The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge
Wednesday, 16 February, 2011 08:48:51 AM
Clerk, U.S. District Court, ILCD
MEMORANDUM OPINION AND ORDER
Before the court are the Defendants, Wexford Health Sources, Inc., Dr. Ronald Schaefer, Terry Fueyo, Dr. Bashirahmed Ameji's summary judgment motion  and the Plaintiff's response .
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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). 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). "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). "If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed. R. Civ. P. 56(e). 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(c). 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." Filipovicv. 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(c)(4) (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).
Plaintiff, John Woods, is an inmate currently incarcerated at the Danville Correctional Center by the Illinois Department of Corrections. He alleges that while he was incarcerated at the Danville Correctional Center, he suffered violations of his constitutional rights, under the Eighth Amendment. Specifically, Plaintiff alleges that he suffered deliberate indifference to a serious medical need in the treatment of his umbilical hernia. In his complaint, he alleges that a doctor at Provena Medical Center advised him that he needed surgery to repair his hernia. He alleges that he was denied an abdominal belt and surgery. It is undisputed that the Plaintiff's umbilical hernia was known to the Defendants. Dr. Ameji and Dr. Schaefer both evaluated the Plaintiffs hernia on multiple occasions. Defendants assert that Plaintiff was never a candidate to have his hernia surgically repaired because the surgery was not medically necessary. The Defendants claims that the Plaintiff's hernia remained reducible at all times during his treatment by the Defendants. Additionally, Defendants assert that they provided the Plaintiff with conservative treatment in the form of a hernia belt. Defendants contend that Plaintiff's medical concerns were not met with deliberate indifference at any time and as such, summary judgment is appropriate in this case.
1. Plaintiff is an inmate within the Illinois Department of Corrections. He is incarcerated because he has been convicted of Murder, Armed Robbery, Attempted Murder and burglary. (See Exhibit 1, Wood deposition, pp. 8-9.)
2. Plaintiff initially suffered an umbilical hernia in August of 2005. (Exhibit 1, p. 6-7).
3. Plaintiff did not experience any problems with his hernia until March 3, 2006. (Exhibit 1,p. 7.)
4. Plaintiff has been able to reduce his hernia at all times except for the time he was hospitalized on September 7, 2006. (Exhibit 1, p. 13.)
5. Plaintiff has been able to maintain a job in the Dietary at the Danville Correctional since 1996. (Exhibit 1, p. 23.)
6. Plaintiff was able to play basketball on the yard up until 8 months ago. (Exhibit 1, p. 26.)
7. Plaintiff understands that one of the risks of surgical repair of his hernia is death. (Exhibit 1, p. 35.)
8. At some time in 2006, Plaintiff was provided what he calls a weight belt, which was an elastic band that he could Velcro around his midsection to secure his hernia. (Exhibit 1,p.14-15.)
9. Plaintiff has seen Dr. Paul Talbot at the Danville Correctional Center. Dr. Talbot has not recommended the Plaintiff receive surgery for his umbilical hernia. (Exhibit 1, p. 38-39.)
10. On May 31, 2006, Dr. Ameji saw the Plaintiff in regards to complaints of a boil on his left chest. Dr. Ameji evaluated the boil and provided the Plaintiff with medication. (See Exhibit 2, Ameji Affidavit; and Exhibit 5, IDOC records, p. 21.)
11. On September 7, 2006, Plaintiff came to the Health Care Unit and complained that a hernia had "popped out". The RN noted that the Plaintiff had a golf-ball-size umbilical hernia. The inmate stated that it pops out approximately four to five times a year, and he is usually able to reduce it himself. Plaintiff alleged that he could not reduce the hernia at this time. Dr. Ameji was notified by telephone and ordered the inmate to be transferred to the emergency room due to the danger of incarceration. Plaintiff was taken to the emergency room at the Provena United Samaritans Medical Center in Danville, Illinois. (Ameji Affidavit; and IDOC records, p. 22.)
12. At the emergency room, the Plaintiff was diagnosed with an umbilical hernia which the physician was able to reduce. (Ameji Affidavit; and Exhibit 6, Provena United Samaritans Medical Center Records, p. 7.)
13. At the emergency room, they also performed a CT-scan on the Plaintiff's abdomen. The CT-scan revealed an umbilical hernia which contained omental fat as well as no evidence of a bowel herniation or obstruction. (Ameji Affidavit; and PUSMC records, p. 10.)
14. Plaintiff returned to the institution on September 8, 2006, and
was scheduled for follow up with Dr. Ameji.
(Ameji Affidavit; and IDOC records, p. 23.)
15. Dr. Ameji followed up with the Plaintiff on September 19, 2006. On that date, Dr. Ameji performed an evaluation of the Plaintiff and educated him as to changes in his diet, taking his medications for his diabetes, and instructing him as to exercises he can do to help both his diabetes condition and his umbilical hernia. (Ameji Affidavit; and IDOC records, p.25.)
16. The next time the Plaintiff came to the Health Care Unit was December 14, 2006. On that date, the Plaintiff was seen by a registered nurse. The Plaintiff was making subjective complaints of a lump in his groin. Objectively, the nurse found that the Plaintiff had a small 1 to 2 centimeter sized lump on the left medial thigh/groin area. There was no redness or swelling of the surrounding area. Additionally, there was no tenderness with palpitation. (Ameji Affidavit; and IDOC records, p. 26.)
17. Plaintiff next returned to the Health Care Unit on January 18, 2007. Plaintiff's complaints on that date were in regards to a draining boil on his left side. A culture was done of the drainage from the wound which revealed the Plaintiff was suffering from a MRSA infection. (Ameji Affidavit; and IDOC records, p. 31.)
18. Dr. Ameji's next note in the records was January 23, 2007. Dr. Ameji was following up with the Plaintiff after the lab results were received. Dr. Ameji's note is in regard to the MRSA infection Plaintiff had suffered. Plaintiff made no complaints as to his hernia on this date. (Ameji Affidavit; and IDOC records, p. 31.)
19. Dr. Ameji next saw the Plaintiff on January 31, 2007, also as a follow up. Plaintiff had an EKG done on January 20, 2007. Dr. Ameji went over the results of the EKG with the Plaintiff. Plaintiff made no complaints as to his hernia on this date. (Ameji Affidavit; and IDOC records, pp. 32-33.)
20. Dr. Ameji's next note in the Plaintiff's records is dated February 15, 2007. On that date, Dr. Ameji saw the Plaintiff following the results of a cardiology stress test. Plaintiff did not make any complaints in regards to an umbilical hernia on this date. (Ameji Affidavit; and IDOC records, p. 35.)
21. On February 28, 2007, Dr. Ameji performed a collegial review with Dr. Funk in regards to Plaintiff's case of diabetes mellitus as well as the EKG results of the Plaintiff. This collegial review was not in regards to anything to do with ...