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Beshears v. Health Professionals

November 8, 2010

VANTICE L. BESHEARS, PLAINTIFF,
v.
HEALTH PROFESSIONALS, LTD., DR. STEPHEN CULLINAN AND NURSE KENDRA ADAM, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court are the Defendants' summary judgment motion [38] pursuant to Rule 56 of the Federal Rules of Civil Procedure and C.D.I.L.-L.R. 7.1, the Plaintiff's response [42] and the Defendants' reply [43].

Background

On or about May 7, 2009, Plaintiff, Vantice L. Beshears, filed his original complaint against Health Professionals, LTD, Dr. Stephen Cullinan and Nurse Kendra Adams. On June 24, 2009, this court performed a merit review of the plaintiff's complaint. The court dismissed all claims in the complaint except the claim for deliberate indifference to a serious medical need. Plaintiff's original Complaint under 42 U.S.C. Section 1983, alleges that while Plaintiff was incarcerated at the Champaign County Correctional Center (CCCC), the defendants failed to provide him all of his medications during stays in November-December, 2007 and in February, 2008.

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. Dr. Stephen Cullinan is Chief Medical Officer and Co-Founder of Health Professionals, Ltd., which provides correctional health care services, and has been since 1996. (Stephen Cullinan Dec., ¶ 3, attached as Exhibit 1).

2. Dr. Stephen Cullinan also serves as the Medical Director or Staff Physician for a number of county jails in several Midwest states. (Stephen Cullinan Dec., ¶ 3)

3. From July 1977 to November 2007, Cullinan also maintained an oncology practice as partner and founder of Oncology/Hematology Associates of Central Illinois. (Stephen Cullinan Dec. ¶ 3)

4. Stephen Cullinan has been a clinical assistant professor at the University of Illinois -College of Medicine, Peoria, Illinois, since 1986, and from 1977 to 1986, he was an instructor in medicine there. (Stephen Cullinan Dec. ¶ 4)

5. From 1975 to 1977, Cullinan was an instructor in oncology at the Mayo Medical Clinic at the University of Minnesota, Rochester. (Stephen Cullinan Dec. ¶ 4)

6. Cullinan has lectured at the national conference on correctional health care on numerous occasions regarding correctional health care issues. (Stephen Cullinan Dec. ¶ 4)

7. Cullinan is a licensed physician in the State of Illinois and board certified in oncology and internal medicine. (Stephen Cullinan Dec. ¶ 5)

8. Cullinan's medical education includes a Doctor of Medicine degree (1972) from the University of Illinois College of Medicine, Chicago; an internship (1972 - 1973) and residency (1973 - 1975) in the Department of Internal Medicine at Henry Ford Hospital, Detroit, Michigan; and an advanced clinical trainee in the Department of Oncology at the Mayo Graduate School of Medicine, University of Minnesota, Rochester, Minnesota. (Stephen Cullinan Dec. ¶ 5)

9. Cullinan was working in his capacity as a licensed physician performing correctional health care services for HPL at the CCCC during the following time frames: September 23, 2004 through October 19, 2004; November 20, 2007 through December 7, 2007; and February 19, 2008 through February 21, 2008. (Stephen Cullinan Dec. ¶ 6)

10. During these time frames, Vantice Beshears, Jr., was an inmate at the CCCC. (Stephen Cullinan Dec. ¶ 6)

11. Beshears was one of Cullinan's patients duringthe 2007 period of incarceration. (Stephen Cullinan Dec. ¶ 6)

12. Cullinan did not see or treat Vantice Beshears, Jr. at the CCCC for any reason during the February 2008 time frame. (Stephen Cullinan Dec. ¶ 6)

13. Kendra Adams ("Adams") is a Registered Nurse in the State of Illinois and has worked for Health Professionals, Ltd. (HPL) since 2004, which provides correctional health care services to the CCCC. (Kendra Adams Dec. ¶ 3, attached as Exhibit #2)

14. Prior to Adams' with HPL, she was employed by Wexford Health Sources at the CCCC for one year. (Kendra Adams Dec. ¶ 3)

15. Adams is also a trauma nurse specialist, sexual assault examiner and a registered licensed nurse in the State of Illinois and has been so licensed since 1985. (Kendra Adams Dec. ¶ 4)

16. Adams was working in her capacity as a registered nurse providing correctional health care services for HPL at the CCCC during September 23, 2004 through October 19, 2004; November 20, 2007 through December 7, 2007; and February 19, ...


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