The opinion of the court was delivered by: Harold A. Baker United States District Judge
Wednesday, 30 March, 2011 09:22:19 AM Clerk, U.S. District Court, ILCD
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiff's summary judgment motion , Defendants, R. C. Sholtz and Wexford Health Sources Inc.'s response , Plaintiff's reply  and Defendants' second amended response . Plaintiff moves for summary judgment pursuant to Fed. R. Civ. Pro. Rule 56 and U.S.C.D. L. R. 7.1D.
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).
On February 20, 2009, this court entered a Merit Review Order regarding Plaintiff's complaint. This court ruled that the Plaintiff stated one claim under the Eighth Amendment, that Defendants were allegedly deliberately indifferent to Mr. Bell's serious medical (dental) needs. These Defendants subsequently filed an answer to the Merit Review Order denying those allegations. At the time Plaintiff file his summary judgment motion discovery in this matter was still going on. In response to his summary judgment motion  Defendants asserts that Plaintiff's claim of deliberate indifference to a serious medical need is without factual support.
In his summary judgment motion  argues that he is entitled to summary judgment against Defendants Scholz and Wexford. Plaintiff's motion raises four separate issues: First, Plaintiff claims that Dr. Scholz was deliberately indifferent to Plaintiff's longstanding chronic periodontal disease. Defendants argue that Plaintiff is not entitled to summary judgment on this issue because Plaintiff has failed to establish that his longstanding chronic periodontal disease constitutes a serious medical need. Further, Defendants argue that Plaintiff has not established that his condition was a Category I condition in need of urgent medical care. Defendants assert that Dr. Scholz is required by the Illinois Department of Corrections' Administrative Directives to prioritize his dental care and to provide treatment to those inmates in the worst condition first. That is what he did in this case, and thus summary judgment must be denied. Second, Plaintiff argues that he is entitled to summary judgment on his policy, practice and custom claim against Wexford and Dr. Scholz. The court's merit review orders makes no mention of any type of Monell claim and specifically strikes any claims against Defendants in their official capacity. Furthermore, a Monell claim can only survive if an employee of the corporation is found liable for violating the Plaintiff's constitutional rights. Here, Defendants argue that Plaintiff fails to show that Dr. Scholz was deliberately indifferent to his serious medical (dental) need and therefore Plaintiff's summary judgment motion regarding his Monell claim must also fail. Third, Plaintiff argues that Dr. Scholz was deliberately indifferent to his toothache in June of 2007. Defendants assert that the facts of this case tell quite another story. Rather than being deliberately indifferent, Plaintiff was treated promptly after a request to see the dentist was received from Mr. Bell and an extraction was prioritized to alleviate Mr. Bell's pain. Fourth, Plaintiff argues that Dr. Scholz was deliberately indifferent to his need for a filling. Defendants argue that Plaintiff fails to establish that the need for a filling is a serious medical need. Further, Defendants argue that Plaintiff fails to establish that Dr. Scholz was deliberately indifferent. Defendants advise the court that Mr. Bell was placed on the list to receive a filling and was not ignored. Defendants request that Plaintiff's summary judgment motion be denied.
Undisputed Material Facts*fn1
Pl's Fact 1. The plaintiff has a condition known as chronic periodontal disease.
Pl's Fact 2 Defendant Robert Scholz was a dentist at the Western Illinois Correctional Center
("Western) between April 1, 2007 through June 5, 2009.
Pl's Fact 4: Defendant Scholz did not treat the plaintiff's longstanding chronic periodontal disease for the entire time plaintiff was at Western.
Pl's Fact 6 Defendant Scholz did not do teeth cleanings at Western between April 1, 2007 through June 5, 2009.
Pl's Fact 7 There was no dental hygienist on site at Western during the time of April 1, 2007 through June 5, 2009.
Pl's Fact 8 The contract between Wexford and the Illinois Department of Corrections 'IDOC' did not require a dental hygienist to be on site at Western between April 1, 2007 through June 5, 2009. Plaintiff's Exhibit B, pg. 5, ¶14, not pg. 4.
Pl's Fact 10 Plaintiff's tooth #18 was extracted at Plaintiff's request and with his consent on July 3, 2007. (Plaintiff's Exhibit B, pg. 4, ¶11).
Pl's Fact 12 Defendant Scholz worked 16 hours per week during the time frame of April 1, 2007 through June 5, 2009.
Pl's Fact 13 On October 8, 2008 at Plaintiff's biennial exam, Dr. Scholz found tooth #31 to be in need of a filling. (Scholz Aff., Ex. 1, ¶25).
Pl's Fact 25 Even after the Plaintiff saw Defendant Scholz on June 27, 2009, the Plaintiff still suffered excruciating pain right up to and including July 3, 2009.
RESPONSE: Dr. Scholz saw Plaintiff on June 27, 2009, and made it a priority to have his tooth extracted and did so; the extraction was performed on July 3, 2009. (Scholz Aff., Ex. 1, ¶¶22 -- 23).
Pl's Fact 3 For two and a half years, the plaintiff sought treatment for his longstanding chronic periodontal disease from Defendant Scholz.
RESPONSE: Defendants state the phrases "sought" and "treatment" are vague and ambiguous. Further, Pl's fact 3 does not specify the specific treatment that was sought or when and that this statement is not supported by any competent evidence or proper citation to the record and is therefore inadmissible. Nothing in Plaintiff's Exhibit B, page 3, stands for the proposed material fact as set forth in Plaintiff's Fact No. 3.
Pl's Fact 11 There was no system in place at the Western Illinois Correctional Center during the time frame of April 1, 2007 through June 5, 2009, where an inmate or plaintiff could have signed up for emergency dental treatment and subsequently receive treatment the next day, or even that week.
RESPONSE: This statement is not supported by any competent evidence and is therefore inadmissible. Nothing in Plaintiff's Exhibit J, pg. 1, stands for the proposed material fact. Further, Plaintiff's Exhibit J is an Illinois Department of Correction Offender's Grievance form. The Defendants are not responsible for the IDOC's grievance and/or emergency grievance system. (See Scholz Aff., Ex. 1, ¶¶ 29 - 30).
Pl's Fact 13 Plaintiff had a damaged tooth which needed a crown while at Western.
RESPONSE: Plaintiff's statement that a crown needed to be placed on his tooth is not supported by any competent evidence and is therefore inadmissible. Furthermore, Plaintiff's tooth #31 did not require a crown. (Scholz Aff., Ex. 1, ¶25).
Pl's Fact 17 The plaintiff informed Defendant Scholz, through his grievance written on 10-19-07 plaintiff had been previously told that plaintiff had periodontal disease, that many of plaintiff's teeth are very loose ...