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Man v. Harvey

United States District Court, N.D. Illinois, Eastern Division

November 26, 2013

JACK MANN (#22865-424), Plaintiff,
v.
DR. HARVEY, Defendant

Jack Mann, Plaintiff, Pro se, Milan, MI.

For Harvey, Dr., Regional Medical Director, Defendant: Harpreet Kaur Chahal, United States Attorney's Office (NDIL), Chicago, IL.

For Service List, Defendant: Prisoner Correspondence - Internal Use Only.

OPINION

Page 1088

MEMORANDUM OPINION AND ORDER

JOAN H. LEFKOW, United States District Judge.

The plaintiff, a federal prisoner, presently in custody at Milan-FCI, has brought this pro se civil rights action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The plaintiff brings suit against Dr. Paul Harvey, a physician at the MCC, whom the plaintiff represents to be the Regional Medical Director of the Federal Bureau of Prisons, alleging that Dr. Harvey violated his constitutional rights by acting with deliberate indifference to his medical needs. More specifically, the plaintiff alleges that Dr. Harvey refused to prescribe Provigil for him because it is not on the Bureau of Prisons' formulary list. The plaintiff had been prescribed Provigil prior to incarceration for the collateral effects of a traumatic brain injury. This matter is before the Court for ruling on defendant Harvey's motion for summary judgment [document no. 33], and the plaintiff's cross-motion for summary judgment [document no. 113]. For the reasons stated in this order, the defendant's motion is granted, and the plaintiff's motion is denied.

Summary Judgment Standard

" 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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(b) requires a party opposing a motion for summary judgment to file

Page 1089

(3) a concise response to the movant's statement that shall contain:
(A) numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to ...

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