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Rodriquez v. Migliorino

September 14, 2010

JORGE A. RODRIQUEZ, JR., PLAINTIFF,
v.
ROBERT MIGLIORINO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the court are the defendants, Geraldo Acevedo, Steve Damewood, Marilyn Griffith and Lois Lindorff-Mathes's summary judgment motion [74], the plaintiff's response [93] and the defendants, Dr. Lochard and Robert Migliorino's unopposed summary judgment motion [76]. .

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. 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)).

Undisputed Material Facts*fn1

1. Plaintiff is an inmate currently incarcerated at Hill Correctional Center. See Complaint [1].

2. Plaintiff filed his complaint on March 31, 2009, complaining of deliberate indifference to medical needs at Hill Correctional Center from June 2008 to present. Id.

3. Plaintiff attached grievances dated July 21, 2008, August 15, 2008 (two grievances), August 20, 2008, and September 14, 2008 to his complaint.

4. Additionally, Plaintiff filed a Declaration [52] containing a grievance dated October 20, 2008.

5. Plaintiff's July 21, 2008 grievance does not name any individual, and was not addressed by the ARB; rather it was returned to Plaintiff on March 19, 2009, as it could not be addressed as it did not have any specifics such as date of injury or last HCU visit. (Exhibit A).

6. Plaintiff's August 15, 2008 grievance complains that CO Griffith forced him to pay a two dollar co-pay, but does not complain that CO Griffith was indifferent to his medical needs. This grievance was responded to by the ARB on March 19, 2009. (Exhibit B). Further, this grievance does not contain any complaints with respect to any other defendant.

7. Plaintiff filed another grievance on August 15, 2008, complaining that CO Damewood refused to give him medical attention. This grievance was responded to by the ARB on March 19, 2009. (Exhibit C). This grievances does not ...


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