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Klein v. Wexford Health Sources, Inc.

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

June 11, 2019

DAVID KLEIN, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., SALEH OBAISI, STEPHEN RITZ, and KUL SOOD, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge

         In this suit under 42 U.S.C. § 1983, David Klein alleges that Wexford Health Sources, Inc. and Wexford doctors Saleh Obaisi, Stephen Ritz, and Kul Sood violated the Eighth Amendment in connection with the medical care he received in prison. Doc. 9. The court recruited counsel for Klein, Doc. 4 (Shadur, J.), and then dismissed certain of his claims, Doc. 24 (Shadur, J.); Doc. 44. Trial is set for August 12, 2019. Doc. 95. Wexford, Ritz, and Sood move for summary judgment on all remaining claims. Doc. 74. The motion is granted as to Wexford and Ritz and denied as to Sood. Klein's claims against Obaisi, who died in December 2017, Doc. 57-1, are dismissed under Civil Rule 25(a)(1).

         Background

         A. Klein's Noncompliance with Local Rule 56.1(b)(3)

         Consistent with Local Rule 56.1, Defendants filed a Local Rule 56.1(a)(3) statement of undisputed facts along with their summary judgment motion. Doc. 76. The factual assertions in the Local Rule 56.1(a)(3) statement cite evidentiary material in the record and are generally supported by the cited material. See N.D. Ill. L.R. 56.1(a) (“The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.”). If Klein wished to oppose summary judgment, Local Rule 56.1 required him to file:

(1) any opposing affidavits and other materials referred to in Fed.R.Civ.P. 56(e); (2) a supporting memorandum of law; and (3) a concise response to [Defendants' Local Rule 56.1(a)(3)] statement that shall contain: (A) numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to which it is directed, and (B) 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 (C) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

N.D. Ill. L.R. 56.1(b).

         Rather than filing a separate Local Rule 56.1(b)(3)(B) response or Local Rule 56.1(b)(3)(C) statement of additional facts, Klein included in his Local Rule 56.1(b)(2) memorandum of law forty-one paragraphs of factual assertions. Doc. 85 at ¶¶ 6-46. Because those forty-one paragraphs do not reference or correspond with Defendants' Local Rule 56.1(a)(3) statement, they do not satisfy Local Rule 56.1(b)(3)(B)-which, as just noted, required Klein to file a “concise … response to each numbered paragraph in [Defendants'] statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” N.D.Ill. L.R. 56.1(b)(3)(B). The court need not and will not attempt to map Klein's forty-one paragraphs of factual assertions onto the factual assertions in Defendants' Local Rule 56.1(a)(3) statement to determine whether he has adduced a genuine dispute of material fact as to Defendants' assertions; that is the function of a properly constructed Local Rule 56.1(b)(3)(B) response. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015) (“The purpose of [Local] Rule 56.1 is to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination. It is the litigants' duty to clearly identify material facts in dispute and provide the admissible evidence that tends to prove or disprove the proffered fact. A litigant who denies a material fact is required to provide the admissible evidence that supports his denial in a clear, concise, and obvious fashion, for quick reference of the court.”); Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“Because of the important function that local rules like [Local] Rule 56.1 serve in organizing the evidence and identifying disputed facts, we have consistently upheld the district court's discretion to require strict compliance with those rules. … [Local] Rule [56.1(b)(3)(B)] required [the non-movant] to admit or deny each factual statement proffered by [the movant].”) (internal quotation marks omitted); FTC v. Bay Area Bus. Council, 423 F.3d 627, 633 (7th Cir. 2005) (“We are hard-pressed to see how [the] affidavit could constitute compliance with [Local] Rule 56.1. … [The] affidavit in no way constitutes a concise response to each numbered paragraph in the [Local Rule 56.1(a)(3)] statement.”) (alteration and internal quotation marks omitted); Mortera v. Target Corp., 2018 WL 3753301, at *1-2 (N.D. Ill. Aug. 8, 2018) (citing cases); Olivet Baptist Church v. Church Mut. Ins. Co., 2016 WL 772787, at *1-2 (N.D. Ill. Feb. 29, 2016) (citing cases), aff'd, 672 Fed.Appx. 607 (7th Cir. 2017). Accordingly, the factual assertions in Klein's memorandum of law do not qualify as a Local Rule 56.1(b)(3)(B) response and thus do not controvert Defendants' Local Rule 56.1(a)(3) statement. See N.D. Ill. L.R. 56.1(b)(3)(C) (“All material facts set forth in the [Local Rule 56.1(a)(3)] statement … will be deemed to be admitted unless controverted by the [Local Rule 56.1(b)(3)(B)] statement of the opposing party.”).

         Defendants contend that the court should not consider Klein's factual assertions to constitute a Local Rule 56.1(b)(3)(C) statement because they do not “consis[t] of short numbered paragraphs[] of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.” Doc. 89 at 2 (quoting N.D.Ill. L.R. 56.1(b)(3)(C)). Although some of Klein's forty-one paragraphs are not “short” and do not “referenc[e]” the summary judgment record, ibid., the court will deem those paragraphs to be a Local Rule 56.1(b)(3)(C) statement and address Defendants' objections on a paragraph-by-paragraph basis. See Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015) (affirming the district court's discretion, when confronted with a largely noncompliant Local Rule 56.1(b)(3)(B) response, to deem admitted “[42] of the [47] enumerated paragraphs in Defendants' [Local Rule 56.1(a)(3)] statement” rather than to categorically disregard the Local Rule 56.1(b)(3)(B) response). That said, “[b]ecause the only proper vehicle for disputing factual assertions in [the movant's] Local Rule 56.1(a)(3) statement is a Local Rule 56.1(b)(3)(B) response, ” the assertions in Klein's Local Rule 56.1(b)(3)(C) statement will be “disregard[ed] … to the extent those assertions conflict” with the assertions in Defendants' Local Rule 56.1(a)(3) statement, which are deemed admitted due to Klein's failure to file a Local Rule 56.1(b)(3)(B) response. Rodriguez v. City of Berwyn, 2018 WL 5994984, at *1 (N.D. Ill. Nov. 15, 2018); see also Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008) (affirming the district court's “refus[al] to consider [the] [Local Rule 56.1(b)(3)(B)] response” where the non-movant “did not separate his proposed facts from his responses to [the movant's] proposed material facts”) (internal quotation marks omitted); Olivet Baptist Church, 2016 WL 772787, at *1-2 (deeming admitted the facts asserted in the defendant's Local Rule 56.1(a)(3) statement where the plaintiff did not file a Local Rule 56.1(b)(3)(B) response and instead attempted to treat its Local Rule 56.1(b)(3)(C) statement as a response to the Local Rule 56.1(a)(3) statement).

         As Defendants correctly observe, ¶¶ 6-7 of Klein's Local Rule 56.1(b)(3)(C) statement do not cite record evidence to support their factual assertions, and the record evidence that ¶ 8 cites does not support that paragraph's factual assertions. Doc. 89 at pp. 3-4, ¶¶ 6-8. The court therefore disregards ¶¶ 6-8 of Klein's Local Rule 56.1(b)(3)(C) statement. See Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 710-11 (7th Cir. 2015) (“[The non-movant] failed to cite or submit evidence in support of nearly all of the additional facts he asserted. … Accordingly, the district court did not abuse its discretion in disregarding the facts contained in [the non-movant's] statement of additional facts that were not supported by proper citations to the record.”); Bryant v. Bd. of Educ., Dist. 228, 347 Fed.Appx. 250, 253 (7th Cir. 2009) (“The district court was entitled to disregard those assertions in [the non-movant's] proposed statement of facts that violated Local Rule 56.1 by not being properly supported … .”). Additionally, although Klein appended to his summary judgment response eight sworn statements from other inmates, Doc. 85-1, he references those materials only in his legal argument and not in his Local Rule 56.1(b)(3)(C) statement, and even in his legal argument fails to specify any particular witness or averment, Doc. 85 at ¶ 50. By not “identifying the [particular witness] or the specific page number(s) on which the asserted fact can be found, ” and by not presenting the inmate statements via his Local Rule 56.1(b)(3)(C) statement, Klein failed to deploy them in compliance with Local Rule 56.1(b)(3)(C), and so the court disregards them. Friend, 789 F.3d at 710-11; see also Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015) (“This court has repeatedly held that the district court is within its discretion to strictly enforce compliance with its local rules regarding summary-judgment motions, including by disregarding evidentiary documents because a required statement of facts was not filed. … District courts are not obliged to scour the record looking for factual disputes.”) (citations omitted); Koszola v. Bd. of Educ. of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004) (“[T]he district court did not abuse its discretion in limiting its review to the content of the parties' Local Rule 56.1 statements, excluding from consideration [the non-movant's] attached affidavits.”), overruled in other part by Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764-65 (7th Cir. 2016).

         Defendants also argue that the court should disregard the sections of Klein's Local Rule 56.1(b)(3)(C) statement that rely on Klein's deposition testimony, Sood's deposition testimony, Ritz's deposition testimony, and Dr. James Klemens's testimony and records. Doc. 89 at 2. By failing to specify which paragraphs of Klein's statement are noncompliant with Local Rule 56.1(b)(3)(C) and why, Defendants have forfeited their objection. See Wine & Canvas Dev., LLC v. Muylle, 868 F.3d 534, 538 (7th Cir. 2017) (considering objections that were “wholly unsupported by developed argument citing the record and supporting authority” to be “forfeited”).

         The court will not excuse Klein's noncompliance with Local Rule 56.1(b)(3). The Seventh Circuit “has consistently upheld district judges' discretion to require strict compliance with Local Rule 56.1.” Flint, 791 F.3d at 767 (collecting cases); see also Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016) (same); Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (same, collecting cases); 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.”). Accordingly, because Klein failed to respond under Local Rule 56.1(b)(3)(B) to Defendants' Local Rule 56.1(a)(3) statement, the court deems admitted the Local Rule 56.1(a)(3) statement's factual assertions “to the extent the facts [a]re supported by admissible and docketed evidence.” Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 411 (7th Cir. 2019) (“According to well-established Seventh Circuit law, [the non-movant's] noncompliance [with Local Rule 56.1(b)(3)(B)] meant that the district court could exercise its discretion to accept [the movant's] statements of fact as undisputed.”) (internal quotation marks omitted); see also Olivet Baptist Church v. Church Mut. Ins. Co., 672 Fed.Appx. 607, 607 (7th Cir. 2017) (“The district court treated most of the [movant's] factual submissions as unopposed, because the [non-movant] failed to contest them in the form required by Local Rule 56.1(b). We have held that the district court is entitled to enforce that rule in precisely the way it enforced the rule in this litigation.”); Curtis, 807 F.3d at 218 (“When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”) (quoting Cracco, 559 F.3d at 632); Keeton v. Morningstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012) (similar).

         That said, the court is mindful that “a nonmovant's failure to respond to a summary judgment motion, or failure to comply with Local Rule 56.1, does not … automatically result in judgment for the movant[s]. [The movants] must still demonstrate that [they are] entitled to judgment as a matter of law.” Keeton, 667 F.3d at 884 (internal quotation marks omitted). Accordingly, the court will recite the facts as favorably to Klein as the record and Local Rule 56.1 permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). At this juncture, the court must assume the truth of those facts, but does not vouch for them. See Donley v. Stryker Sales Corp., 906 F.3d 635, 636 (7th Cir. 2018).

         B. ...


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