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Leander Carter v. Dr. Bashir Ameji

September 7, 2011

LEANDER CARTER, PLAINTIFF,
v.
DR. BASHIR AMEJI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge

E-FILED

Wednesday, 07 September, 2011 02:49:31 PM Clerk, U.S. District Court, ILCD

MEMORANDUM OPINION AND ORDER

Before the court are Wexford Health Sources, Inc., Dr. Bashir Ameji and Terry Fueyo's summary judgment motion [84], Plaintiff's response [90] and Defendants' reply [99].

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).

Background

Plaintiff alleges in his Amended Complaint that he suffered constitutional violations while incarcerated at the Danville Correctional Center. Plaintiff alleges that he suffered a state law medical battery at the hands of Dr. Ameji. Plaintiff's allegations center around the treatment of his inguinal hernia while at the Danville Correctional Center and subsequently at the Shawnee Correctional Center. Plaintiff was treated for his inguinal hernia conservatively by Dr. Ameji at the Danville Correctional Center. Terry Fueyo was the Director of Nursing at the Danville Correctional Center. Wexford Health Sources, Inc. was the employer of Dr. Ameji and Terry Fueyo.

Undisputed Material Facts*fn1

1. Plaintiff Leander Carter is currently serving a 25 year sentence for aggravated kidnapping and ransom as well as a five year sentence for aggravated unlawful restraint. (Plaintiff's deposition, p. 7.)

2. Plaintiff was incarcerated at the Danville Correctional Center from June 11, 2007 until December of 2008. (Plaintiff's deposition, pp. 11-12.)

3. Plaintiff was first diagnosed with his inguinal hernia on February 24, 2003. (Plaintiff's deposition, p. 11.)

4. Plaintiff did not suffer any problems with his hernia from 2003 up until 2007. (Plaintiff's deposition, p. 12.)

5. Plaintiff admits that his hernia has never become enstrangulated. (Plaintiff's deposition,p. 12.)

6. Plaintiff admits that he has never been unable to reduce his hernia. (Plaintiff's deposition, p. 12.)

7. When Plaintiff initially suffered the hernia, it was about the size of a third of a golf ball. (Plaintiff's deposition, p. 13.)

8. At the time of his deposition on November 17, 2010, the Plaintiff's hernia was about the size of half of a golf ball. (Plaintiff's deposition, p. 13.)

9. Plaintiff was able to bench press 300 pounds while he was incarcerated at the Danville Correctional Center. (Plaintiff's deposition, p. 30.)

10. Plaintiff was able to participate in weight lifting four times a week while at the Danville Correctional Center. (Plaintiff's deposition, pp. 30-31.)

11. Plaintiff was able to participate in weight lifting without a hernia belt. (Plaintiff's deposition, p. 31.)

12. On September 18, 2008, Plaintiff took down his pants willingly in order for Dr. Ameji to examine his hernia. (Plaintiff's deposition, p. 41.)

13. Plaintiff admits that his revocation of consent and Dr. Ameji's termination of his examination were nearly simultaneous. (Plaintiff's deposition, p. 43.)

14. After the revocation, Dr. Ameji never touched the Plaintiff again. (Plaintiff's deposition,p. 43.)

15. According to the medical records, Plaintiff was transferred to the Danville Correctional Center on June 14, 2007. (Ameji Affidavit; and Exhibit 1, p. 44.)

16. During his reception screening, Plaintiff made no complaints of any medical conditions whatsoever. (Ameji Affidavit; and Exhibit 1, p. 44.)

17. According to the medical records, the first time the Plaintiff made complaints regarding his hernia was November 27, 2007. At that time, the Plaintiff informed LPN Barb Browntree that he had a hernia that was causing him problems and kept popping out when he tried to climb up into his bed. As a result, Ms. Browntree referred the Plaintiff to see the medical doctor or the physician's assistant. (Ameji Affidavit; and Exhibit 1, p.45.)

18. The next day, November 28, 2007, Dr. Ameji saw the Plaintiff in regards to his complaints. Dr. Ameji's note from that date states as follows:

Subjective: 47 year old black male. 5'8" tall. Approximately 185 lbs. His voice is thick. Blood pressure from November 27, 2007 was 150/100. Left inguinal hernia. 2" in diameter. ...


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