Kincaid v. Sangamon County, Illinois et al
Filing
165
OPINION entered by Judge Sue E. Myerscough on 3/10/2014. By April 7, 2014, the County and the Sheriff's Department are directed to file a summary judgment motion on Plaintiff's unconstitutional policy claim. A Final Pretrial Conference is set for 7/7/2014 at 10:45 AM by video conference from Springfield (court to initiate conference) before Judge Sue E. Myerscough. An agreed, proposed final pretrial order is due 6/23/2014. Jury Selection and Jury Trial is set for 9/15/2014 at 9:00 AM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. (MAS, ilcd)
E-FILED
Monday, 10 March, 2014 01:03:50 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAUL E. KINCAID,
Plaintiff,
v.
SANGAMON COUNTY, et al.,
Defendants.
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09-CV-3053
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se from his incarceration in Marion
Penitentiary, pursues claims for deliberate indifference to his
serious medical needs during his detention as a federal pretrial
detainee held in the Sangamon County Jail.
Defendants move for summary judgment. At the summary
judgment stage, the Court must resolve material disputes of fact in
Plaintiff's favor. Deciding whether to believe Plaintiff is the jury's
job. Stokes v. Board of Educ. of the City of Chicago, 599 F.3d 617
(7th Cir. 2010)("In deciding a motion for summary judgment,
neither the district court nor this court may assess the credibility of
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witnesses, choose between competing reasonable inferences, or
balance the relative weight of conflicting evidence.") Summary
judgment must be denied if a reasonable jury could find in
Plaintiff's favor. Milwaukee Deputy Sheriff's Ass'n v. Clarke, 574
F.3d 370, 376 (7th Cir. 2009).
Defendants' evidence shows that a reasonable jury could
certainly find in Defendants' favor. Defendants have evidence that
they reasonably responded to Plaintiff's need for medical treatment
and that Plaintiff's description of his medical conditions are
exaggerated.
However, a reasonable jury could also find in Plaintiff's favor.
According to Plaintiff, Plaintiff essentially languished at death's door
while Defendants ignored his repeated pleas. Thus, the resolution
of this case belongs to the jury, not the judge. Summary judgment
must be denied.
BACKGROUND
The facts in this section are set forth in the light most
favorable to Plaintiff. The Court sets forth only the facts necessary
to demonstrate that material disputes exist for the jury.
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According to Plaintiff, he lost over 85 pounds from the
beginning of his detention at the jail on September 6, 2006, to
about the end of March, 2007, because of what he understood to be
gastrointestinal reflux disease and a hiatal hernia. Plaintiff says
that he had difficulty digesting the jail food, which caused him to
vomit and experience digestive pain. (Pl.'s Aff. ¶ 5.) Plaintiff avers
that he had been taking Prilosec/Nexium before his arrest and
continued to do so in jail until Dr. Cullinan discontinued the
medicine. Dr. Cullinan is not a Defendant in this case, but Plaintiff
avers that he repeatedly informed Defendants Dr. Maurer and
Nurse Brauer, both orally and in writing, about Plaintiff's problems
digesting food, weight loss, and vomiting. (Pl.'s Aff. ¶¶ 6, 8.)
According to Plaintiff, Dr. Maurer and Nurse Brauer effectively
shrugged, told Plaintiff he needed to lose weight anyway, and
refused to change Plaintiff's diet. Id.
On or around March 30, 2007, Plaintiff, 66 years old at the
time, fell ill with a severe sore throat. Plaintiff avers that he could
not swallow, was vomiting, had diarrhea, and could not eat or
drink.
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On April 1, 2007, Plaintiff informed Defendant Nurse Brauer,
both orally and in writing, that Plaintiff was getting sicker, vomiting,
coughing up blood, could not drink or eat, had diarrhea, and
believed he had a sinus infection. (Pl.'s Aff. ¶ 16.) According to
Plaintiff, Nurse Brauer admonished Plaintiff that he "whined too
much" and sent Plaintiff away with no exam or treatment. By that
evening, Plaintiff avers that his fever reached 104 degrees. (Pl.'s Aff.
¶ 18.) Defendant Dr. Maurer prescribed Cipro, an antibiotic, but
Plaintiff asserts that he received nothing for his pain or
dehydration. Dr. Maurer avers that Tylenol was prescribed for
Plaintiff's pain, but Plaintiff diputes this, asserting the Tylenol
prescription was temporary and only helped with his fever.
Dr. Maurer saw Plaintiff on April 2, 2007. Nurse Ramsey was
present as well. According to Plaintiff, by this time Plaintiff was
extremely and visibly ill, with excruciating pain, vomiting, diarrhea,
bloody mucous from heavy coughing, and an inability to eat or
drink. (Pl.'s Aff. ¶ 23.) According to Plaintiff, Dr. Maurer did
nothing other than tell Plaintiff to take the Cipro with a glass of
water, despite Plaintiff's obvious dehydration, reported inability to
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drink, and throat pain so severe Plaintiff had difficulty swallowing.
(Pl.'s Aff. ¶ 24.)
Also on April 2, 2007, Plaintiff's criminal defense attorney, Jon
Gray Noll, sent a letter to Defendant U.S. Marshal Cowdrey,
expressing extreme concern about Plaintiff s condition and asking
the U.S. Marshals Service to address Plaintiff's apparent failing
health. Mr. Noll wrote about Plaintiff's 85 pound weight loss,
difficulty maintaining fluids, and Plaintiff's belief that he had strep
throat and a sinus infection.
In response to Attorney Noll's letter, Defendant Cowdrey spoke
to Licensed Practical Nurse Nicey, an employee at the jail.
Defendant Cowdrey's notes from that conversation, dated April 2,
2007, state that Plaintiff had been prescribed antibiotics, had no
temperature, clear lungs, a sore throat, and would see Dr. Maurer
on April 9, 2007. According to Defendant Cowdrey, Nurse Nicey
told Cowdrey that Plaintiff's medical issues were being addressed,
that no medical emergency was present, and that the weight loss
was being monitored. However, two days later Plaintiff's friend,
Steve Collins, phoned the Marshal's Office around 8:00 p.m. to
report Plaintiff's worsening condition. Mr. Collins spoke to a female
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operator who told Mr. Collins that the message would be forwarded
to Defendant Cowdrey. (Collins Aff. ¶ 39.) This is hearsay as to
whether Cowdrey actually received the message, but a reasonable
inference arises that Cowdrey would have received the message in
the normal course of business.
According to Plaintiff, his condition continued to worsen. On
April 4, 2007, Dr. Maurer and Nurse Ramsey saw Plaintiff again.
Dr. Maurer avers that his examination of Plaintiff was
unremarkable, but Plaintiff disputes this. Plaintiff describes
himself as "in an emaciated state, in complete medical distress,"
with severe dehydration and throat pain and an inability to eat or
drink. (Pl.'s Aff. ¶ 39.) Plaintiff's sister, Judy Cooke, and a nearby
cellmate of Plaintiff's, Stephen Puckett, offer their own affidavits to
corroborate Plaintiff's own account of his severe and obvious
deterioration during this time. Judy Cooke avers that Plaintiff
looked like a "dead man walking" when she visited him—that
"anyone who would have seen Paul on that day would have to be
blind not to see a man in crisis and total distress." (Cooke Aff. ¶ 6,
11.) Stephen Puckett avers that he personally witnessed Plaintiff's
physical deterioration day after day and was so alarmed that he
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called Steve Collins because he feared Plaintiff was going to die.
(Puckett Aff. ¶ 9.)
On April 4, 2007, Dr. Maurer ordered some blood and urine
tests and an x-ray. Several markers on those tests were abnormal,
but Plaintiff was not informed of the results despite his requests,
according to Plaintiff. The x-ray showed that Plaintiff's lungs were
clear.
On the evening of April 11, 2007, Plaintiff avers that he began
convulsing. (Pl.'s Aff. ¶ 117.) After thirty minutes of convulsing,
Plaintiff was taken to the hospital emergency room, he says
writhing and screaming in pain while officers purportedly mocked
him. Id. Plaintiff remained in the hospital for several days and was
diagnosed with acute and chronic cholecystitis (gallbladder
inflammation) with cholelithiases (gallstones). (St. John's Hospital
Note, Pl.'s Exhibits 2-92, 2-94.) Plaintiff had surgery to remove his
gallbladder on April 14, 2007. (id.; Pl.'s Aff. ¶ 136.)
ANALYSIS
Plaintiff had a constitutional right to be free from deliberate
indifference to his serious medical needs during his detention at the
jail. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012). A
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reasonable juror could find that Plaintiff suffered from a serious
medical need based on Plaintiff's own description of his symptoms.
If believed, Plaintiff was unable to eat, drink, function, was severely
dehydrated, had (at least for part of the time) a fever of 104, was in
severe pain, and suffered convulsions. Plaintiff avers that he felt
like he was dying.
The question is whether a reasonable jury could find that
Defendants were deliberately indifferent to Plaintiff's serious
medical needs. The answer depends in large part on whether the
jury believes Plaintiff's testimony. If the jury believes that Plaintiff
looked like he was wasting away before everyone's eyes as Plaintiff
describes, then a reasonable jury could conclude that Defendants
knew, long before Plaintiff fell into convulsions, that whatever
medical treatment was being provided was woefully inadequate.
See, e.g., Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000)("If
knowing that a patient faces a serious risk of appendicitis, the
prison official gives the patent an aspirin and an enema and sends
him back to his cell, a jury could find deliberate indifference
although the prisoner was not 'simply ignored.'")(reversing summary
judgment). The jury could conclude that Dr. Maurer's refusal to
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alter his approach in the face of Plaintiff's worsening condition was
"such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate" that Dr. Maurer did not
base his decision on a professional judgment. King, 680 F.3d at
1019 (quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 26162 (7th Cir. 1996).
A reasonable jury could also find that Nurses Brauer and
Ramsey were deliberately indifferent to Plaintiff's plight. Nurses are
generally expected to defer to the physician's judgment, but that
deference "may not be blind or unthinking, particularly if it is
apparent that the physician's order will likely harm the patient."
Berry v. Peterman, 604 F.3d 435, 443 (7th Cir.2010). If Plaintiff's
version is believed, a reasonable jury could find that the nurses
turned a blind eye to Dr. Maurer's obviously deficient treatment.
The Defendants without medical training—Cowdrey,
Williamson, Durr, Beckner, Strayer, and Cain—generally would be
entitled to rely on the judgment of the medical professionals.
Greeno v. Daley, 414 F.3d 645, 657 (7th Cir. 2005)(nonmedical
defendants' investigation into prisoner's medical complaints and
reliance on medical staff's assurances is not deliberate indifference).
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Unless, that is, a detainee's medical need is so obvious and so
serious that even a layperson would know that the medical care
offered (or withheld) ignores a substantial risk of serious harm.
King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012)(nonmedical
defendants may be liable if “‘they have a reason to believe (or actual
knowledge) that prison doctors or their assistants are mistreating
(or not treating) a prisoner.’”)(quoted cites omitted); Greeno v. Daley,
414 F.3d 645, (7th Cir. 2005).
Plaintiff's evidence allows an inference that he and others
personally and repeatedly informed the nonmedical Defendants of
Plaintiff's alarming physical decline, which, in their view, would
have been obvious to anyone. Though Plaintiff has an uphill battle,
the Court cannot rule out that Plaintiff's medical needs were so
obvious that the nonmedical Defendants turned a blind eye. What
Defendants each individually knew and could do about the
situation is something the jury must decide.
Defendant Cowdrey asserts that, though Plaintiff was legally in
the custody of the U.S. Marshals Office, the jail was responsible for
providing Plaintiff's medical care pursuant to an Intergovernmental
Service Agreement. However, the agreement does not protect
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Cowdrey from liability for turning a blind eye to Plaintiff's serious
medical needs. An inference arises from Plaintiff's evidence that
Defendant Cowdrey knew about Plaintiff's deterioration in early
April, 2007, had the authority to intervene, and unreasonably relied
on the nurse's assessment of Plaintiff's condition.
The Court reaches the same conclusion regarding Plaintiff's
claim that the medical Defendants refused to prescribe Plaintiff a
special diet. According to Plaintiff, his medical conditions made it
very difficult for him to digest the jail food—he repeatedly
experienced diarrhea, pain, and vomiting, losing 85 pounds
involuntarily. Defendants do not dispute that Plaintiff had these
difficulties or lost over eighty pounds. From Plaintiff's response, the
Court understands the weight loss claim to be against only Dr.
Maurer and Nurse Ramsey. (Pl.'s Resp. ¶¶ 68-73.)
Defendants assert qualified immunity, which protects
government actors from liability unless they violate an individual's
clearly established federal rights. Brokaw v. Mercer County, 235
F.3d 1000, 1022 (7th Cir.2000). However, Defendants cannot
obtain qualified immunity based on their version of disputed facts.
Gutierrez v. Kermon, 722 F.3d 1003, 1010 (7th Cir. 2013).
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Accepting Plaintiff's version, Plaintiff was visibly and extremely ill,
continuing to worsen even after starting the antibiotic, unable to eat
or drink. Plaintiff and others repeatedly begged Defendants for
medical care beyond what Plaintiff was receiving, but Defendants
either refused or turned a blind eye until Plaintiff fell into
convulsions. Under Plaintiff's version of the facts, a reasonable
government actor would have known that Plaintiff had some kind of
very serious medical need which was not being addressed. A
reasonable government actor would know that failing to take
reasonable action in the face of that knowledge violated Plaintiff's
clearly established right to be free from deliberate indifference to his
serious medical needs.
The only Defendants for whom summary judgment might be
warranted is the County and the Sheriff's Department, to the extent
Plaintiff is suing these Defendants on a claim of unconstitutional
policy or practice. The County or the Sheriff's Department can be
liable for Plaintiff's constitutional deprivations only if the purported
constitutional violations were caused by an official policy or practice
attributable to the County or Sheriff's Department. Smith v.
Sangamon County Sheriff's Dept., 715 F.3d 188, 192 (7th Cir.
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2013)("'[T]here must be an affirmative link between the policy and
the particular constitutional violation alleged.'")(quoted cite
omitted).
Plaintiff asserts that the jail's policy of requiring the nurse on
site to obtain the physician's approval before transporting a
detainee to the hospital caused Plaintiff 30 more minutes of
excruciating, needless pain. Plaintiff points to a consultant report
dated August 13, 2008, which recommended that nurses have the
authority to send a patient out for emergent care without first
obtaining the physician's consent. (8/13/08 consultant report, Pl.'s
Ex. 2-100.) The incidents discussed in the report were situations
where the physician on call had denied consent to outside medical
care. No concerns about delays encountered when consent is given
by the physician were discussed in the report. Id. p. 3. (harm must
be "'so patently obvious'" that the policy or lack of policy effectively
"'sanctioned the harmful conduct.'")
However, Defendants do not address this claim in their
summary judgment motion. In order to ensure that a jury question
exists, Defendants will be directed to file a supplemental motion for
summary judgment on this issue.
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IT IS ORDERED:
1) By April 7, 2014, the County and the Sheriff's Department
are directed to file a summary judgment motion on Plaintiff's
unconstitutional policy claim.
2) A final pretrial conference is scheduled for July 7, 2014 at
10:45 a.m. Plaintiff shall appear by video conference. Defense
counsel shall appear in person.
3) An agreed, proposed final pretrial order is due June
23, 2014.
4) Motions in limine are due June 23, 2014, with
responses thereto due June 30, 2014.
5) The Court will send out proposed jury instructions
and voir dire for discussion at the final pretrial conference.
Additional or alternate instructions and additional voir dire
questions are due June 23, 2014.
6) Plaintiff and Defense counsel must bring their
exhibits, marked, to the final pretrial conference.
7) Objections to exhibits are due June 30, 2014.
Objections must attach the exhibit at issue.
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8) The jury selection and trial are scheduled for
September 15-19, 2014, beginning at 9:00 a.m. each day.
9) The clerk is directed to issue a video writ to
secure Plaintiff's presence at the final pretrial conference.
10) Defendants' motions for summary judgment are
denied (d/e's 111, 125, 131).
11) Dr. Maurer's motions to strike Plaintiff's request
for judicial notice of medical articles are denied as moot
(d/e's 162, 163).1 The articles have not been considered in
the Court's order on summary judgment.
12) The clerk is directed to terminate the
unidentified defendants.
ENTER:
March 10, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
1
Motion 162 was incorrectly docketed as a motion for the appointment of counsel.
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