Opinion
CIVIL ACTION NO. 4:99-CV-229-Y
April 16, 2002
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT
Now pending before the Court is the March 4, 2002, motion for summary judgment filed by defendants Jay Brown, George Pulse Jr., and Glenn Griever. The defendants separately filed a brief in support of the motion for summary judgment. Defendants' motion for summary judgment asserts that there is no genuine issue of material fact and that each is entitled to judgment as a matter of law on plaintiff Mikesell's remaining claims against each in his individual capacity. Defendants support their motion with copies of medical and business records of Parker County, along with affidavits from the following: Michael G. Hueber, D.O.; Jay Brown; George Pulse Jr.; Glenn Griever; and Records Custodian Donna Harper, with 279 attached pages of records of the Parker County Sheriff's Department. Mikesell has not filed any response to the motion for summary judgment. Furthermore, neither Mikesell's active pleadings before this Court, a March 31, 2001, First Amended Complaint and a February 8, 2002, Reply, are sworn to or otherwise made under penalty of perjury and verified as true and correct to invoke the statutory exception provided under 28 U.S.C. § 1746. Thus, although the Court has reviewed Mikesell's pleadings as in opposition to the motion for summary judgment, it has not considered these pleadings as competent summary-judgment evidence.
Listed on the docket as Jay Brown, Sheriff; Lieutenant Pulse, Administrator; and Sergeant Griever, Staff Supervisor.
See generally Nissho-Iwai American Corp., 845 F.2d 1300, 1306 (5th Cir. 1988] (noting "settled rule in this circuit that an unsworn affidavit is incompetent to raise a fact issue precluding summary judgment," but noting that § 1746 permits unsworn declarations under penalty of perjury).
After review and consideration of Mikesell's first amended complaint, Defendants' second amended answer, and Mikesell's Reply, defendants motion for summary judgment, the affidavits and other evidence in support of the motion, and the brief in support of the motion, the Court finds that Defendants' motion for summary judgment should be granted. Defendants have demonstrated that there is no genuine issue of material fact and that each is entitled to judgment as a matter of law that Plaintiff take nothing on his claims for the reasons set forth in their motion, brief in support, and related appendices. In particular, all defendants are entitled to summary judgment because there are no genuine issues of material fact regarding Mikesell's claims of improper medical care and improper diet, for the reasons set forth in Defendants' brief in support at paragraphs 2-3, and 5-11. Furthermore, and in the alternative, the defendants have demonstrated that there is no genuine issue of material fact and that each is entitled to judgment as a matter of law on the basis of qualified immunity for the reasons set forth in the defendants brief in support at paragraphs 11-28.
Plaintiff Mikesell cites in detail the Court of Appeals for the Third Circuit's summation of an expert's report arising out of a similar claim for inadequate treatment of insulin-dependent diabetic inmates in Rouse v. Plantier, 182 F.3d 192, 194-195 (3rd Cir. 1999) Nikesell cannot raise a fact issue in this case from the evidence summarized in a separate, factually unrelated case. Furthermore, in Rouse, in which there were numerous insul-independent plaintiffs, the Third Circuit remanded the case to the district court with direction for the district court to more carefully consider each individual plaintiff's medical condition and the objective reasonableness of each individual defendant's conduct. See Rouse, 182 F.3d at 198-201. This court has considered Mikesell's individual medical condition, as shown in the records of the dispensing to him of medication and the records of monitoring of his blood sugar, and as reviewed by Michael Huber, D.O.; and the court has reviewed Mikesell's claims with regard to the objective reasonableness of each individual defendant.
It is therefore ORDERED that Defendants March 4, 2002, Motion for Summary Judgment [document no. 471 be, and is hereby, GRANTED.
It is further ORDERED that plaintiff Steven Kurt Mikesell take nothing on his individual capacity claims against defendant Jay Brown, George Pulse Jr., and Glenn Griever, and that such claims, be, and they are hereby, DISMISSED WITH PREJUDICE.