The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge
E-FILED Friday, 26 August, 2011 12:04:21 PM Clerk, U.S. District Court, ILCD
MEMORANDUM OPINION AND ORDER
Before the court are the Defendant Mary Miller's motion for summary judgment , Plaintiff's response , and Defendant's reply .
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).
Plaintiff is an inmate who, for the times at issue in this action, was in the custody of the Illinois Department of Corrections. Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 in which he alleged that the Defendant was deliberately indifferent to a serious medical need, in violation of the Eighth Amendment, by denying surgery for Plaintiff's hernia and restricting his ability to go to the prison yard. Defendant seeks summary judgment in her favor. She contends that she was not deliberately indifferent to Plaintiff's medical needs. Defendant asserts that she is also protected by the doctrine of qualified immunity.
Undisputed Material Facts*fn1
1. Plaintiff is an inmate in the custody of the Illinois Department of Corrections. During the majority of time relevant to his complaint, Plaintiff was housed at Danville Correctional Center. He was later transferred to Shawnee Correctional Center.
2. Defendant is employed as the Health Care Unit Administrator at Danville.
(Defendant's Exhibit A, Affidavit of Mary Miller, ¶ 1).
3. She has a background as a registered nurse, but did not treat Plaintiff or prescribe any course of treatment to him. (Def's Ex. A, ¶ 2).
4. In 2003, Plaintiff was diagnosed with another hernia, but he did not notice any problems until November 2007. (Def's Exhibit B, Deposition of Leander Carter, p. 11).
5. The hernia began to cause him trouble at that time by causing pain when he would laugh, cough, have a bowel movement, or ...