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Morissette v. Ghosh

March 23, 2010

SHERMAN MORISSETTE, PLAINTIFF,
v.
PARTHASARATHI GHOSH, M.D., DEFENDANT.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Plaintiff, an inmate at Stateville Correctional Center, has sued defendant pursuant to 42 U.S.C. § 1983 for his alleged violation of plaintiff's Eighth Amendment rights. The case is before the Court on defendant's motion to strike plaintiff's Local Rule ("LR") 56.1 statement and certain exhibits he submitted in support of it, defendant's motion to deem admitted the facts he asserts in his LR 56.1 statement, defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons stated in this order, the Court grants in part defendant's motions to strike and deem facts admitted, grants defendant's motion for summary judgment and denies plaintiff's cross-motion for summary judgment.

Defendant's Motions to Strike & Deem Facts Admitted

As explained in the "Notice to Pro Se Litigant Opposing Summary Judgment" that plaintiff received, motions for summary judgment and responses to them are governed by LR 56.1. (See Def.'s Mot. Leave File LR 56.1 Stmt., Ex. 3, Notice to Pro Se Litigant Opposing Summ. J.) That rule requires a party moving for summary judgment to file "a statement of material facts as to which [he] contends there is no genuine issue" that "consist[s] of short numbered paragraphs, including . . . specific references to the affidavits, parts of the record, and other supporting materials . . . [that] support the facts set forth in [each] paragraph." LR 56.1(a)(3). It also requires a party opposing summary judgment to file a response to the movant's fact statement that contains "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." LR 56.1(b)(3). Moreover, the rule says, "[a]ll material facts set forth" in the moving party's fact statement "will be deemed to be admitted unless controverted" by the opposing party's response. Id. The Court may enforce LR 56.1 strictly, even in cases involving pro se litigants. See Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000) ("Given their importance, we have consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment."); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994) ("[P]ro se litigants are not entitled to a general dispensation from the rules of procedure or court imposed deadlines.")

Plaintiff's LR 56.1 fact statement, which is part of his cross-motion for summary judgment, and his response to defendant's LR 56.1 fact statement, which is styled as "Plaintiff's Affidavit in Response" to defendant's motion, contain only a few citations to supporting evidence, none of which is adequate. (See Pl.'s Aff. Resp. Def.'s Mot. Summ. J. ["Pl.'s Resp. Def.'s LR 56.1 Stmt."] ¶¶ 2, 14, 33, 67-68, 79, 104, 109, 120-21, 123-24, 148-50, 155-60, 162-64, 169, 174-75 (citing to documents that do not support the response or create a factual dispute or are irrelevant); id. ¶¶ 71, 128 (citing generally to medical records); Pl.'s Cross-Mot. Summ. J. ["Pl.'s LR 56.1 Stmt."] ¶ 16 (citing to a document not attached as an exhibit); id. ¶ 23 (citing to a document that does not support the facts asserted).) In his fact statement and response, however, plaintiff refers to his own actions or experiences or those he observed. Because plaintiff could testify at trial about such matters, see Federal Rule of Evidence 602, and is proceeding pro se, the Court will consider the facts based on his personal knowledge that he asserts in his LR 56.1 statement and response to defendant's LR 56.1 statement.

Defendant asks the Court to strike exhibits A-J that plaintiff submitted in support of his fact statements. Exhibits A through G are affidavits from other inmates describing injuries or illnesses they suffered at Stateville and the treatment, or lack of it, they received. However, none of these witnesses has personal knowledge of plaintiff's medical condition or defendant's response to it. Because the testimony in these affidavits would not be admissible at trial, the Court grants defendant's motion to strike them from the record. See Fed. R. Civ. P. 56(e) (stating that summary judgment affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated."); Fed. R. Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."); Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (stating that personal knowledge includes inferences "grounded in observation or other first-hand personal experience," not those based on "speculations, hunches [or] rumors" (quotation omitted)).

Exhibits H and I, respectively, are plaintiff's U.S. Army discharge papers and a notice of an April 2007 press conference about medical care provided by the Illinois Department of Corrections ("IDOC"). Because these documents have no relevance to this case, the Court strikes them.

Exhibit J is some of plaintiff's IDOC medical records. To the extent plaintiff cites these records for facts he asserts from his personal knowledge, they are relevant and will be considered by the Court.

Motions for Summary Judgment

Facts

Defendant was licensed to practice medicine in Illinois in 1978, has been board certified in internal medicine since 1984 and has worked at Stateville since June 2003. (Def.'s LR 56.1 Stmt. ¶¶ 4-6.) Prior to working at Stateville, defendant was a Clinical Assistant Professor of Medicine at Rush University and an attending physician at Cook County Hospital. (Id. ¶ 7.) In his work for Stateville, defendant has treated numerous inmates with glaucoma. (Id. ¶ 8.)

Plaintiff has been incarcerated by IDOC since 1983. (Id., Ex. B, IDOC Internet Inmate Status.) In 2002, he was diagnosed with glaucoma, an eye disease characterized by increased intraocular pressure that can cause permanent vision loss, if left untreated. (Id. ¶¶ 11, 115.) Glaucoma is treated by reducing intraocular pressure either with prescription eye drops, which can be irritating to the eyes, or laser surgery, which plaintiff has refused. (Id. ¶¶ 112, 114.)

Plaintiff was transferred to Stateville on October 25, 2006. (Id. ¶ 9.)

On March 14, 2007, plaintiff saw a certified medical technician ("CMT") who referred him to Stateville ophthalmologist James Bizzel for treatment of a chalazion, or bump, on his right eyelid. (Id. ΒΆ 21.) On March 30, 2007, Dr. Bizzel recommended that plaintiff have the chalazion removed at the ...


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