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Gary Oliphant v. Cook County Department of

September 4, 2012

GARY OLIPHANT, PLAINTIFF,
v.
COOK COUNTY DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Gary Oliphant brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that the Cook County Department of Corrections, Aramark Food Services, Inc., Doctor Ann Dunlap, Physician's Assistant Manisha Patel, and Nurse Carreen McGhee were deliberately indifferent to his medical and dietary needs while he was a pre-trial detainee at the Cook County Jail in violation of his Fourteenth Amendment right to due process of law.*fn1 Oliphant brings the remaining allegations in his suit against the named Defendants solely in their individual capacities. The Defendants respond that they were not deliberately indifferent to Oliphant's medical and dietary needs, that he did not have any objectively serious medical conditions that went untreated, and that they had no personal involvement in any alleged constitutional violation. The parties filed cross motions for summary judgment. For the reasons set forth, Oliphant's Motion for Summary Judgment is denied and Defendants' Joint Motion for Summary Judgment is granted.

I. The Material Undisputed Facts

Each of the parties has moved for summary judgment. Therefore, Oliphant submitted a Statement of Undisputed Material Facts in support of his Motion for Summary Judgment as well as a response to the Defendants' Statement of Undisputed Material Facts. As a threshold matter, Oliphant failed to comply with the Northern District of Illinois' Local Rule 56.1, which prescribes the manner for submitting a party's statement of undisputed material facts in support of a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, as well as the manner for responding to the opposing party's statement of material facts and submitting additional facts that the nonmoving party contends require the denial of summary judgment. See L.R. 56.1(a)(3), (b)(3), (b)(3)(C). District courts have broad discretion to enforce strict compliance with Local Rule 56.1-indeed they are encouraged to do so. See Judson Atkinson Candies, Inc., 529 F.3d at 382 n.2; F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) (collecting cases); Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (collecting cases)).

Although the filings of pro se litigants are subject to more liberal review and interpretation, a pro se plaintiff must still comply with the governing local rules of procedure. See Dale v. Poston 548 F.3d 563, 568 (7th Cir. 2008) ("Judges, of course, must construe pro se pleadings liberally. But procedural rules cannot be ignored.) (internal citations omitted); Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001) (a pro se plaintiff's failure to comply with Local Rule 56.1 is not excused by the rule that courts should construe the pleadings of pro se plaintiffs liberally). Oliphant's Local Rule 56.1(a)(3) Statement of Undisputed Material Facts in support of summary judgment fails to city any record evidence in support of his factual assertions. Pursuant to Local Rule 56.1, a party's statement of facts submitted to the Court is to comprise "short numbered paragraphs with citations to admissible evidence." Smith v. Lamz, 321 F.3d 680, 682 (7th Cir. 2003). The local rules governing summary judgment "assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence." See Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999). Under Local Rule 56.1 it is improper for a party to include legal or factual conclusions, arguments, or conjecture in a statement of undisputed material facts or in a response to a statement of undisputed material facts. See Judson Atkinson Candies, Inc., 529 F.3d 371 at 382 n.2; Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (a party's statement of undisputed material facts submitted pursuant to Local Rule 56.1 is improper where it fails to cite to the record and is "filled with irrelevant information, legal arguments, and conjecture."). Oliphant cites no record evidence in support of his assertions and many of his assertions comprise nothing more than legal conclusions.*fn2 As a result, the Court must disregard his statement of undisputed material facts. See Bay Area Business Council, Inc., 423 F.3d at 633.

Oliphant's response to the Defendants' Statement of Undisputed Material Facts in support of their Motion for Summary Judgment is equally problematic. The Local Rules make special provision for notice to pro se litigants opposing motions for summary judgment by requiring the moving party to issue a letter with their motion for summary judgment describing the proper manner for responding in opposition to the motion. See L.R. 56.2. Defendants sent a Rule 56.2 letter to Oliphant with their Motion for Summary Judgment. When a pro se litigant is provided with a Rule 56.2 letter he is presumed to be on notice of his obligations under Rule 56.1 and failure to comply with that Rule will result in the admission of the moving party's facts. See Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).

In response to Defendants' Motion for Summary Judgment, Oliphant filed two documents.

One is a single page document titled "Response to Summary Judgment, Defendants" (Doc. 115), which appears to be intended as Oliphant's response to the Defendants' Local Rule 56.1(a)(3) Statement of Undisputed Material Facts in support of their Motion. The second document is titled "Response to Motion for Summary Judgment By Defendants Motion Received on May 5, 2012" (Doc. 116), which appears to be Oliphant's memorandum of law in response to the Defendants' Motion for Summary Judgment. In Doc. 115, Oliphant states that he agrees with paragraphs 1 and 2; denies none of the Defendants' facts; and fails to respond to most of the Defendants' facts. He explicitly addresses paragraph 3, to which he says he has no response; paragraph 4, to which he simply directs the Court to exhibits A through I; paragraph 5, to which he again directs the Court to consult the attached exhibits; and paragraph 6, to which Oliphant responds that the reason the Defendants have filed a motion for summary judgment is "still unclear." Oliphant fails to make "a concise response to the movant's statement that...contain[s] numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to which it is directed." L.R. 56.1(b)(3)(A). He further runs afoul of the Rule because he does not offer "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting material relied upon."

L.R. 56.1(b)(3)(B) (emphasis supplied). An adequate denial of a statement of fact must specifically admit or deny the relevant fact, cite to facts in support of the denial, and cite to specific references in an affidavit or other parts of the record that supports such a denial. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004). Furthermore, the nonmoving party may not simply direct the Court to consult exhibits; this Court is not obligated in our adversary system of justice to scour the record looking for factual disputes to defeat a proper motion for summary judgment. See Waldridge v. American Hoechst Corp., 24 F. 918, 922 (7th Cir. 1994). Therefore, Oliphant's response to the Defendants' Local Rule 56.1 Statement of Undisputed Material Facts is insufficient and is stricken by the Court. Rule 56.1 provides that "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." See L.R. 56.1(b)(3)(C). Because Oliphant has not controverted the Defendants' Statement of Undisputed Material Facts in support of their Motion the Defendants' facts are deemed admitted.

In Doc. 116 it is unclear whether Oliphant is trying to allege additional statements of material fact that require the denial of summary judgment pursuant to Local Rule 56.1(b)(3)(C) or is merely providing a memorandum of law in support of his Motion. If Oliphant is attempting to introduce additional facts, he has done so improperly. The facts-if that is what they are-are a narrative recitation, full of legal conclusions and improper argument. Local Rule 56.1(b)(3)(C) mandates that "any additional facts that require the denial of summary judgment" must be included in a separate "statement, consisting of short numbered paragraphs. . ." When the nonmoving party fails to comply with Local Rule 56.1(b)(3)(C) by failing to submit any additional facts in a separate statement and by failing to support the facts with admissible record evidence it is proper for the Court to strike the additional facts. See Chichon v. Exelon Generation Co., LLC, 401 F.3d 803, 808 (7th Cir. 2005). It is not even clear whether Oliphant intended the statements in Doc. 116 to constitute an additional statement of material facts that requires the denial of summary judgment. To the extent that he did, they are stricken by the Court as improper.

Oliphant was a detainee at the Cook County Jail from July 7, 2008, through December 17, 2008. (Def. 56.1 SOF ¶ 2). Cermak Health Services ("Cermak") provides health care for detainees at the Cook County Jail. (Id. ¶ 3). Dr. Ann Marie Dunlap is a physician licensed to practice in the State of Illinois and from July 2008 through December 2008 was employed by Cermak as an Internist in Division 10 of the Cook County Jail. (Id. ¶ 4). Dunlap did not have any administrative or supervisory duties in her role at Cermak. (Id.). Careen McGhee is a licensed nurse in the State of Illinois and has been employed by Cermak as a nurse since 1998. (Id. ¶ 5). Manisha Patel is a licensed Physician's Assistant and has been employed by Cermak as a Physician's Assistant since 2003. (Id. ¶ 6).

Oliphant has problems with his heart. (Id. ¶ 9). He had a pacemaker/defibrillator implanted when he was at the Illinois Department of Corrections in 2005. (Id.). Oliphant experiences regular treatments from his pacemaker, which paces his heart, and which he can sometimes feel like an electroshock. (Id. ¶ 10). Oliphant stated that he probably had three or four treatments while sitting for his deposition because they happen all the time. (Id.). The treatments are something Oliphant feels often, particularly when he feels nervous or anxious, or when he is doing something strenuous. (Id. ¶ 11). If it is serious enough that he gets a defibrillator shock, Oliphant is supposed to go straight to a doctor; otherwise he just takes it easy until his heart gets back to normal. (Id. ¶ 12). Oliphant testified that what led to the damage to his heart and resulted in his getting a pacemaker/defibrillator was a reaction to a very high level of chemicals in soy food. (Id. ¶ 13). Oliphant testified that he never had been to a doctor or had any health issues before he went to the Illinois Department of Corrections. (Id.).

Oliphant claims that Patel was deliberately indifferent because she did not follow up with Aramark about getting Oliphant a low cholesterol diet. (Id. ¶ 14). Aramark was the food service provider while Oliphant was in the Cook County Jail and was contracted by the Cook County Department of Corrections. (Id. ¶ 15). Avery S. Hart, M.D., is the Chief Medical officer at Cermak and, in that capacity, is familiar with the process for providing special diets for detainees with special medical needs at the Cook County Department of Corrections. (Id. ¶ 17). When a physician at Cermak determines that a detainee in the Cook County Jail requires a special diet for medical reasons, the physician writes an order for the diet. (Id. ¶ 18). In 2008, orders for special diets were written on a form known as a "Restricted Diet Order Form," provided by the Cook County Department of Corrections. (Id.). The special diet order was then either faxed to the central kitchen or entered directly into the electronic information system of the Cook County Department of Corrections by an Administrative Aid at Cermak. (Id. ¶ 19). Physicians or physician's assistants would not have been responsible for this part of the process. (Id.). Cermak is not actually involved in providing meals for detainees at the Cook County Department of Corrections. (Id. ¶ 20).

During the period of July through December 2008, Patel was assigned to Division 10 at Cermak and her duties consisted of examining, testing, diagnosing, and treating detainees for medical problems under the supervision of a physician. (Id. ¶ 21). Oliphant was seen at Cermak on August 14, 2008, and Patel signed a Restricted Diet Order Form to order a low cholesterol diet for Oliphant on that date. (Id. ¶ 22). Patel would not have had any way of knowing whether or not Oliphant was actually served a low cholesterol diet while he was incarcerated at the Jail. (Id. ¶ 23). Oliphant admits that he does not know if Patel had any responsibility for calling Aramark. (Id. ¶ 24). After Oliphant told staff at the Cook County Jail that he was not getting a low cholesterol diet, he was told by the staff to notify a counselor in his Unit, which he did. (Id. ¶ 25). The Progress Notes from Oliphant's medical records reflect that he was seen at Cermak on November 26, 2008, after results had been received from a cholesterol test that had been done after his last visit to Cermak and that a low cholesterol diet was ordered for Oliphant. (Id. ¶ 26). During the November 26, 2008 visit Oliphant addressed that fact that he was not receiving a low cholesterol diet with Patel and ...


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