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Henry Sistrunk (#2011-0118036 v. Marghoob Khan

January 24, 2013

HENRY SISTRUNK (#2011-0118036), PLAINTIFF,
v.
MARGHOOB KHAN, M.D., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

The plaintiff, an inmate in the custody of the Cook County Department of Corrections, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendant, a jail physician, violated his constitutional rights [and potentially the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and/or the Rehabilitation Act, 29 U.S.C. § 701, et seq.] by acting with deliberate indifference to his medical needs. More specifically, the plaintiff alleges that he was denied a wheelchair that another physician had prescribed for him prior to his arrival at the jail. The plaintiff maintains that he severely injured himself in a fall when the defendant forced him to use crutches instead of the wheelchair. The parties have consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). This matter is before the court for ruling on the defendant's motion for summary judgment. For the reasons stated in this order, the motion is granted.

STANDARD OF REVIEW

"The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Weber v. Univ. Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). The court does not "judge the credibility of the witnesses, evaluate the weight of the evidence, or determine the truth of the matter. The only question is whether there is a genuine issue of fact." Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986)).

However, Fed. R. Civ. P. 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted). "A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010) (quoting Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008)).

LOCAL RULE 56.1(N.D.ILL.)

The defendant filed a statement of uncontested material facts pursuant to Local Rule 56.1 (N.D. Ill.). Together with his motion for summary judgment, the defendant included a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" [document no. 58], as required by circuit precedent. That notice explained in detail the requirements of the Local Rules and warned the plaintiff that a party's failure to controvert the facts as set forth in the moving party's statement results in those facts being deemed admitted. See, e.g., Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file:

(3) a concise response to the movant's statement that shall contain

(A) 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 materials relied upon, and

(B) a statement, consisting of short numbered paragraphs, of any additional facts that require denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

L.R. 56.1(b).

The district court may rigorously enforce compliance with Local Rule 56.1. See, e.g., Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) ("'Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings'"); Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005). Pro se plaintiffs are required to comply with procedural rules. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006); Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1108 (7th Cir. 2004).

Despite the admonitions stated above, the plaintiff failed to file a proper response to the defendant's statement of uncontested facts. Instead, the plaintiff has provided his own statement of facts, without specifically admitting or refuting any of the defendant's numbered statements. Consequently, the defendant has filed a motion to deem facts admitted.

Because the plaintiff is proceeding pro se, the court will grant him considerable leeway and consider the factual assertions he makes in his summary judgment materials. The court has also taken into account the belatedly filed affidavit from inmate Johnny Green. However, the plaintiff's factual statements will be entertained only to the extent that they are supported by the record and/or he could properly testify about the matters asserted. Among other things, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 602. In addition, a layperson may not testify about matters involving medical, technical, or other specialized knowledge. See Fed. R. Evid. 701, 702.

Given the considerations stated above, the defendant's motion to deem facts admitted is granted, in part, and denied, in part. The court views the defendant's Rule 56.1 statements supported by the record and not properly rebutted by the plaintiff to be true and uncontested. Finally, the defendant's statement of facts has been supplemented with additional facts the plaintiff asserted during his deposition and in his response to the motion for summary judgment.

FACTS

The plaintiff is a pretrial detainee in the custody of the Cook County Department of Corrections. (Defendant's Exhibit B, Deposition of Henry E. Sistrunk, p. 4.) The defendant, Marghoob Khan, is a medical doctor employed by the jail's Cermak Health Services. (Defendant's Exhibit C, Affidavit of Marghoob Khan, ¶¶ 1, 2.)

Prior to January 2011, the plaintiff enjoyed generally good health, other than suffering from sarcoidosis, an inflammatory condition that sporadically affected his lungs. (Plaintiff's Dep., pp. 23-24.) The plaintiff had never before been hospitalized and was not under a doctor's care at the time of his arrest. (Id.)

The plaintiff was arrested on January 17, 2011. (Plaintiff's Dep., pp. 10, 26.) During the course of the arrest, the plaintiff sustained an injury to his right leg. (Id.) The plaintiff asserts that his leg was injured when the police "ran [him] over." (Id., pp. 26-27; Plaintiff's Exhibit Y, Affidavit of Henry Sistrunk, ¶ 2.)*fn1

Following his arrest, the plaintiff was taken to Stroger Hospital for treatment of his leg. (Plaintiff's Dep., p. 27.). At the hospital, the plaintiff underwent surgery in two places for a fractured tibia. (Id., pp. 28, 42; Khan Affidavit, ¶ 3.) A plaster cast was applied to his leg. (Plaintiff's Dep., p. 27.) The plaintiff spent about three weeks in the hospital, in part due to complications from an infected incision. (Id., p. 28; Plaintiff's Exhibit T, Orthopedics Outpatient Report.)

Although the plaintiff's left leg was not injured, it was his understanding that he was not supposed to put weight on either leg. (Id., p. 29; Plaintiff's Affidavit, ΒΆ 6.) He was provided with a wheelchair while in the hospital. (Plaintiff's Dep., p. 28.) At his deposition, the plaintiff testified that his physical therapy consisted of sitting up and elevating his leg, "that kind of thing." (Id., pp. 29, 32.) However, the plaintiff's medical records reflect that he also practiced walking with assistive ...


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