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Dolis v. Loftus

September 20, 2010

JAMES DOLIS, PLAINTIFF,
v.
JOSEPH L. LOFTUS, MARY MILLER, ANGLIN, AMEJI, LAKER, KILEY, ROGER WALKER JR., WEXFORD HEALTH SERVICES, INC., 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, Roger Walker, Jr., Kerrick Kiley, David Laker, Mary Miller and Keith Anglin's summary judgment motion [75], Plaintiff's response [92] and Defendants reply [97]. Defendants submit their summary judgment motion and supporting memorandum, pursuant to Federal Rule of Civil Procedure 56.

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)).

Background

Plaintiff filed his complaint on April 7, 2008 [1]. On May 28, 2008, Plaintiff filed an Amended Complaint [7]. On October 6, 2008, the court performed a merit review of Plaintiff's amended complaint and allowed him to proceed on his claims that Defendants were deliberately indifferent to his serious medical needs, conditions of confinement as it relates to soy products, and denial of equal protection of the law. Defendants contend they are entitled to summary judgment based on the merits of this case, and because Plaintiff failed to exhaust his administrative remedies as to this lawsuit. The plaintiff claims are as following:

A. Plaintiff complains that Co-Defendant Mary Miller did not provide medication prescribed to him by Dr. Ameji. Plaintiff also complains that he is not given enough time to exercise and wanted to be transferred.

B. Plaintiff complains of the treatment provided to him for what he alleges was a stricture in his urethra.

C. Plaintiff complains of lower gastro-intestinal problems.

D. Plaintiff complains of issues with his dental care.

E. Plaintiff complains of hearing loss.

F. Plaintiff complains of soy in his diet.

G. Plaintiff alleges he suffered violation of his equal protection rights by not being transferred from the Danville Correctional Center.

Undisputed Material Facts*fn1

1. Plaintiff was an inmate incarcerated at Danville Correctional Center at all times relevant to this lawsuit.

2. At all times relevant to this Complaint, Defendants Walker, Kiley, Laker, Miller, and Anglin were employees of the Illinois Department of Corrections.

3. On October 6, 2008, the court screened Plaintiff's Complaint and allowed him to proceed on his claims that Defendants were deliberately indifferent to his serious medical needs, conditions of confinement as it relates to soy products, and denial of equal protection of the law.

4. Sherry Benton is a Chairperson for the Administrative Review Board. (Exhibit A).

5. Benton conducted a review of the ARB's records, and found three grievances written by Plaintiff concerning medical treatment, soy, or equal protection at Danville Correctional Center from 2006 to present. (Exhibit A, Benton Affidavit).

6. The ARB's records also contain one grievance where Plaintiff complains of wanting a transfer. (Exhibit A).

7. In a grievance dated March 7, 2007, Plaintiff complains of a cavity in his front tooth that needs to be filled. (Exhibit B). However, this grievance does not name any individual, and does not even clearly articulate that his problems occurred at Danville Correctional Center. (Exhibit B).

8. Plaintiff submitted a grievance dated March 3, 2008, complaining of the amount of soy in the food he was being served. (Exhibit C). This grievance, does not name any individual. (Exhibit C).

9. The ARB responded to this grievance on July 9, 2008. (Exhibit C).

10. Plaintiff submitted several grievances dated January 1, 2008, (Exhibit D) wherein he

a. asked for a transfer to a different facility, and referenced problems he was having with his heart. No defendant named in this grievance.

b. requested his medical records from Cook County. No defendant named in this grievance.

c. complained about hearing loss and wanted a hearing aid. No defendant named in this grievance.

d. wanted an upper GI. No defendant named in this grievance.

e. complains that he is not receiving all of his medications and alleges that Mary Miller changed the dosage of his medications. Plaintiff also names Dr. Ameji in this grievance, but he does not voice any complaints against Dr. Ameji in this grievance.

f. complains about his urethra stricture and the need for surgery. He wants to be seen by an urologist or transferred to another facility. He names no defendant, but says "[s]ince I entered IDOC I informed them (medical personal (sic)) that I have a urethra (sic) stricture for which I need surgery . . . ."

11. Plaintiff claims that in June 2007, he turned in the sticker tab for a refill on his Mevacor medications, and it was not refilled, despite the fact that the prescription was valid for two more months. (Complaint at 3).

12. Overall, Plaintiff claims he was denied his prescribed medication for six months, and now has an irregular heartbeat as a result. (Complaint at 4).

13. Plaintiff claims he was harmed because in December of 2007, a doctor at Danville told Plaintiff that he had something wrong with his heart. (Plaintiff's Dep at 11).

14. Plaintiff claims that on December 21, 2007, he was given an EKG, which shows he has an irregular heartbeat. (Complaint at 4).

15. Plaintiff believes he wrote a grievance to Kerrick Kiley around December 2007 or January 2008. (Plaintiff's Dep at 18).

16. In response to this grievance, Plaintiff believes Kiley contacted healthcare, who said there was nothing to indicate Plaintiff has any problems, and there is nothing in Plaintiff's Cook County file to indicate Plaintiff has any problems. (Plaintiff's Dep at 18, 19).

17. This is the only grievance that Plaintiff recalls writing to Kiley concerning his heart. (Plaintiff's Dep at 20).

18. Plaintiff's master file contains only one grievance written by Plaintiff concerning a heart condition at Danville Correctional Center. This grievance is dated January 1, 2008, and complains of several medical needs. (Exhibit E).

19. On January 25, 2008, Terry Fueyo, Director of Nursing at Danville Correctional Center, wrote a memo to the Grievance Officer in regarding this grievance. (Exhibit E).

20. Ms. Fueyo's memo states, in relevant part, "It appears inmate has been treated in a systematic and timely fashion for hyper lipidemia. He is currently on medications for his condition and has received proper monitoring of said treatment. Alterations of the medication regimen are sometimes necessary and it is common to do so. He has been encouraged to exercise but I see no statements that he will suffer physical harm if not transferred." (Exhibit E).

21. Kiley received the January 1, 2008 grievance on April 4, 2008, and reviewed it the same day. (Exhibit E).

22. In his review, Kiley refers to Fueyo's letter, quoting Ms. Fueyo's memo. Based on this information, Kiley denied the grievance. (Exhibit E).

23. Kiley is not a medical professional. (Exhibit F, Kiley Affidavit).

24. Plaintiff believes Laker, as a counselor, reviewed the same grievance as Kiley, sometime around December 2007 or January 2008. (Plaintiff's Dep at 20).

25. However, the counselor that reviewed the January 1, 2008, grievance was David Smetzer. (Exhibit E).

26. Plaintiff acknowledges there was no other grievance he wrote to Laker concerning his heart condition. (Plaintiff's Dep at 21, 22).

27. If Plaintiff had submitted a medical grievance to Laker, Laker would have ensured that Plaintiff had been evaluated by a physician and received medical care for the complained of condition. (Exhibit G, Laker Affidavit).

28. Laker is not a physician, has no medical training, and defers to the decisions of medical professionals. (Exhibit G).

29. Plaintiff believes Mary Miller changed his dosage of medication sometime in the six month period before December 2007. (Plaintiff's Dep at 22-24).

30. Miller is not a licensed physician. (Exhibit K).

31. Miller does not personally fill or deliver prescription medication, and does not have the authority to fill or deliver prescription medications. (Exhibit K).

32. Medication prescribed by a doctor is delivered by medical staff, who are employed by Wexford. (Exhibit K).

33. Miller did not alter, change, or deny any prescription medication for inmate Dolis. (Exhibit K).

34. Ms. Fueyo's memo indicates that Plaintiff was receiving medically appropriate treatment, stating in relevant part, "It appears inmate has been treated in a systematic and timely fashion for hyper lipidemia. He is currently on medications for his condition and has received proper monitoring of said treatment. Alterations of the medication regimen are sometimes necessary and it is common to do so. He has been encouraged to exercise but I see no statements that he will suffer physical harm if not transferred." (Exhibit E).

35. Plaintiff cannot recall whether or not he sent any grievances he sent to Keith Anglin regarding his heart condition. (Plaintiff's Dep at 29).

36. The January 1, 2008 grievance was not reviewed by Warden Anglin, but rather by Warden Loftus. (Exhibit E).

37. Plaintiff believes he told Anglin about his heart condition in person, and Anglin said he would get back to him. (Plaintiff's Dep at 29, 30).

38. If an inmate had informed Anglin of a serious medical condition, Anglin would have ensured that Plaintiff had been evaluated by a physician and received medical care for the complained of condition. (Exhibit H, Anglin Affidavit).

39. Plaintiff has no evidence that Anglin did not check with medical personnel. (Plaintiff's Dep at 30).

40. Plaintiff claims he has a urethra stricture for which he previously had a surgery that was only temporarily successful due to a large amount of scar tissue. (Complaint at 4).

41. Plaintiff claims he cannot urinate, and that urine just drips out of him. (Plaintiff's Dep at 31).

42. Plaintiff claims he needs treatment or surgery. (Complaint at 5).

43. Plaintiff claims he wrote "a bunch" of grievances on various issues, and Kiley consolidated the answers and gave an answer for a bunch of them. (Plaintiff's Dep at 35).

44. Plaintiff believe he received a response to his grievance about his urethra at the same time he received a response to the grievance on his heart condition. (Plaintiff's Dep at 35).

45. Plaintiff believes Kiley responded to multiple grievances at once, discussing Plaintiff's heart condition and urethra problem. (Plaintiff's Dep at 36).

46. It appears that Plaintiff is referring to the January 1, 2008 grievance, which Kiley reviewed on April 4, 2008. (Exhibit E).

47. The Director of Nursing, Terry Fueyo's memo dated January 25, 2008, states in relevant part that "I see no order to refer inmate to a urologist. Inmate has had an evaluation for urinary problems onsite and I see no evidence that MD has ...


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