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Bell v. Osafo

August 18, 2010


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

Memorandum Opinion and Order

Before the court are Defendants, Richard Birkey, Tiffanie Clark, John Dudek, Ed Huggins, Jackie Miller and Austin Randolph's summary judgment motion [67] brought pursuant to Local Rule 7.1(D) and F.R.C.P. Rule 56, Plaintiff's response [76] and Defendants' reply [77].


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. 2009). It is also well settled that "conclusory allegations and self-serving affidavits, if not supported by the record, will not preclude summary judgment. Keri v. Barod of Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir.2006)(citing Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997)).


Plaintiff, an Illinois Department of Corrections inmate, files suit under 42 U.S.C. §1983 for alleged violations of his constitutional rights that occurred at Illinois River Correctional Center. Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs by failing to treat an unnamed illness. Further, he alleges that Defendants discriminated against him because of his medical status and race when they denied him a job placement at the Illinois River Industries Bakery. The defendants assert that Plaintiff has absolutely no evidence of any illness and therefore cannot be deliberately indifferent to a malady that does not exist. Defendants further assert that Plaintiff has no evidence of any discrimination. Defendants content that Plaintiff was not denied a job because of his race or medical status and that rather he was denied a job at the bakery administratively by the prison vote sheet process because the vote sheet said he was not qualified to handle food. Defendants further assert that unfortunately, it turns out the vote sheet was incorrect and Plaintiff was in fact qualified to handle food. Defendants assert that this innocent mistake on the vote sheet does not rise to the level of a constitutional violation. Further Defendants content that Plaintiff alleges that white inmates were hired instead of him, but he has no evidence of this and that in fact, the facts show that mostly African American inmates were hired at the bakery at the time in question. Further, Defendants argue that it is impossible for Defendants to have discriminated against Plaintiff based on his medical status when he has no evidence whatsoever of this mystery illness. On these bases, the Defendants argue they are entitled to summary judgment in this case.

Undisputed Material Facts*fn1

1. Plaintiff alleges defendants discovered an illness Plaintiff had and then tried to cover it up. (Plaintiff's Deposition, pp. 6-7).

2. Plaintiff alleges the symptoms of his mystery illness are a runny stuffed up nose and pain in his kidneys, but does not know what the illness may be. (Plaintiff's Deposition, pp. 7).

3. Plaintiff has no medical records reflecting an illness. (Plaintiff's Deposition, p. 7).

4. No doctor has ever diagnosed Plaintiff with the "mystery" illness. (Plaintiff's Deposition, p. 26).

5. Plaintiff has not been diagnosed with HIV, Tuberculosis or Hepatitis. (Plaintiff's Deposition, pp. 31-32).

6. Defendants are not medically trained and did not provide medical care to Plaintiff. (Defendants Affidavits).

7. Plaintiff was denied a job in the bakery by the institutional vote sheet. (Exhibit A; Birkey Affidavit, ¶4).

8. The institutional vote sheet is the process by which inmates are administratively approved or denied for institutional jobs at Illinois River Correctional Center. During the vote sheet process the screening committee makes recommendations to the Warden as to whether an inmate should be assigned a particular job. The screening committee is made up of various prison staff. The screening committee ensures that a job assignment for a particular inmate is appropriate, taking into consideration the inmate's background and history. (Birkey Affidavit, ¶¶3 and 4).

9. The only Defendant involved in the vote sheet process was Defendant Birkey. (Exhibit A; Dudek Affidavit, ¶4; Randolph Affidavit, ¶2; Huggins Affidavit, ¶3; Miller Affidavit, ¶3; Clark Affidavit, ¶5).

10. Regardless of Plaintiff's position on the list of inmates approved by the bakery for hire, Plaintiff could not work at the bakery unless approved through the vote sheet process. Being approved for hire by the bakery merely means that an inmate has submitted the required documentation to the bakery to be considered for hire. An inmate must be approved by the vote sheet process before they can be hired for any institutional job, including the bakery. (Clark Affidavit, ¶4).

11. Defendant Birkey recommended that Plaintiff not be assigned a job in the bakery at Illinois River Correctional Center. Defendant Birkey based this decision on the belief that Plaintiff was deemed not qualified to handle food by the Illinois River Health Care Unit. The vote sheet that Plaintiff received indicated through a checked box that Plaintiff was not qualified to handle food. As all inmates who work in the bakery must be qualified to handle ...

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