United States District Court, N.D. Illinois, Eastern Division
RAYMOND V. BROWN, Plaintiff,
DR. PARTHASARATHI GHOSH; DR. LIPING ZHANG; and WEXFORD HEALTH SOURCES, INC., Defendants.
OPINION AND ORDER
WILLIAM T. HART, District Judge.
During the times relevant to this lawsuit, plaintiff Raymond Brown was incarcerated at Stateville Correctional Center in Illinois. He alleges that defendants acted with deliberate indifference to his serious medical needs: left knee pain, right elbow pain, and cysts on his legs. Named as defendants are then-Stateville medical staff members: staff physician Liping Zhang and Medical Director Parthasarathi Ghosh. Also named as a defendant is Wexford Health Sources, Inc., which employed Zhang and Ghosh and contracted with the Department of Corrections ("DOC") to provide medical services at Stateville. Defendants have moved for summary judgment dismissing all remaining claims. Plaintiff is represented by counsel.
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 n.1 (2009); Malen v. MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010); Stokes v. Bd. of Educ. of City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324; Freundt v. Allied Tube & Conduit Corp., 2007 WL 4219417 *2 (N.D. Ill. Nov. 29, 2007); O'Brien v. Encotech Constr., 2004 WL 609798 *1 (N.D. Ill. March 23, 2004). Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588, 594-95 (7th Cir. 2007); Yasak v. Ret. Bd. of Policemen's Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir. 2004); Lampley v. Mitcheff, 2010 WL 4362826 *6 (N.D. Ind. Oct. 27, 2010). As the Seventh Circuit has summarized:
The party moving for summary judgment carries the initial burden of production to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by "showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be material.'" Logan, 96 F.3d at 978. "Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether the nonmovant has identified a "material" issue of fact for trial, we are guided by the applicable substantive law; "[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is "genuine" for summary judgment purposes only when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986). Hence, a "metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and "the nonmovant fails to demonstrate a genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party....'" Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986)).
Outlaw, 259 F.3d at 837.
Local Rule 56.1 sets forth certain procedures for summary judgment motions. The movant is to file a properly supported statement of facts consisting of numbered paragraphs. L.R. 56.1(a)(3). The nonmovant is to provide a paragraph-by-paragraph response to the movant's statement. L.R. 56.1(b)(3)(B). Further, the nonmovant may provide a statement of additional facts. L.R. 56.1(b)(3)(C). It is within the court's discretion as to how strictly to apply Local Rule 56.1. As long as the facts are presented in a manageable form, this bench generally will exercise its discretion to not strictly enforce the requirements of Local Rule 56.1. See Franchini v. Uchicago Argonne, LLC, 2013 WL 4779184 *2 (N.D. Ill. Sept. 5, 2013); see also Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 409 (7th Cir. 2009); Bordelon v. Chicago Sch. Reform Bd. of Tr., 233 F.3d 524, 527 (7th Cir. 2000). Defendants contend that plaintiff violates Local Rule 56.1(b)(3) by including additional facts in his response to defendants' fact statement instead of setting them out in a separate statement of additional facts.
[T]he phrase "additional facts" [as used in Local Rule 56.1(b)(3)(C)] does not mean all facts other than the facts asserted by the movant's Local Rule 56.1(a)(3) statement, but rather only those additional facts that are not intended to show that the movant's asserted facts are disputed. Local Rule 56.1(b)(3)(B) provides that the non-moving party should offer factual responses, along with record citations supporting those responses, that controvert the movant's statements of fact, and that the non-movant must limit those factual responses to facts that are indeed responsive to the movant's assertion-that is, to facts that fairly contradict what the movant has actually asserted. If the non-movant wants to assert facts that go beyond what is fairly responsive to the movant's factual assertion, then he must do so not in his Local Rule 56.1(b)(3)(B) response, but in his "statement... of any additional facts that require denial of summary judgment" under Local Rule 56.1(b)(3)(C). See Johnson v. Cnty. of Cook, 2012 WL 2905485, at *12 (N.D. Ill. July 16, 2012) ("It is inappropriate for a non-movant to include additional facts, meaning facts extraneous to the substance of the paragraph to which the non-movant is responding, in a Local Rule 56.1(b)(3)(B) response. Rather, Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate statement under Local Rule 56.1(b)(3)(C) of any additional facts that require the denial of summary judgment.") (first emphasis added, citations and internal quotation marks omitted). The line between a responsive fact that should be included in a Local Rule 56.1(b)(3)(B) response and an extraneous fact that must be stated in a Local Rule 56.1(b)(3)(C) statement is not always bright., ...
Levin v. Grecian, 974 F.Supp.2d 1114, 1117-18 (N.D. Ill. 2013). See also Franchini, 2013 WL 4779184 at *2-3; Spitz v. Proven Winners N. Am., LLC, 969 F.Supp.2d 994, 998-99 (N.D. Ill. 2013).
Here, plaintiff may stray on occasion, but plaintiff's response certainly is not an egregious violation of limits on additional facts. While not required to do so, nothing in Local Rule 56.1 precluded filing a response to plaintiff's Local Rule 56.1(b)(3)(B) statement so defendants could have responded if they had wanted to do so. See Franchini, 2013 WL 4779184 at *3; Spitz, 969 F.Supp.2d at 998-99. All of plaintiff's responses will be considered.
Defendants also contend that some of plaintiff's asserted facts are not supported by citations to an admissible form of evidence. To the extent that is true, such factual assertions have not been credited. Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiff's favor, the facts taken as true for purposes of ruling on defendants' motion for summary judgment are as follows.
In December 2008, for the first time at Stateville, plaintiff began requesting medical care for pain in his right elbow and left knee, as well as swelling in the knee. He described the pain in his knee as not as sharp as it had been when he had overextended it ten years earlier. He would particularly notice the pain when he knelt for prayers. The pain affected plaintiff's ability to sleep. Plaintiff was concerned that he may have pulled, fractured, or strained something in his elbow.
Medical Technicians ("med techs") are responsible for processing sick call requests. Med techs are employees of the Illinois Department of Corrections ("IDOC"), not Wexford employees. There is no evidence that, in response to the December 2008 sick call request, a med tech scheduled an appointment for plaintiff at the Health Care Unit ("HCU") or forwarded the request to Zhang, Ghosh, or any other Wexford employee. Beginning in early 2009, plaintiff submitted requests for treatment addressed to defendant Ghosh. The first time plaintiff was seen regarding his elbow and knee was in July 2009. Prior to that, he had submitted at least two requests addressed directly to Ghosh. No evidence is submitted specifically showing that Ghosh had actually received those requests. However, plaintiff testified that he sent such requests to Ghosh and used an internal method for having the letters/requests delivered to Ghosh. It is a reasonable inference that Ghosh received the letters/requests, see Wilson v. Ghosh, 2013 WL 5818602 *1-2 (N.D. Ill. Oct. 29, 2013), and, since that inference favors plaintiff, it must be drawn on defendants' summary judgment motion.
In February 2009, plaintiff noticed lumps on his leg that were spreading. The lumps caused him pain and interfered with his sleep. Plaintiff was fearful that the lumps might be cancer.
After a couple sick call requests regarding the lumps and not being seen by a doctor, plaintiff submitted a March 8, 2009 emergency grievance complaining about not being seen for the lumps, as well as the knee and elbow. The Warden's office determined the grievance was not an emergency. On March 15, plaintiff's ...