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Pendergraph v. Evans

October 17, 2006

RONALD K. PENDERGRAPH, PLAINTIFF,
v.
DONNIE EVANS AND BOBBIE EVANS, DEFENDANTS.



The opinion of the court was delivered by: James H. Jarvis United States District Judge

MEMORANDUM OPINION

This is a pro se prisoner's civil rights complaint pursuant to 42 U.S.C. § 1983. The matter is before the court on the plaintiff's motion for summary judgment, defendants' response thereto, the defendants' motion for summary judgment, and plaintiff's response thereto. For the following reasons, the plaintiff's motion for summary judgment [Court File No. 51] will be DENIED and the defendants' motion for summary judgment [Court File No. 68] will be GRANTED. All other pending motions will be DENIED as MOOT.

I. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "In considering a motion for summary judgment, the court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party." 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). See also Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); Securities and Exchange Commission v. Blavin, 760 F.2d 706, 710 (6th Cir. 1985). The burden is on the moving party to conclusively show that no genuine issue of material fact exists. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979).

Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial a reasonable jury could return a verdict for the non-moving party. Id. 106 S.Ct. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

Once the moving party presents evidence sufficient to support a motion for summary judgment, the non-moving party is not entitled to a trial merely on the basis of allegations. The non-moving party must present some significant probative evidence to support its position. White v. Turfway Park Racing Association, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990); Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir. 1986). Mere allegations of a cause of action will no longer suffice to get a plaintiff's case to the jury. Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989).

Summary judgment should not be disfavored and may be an appropriate avenue for the "just, speedy and inexpensive determination" of an action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The moving party is entitled to judgment as a matter of law "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." Id. at 322.

II. Factual Background

Plaintiff is in the custody of the Tennessee Department of Correction. His complaint concerns the alleged violation of his civil rights during his confinement in the Van Buren County Jail. The defendants are Van Buren County Sheriff Donnie Evans and jail bookkeeper Bobbie Evans.

Plaintiff was arrested on January 8, 2002, by the Van Buren County Sheriff's Department. He remained in the Van Buren Jail until his transfer to the custody of the Tennessee Department of Correction on November 8, 2002. Plaintiff's Xanax, which had been prescribed for anxiety attacks, was confiscated upon his arrival at the Van Buren County Jail; his Albuterol was left in plaintiff's automobile upon his arrest. Plaintiff alleges that he suffers from chronic obstructive pulmonary disease (COPD) and anxiety and depression.

Plaintiff was given his Xanax until it ran out, on or about January 21, 2002. He claims that at that time he asked to see a doctor about his anxiety attacks and COPD but was denied. According to plaintiff, he again asked to see a doctor on May 13 and August 13, 2002. On August 16, 2002, he was taken to Dr. Kirk Swensen. Dr. Swensen prescribed Albuterol for plaintiff's COPD and Prozac and Ativan for his anxiety; he did not prescribe Xanax because it was too expensive.

Plaintiff alleges that defendant Bobbie Evans filled the prescription for Albuterol, but told plaintiff she would not fill the other prescriptions because they were too expensive and the county could not afford to pay for the medications. Plaintiff also alleges that defendant Bobbie Evans refused to allow plaintiff's family to pay for his medication. Plaintiff claims that the defendants' refusal to ...


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