Wilson v. Ghosh
Filing
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Opinion and Order: Defendant Ghosh's motion for summary judgment 39 is granted. Defendant Hardy is dismissed without prejudice for failure to serve. Judgment is entered in favor of defendants Partha Ghosh and Marcus Hardy and against plaint iff Gregory Scott Wilson dismissing plaintiff's cause of action, with individual capacity claims for monetary relief dismissed with prejudice and official capacity claims for equitable relief dismissed without prejudice. Signed by the Honorable William T. Hart on 8/28/2013:Mailed notice(clw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY SCOTT WILSON,
Plaintiff,
v.
PARTHA GHOSH and MARCUS
HARDY, Warden,
Defendants.
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No. 09 C 3956
OPINION AND ORDER
Plaintiff Gregory Scott Wilson is incarcerated at Stateville Correctional
Center. Defendant Partha Ghosh, M.D. is sued in his individual capacity. Ghosh
is the former Medical Director at Stateville, having retired on March 31, 2011.
Plaintiff alleges that defendant acted with deliberate indifference to his serious
medical needs. Plaintiff's remaining contention is that defendant failed to provide
a shoe lift for his right leg, which is 2.5 inches shorter than his left leg. Defendant
moves for summary judgment dismissing the remaining claim.
Also named as a defendant in his official capacity only is Marcus Hardy,
the Warden of Stateville. In both the original and amended complaints, plaintiff
focused on getting a second opinion regarding surgery on his leg and possible
further treatment. In January 2010, Hardy was added as a defendant in the
Amended Complaint in order to assert an official capacity claim for injunctive
relief to obtain the second opinion. After the close of discovery, plaintiff clarified
that his claim is limited to seeking the lift for his left shoe which he contends has
still not been provided. Whether plaintiff presently seeks related injunctive relief
as against Hardy in his official capacity has not been stated. (Ghosh would not be
an appropriate defendant for such relief since Ghosh no longer works at Stateville.)
There is no appearance by Hardy which is consistent with there being no indication
that Hardy was ever served. Hardy will be dismissed from this case without
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prejudice for failure to timely serve. See Fed. R. Civ. P. 12(m).1 Claims for
injunctive relief will be dismissed without prejudice.
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
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Plaintiff is entitled to notice prior to sua sponte dismissal. See Fed. R.
Civ. P. 12(m). If plaintiff believes there is good reason not to dismiss Hardy for
lack of service, he may move for reconsideration within the time period permitted
by Fed. R. Civ. P. 59(e). That is sufficient notice and avoids any prejudice to
plaintiff from not receiving earlier notice. See Fed. R. Civ. P. 61; In re Bartle, 560
F.3d 724, 730 (7th Cir. 2009). Cf. Timms v. Frank, 953 F.3d 281, 286 (7th Cir.
1992) (if plaintiff not prejudiced by failure to give required summary judgment
notice for pro se, no reversible error); Cannon v. Burkybile, 2002 WL 448988 *2
(N.D. Ill. March 22, 2002) ("Even if [pro se] plaintiff was not adequately informed
about summary judgment procedures, defendants' motion could be ruled upon and
if it were granted in whole or in part, any deficiency in providing the notice to
plaintiff could be cured by thereafter providing the notice to plaintiff as well as an
opportunity to file an additional response.").
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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.
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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.
The parties agree that plaintiff bears the burden of showing he had an
objectively serious medical need, Ghosh was aware of it, and Ghosh acted with
deliberate indifference to the need. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.
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2012). For present purposes, Ghosh concedes that plaintiff's need for a lift was a
serious medical need. Also, it is undisputed that Ghosh was aware that plaintiff
had a need for the lift. It is also undisputed that on a number of occasions--in
2005, 2007, and 2010--Ghosh approved plaintiff receiving the shoe lift. Plaintiff
contends, however, that he did not actually receive the lift. Ghosh contends
plaintiff did receive the shoe lift and, if not, Ghosh was unaware that plaintiff was
not receiving it or not responsible for him not receiving it.
Defendant provides copies of Stateville "Shoe Requisition Form
Recommendation for Special Shoes" recommending a lift for plaintiff's right shoe
that are signed off on by Ghosh as Medical Director and dated November 15, 2005
and January 18, 2007. A prescription form for lifts is dated January 25, 2010 and
signed by Ghosh. Ghosh signed a medical permit dated December 23, 2010 for
"Special Shoes 10D Black Oxford." Lifts are not expressly mentioned. On the
Physical Disabilities/Limitations line of medical records from examinations at an
outside facility dated March 8, 2010, October 31, 2010, and December 16, 2010, it
is respectively written: "Special shoe," "Wears Special Shoe," and "Wear special
shoe." Those forms are signed by a CN II, LP2,2 and CN II. These records show
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It might be LPN; the handwriting is difficult to read.
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that a lift was being prescribed and the October 31, 2010 medical record (if not the
other two outside medical records as well) supports that plaintiff was actually
wearing a special shoe. The outside medical records, however, do not state what
type of special shoe. It is possible that a shoe with an orthotic insert would be
listed as a "special shoe."
Plaintiff was deposed on October 26, 2011, after Ghosh had retired. On
that date, plaintiff initially answered that he was then wearing a lift. Pl. Dep. 15.
Ghosh cites this page of the testimony to support that plaintiff had actually
received a lift. That testimony, however, cannot be read in isolation from the
testimony that immediately follows. Id. at 16-17. Plaintiff clarifies that the only
time he received a lift was immediately after physical therapy, which apparently
was the 2005 requisition, and that lift was the wrong size. Plaintiff testified he
never received a further lift while Ghosh was at Stateville. He also clarifies that
what he was wearing the day of the deposition was an orthotic insert providing
arch support, not a lift that would be built on the outside of the shoe on the bottom.
Resolving all genuine factual disputes in plaintiff's favor for purposes of
summary judgment, it must be taken as true that plaintiff never received the lift that
was prescribed by Ghosh in 2007 and 2010. But even taking that as true, it must
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be shown that Ghosh was aware of this and acted with deliberate indifference
either in not taking further action to ensure that plaintiff received the lift or by
actively interfering with plaintiff receiving the lift. Plaintiff, however, points to no
evidence of Ghosh's responsibilities beyond prescribing the lift. Moreover,
plaintiff does not even show that Ghosh was aware plaintiff did not receive the lift.
In response to summary judgment, plaintiff provides a copy of a
purported letter to Ghosh dated October 4, 2009. He also provides copies of
grievances dated February 8, 2010 and September 23, 2010. Other documents
provided by plaintiff are from after Ghosh's retirement and therefore are not a basis
of showing the documents provided notice to Ghosh. Also, the statements of
plaintiff contained in the later documents cannot be presented by plaintiff as
evidence of the truth of the facts stated therein. Plaintiff provides no affidavit or
declaration authenticating the 2009 letter and 2010 grievances or attesting to the
documents being delivered.3 See Fed. R. Evid. 901(b)(1); United States v. Papia,
910 F.2d 1357, 1366 (7th Cir. 1990); Goodman v. YRC, Inc., 2013 WL 1180872
*7 (S.D. Ind. March 19, 2013); Wirey v. Richland Cmty. Coll., 913 F. Supp. 2d
3
Defendant objects to use of the documents which defendant contends
were not timely disclosed. Since not authenticated, the disclosure issue need not
be addressed.
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633, 636 (C.D. Ill. 2012); In re Ockerlund, 2011 WL 249456 *3 (N.D. Ill. Jan. 25,
2011). Also, the grievances do not have the part of the form completed that would
show they were received by a counselor or grievance officer, nor is the section
completed that would show the grievance was processed. The documents
submitted by plaintiff are insufficient to establish that Ghosh was aware that
plaintiff had not received the lift. Plaintiff fails to show that Ghosh acted with
deliberate indifference.
IT IS THEREFORE ORDERED that defendant's motion for summary
judgment [39] is granted. Defendant Hardy is dismissed without prejudice for
failure to serve. The Clerk of the Court is directed to enter judgment in favor of
defendants and against plaintiff dismissing plaintiff's cause of action, with
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individual capacity claims for monetary relief dismissed with prejudice and official
capacity claims for equitable relief dismissed without prejudice.
ENTER:
UNITED STATES DISTRICT JUDGE
DATED: AUGUST 28, 2013
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