The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Friday, 07 September, 2012 02:14:50 PM Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se and incarcerated in Western Illinois Correctional Center, pursues the following claims: 1) an Eighth Amendment claim that Defendants have been deliberately indifferent to Plaintiff's serious medical need for his prescribed medicine on a consistent basis; 2) a First Amendment retaliation claim based on Defendants' requirement that Plaintiff take his medicines in front of others, allegedly instituted after he filed a grievance; and, 3) a privacy claim based on Defendants' alleged disclosure of Plaintiff's medical condition by passing out his medicine in front of other inmates. (d/e 7, p. 2.) Defendants move for summary judgment. For the reasons below, the Court will grant those motions.
"The court shall grant summary judgment 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). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the non-movant "cannot produce admissible evidence to support the [material] fact." Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the non-movant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists.
Id.; Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). "In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the light most favorable to the non-movant, with material factual disputes resolved in the non-movant's favor. Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the non-movant. Id.
Plaintiff is currently incarcerated in Western Illinois Correctional Center, and the events in this case all occurred at Western. He suffers from a serious and potentially life-threatening disease that requires him to take several medications daily. When this diagnosis occurred is unclear. In his response to the dispositive motions, Plaintiff states that he was diagnosed in 1993 and had been taking medicine for 14 years before the events here (d/e 61, p. 2), but in his Complaint he alleges that the medicines had been prescribed for only two years, since 2009 (Complaint, d/e 1, p. 4), and in his grievance dated May 8, 2010, he states that he has been receiving his medicine for three years (d/e 1-1, p. 2). In any event, the relevant time period here appears to be from 2009 to the present.
In 2009, Plaintiff was prescribed the following medications for his condition: Viread (1 tablet daily), Kaletra (2 tablets, twice daily), and Epzicom (1 tablet daily). According to Defendants, prescriptions for chronic conditions like Plaintiff's are first filled for sixty days. The prison receives two bottles, each containing 30 days worth of the prescribed medicine. One full bottle is given to the inmate. When the inmate turns in that bottle empty, the other full bottle of medication is given to him, and a new 30-day order for the medication is submitted to the pharmacy. (Def. Undisp. Facts 12-16, d/e 58).
Plaintiff does not dispute that this is the procedure that is supposed to be followed. He contends instead that this procedure is not in fact followed as a general practice. He alleges that he repeatedly did not receive his medicine because Defendants failed to timely order the medicine or failed to ensure that the pharmacy timely filled orders. (Pl.'s Dec., ¶¶ 13-14, d/e 61). He also contends that at times the prescription bottles he received had been opened and had pills missing.Id.
Plaintiff is vague about exactly how often he missed his medicine due to Defendants' actions or inactions. His Complaint alleges seven or eight occasions. (Complaint, pp. 4, 9, d/e 1.) The pharmacy orders and medication administration records provide more detailed information. The 2009 records show that 30-day orders were placed for all three medicines in January, February, March, April, May, July, August, October, November (Epzicom only), and December. (2009 Medication Administration Records, Pl.'s Dec., d/e 61-2, pp. 7-11, 13-17; Ex. to Complaint, d/e 1-1, p. 5). The Court sees no orders for June or September 2009. However, the medical administration records do show that Plaintiff received refills on all three medicines in June, 2009. (June 2009 Medical Administrative Record, Ex. to Complaint, d/e 1-1, p. 2.) The September 2009 administration record indicates that Plaintiff had received refills on all three medicines on August 22, 2009. (September 2009 Medical Administrative Record, Ex. to Complaint, d/e 1-1, p. 20.)
A 10-day gap does appear in February 2009 between the time Plaintiff turned in empty bottles for all three medicines and received refills for Epzicom and Viread. (February 2009 Medication Administration Record, Ex. To Complaint, d/e 1-1, p. 7.) Defendants assert that Plaintiff had failed to timely turn in empty bottles. They also contend that they did timely order refills, though the pharmacy has no record of the order.
An additional lag of 11 days appears in March 2009 for a refill on Epzicom. (March 2009 Medication Administration Record, attached to Complaint, d/e 1-1,p. 8.) And, a five day lag for refills appears in August, 2009, for Epzicom. (August 2009 ...