Rankin v. Baker et al
Filing
64
OPINION entered by Chief Judge James E. Shadid on 3/7/2018. IT IS THEREFORE ORDERED: 1. The second motion for an extension of the dispositive motion by Defendants Baker, et al., is denied as moot (d/e 52) because the third motion for an extension was granted. 2. Defendants' motions for summary judgment are granted. (d/e's 43, 59.) The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. All other pending motions, if any, are denied as moot, a nd this case is closed, with the parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated, including the jury trial set for May 1, 2018. 3. If Plaintiff wishes to appeal this judgment, he must file a notic e of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis should identify the issues Plaintiff will present on appeal. See Fed. R. App. P. 24(a)(1)(c). If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee regardless of the outcome of the appeal. See full written Order. Civil Case Terminated.(VH, ilcd)
E-FILED
Wednesday, 07 March, 2018 11:24:14 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SWAYSEY RANKIN,
Plaintiff,
v.
DR. BAKER,
JEFF KORTE,
WEXFORD HEALTH SOURCES,
INC., and JOHN R. BALDWIN,
Defendants.
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16-CV-3138
OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff, proceeding pro se, claims that he was delayed
treatment for his folliculitis, knee pain, and nasal congestion at
Western Illinois Correctional Center (Western), conditions which
Plaintiff had received treatment for at Stateville Correctional Center
before his transfer to Western. Plaintiff contends that Defendants
knew that he had tried repeatedly to sign up for sick call at Western
to no avail and did nothing to ensure Plaintiff’s access to sick call.
Defendants move for summary judgment, to which Plaintiff
has responded. The Wexford Defendants still have time to file a
reply, but a reply is not necessary. Construing all inferences in
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Plaintiff’s favor, summary judgment must still be granted to
Defendants. The procedure for seeking medical treatment for
Plaintiff’s conditions, all of which were non-urgent, was to sign up
for sick call. Plaintiff’s vague assertions that unidentified officers
refused or failed to sign Plaintiff up for sick call is not enough at
this stage to show an actual problem with the sick call process or to
show that Defendants were personally aware of an actual problem.
Summary Judgment Standard
"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 nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed. R. Civ. P. 56(c)(B). If the movant
clears this hurdle, the nonmovant 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
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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, the evidence is viewed in the
light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant'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
nonmovant. Id.
Facts
Plaintiff was incarcerated in the Stateville Correctional Center
before Plaintiff’s transfer to Western in February 2015. In
Stateville, Plaintiff was treated for folliculitis, chronic knee pain,
and nasal congestion/allergies. For example, in August 2014,
Plaintiff was prescribed an ice permit, knee sleeve, Naprosyn, and a
low bunk for complaints of right knee pain, caused by an old
basketball injury and knee surgery in 2008. (8/22/14 Stateville
Progress Note, d/e 53; 8/28/14 Transfer Summary, d/e 53; Pl.’s
Dep. 28-29.) Also in August 2014, Plaintiff was prescribed
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Loratadine, a substitute for Claritin, for complaints of nasal
congestion, as well as triamcinolone ointment, benzoyl peroxide gel,
and T/Gel shampoo for a recurrent scalp condition that caused
“painful . . . blisters, nodules, and lesions . . . .” (Stateville Med.
Admin. Record, Sept. 2014, d/e 53, p. 17; Am. Compl. ¶ 9; Pl.’s
Dep. 32.) According to Defendant Dr. Baker, Plaintiff’s scalp
condition is called folliculitis, “an inflammation of the hair follicles
that can be caused by bacteria, yeast, or other types of fungus.”
(Dr. Baker Aff. ¶ 10.) The severity can range from mild to severe. Id.
Plaintiff had from time to time received oral antibiotics during flareups of his folliculitis at Stateville. (Pl.’s Dep. 32-33.)
Plaintiff was transferred from Stateville to Western in February
2015. His T/Gel shampoo and ointment, per procedure, were taken
out of Plaintiff’s property box on transfer, and he did not receive
replacements. (Pl.’s Dep. 33.) Plaintiff’s transfer summary listed
Plaintiff’s hypertension as a chronic condition and Plaintiff’s longterm medicines as hydrochlorothiazide (for Plaintiff’s high blood
pressure) and Claritin (for Plaintiff’s nasal congestion). Plaintiff’s
knee pain and folliculitis were not listed as conditions. (2/25/15
Transfer Summary, d/e 59-7.) Labs were ordered, and Plaintiff was
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placed on the chronic hypertension clinic. Plaintiff continued to
receive his high blood pressure medicine after his transfer to
Western and received a 30-day supply of Claritin. Plaintiff’s
understanding from discussions with unnamed medical staff on
intake was that Plaintiff would be seen by a doctor in 3-4 days
about Plaintiff’s three medical problems—knee pain, folliculitis, and
nasal congestion. (Pl.’s Dep. 38; Pl. Aff., d/e 53, p. 33.)
Plaintiff contends that prior transfer summaries did list
Plaintiff’s scalp and knee problems. (10/6/14 transfer summary,
d/e 63-2; 2/16/13 transfer summary, d/e 59-3, p. 9.)1 However,
Plaintiff does not dispute that the transfer summary for Plaintiff’s
transfer to Western did not list these problems.
On March 9, 2015, Defendant Dr. Baker, then the Medical
Director at Western, saw Plaintiff at the hypertension clinic.
Plaintiff contends that he asked Dr. Baker to treat Plaintiff’s
folliculitis, knee pain, and nasal congestion by continuing the
treatments Plaintiff had received in Stateville. Plaintiff maintains
1 Plaintiff contends that just one month before he saw Dr. Baker in 2015 a transfer summary
stated that Plaintiff had open sores and wounds on his scalp. Plaintiff’s cite, though, refers to
a transfer summary dated 2/16/2013, two years before Plaintiff saw Dr. Baker. In any event,
the Court is assuming that Plaintiff’s scalp condition needed treatment. The question in this
case is whether Defendants acted reasonably in relying on the sick call procedure to address
that condition.
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that he told Dr. Baker that he was in “pain, unbearable pain to the
point where I’m unable to sleep as well as I would like to” and that
he could not “even lay my head a certain way because the folliculitis
had swollen up so bad.” (Pl.’s Dep. 39.) Plaintiff also contends that
he was noticeably limping and told Dr. Baker of excruciating pain in
Plaintiff’s knee, as well as sneezing and coughing up blood due to
his nasal congestion. (Am. Compl. ¶¶ 31-32.)
According to Plaintiff, Dr. Baker responded that only Plaintiff’s
hypertension would be addressed at this visit, (Pl.’s Dep. 38), which
is consistent with Dr. Baker’s averment that he generally addresses
only a patient’s hypertension at the hypertension clinic, unless a
patient has an emergent medical need. (Dr. Baker’s Aff. ¶ 9.)
Dr.
Baker, according to Plaintiff, told Plaintiff to sign up for sick call.
(Pl.’s Dep. 50.)
Dr. Baker maintains that Plaintiff did not complain of other
medical problems at the hypertension clinic but that, in any event,
Plaintiff’s folliculitis, knee pain, and nasal congestion were not
urgent issues and could have been appropriately treated through
sick call. (Dr. Baker’s Aff. ¶¶ 7, 10.) Dr. Baker avers that inmates
can sign up for sick call in their housing units, which is conducted
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daily. (Dr. Baker Aff. ¶ 8.) Dr. Baker does not explain exactly how
an inmate signs up for sick call, but, according to Plaintiff, an
inmate asks an officer to put the inmate’s name on the sick call list,
and the officer adds that inmate’s name to a list kept on a clip
board in the foyer or control room. (Pl.’s Dep. 26.) A nurse then
sees patients at sick call and refers them to the doctor if necessary.
(Korte Ans. Interr. 8, d/e 44-4, p. 5.) Plaintiff contends that
sometimes officers forget to sign an inmate up for sick call, and that
the medical staff have up to 72 hours to see an inmate after he is
signed up for sick call. (Pl.’s Dec. ¶ 3., d/e 63-2, p. 5.) According
to a response to one of Plaintiff’s grievances, a $5.00 copay is
required to see the nurse at sick call, but no fee is charged for visits
to the chronic hypertension clinic. (d/e 1, p. 9.) Plaintiff contends
that he told Dr. Baker at the March 9 visit that he had tried three
times to sign up for sick call without success. (Pl.’s Dec. ¶ 9, d/e
63-2, p. 5.)
The March 9 visit at the hypertension clinic was Dr. Baker’s
first and last time he examined Plaintiff. Plaintiff contends that Dr.
Baker did later consult with Plaintiff about hypertension issues, but
Plaintiff cites only a paragraph in Plaintiff’s affidavit which states
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that Dr. Baker told Plaintiff to put in for sick call. (Pl.’s Dec. ¶ 8,
d/e 63-2, p. 5.)
Plaintiff contends that for months—from March to September
2015— he repeatedly asked officers on his housing unit to sign him
up for sick call and also dropped notes in the medication refill box
on the housing unit. (Pl.’s Dep. 23-24, 26, 40-41.) Plaintiff
maintains that at times officers said Plaintiff would be put on the
list when Plaintiff showed his identification card and was wearing
his “state-issued blues,” which Plaintiff did not understand. (Pl.’s
Dep. 44.) Whether an identification card and certain attire is
necessary to sign up for sick call is not explained. Plaintiff also
maintains that, after filing grievances, he wrote Dr. Baker several
letters asking to be placed on sick call and for medical help. (Pl.’s
Dec. ¶ 12, d/e 63-2, p. 5.)
In addition to trying to sign up for sick call, Plaintiff filed
grievances in March, April, May, and June, complaining about his
problems signing up for sick call. (Pl.’s Grievances, d/e 53, pp. 2632.). Plaintiff also complained in the grievances about Dr. Baker’s
refusal to treat Plaintiff for anything other than hypertension at the
hypertension clinic on March 9. Plaintiff asked for a change in the
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sick call protocol to require doctors to treat inmates for all medical
problems (presumably at the chronic care clinics) without requiring
a co-pay. (d/e 53, p. 26.) Plaintiff received no responses at all to
some of his grievances, (Pl.’s Dep. 48), but the responses he did
receive instructed Plaintiff to sign up for sick call, reported that
Plaintiff’s chart showed no record of any attempt to sign up for sick
call, and told Plaintiff that the sick call co-pay was required by
State law. (d/e 1, p. 9; d/e 53, p. 31; d/e 1, p. 14) One response
told Plaintiff that he could sign up for nurse sick call with the foyer
officer and that Plaintiff must be properly dressed upon entering the
foyer. (d/e 1 p. 12.)
Defendants offer in support of their motion all the daily sick
call sign-up sheets from Plaintiff’s housing units during the relevant
times. (Sick Call Logs attached to d/e 59 and filed under seal at
d/e 62 with unredacted names.) There are over 200 pages, most of
them listing several inmates who were signed up for sick call each
day, along with a staff member name, apparently of the staff
member who signed up the inmate, though that is not explained.
There is also a column titled “disposition,” which appears to be
completed by the health care staff. What is clear is that Plaintiff’s
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name is not on any of these lists, and Defendants have no record
that Plaintiff actually requested to be placed on the sick call list
during this time period.
Plaintiff maintains that on one occasion he spoke to Defendant
Korte (the Warden), and showed Warden Korte the blood and puss
on Plaintiff’s pillow from Plaintiff’s folliculitis. According to Plaintiff,
Warden Korte said he “would look into it,” but nothing happened.
(Pl.’s Aff., d/e 53, p. 33.) Plaintiff says he spoke directly to
Defendant Korte on other occasions, telling Defendant Korte about
Plaintiff’s unavailing requests to go to sick call. According to
Plaintiff, Defendant Korte assured Plaintiff that he would be called
for sick call. (Pl.’s Dep. 22.) Plaintiff also wrote a letter to
Defendant Baldwin, the IDOC Director, but received no response.
(Pl.’s Aff., d/e 53, p. 33.) Plaintiff offers the affidavits of several
inmates who observed bumps on Plaintiff’s head discharging pus
and blood, saw Plaintiff limping, and heard Warden Korte say he
would look into it. (Pl.’s Aff., d/e 53, pp. 34-37.) Defendant Korte
does not recall speaking with Plaintiff but acknowledges that it is
possible. (Korte Answer Interr. 23, d/e 44-4, p. 20.)
Page 10 of 19
On September 8, 2015, Dr. Baker stopped working as the
Medical Director of Western. About two weeks later, on September
24, 2015, a nurse practitioner prescribed T/Gel shampoo and
triamcinolone ointment2 to Plaintiff, which helped Plaintiff’s
folliculitis. (9/24/15 Medical Progress Note, d/e 59-14, p. 11; Pl.’s
Dep. 35.) The parties do not explain how Plaintiff came to see a
nurse practitioner on September 24, but it appears that Plaintiff
saw the nurse practitioner at the chronic hypertension clinic.
Unlike Dr. Baker, then, the nurse practitioner apparently did agree
to treat Plaintiff for something other than his hypertension at the
hypertension clinic. Plaintiff appeared to be in segregation on this
date, so perhaps that made a difference in the conditions the nurse
practitioner decided to treat. Later, on some unidentified date after
Plaintiff’s visit with the nurse practitioner, Dr. Butler, who is not a
Defendant, prescribed Ibuprofen, which helped the pain in
Plaintiff’s knee and on his scalp. (October 2015 Medication
Administration Record, d/e 59-19, p. 2.) Plaintiff had not bought
Tylenol or Ibuprofen at the commissary because the dosage
According to webmd.com, triamcinolone acetonide cream is a corticosteroid used to treat a
variety of skin conditions. (www.webmd.com, last visited 2/28/
2
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available at the commissary was not strong enough to reduce the
pain. (Pl.’s Dep. 35-36.) Plaintiff also received a prescription for
Claritin on or around November 3, 2015, to address Plaintiff’s
complaints of nasal congestion. (November 2015 Medication
Administration Record, d/e 59-19, p. 3.)
Analysis
Deliberate indifference to a serious medical need violates an
inmate’s Eighth Amendment right to be free from cruel and unusual
punishment. The medical need must be objectively serious, and
Defendants must be deliberately indifferent to that need. Pyles v.
Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
Defendants argue that Plaintiff’s medical needs were not
objectively serious. The Court agrees as to Plaintiff’s nasal
congestion—which Plaintiff described as not being able to breathe
out of one of his nostrils from time to time. (Pl.’s Dep. 30.) See
Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997)(not “every ache
and pain or medically recognized condition involving some
discomfort can support an Eighth Amendment claim.”) No evidence
suggests that Plaintiff’s ability to function was hampered in any
significant way because of his nasal congestion, or that the
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congestion caused chronic and substantial pain. That other
medical professionals prescribed Plaintiff with Claritin does not
transform Plaintiff’s nasal congestion into an objectively serious
medical need. Plaintiff now believes that his nasal condition was
related to sleep apnea, which was purportedly diagnosed after
Plaintiff filed this case, (Pl.’s Dep. 30), but sleep apnea is not a
claim in this case.
Plaintiff’s folliculitis and knee pain warrant a different
conclusion. Drawing inferences in Plaintiff’s favor, his knee pain
arguably amounted to a serious medical condition, even though the
pain was treatable with an over-the-counter medicine. See Diaz v.
Godinez, 693 F’Appx. 440 (7th Cir. 2017)(not published in
F.Rptr.)(“[T]urning a blind eye to a prisoner's complaints of readily
treatable pain can constitute an Eighth Amendment violation, even
if the condition is not life–threatening and the failure to treat does
not exacerbate the condition.”). Plaintiff says his knee pain was
“excruciating” and made him limp—a rational juror might find that
kind of pain is a serious medical need. With regard to Plaintiff’s
folliculitis, a rational juror could find that painful bumps on the
scalp draining pus and blood is a serious medical need. Folliculitis
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can range from mild to severe in Dr. Baker’s own words. Accepting
Plaintiff’s description, his folliculitis at the time arguable fell on the
latter side.3
No rational juror could find, though, that Defendants were
deliberately indifferent. Deliberate indifference is the conscious
disregard of a known, serious medical need. See Petties v. Carter,
836 F.3d 722 (2016).
Defendants Wexford Health Sources, Inc. (Wexford), and John
Baldwin, the IDOC Director, can be disposed of quickly. Wexford
can be liable only if its policy or practice caused the lack of medical
care, and there is no evidence of that here. See Woodward v.
Correctional Medical Services of Illinois, Inc., 368 F.3d 917 (7th Cir.
2004)(corporate practice or policy must be moving force behind
constitutional violation). Wexford is not liable solely because it
employs Dr. Baker. Collins v. Al-Shami, 851 F.3d 727, 734 (7th
Cir. 2017)(“Under existing precedent, neither public nor private
entities may be held vicariously liable under § 1983.”) As to
3 Plaintiff asserts that his scalp condition was diagnosed as a serious condition in 2009 and
2011, and also in a case he pursued in the Northern District of Illinois in 2011. Plaintiff also
points to 2013 medical records showing treatment for Plaintiff’s scalp condition. Plaintiff’s
scalp condition in 2009, 2011, and 2013, do not show his condition in February 2015. In any
event, the Court is assuming Plaintiff’s scalp condition was a serious medical need.
Page 14 of 19
Defendant Baldwin, the IDOC Director, Plaintiff’s letter to Baldwin
in September 2015 is not enough to find Defendant Baldwin
personally responsible for the alleged lack of medical attention.
Defendant Baldwin is not liable solely because he is in charge.
Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir.
2012)(“To show personal involvement, the supervisor must ‘know
about the conduct and facilitate it, approve it, condone it, or turn a
blind eye for fear of what they might see.’”)(quoted cite omitted);
Soderbeck v. Burnett County, 752 F.2d 285, 293 (7th Cir.
1985)(“Failure to take corrective action cannot in and of itself
violate section 1983. Otherwise the action of an inferior officer
would automatically be attributed up the line to his highest
superior . . . .”).
Defendants Dr. Baker and Warden Korte require more
discussion but with the same conclusion.
Dr. Baker saw Plaintiff only once, a few weeks after Plaintiff
transferred to Pontiac. No evidence suggests that Dr. Baker’s
determination that Plaintiff’s medical needs could wait for Plaintiff
to visit sick call was outside the range of acceptable professional
approaches. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
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2011)(deliberate indifference arises “‘if the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards, as to demonstrate
that the person responsible actually did not base the decision on
such a judgment.’”)(quoting Sain v. Wood, 512 F.3d 886, 894-95
(7th Cir. 2009). Plaintiff’s disagreement with Dr. Baker’s
assessment is not enough to infer deliberate indifference. Pyles v.
Fahim, 771 F.3d 403, 410 (7th Cir. 2014)(“Disagreement between a
prisoner and his doctor, or even between two medical professionals,
about the proper course of treatment generally is insufficient, by
itself, to establish an Eighth Amendment violation.”). Additionally,
Dr. Baker’s general approach to addressing only hypertension
issues at the hypertension clinic is not deliberate indifference. That
a different medical provider chose to address Plaintiff’s folliculitis at
the next hypertension clinic six months later also does not allow an
inference of deliberate indifference against Dr. Baker.
The crux of this case is Plaintiff’s claim that he repeatedly
tried to sign up for sick call to no avail. Intentionally denying an
inmate access to medical care may arise to deliberate indifference.
Petties v. Carter, 836 F.3d 722 n.1 (7th Cir. 2016). However, the
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officers responsible for signing Plaintiff up for sick call would be the
ones liable for failing or refusing to do so, not the named
Defendants in this case. Plaintiff does not identify any of those
officers, nor does he share any specifics about the dates or
circumstances under which he tried to sign up for sick call.
Plaintiff’s grievances, in addition to mentioning his vague efforts to
sign up for sick call, complained of Dr. Baker’s handling of the
March 9 visit, having to go to sick call at all, the co-pay requirement
for sick call, and being told he must wear his “state issued blues” in
the foyer to sign up for sick call. (d/e 1, pp. 11, 13, 16, 18.) One
gets the sense that this case is more about Dr. Baker’s refusal to
consider Plaintiff’s other medical problems at the free hypertension
clinic rather than Plaintiff’s ability to sign up for sick call. Plaintiff
has the burden of proving his case—vague allegations that he tried
to sign up for sick call are not enough at this stage.
Even if unidentified officers did refuse or fail to sign Plaintiff
up for sick call for months, that would not be enough to impute
liability to Dr. Baker or Warden Korte. Dr. Baker and Warden Korte
must have actually known that officers were refusing or failing to
sign Plaintiff up for sick call. Plaintiff’s vague say-so is not enough
Page 17 of 19
in light of the evidence that the sick call process was working as
designed. It is undisputed that inmates could sign up for sick call
on the housing units. The sick call logs bear that out—inmates on
Plaintiff’s unit signed up nearly every day. To anyone who looked
into the matter, the sick call process would have appeared to be
working properly, which is the implicit conclusion in the grievance
responses approved by Warden Korte. Warden Korte’s purported
statements that he would look into it and assurance that Plaintiff
be called for sick call list does not change that conclusion. Plaintiff
has no evidence that these purported statements meant that
Warden Korte would himself place Plaintiff on the sick call list or
simply ensure that the sick call procedures were working and
available to Plaintiff. In short, there is just not enough here for a
rational juror to find that Dr. Baker or Warden Korte acted
unreasonably in relying on the sick call procedure to address
Plaintiff’s medical complaints.
IT IS THEREFORE ORDERED:
1. The second motion for an extension of the dispositive motion
by Defendants Baker, et al., is denied as moot (d/e 52)
because the third motion for an extension was granted.
Page 18 of 19
2. Defendants’ motions for summary judgment are granted.
(d/e’s 43, 59.) The clerk of the court is directed to enter
judgment in favor of Defendants and against Plaintiff. All
other pending motions, if any, are denied as moot, and this
case is closed, with the parties to bear their own costs. All
deadlines and settings on the Court’s calendar are vacated,
including the jury trial set for May 1, 2018.
3. If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal
in forma pauperis should identify the issues Plaintiff will
present on appeal. See Fed. R. App. P. 24(a)(1)(c). If Plaintiff
does choose to appeal, he will be liable for the $505.00
appellate filing fee regardless of the outcome of the appeal.
ENTER: 3/7/2018
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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