The opinion of the court was delivered by: Michael M. Mihm Senior United States District Court Judge
Monday, 28 March, 2011
Clerk, U.S. District Court, ILCD
MEMORANDUM OPINION AND ORDER
Before the court are the Defendants, Gerardo Acevedo, Tammy Bennett, Joseph Goodman, Evelyn Johnston, Lois Lindorff (sued as Loris Mathes), R. Martinez and Jerry Mowen's (used as Lt. Mauey) summary judgment motion , Defendants, Dr. Shute and Dr. Estaver's summary judgment motion , Plaintiff's response  and Defendants' reply . Defendants move for summary judgment pursuant to Fed R. Civ. Pro. Rule 56(b).
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." 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(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).
In responding to a summary judgment motion, the non-moving party may not simply rest upon the allegations contained in the pleading, but must "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also DeLuca v. Winer Ind., Inc., No. 93-C-6535, 1994 WL 374197, at *2 (N.D. Ill. July 13, 1994). 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." Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004). Therefore, the "nonmoving party must present definite, competent evidence to rebut the summary judgment motion." Kodl v. Bd. Of Educ. Sch. Dist. 45, Villa Park, No. 05-C-3037, 2006 WL 2192014, at *4 (N.D. Ill. Aug. 1, 2006). "General assertions of fact issues, general denials, and conclusory statements are insufficient to shoulder the non-movant's burden." Chemical Eng'r Corp. v. Essef Indus., 795 F.2d 1565, 1570 (Fed. Cir. 1986) (citations omitted).
Plaintiff, an inmate currently incarcerated with the Illinois Department of Corrections, has filed suit pursuant to 42 U.S.C. §1983 for violations of his civil rights. On May 13, 2009, the court stated in the Merit Review that, "The plaintiff may proceed on his claim under the Eighth Amendment that the defendants were deliberately indifferent to his serious medical needs." Specifically, Plaintiff alleges Defendants were deliberately indifferent to the injuries he sustained on January 5, 2008, when he was assaulted by another inmate and his jaw was fractured. However, Defendants deny they were deliberately indifferent and argue that they are entitled to summary judgment because Plaintiff was under the care of medical experts and there is no evidence they were deliberately indifferent. Further, Defendants argue that they are entitled to qualified immunity because they would not have known that they were violating Plaintiff's rights when they relied on the treating medical professionals to provide Plaintiff with medical care.
Undisputed Material Facts of Defendants, Gerardo Acevedo, Tammy Bennett, Joseph Goodman, Evelyn Johnston, Lois Lindorff, R. Martinez and Jerry Mowen's *fn1
1. Plaintiff's jaw was fractured during an assault by another inmate on January 5, 2008 at Hill Correctional Center. (Deposition of Plaintiff, pp. 10-11, hereto attached as ExhibitA).
2. After the assault, Plaintiff was provided immediate care by a nurse and taken to the health care unit. (Exhibit A, p. 11).
3. When Plaintiff arrived at the health care unit he was attended to by the nurses and then transferred to the Galesburg Cottage Hospital. (Exhibit A, pp. 11-12).
4. At the outside hospital, Plaintiff was seen by an ER doctor, given X-rays and stayed the night. Further, Dr. Casper, a private physician who deals with dentistry and the jawbone area performed surgery the next day. (Exhibit A, p. 13).
5. Plaintiff's jaw was wired shut by the surgeon. (Exhibit A, pp. 15-16).
6. After surgery, Dr. Casper cleared Plaintiff to return to prison, where he was put in the prison infirmary. (Exhibit A, p. 15).
7. Plaintiff remained in the infirmary at the prison for 12 weeks. (Exhibit A, p. 16).
8. While in the infirmary, Plaintiff was seen by a nurse daily, by Dr. Shute three times and by the dentist Dr. Estaver more than three times. (Exhibit A, p. 18 ¶8-16 and p. 21 ¶14-25).
9. When Plaintiff's jaw was wired shut, he had complaints about the wires poking his gums and Dr. Estaver gave Plaintiff wax to stick on to the edge that was poking his mouth. (Exhibit A, pp. 22-23). Further, more than two or three times wires broke because of brushing and Plaintiff was taken to an outside hospital to see Dr. Bobocheck or Dr. Casper. (Exhibit A, p. 25).
10. The wires were removed from Plaintiff's jaw by an outside doctor after his 12 week stay in the infirmary. (Exhibit A, pp. 27-28).
11. Further, Plaintiff had a second surgery on his jaw by Dr. Swanson. (Exhibit A, pp. 35- 6).
12. Plaintiff's claim against Defendant Mathes, a nurse and the prison health care unit administrator, is that she did not direct the dentist, the doctors and the nurses to provide him certain treatment while he was in the health care unit for 12 weeks during 2008. (Exhibit A, p. 50).
13. Plaintiff's claim against Defendant Warden Acevedo, in regards to his medical care, is that he did not properly supervise the health care unit and that he did not come visit Plaintiff or show enough compassion after his injury. (Exhibit A, pp. 52-53).
14. Plaintiff included Defendant Martinez in this suit because he failed to protect Plaintiff from the inmate who assaulted him. (Exhibit A, p. 57).
15. Plaintiff never asked Defendant Martinez for medical care. (Exhibit A, p. 57).
16. Tammy Bennett is a part of this lawsuit because she failed to protect Plaintiff from assault by an inmate. (Exhibit A, p. 57-58).
17. When Plaintiff made a medical complaint to Defendant Bennett, she ensured that he had access to the health care unit. (Exhibit A, p.58).
18. Plaintiff wrote grievances to defendant Grievance Counselor Johnston complaining about his medical care and he is suing her because she did not ensure that he had appropriate pain medication or medical care. (Exhibit A, pp. 63 -64).
19. All Plaintiff's grievances to Defendant Johnston started during his stay in the infirmary. (Exhibit A, p. 62 ¶10-14).
20. Plaintiff's claim against Defendant Goodman is that he asked him to see the health care unit to get pain medication and Defendant Goodman told him to make a request to the health care unit. (Exhibit A, p. 67).
21. Plaintiff's claim against Defendant Mowen is that before the assault by another inmate he told Plaintiff to suffer it out and while Plaintiff was in the health care unit Plaintiff made a complaint to Defendant Mowen about his medical treatment, to which Defendant Mowen did nothing. (Exhibit A, p. 69).
Undisputed Material Facts of Dr. Shute and Dr. Estaver*fn2
1. Dr. Shute is an employee of Wexford Health Sources, Inc. (hereinafter referred to as "Wexford"), which provides correctional healthcare services. (Richard Shute Dec., ¶3, attached as Exhibit 1).
2. Dr. Shute has been working for Wexford as a Medical Director and/or staff physician since December of 2001. In 2008, Dr. Shute was working as the Traveling Medical Director at Hill Correctional Center. (Shute Dec., ¶¶3-4).
3. Dr. Shute is a licensed physician in the State of Illinois and was so licensed in 2008. (Shute Dec., ¶5).
4. Dr. Shute's medical education includes a Doctor of Medicine degree (1980) from Autonomous University of Guadalajara and a Fifth Pathway (1982) from Nassau County Medical Center. (Shute Dec., ¶5).
5. Dr. James Estaver is an employee of Wexford (Estaver Dec., ¶3, attached as Exhibit 2).
6. Dr. Estaver serves as a dentist for that company. In 2008 and 2009, Dr. Estaver was working at Hill Correctional Center. (Estaver Dec., ¶¶3, 6).
7. Dr. Estaver is a licensed dentist in the State of Illinois and was so licensed in 2008 and ...