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Bone v. Walker

September 15, 2010


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


This cause is before the court for consideration of various motions including Defendant Benton and Walker's motion for summary judgment [d/e 34].


The plaintiff, Allen Bone, filed his complaint pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Pontiac Correctional Center. On December 2, 2008, the court conducted a merit review and found that the plaintiff had alleged that Defendant Illinois Department of Corrections Director Roger Walker, Inmate Officer Sherry Benton and Dr. John Doe were deliberately indifferent to his serious medical condition in violation of the eighth amendment. December 2, 2008 Court Order. The plaintiff alleged he was denied care for his "back, left leg and brain." (Comp., p. 6D). The John Doe defendant was later identified as Dr. Liping Chang. March 27, 2009 Text Order; May 7, 2009 Text Order.

Defendants Benton and Walker have now filed a motion for summary judgment claiming that the plaintiff has not exhausted his administrative remedies as required.


The plaintiff did not directly respond to the defendant's statement of undisputed facts. The following facts are taken from the exhibits submitted by the defendants:

Defendant Sherry Benton says she is the Chairperson of the Office of Inmate Issues and prior to this position worked as the Chairperson of the Administrative Review Board (herein ARB). Benton says she was asked to search the records of the ARB for any grievances from 2006 to the present in which the plaintiff named Defendants Walker or Benton concerning a lack of medical care. Benton says there are no records of any grievances filed with the ARB or appealed to the ARB on this issue. (Def. Mot, Benton Aff, p. 2)

Defendant Benton says the plaintiff did send a letter addressed to Director Walker on February 27, 2007. Benton says correspondence sent to the Director was opened by his secretary and routed to the Office of Inmate Issues. Benton says she returned the letter to the plaintiff with a response instructing him "to file a grievance or speak with the mental health staff." (Def. Mot, Benton Aff, p. 2). Benton says the letter was not reviewed or received by Director Walker.

The plaintiff also appealed a grievance to the Office of Inmate Issues on March 28, 2008. Benton says she responded on April 15, 2008 with a "Return of Grievance or Correspondence" form. (Def. Mot, Benton Aff. p. 2). Although this grievance did not name either defendant, it did address the plaintiff's concerns about his medical care. Benton told the plaintiff that he needed to first submit his grievance to the grievance officer and the Chief Administrative Officer, receive their responses and then appeal if necessary to the Office of Inmate Issues. The plaintiff was also advised to contact a psychologist concerning his claims of mental health problems. (Def. Mot, Benton Aff. p. 2). There were no further submissions to the ARB from the plaintiff.


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. 56c. 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).

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 ...

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