, Exhibit 3-4).

12. At 2:35 p.m. on April 7, 2007 the following was entered in Plaintiff's medical records:

Inmate placed in Room C.

(Attached to Co-Defendants' MSJ, Exhibit 4.)

13. At 3:00 p.m. on April 7, 2007 the following was entered in the Plaintiff's medical records:

Vistaril 50 mg. given nightly and Atendol 12.5 mg given. Patient states he took his morning dose of Atendol ...


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