Carlock v. Sangamon County IL et al
Filing
527
OPINION: Defendant Dr. Joseph Maurer's Motion for Summary Judgment (d/e 390 ); Defendant Dr. Chauncey Maher's Motion for Summary Judgment (d/e 396 ); Defendant Todd Guy's Motion for Summary Judgment (d/e 405 ) are DENIED in full. T he Motion for Summary Judgment filed by Defendants Ron Beckner, Lee Anne Brauer, Candace Cain, Terry Durr, Kevin Furlong, Tammy Powell, Lucy Ramsey, Anthony Sacco, William Strayer, Niecy West, and Sheriff Neil Williamson (d/e 407 ) is GRANTED IN PAR T AND DENIED IN PART. Defendants Williamson, Sacco, Durr and Strayer are entitled to summary judgment on Count I only. This case is set for a settlement conference October 11, 2013 at 1:30 p.m. in Springfield before United States District Judge Harold A. Baker. Persons with full authority to settle shall be present at the settlement conference. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 10/3/2013. (MJ, ilcd)
E-FILED
Thursday, 03 October, 2013 10:54:27 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ESTATE OF AMON PAUL CARLOCK,
JR., Deceased, by Mary L.
Andreatta-Carlock, Executor,
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Plaintiff,
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v.
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NEIL WILLIAMSON, AS SHERIFF OF
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SANGAMON COUNTY; ANTHONY
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SACCO, CHIEF DEPUTY; TERRY DURR, )
JAIL SUPERINTENDENT; WILLIAM
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STRAYER, ASSISTANT JAIL
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SUPERINTENDENT; LT. RON BECKNER,)
ADMINISTRATOR OF SANGAMON
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COUNTY JAIL; LT. CANDACE CAIN;
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LT. TAMMY POWELL; SGT. TODD GUY; )
CO KEVIN FURLONG; NURSE LEE
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ANNE BRAUER, R.N.; NURSE NIECEY
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WEST, L.P.N.; NURSE LUCY RAMSEY,
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L.P.N.; JOSEPH MAURER, M.D.;
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CHAUNCEY C. MAHER, III, M.D. and
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SANGAMON COUNTY,
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Defendants.
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No. 08-3075
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On October 9, 2007, Anon Paul Carlock was discharged from St.
John’s Hospital to the Sangamon County Jail. At that time, Carlock was
in stable condition, although he had chronic medical conditions
including diabetes, obesity, and depression. On November 16, 2007,
Carlock left the Sangamon County Jail on a stretcher, not breathing and
without a pulse. He had lost approximately 30 pounds. He had
numerous broken ribs, abrasions, contusions, and two broken front teeth.
He was also suffering from acute renal failure and lithium toxicity.
Carlock was pronounced dead at the hospital. What happened during
those 39 days in jail is in dispute.
Defendants argue they are entitled to summary judgment on the
claims. See Defendant Dr. Joseph Maurer’s Motion for Summary
Judgment (d/e 390); Defendant Dr. Chauncey Maher’s Motion for
Summary Judgment (d/e 396); Defendant Todd Guy’s Motion for
Summary Judgment (d/e 405); and the Motion for Summary Judgment
filed by Defendants Ron Beckner, Lee Anne Brauer, Candace Cain, Terry
Durr, Kevin Furlong, Tammy Powell, Lucy Ramsey, Anthony Sacco,
William Strayer, Niecy West, and Sheriff Neil Williamson (these
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defendants and Defendant Guy are hereinafter referred to as the County
Defendants). Given the factual disputes, Defendant Guy, Dr. Maurer,
and Dr. Maher’s Motions for Summary Judgment (d/e 390, 396, 405) are
DENIED. The remaining Defendants’ Motion for Summary Judgment
(d/e 407) is GRANTED IN PART and DENIED IN PART. Defendants
Williamson, Sacco, Durr and Strayer are entitled to summary judgment
on Count I because Plaintiff has pointed to no evidence supporting why
those defendants should be liable.
I. ANALYSIS
The Court has read the pleadings, all of the documents submitted,
and has held oral argument on the Motions. While the Court need only
consider the material cited by the parties, the Court may, and did in this
case, consider other materials in the record. See Fed.R.Civ.P. 56(c)(3).
As an initial matter, all of the motions to strike are denied.
Although some of the expert’s reports submitted by Plaintiff were not
sworn, their sworn depositions were also part of the record. See Loeffel
Steel Products, Inc. v. Delta Brands, Inc., 379 F. Supp. 2d 968, 984
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(N.D. Ill. 2005) (wherein the court found the expert’s unsworn report
inadmissible but relied on the expert’s deposition testimony when
considering the summary judgment motion).
James McLemore’s Affidavit is also adequate. See Fed.R.Civ.P.
56(c)(4) (affidavits must be made on personal knowledge, set forth
admissible facts, and show the declarant is competent to testify on the
matters stated). A witness may testify about his observations regarding
another person’s condition. See Watson v. Allen Cnty. Sheriff’s Officers,
2013 WL 4540597, at *4 (N.D. Ind. August 27, 2013). McLemore’s
Affidavit admittedly contradicts some of the facts Plaintiff admitted were
undisputed and that simply adds to the questions of fact remaining in
this case.
The Court also finds that Carlock’s status as a federal detainee does
not render § 1983 inapplicable. See Belbachir v. County of McHenry,
726 F.3d 975 (7th Cir. 2013) (finding that where “the contract did not
federalize McHenry County Jail, which continued to house nonfederal as
well as federal prisoners,” the claim was properly brought under §1983);
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Lewis v. Downey, 581 F.3d 467, 471 n. 3 (7th Cir. 2009) (noting the
issue in a footnote and refusing to decide it but also expressing doubt
that the contractual relationship between the federal government and a
local correctional facility to house federal inmates “does anything to
change the status of county jail employees as state actors.” ) (emphasis
omitted.)
Finally, the appropriate standard governing the § 1983 excessive
force and medical treatment claims is the Fourteenth Amendment. The
Fourth Amendment standard applies to claims up to the point of the
judicial determination of probable cause. Lopez v. City of Chicago, 464
F.3d 711, 719 (7th Cir. 2006). The Fourteenth Amendment applies to
the period in between a judicial determination of probable cause and
conviction. See Smith v. Sangamon Cnty. Sheriff’s Dep’t, 715 F.3d 188,
191 (7th Cir. 2013) (Fourteenth Amendment applies to pretrial
detainees). In this case, Carlock was arrested pursuant to an arrest
warrant on October 9, 2007. See United States v. Carlock, 07-30111.
Therefore, the Fourteenth Amendment standard applies to Plaintiff’s §
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1983 claims. While the appropriate standard for an excessive force claim
under the Fourteenth Amendment is unclear, this Court has generally
followed Wilson v. Williams, 83 F. 3d 870, 875 (7th Cir. 1996) (noting
that the appropriate standard is neither wholly objective nor wholly
subjective; a plaintiff must prove deliberate indifference but the court
must also examine whether the officials behaved in a reasonable way in
light of the facts and circumstances).
A.
Questions of Fact Preclude Summary Judgment on Count I
(Excessive Force)
Questions of fact preclude summary judgment on the excessive
force claims against Defendants Cain, Powell, Guy, Furlong, and Beckner.
Taking the evidence and inferences in the light most favorable to
Plaintiff, the facts pertaining to the November 16, 2007 incident show
that Carlock was not combative and/or had been subdued when the
officers continued to apply force. See McLemore Affidavit; evidence
pertaining to Carlock’s medical condition; see also Abdullahi v. City of
Madison, 423 F.3d 763, 772 (7th Cir. 2005) (finding that the decedent’s
“undisputed attempts to ‘squirm’ or arch his back upward while he was
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being restrained may not constitute resistence at all, but rather a futile
attempt to breathe while suffering from physiological distress ‘akin to
drowning’”). Medical and circumstantial evidence is sufficient to create
triable issues of fact in excessive force cases. Abdullahi, 423 F.3d at 772
(finding that the officer’s assertion that he merely put enough pressure
on the decedent to stop him from squirming was not the only account of
the incident where the medical evidence showed the individual suffered
injuries consistent with extreme external pressure); see also Plakas v.
Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994) (“The award of summary
judgment to the defense in deadly force cases may be made only with
particular care where the officer defendant is the only witness left alive to
testify”).
Moreover, Defendants Cain, Powell, Guy, Furlong, and Beckner are
not entitled to qualified immunity on summary judgment. It was clearly
established on the day Carlock died that an officer cannot continue to
use force on a person who is not resisting or who is subdued. Abbott v.
Sangamon County, Ill., 705 F.3d 706, 732 (7th Cir. 2013) (holding that
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it was clearly established on June 25, 2007 that a police officer could not
use significant force on a nonresisting or passively resisting suspect)
(citing cases involving various uses of force including grabbing, throwing,
and shoving); Lewis, 678 F.3d at 528-29 (clearly established in 2006
that a taser could not be used against a prone, weakened, and docile
prisoner who had been told to rise once, was not given a chance to
respond, and was not warned that he would tased if he did not rise).
In addition, drawing all reasonable inferences in Plaintiff’s favor,
Carlock was obviously seriously ill, was being taken to the hospital, and
the officers should have known that holding him in the prone position
could cause his injury or death. The law governing excessive force claims
was clearly established on November 16, 2007 that compressing the
lungs of an obviously vulnerable person might kill him. See Richman v.
Sheahan, 512 F.3d 876, 882-83 (7th Cir. 2008) (involving incident that
occurred on November 18, 2007 when officers attempted to remove the
decedent from the courtroom and relying on cases from as long ago as
1996 under the Fourth Amendment standard and 2002 under the Eighth
Page 8 of 21
Amendment standard when finding that a reasonable officer would know
that compressing the lungs of a morbidly obese person might kill him).1
As to the two October 16, 2007 incidents involving Defendants
Guy and Powell, Plaintiff admitted the facts alleged by those Defendants
which show that Carlock was combative. However, no warning was given
prior to the use of the taser. See Forrest v. Prine, 620 F.3d 739, 745 (7th
Cir. 2010) (noting the officer warned the plaintiff several times that
noncompliance would result in tasing); Lewis, 581 F.3d at 479 (noting
that prior case law made it clear that the use of chemical agents should
generally follow adequate warnings). Certainly, situations can arise that
justify the immediate use of a taser without the benefit of a warning.
Lewis, 581 F.3d at 478 (“In a jail or prison setting, it is not hard to
imagine any number of scenarios that would justify the immediate and
unadvertised use of summary force, including taser guns”). Moreover, a
reasonable juror could conclude that the force used on October 16, 2007
1
Defendants argued at the hearing that Richman is distinguishable in part
because there was no reason to endanger the decedent’s life in order to remove him
with such haste. But in this case, there was likewise no reason to endanger decedent’s
life to put his shirt on to take him to the hospital.
Page 9 of 21
was excessive under the Fourteenth Amendment.
Further, qualified immunity does not protect Defendants because
Plaintiff’s evidence permits an inference that Carlock posed no real threat
to anyone in spite of his combativeness and that Carlock’s condition
rendered him unable to comply with the officers’ commands. See, e.g.,
Lewis, 581 F.3d at 479 (finding that a reasonable officer would have
known that using a taser gun on a prone, weakened, and docile prisoner
who was told to rise one time and was not warned that a taser would be
used against him if he failed to comply would violate the prisoner’s
constitutional rights). Further development of the facts at trial is
required before a determination on qualified immunity can be made.
See, e.g., Chelios v. Heavener, 520 F.3d 678, 692 (7th Cir. 2008)
(noting, in a Fourth Amendment case, that further factual development
was necessary before the court could determine whether the use of force
was plainly excessive).
However, Defendants Williamson, Sacco, Durr, and Strayer are
entitled to summary judgment on Count I. Not one of these defendants
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was present during the incidents. See Doyle v. Camelot Care Centers,
Inc., 305 F.3d 603, 614-15 (7th Cir. 2002) (a supervisor must be
personally involved in the conduct at issue to be liable under § 1983).
Plaintiff has not pointed to any evidence that would support an excessive
force claim against Defendants Williamson, Sacco, Durr, or Strayer.
B.
Questions of Fact Preclude Summary Judgment on Count II
Defendants are not entitled to summary judgment on Count II, the
failure to provide appropriate medical treatment claim. The facts, taken
in the light most favorable to Plaintiff, show that Carlock had serious
medical conditions and that the Defendants were deliberately indifferent
to those medical conditions. See Henderson v. Sheahan, 196 F.3d 839,
844 n. 2 (7th Cir. 1999) (the Fourteenth Amendment protects pretrial
detainees under the same standard as the Eighth Amendment).
The medical evidence, taken in the light most favorable to Plaintiff,
shows that Carlock was visibly deteriorating and no one was doing
anything to help him. Carlock was not being given the medication
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prescribed to him at the hospital. He was not on sliding-scale insulin.2
In fact, Carlock did not receive 1/3 of his medications while at the jail.
An inference can be drawn from the evidence that this was due in part to
Carlock not coming to the “chuckhole” in a timely manner. He was not
eating and missed at least 1/3 of his meals. Dr. Maher noted Carlock’s
thinking was not reality based. Dr. Maurer saw Carlock two days before
he died, and Carlock had feces-stained clothing and was tremulous.
Nonetheless, when told of Carlock’s extremely abnormal lab results the
evening of November 15, 2007, Dr. Maurer did nothing. The nurses
were also aware of Carlock’s condition. See Holloway v. Delaware Cnty.
Sheriff, 700 F. 3d 1063, 1075 (7th Cir. 2012), quoting Rice ex rel. Rice
v. Correctional Medical Servs., 675 F.3d 650, 683 (7th Cir. 2012) (a
nurse acts with deliberate indifference if she “‘ignore[s] obvious risks to
an inmate’s health’ in following physicians’ orders”); see also Smego v.
Mitchell, 723 F.3d 752, 757 (7th Cir. 2013) (dental assistant could be
deliberately indifferent by failing to bring the plaintiff’s complaints of
2
Generally, this means that the person’s dose of insulin is determined on the
basis of his blood sugar results.
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pain to the doctor’s attention and telling the plaintiff not to be a pest).
The Court is particularly concerned with Defendant Nurse
Ramsey’s failure to use the defibrillator and start CPR on Carlock when,
under the facts taken in the light most favorable to Plaintiff, Carlock was
not breathing and had, at best, a weak carotid pulse. Defendant Guy
only saw Carlock take one breath, and Defendant Ramsey did not
continue to monitor Carlock’s breathing. See also Dr. Maurer Dep. p.
121-123 (noting that if Carlock caught his agonal3 breath and his heart
was failing, that would justify hooking him up to the defibrillator and
beginning CPR).
Defendants argue that there is no evidence that the delay in
Carlock’s treatment from the evening of November 15, 2007 to the
morning of November 16, 2007 caused him harm. However, a question
of fact remains whether the delay exacerbated Carlock’s condition or
unnecessarily prolonged his pain. See, e.g. McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010); see also medical evidence that Carlock’s BUN
3
Agonal is defined as “[r]elating to the process of dying or the moment of
death.” Stedman’s Medical Dictionary, 39-40 (28th Ed.).
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rose from 99 to 140 between November 15 and November 16, 2007; Dr.
Jennison’s Dep. p. 28 (testifying that a BUN greater than 140 is no
longer measurable).
Dr. Maurer and Dr. Maher argue that their alleged deliberate
indifference was not the proximate cause of Carlock’s death.
Causation is a necessary element in a § 1983 claim. The act must be the
cause in fact of the injury (that is, the injury would not have occurred
absent the conduct) and the act must be the proximate cause of the
injury (that is, the injury is of the type that a reasonable person would
see as a likely result of his conduct). Whitlock v. Brueggemann, 682 F.3d
567, 582 (7th Cir. 2012). However, proximate cause is generally an
issue for the jury. Gayton v. McCoy, 593 F.3d 610, 624 (7th Cir. 2010).
Summary judgment should be granted on the issue of causation “ “only
in the rare instance that a plaintiff can proffer no evidence that a delay in
medical treatment exacerbated an injury.” Gayton, 593 F.3d at 624.
While Carlock’s medical condition the morning of November 16
was treatable, Dr. Stephen Jennison, the treating cardiologist at the
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hospital, testified that the acute renal failure, hyperkalemia, and high
potassium caused Carlock’s death. Jennison Dep. p. 41; see also Stern
Dep. p. 77 (Carlock likely would have survived had he been sent to the
emergency room and not had the altercation with the officers).
Therefore, a reasonable juror could reasonably conclude that the failure
to treat those conditions caused Carlock’s death. Moreover, a genuine
issue of material fact exists whether Carlock’s increasingly erratic
behavior foreshadowed yet another confrontation with the correctional
officers, making Carlock’s death preventable and foreseeable. Carlock’s
prior confrontations with correctional officers were memorialized in the
Nurses Notes. See Group Exhibit R (d/e 410) (reflecting that on
November 15, Carlock was put in the restraint chair); Exhibit X (d/e 4117) (reflecting that on October 16, 2007, Carlock was “tased, OC4, placed
in restraint chair”); and Exhibit X (containing November 15, 2007
notation: “%’ed straps [illegible] in restraint chair. USM updated on
4
OC is Oleoresin Capsicum (pepper spray).
Page 15 of 21
inmate. Instructed to use any means necessary. Faxed lab results to Dr.
Maurer”).
In addition, Plaintiff’s expert, Dr. Joel Silberberg, a board certified
psychiatrist who is experienced in treating offenders in correctional
settings, testified that both the confrontation and Carlock’s injuries were
foreseeable. Silberberg Dep. p. 97 (testifying that “somebody who is not
under control because of electrolyte disturbances, metabolic disturbances,
diabetes out of control, psychiatric illness out of control, it is foreseeable
that there will be an interaction where the patient is confused, not
responding appropriately to reality, it is foreseeable that he is going to be
injured by jail staff when there is a confrontation”).
Under the facts taken in the light most favorable to Plaintiff,
Defendants are therefore not entitled to qualified immunity. See Estate
of Gee ex rel. Beeman v. Johnson, 365 Fed. Appx. 679, 683-84 (7th Cir.
2010) (unpublished) (genuine issue of material fact precluded qualified
immunity where, in April 2005, a severe diabetic experienced unstable
blood sugar levels, suffering intense pain, and refusing to eat and hydrate;
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the decedent “was clearly in terrible shape, and he was deteriorating right
before everyone’s eyes”).
C.
Questions of Fact Preclude Summary Judgment on Counts III and
IV (Monell Liability)
A § 1983 claim can be brought against a local governing body when
an official policy or custom is the “moving force” behind the deprivation
of a constitutional right. Monell v. Dep't of Soc. Servs., 436 U.S. 658,
575 (1978). This can occur in one of three ways: “(1) an express policy
that, when enforced, causes a constitutional deprivation, (2) a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a
custom or usage with the force of law, or (3) an allegation that the
constitutional injury was caused by a person with final policymaking
authority.” Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 981
(7th Cir. 2000), quoting Baxter by Baxter v. Vigo County Sch. Corp., 26
F.3d 728, 735 (7th Cir. 1994) (internal citations omitted). A plaintiff
must also show a direct causal connection between the policy or practice
and the injury. Rice, 675 F.3d at 675. In addition, a failure to train may
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be a basis for municipal liability but the “plaintiff must show that the
failure to train reflects a conscious choice among alternatives and evinces
a deliberate indifference to the rights of the individuals with whom those
employees will interact.” Id.
Having reviewed the entire record, the Court finds sufficient
evidence to support a municipal liability claim based on excessive force
under both a failure to train theory and based on the medical policies
that arguably led to Carlock’s demise.5
D.
Questions of Fact Preclude Summary Judgment on the State Law
Claims (Counts V, VI, VII, VIII, IX, X, XI)
The County Defendants are not entitled to state law immunity as a
matter of law. Questions of fact remain whether their conduct was willful
5
At the hearing, Plaintiff’s counsel denied there was a policy of not using
sliding-scale insulin. However, in her response, Plaintiff stated Dr. Maurer
“established a policy of not placing insulin using diabetics, such as Carlock, on a
sliding scale for insulin.” Response, p. 29 (d/e 506); see also Brauer Dep. p. 24 (“Dr.
Maurer did not use a sliding scale”); Brauer Dep p. 26 (“And the reason those were
not transcribed is because Dr. Maurer does not use sliding scales”); Dr. Maurer Dep.
p. 62 (explaining that Carlock was not on sliding scale insulin because Dr. Maurer
prefers to know when and how he is eating, when his blood sugars are high and low
and adjust); but see West Dep. p. 121 (agreeing “it’s not a policy that absolutely says
he can’t have it” and that she had given sliding scale insulin to an inmate in the
Sangamon County Jail).
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and wanton. See 745 ILCS 10/4-105 and 745 ILCS 10/2-2026
(containing willful and wanton exception). The County Defendants have
not demonstrated that they are entitled to immunity under 745 ILCS
10/2-201 because the public employee must (1) hold a position involving
either the determination of policy or the exercise of discretion and (2) the
act or omission must be both a determination of policy and an exercise of
discretion. Harinek v. 161 N. Clark St. Ltd. P’ship, 181 Ill. 2d 335, 341
(1998). The facts in the record do not allow that determination to be
made at this time as a matter of law.
Finally, because the Court has not found the individual employees
immune, the Sheriff’s Department is not entitled to immunity under 745
ILCS 10/2-109 (providing immunity to the public entity when the
employee is not liable).
Further, Dr. Maurer and Dr. Maher are not entitled to immunity
6
In addition, the immunity provided under 2-202 “does not extend to all
activities of police officers while on duty, but only to acts or omissions while in the
actual execution or enforcement of a law.” Hudson v. City of Chicago, 378 Ill. App.
3d 373, 388 (2007). Whether an officer is executing and enforcing the law is a
question of fact. Id.
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under 745 ILCS 10/6-105 and 6-106 because questions of fact remain as
to whether they are public employees. See Thede v. Kapsas, 386 Ill. App.
3d 396, 400 (2008) (whether a worker is an employee or an independent
contractor is a question of fact and summary judgment should not be
granted unless the evidence documenting the relationship is so clear as to
be undisputed). Moreover, even if Dr. Maurer and Dr. Maher are public
employees, section 6-106 does not confer immunity on public employees
who have caused a person to suffer an injury due to the negligent
prescription of medical treatment and/or the negligent administration of
medical treatment. Michigan Ave. Nat’l Bank v. County of Cook, 191
Ill. 2d 494, 511 (2000). Some of Plaintiff’s allegations involve negligent
medical treatment.
II. CONCLUSION
For all these reasons, Defendant Dr. Joseph Maurer’s Motion for
Summary Judgment (d/e 390); Defendant Dr. Chauncey Maher’s Motion
for Summary Judgment (d/e 396); Defendant Todd Guy’s Motion for
Summary Judgment (d/e 405) are DENIED in full. The Motion for
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Summary Judgment filed by Defendants Ron Beckner, Lee Anne Brauer,
Candace Cain, Terry Durr, Kevin Furlong, Tammy Powell, Lucy Ramsey,
Anthony Sacco, William Strayer, Niecy West, and Sheriff Neil
Williamson (d/e 407) is GRANTED IN PART AND DENIED IN PART.
Defendants Williamson, Sacco, Durr and Strayer are entitled to summary
judgment on Count I only. This case is set for a settlement conference
October 11, 2013 at 1:30 p.m. in Springfield before United States
District Judge Harold A. Baker. Persons with full authority to settle shall
be present at the settlement conference.
ENTER: October 3, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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