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Larry Harris, et al v. Dr. Lowell Brown

April 28, 2011

LARRY HARRIS, ET AL., PLAINTIFF,
v.
DR. LOWELL BROWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

E-FILED

Thursday, 28 April, 2011 04:41:51 PM Clerk, U.S. District Court, ILCD

MEMORANDUM OPINION AND ORDER

Before the court are the defendants summary judgment motion [269], filed January 27, 2010, [297] filed July 11, 2010, the plaintiff's responses [299], filed July 26,2010 and [300] filed August 13, 2010, respectively, and the defendants' replies [304], filed August 30, 2010, and [306], filed September 13, 2010.In their summary judgment motions, defendants move for partial summary judgment against some of the co-plaintiffs and full summary judgment against others. The court will address each co-plaintiff in separate orders. The court will address Defendants motion for summary judgment based on failure to exhaust administrative remedies as to co-plaintiff Carl Moss in this order.

Standard

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).

Discussion

In his response [336] to court's April 13, 2011 text order, Carl Moss has clarified to the court that he has an Eighth Amendment claim and a Fourteenth Amendment claim against the Director of the Illinois Department of Corrections ("IDOC"), Michael Randle acting in his official capacity, and the Director of the Department of Central Management Services ("CMS"), James Sledge acting in his official capacity. In addition to these two claims, Moss has a Section 1983 claim for cruel and unusual punishment under the Eighth Amendment and a Section 1983 claim for cruel and unusual punishment under the Fourteenth Amendment against the following individuals acting under color of law:

a. All IDOC Medical Directors from 2005 to the present the identity of which at this time remain unknown;

b. All IDOC Food Services Administrators from 2005 to the present which at this time based on information and belief include at least Defendant Griswold;

c. Administrative Review Board members Jackie Miller and Ford;

d. each Chief Administrative Officer at each of the correctional facilities in which Moss has been incarcerated from 2005 to the present, which at this time based on information and ...


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