Kincaid v. Sangamon County, Illinois et al

Filing 302

OPINION entered by Magistrate Judge Tom Schanzle-Haskins: Motions ruled on as follows: 274 Motion for Sanctions and Motion to Strike, 275 Motion to Strike and 277 Motion to Strike, granted in part and denied in part; 279 Motion for S ummary Judgment and 281 Motion for Summary Judgment, denied; 280 Motion for Summary Judgment, granted; 295 Motion for Leave to File, 296 Motion to Amend/Correct and 297 Motion for Leave to File, granted; 298 Motion for Sanctions and 299 Motion to Strike, denied. Neil Williamson (Sheriff of Sangamon County, Springfield, Illinois) terminated. (SEE WRITTEN ORDER) Entered by Magistrate Judge Tom Schanzle-Haskins on 8/3/2015. (MAS, ilcd)

E-FILED

Monday, 03 August, 2015 09:43:37 AM
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
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This order rules on the pending motions, to ready this case for
the trial this September.
I.

Renewed Summary Judgment Motions

On March 10, 2014, Judge Myerscough denied summary
judgment to Defendants. Judge Myerscough then recruited pro
bono counsel for Plaintiff and permitted discovery to be reopened
and renewed dispositive motions to be filed. This Court took over
the case last May, on the parties’ consent, and a trial is scheduled
for September 14, 2015.

Page 1 of 19 

Before the Court are renewed motions for summary judgment
by four of the defendants: former U.S. Marshal Jeff Cowdrey,
Nurses Ramsey and Brauer, and former Sangamon County Sheriff
Neil Williamson. The Court assumes familiarity with Judge
Myerscough’s order denying summary judgment.
After a careful review, the Court reaches the same conclusion
as Judge Myerscough with regard to Marshal Cowdrey, Nurse
Brauer and Nurse Ramsey. While a jury certainly could find in
favor of these defendants, material factual disputes still exist which
preclude summary judgment. No additional evidence submitted
with the renewed summary judgment motions compels a different
conclusion. In short, if Plaintiff and his witnesses are believed,
Plaintiff was so seriously ill that even a layperson would have
known that his medical care was so severely lacking that something
needed to be done. Each of these defendants were sufficiently
connected to the events that their personal knowledge can be
inferred as well as their ability to take action. The gravity of
Plaintiff’s condition and the extent of each of these defendants’
knowledge are simply not decisions that can be made on paper.

Page 2 of 19 

The Court reaches a different conclusion for former Sheriff Neil
Williamson. Sheriff Williamson testified in his deposition, taken
after summary judgment was denied, that he did not even know
what Plaintiff looked like and was not made aware of any
complaints about Plaintiff’s health until a week before Williamson’s
deposition. (Williamson Dep. p. 26.) Plaintiff has no competent
evidence to dispute this. Accordingly, summary judgment will be
granted to Sheriff Williamson.
The Court further details below its reasoning with regard to
each Defendant who filed a renewed motion for summary judgment.
A. Former U.S. Marshal Jeff Cowdrey
Plaintiff’s case against Defendant Cowdrey will be difficult to
prove because of the “presumption that non-medical officials are
entitled to defer to the professional judgment of the facility’s
medical officials . . . .” Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir.
2008)(summary judgment appropriate where nonmedical
defendants promptly investigated complaints and relied on
physicians). “‘The only exception to this rule is that nonmedical
officers may be found deliberately indifferent if “they have a reason
to believe (or actual knowledge) that prison doctors or their
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assistants are mistreating (or not treating) a prisoner.”’” McGee v.
Adams, 721 F.3d 474, 482 (7th Cir. 2013)(quoted cites omitted).
Plaintiff does not dispute that, in response to Jon Noll’s letter of
concern regarding Plaintiff’s declining health, Defendant Cowdrey
called the Jail on April 3, 2007, and spoke to a licensed practical
nurse, Nurse Nicey. According to Cowdrey’s notes from that
conversation, Cowdrey understood that Dr. Maurer had examined
Plaintiff the day before, prescribed an antibiotic, and noted no
temperature. The notes also reflect that Cowdrey understood that
Dr. Maurer would see Plaintiff again on December 9. Whether
Nurse Nicey actually examined Plaintiff that day or any other day is
not in the record.
Judge Myerscough recognized these facts but still found that
“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.” (d/e 165, p. 11.) This
Court agrees.
Part of the new evidence offered by Cowdrey is that Plaintiff’s
own expert opined that Plaintiff’s medical care was acceptable from
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March 31 to April 4, 2007. (Dr. Giffin Dep. p. 122, l. 21-24, d/e
282-1.) However, the Court agrees with Judge Myerscough that a
juror could find that Cowdrey learned after April 4 that Plaintiff was
fast declining and urgently needed medical care. Plaintiff’s friend,
Steve Collins, says he left such a message for Cowdrey through the
Marshal’s answering service on the evening of April 5th. Even with
Cowdrey’s express denial of having received the message, an
inference arises that Cowdrey would have received the message in
the usual course of business, as Judge Myerscough already
concluded. (The Court does not rely on the unauthenticated memo
and letter offered by Plaintiff in support of that conclusion; the
Court agrees that these documents are not properly authenticated,
are without foundation, and contain hearsay.) A reasonable juror
might conclude that Cowdrey knew that Plaintiff was at a
substantial risk of serious harm which Cowdrey could have
confirmed by visiting Plaintiff at the Jail and simply looking at
Plaintiff. Under the contract between the U.S. Marshal and the Jail,
Cowdrey arguably had the power to authorize that Plaintiff be taken
for an outside consult before Plaintiff’s condition became emergent.
(Intergovernmental Agreement, p. 3, de 282-1.) Cowdrey also could
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have asked to speak to the treating physician, rather than rely
solely on the nurse’s account. In short, reasonable juror could
conclude that Cowdrey turned a blind eye to Plaintiff’s plight and
unreasonably relied on Nurse Nicey, as Judge Myerscough already
concluded. See also Perez v. Fenoglio, --- F.3d ---, 2015 WL
4092294 (7th Cir. 2015)(that a prisoner is receiving medical care
does not preclude inference of deliberate indifference where prison
official knows of and disregards a substantial risk of serious harm).
Cowdrey argues that even if he had received Collins’ message
and had contacted the Jail again, he would have only learned,
again, that the medical staff were aware of Plaintiff’s condition and
were treating Plaintiff. It is true that Dr. Maurer saw Plaintiff on
April 4 and ordered blood tests, a urinalysis, and x-rays. Yet, the
crux of Plaintiff’s case against the nonmedical defendants is that
even a layperson would have known that Plaintiff was at a
substantial risk of serious harm and that the medical treatment he
was receiving was woefully inadequate. As Judge Myerscough
recounted the events during this time period:
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. ¶
Page 6 of 19 

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
called Steve Collins because he feared Plaintiff was going
to die. (Puckett Aff. ¶ 9.)
(d/e 165, p. 6-7.) Ms. Cooke also averred that she observed that
Plaintiff’s condition had gone from bad to worse between her visit
on April 2 and her visit on April 9: “[F]rom a Monday to a Monday,
7 days, Paul had gone from death’s door to death warmed over.”
(Cooke Aff. para. 11, d/e 137.) Stephen Puckett averred that
“[a]nyone who would have come in contact with Paul during this
period and seen him for even the briefest of time would have known
that Paul was in great distress and needed serious help from a
hospital. Anyone would have smelled the sickness on Paul.”
(Puckett Aff. para 8, d/e 137).
Crediting this testimony, a juror could reasonably conclude
that the nonmedical defendants who were aware of Plaintiff’s
condition during this time were deliberately indifferent, even though
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Plaintiff was being seen by Dr. Maurer. Mr. Noll’s letter and
Stephen Collins’ phone message allow an inference that Defendant
Cowdrey had this awareness.
Therefore, neither summary judgment nor qualified immunity
is warranted for Defendant Cowdrey. Defendant Cowdrey’s
qualified immunity argument depends on his argument that he
reasonably relied on Nurse Nicey’s assessment and heard no further
complaints until Plaintiff’s hospitalization. However, for the reasons
discussed above, those facts are disputed. When the facts are
construed in Plaintiff’s favor, an inference arises that Cowdrey
consciously disregarded a serious risk of substantial harm to
Plaintiff.
Nurses Brauer and Ramsey
Nurses Brauer and Ramsey argue that the evidence shows
that they were only minimally involved with Plaintiff’s care, that
Plaintiff was under the continuous care of Dr. Maurer, and that
they reasonably relied on Dr. Maurer’s professional judgment. A
rational juror could certainly agree. However, crediting Plaintiff’s
version, Nurse Brauer was dismissive of Plaintiff’s substantial and
continuing weight loss, which, according to Plaintiff, was
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involuntary and indicated an underlying serious medical problem.1
Additionally, Plaintiff’s evidence allows a reasonable inference that
Nurse Brauer and Nurse Ramsey were both personally aware for
months of Plaintiff’s continued difficulties with vomiting, weight
loss, and nausea, and, Plaintiff’s alarming decline in April (if
Plaintiff’s witnesses are believed). As Judge Myerscough reasoned
in her summary judgment order:
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.
(3/10/14 summary judgment order, p. 9, d/e 165); see also
Perez, 2015 WL 4092294 at *6-7 (“While nurses may generally
defer to instructions given by physicians, they have an
independent duty to ensure that inmates receive
constitutionally adequate care.”)(discussing Berry); Holloway v.
Delaware County Sheriff, 700 F.3d 1063, 1075 (7th Cir.

1

 Defendants have evidence that Plaintiff at times reported to others that his weight loss was voluntary, but that is 
an issue for impeachment.  The Court cannot decide credibility. 

Page 9 of 19 

2012)("Nurse can be deliberately indifferent if she 'ignore[s]
obvious risks to an inmate's health' in following physicians
orders.")(quoted cited omitted). The evidence allows a
reasonable inference that Plaintiff suffered from a serious
medical condition for months, ending in his emergency
hospitalization in April.
Additionally, as Plaintiff points out, “there is a vast
discrepancy between what is reflected in the medical records
and the accounts provided by Mr. Kincaid and other nongovernmental witnesses as to his communications with
Defendants, as well as his obvious symptoms.” (Pl.’s Resp. p.
19, d/e 20.) These discrepancies are factual disputes which
belong to the jury to resolve.
Former Sheriff Williamson
Sheriff Williamson is being sued in his individual capacity,
which means that Plaintiff must have evidence for a reasonable
juror to find that Williamson knew that Plaintiff needed medical
care. Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir.
2012)( “To show personal involvement, the supervisor must ‘know
about the conduct and facilitate it, approve it, condone it, or turn a
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blind eye for fear of what they might see.’”)(quoting Jones v. City of
Chicago, 856 F.2d 985, 992–93 (7th Cir.1988).
After summary judgment was denied and discovery was
reopened, Sheriff Williamson was deposed. He testified in his
deposition that that he was not made aware of any complaints
or requests for medical care by Plaintiff or Plaintiff’s family or
friends. Williamson testified that he first learned of this the
Friday before his deposition. Williamson also testified that he
had not spoken with Marshal Cowdrey about Plaintiff before
this lawsuit. (Williamson Dep. pp. 21, 48.) Williamson could
not recall if he had talked to Jon Noll about Plaintiff during
Plaintiff’s incarceration, id. p. 27, 48, but Plaintiff does not
assert that Noll or anyone else contacted Sheriff Williamson
during the relevant time period.
Plaintiff argues that Sheriff Williamson’s knowledge can
be inferred from the many complaints made throughout
Plaintiff’s detention at the Jail by Plaintiff, his family, his
friends, and his defense attorney. However, Plaintiff has no
evidence that anyone actually relayed those complaints to
Sheriff Williamson. Further, Williamson was not on-site or in
Page 11 of 19 

charge of daily jail administration like the other Sangamon
County Defendants were. Nor was Sheriff Williamson
personally contacted about Plaintiff like Defendant Cowdrey
was.
To hold Sheriff Williamson liable on this record would be
to allow an inference of deliberate indifference solely because
Williamson is the Sheriff. That would amount to respondeat
superior liability, which is not available for constitutional
claims. Miller v. Harbaugh, 698 F.3d 956, 960 (7th Cir.
2012)(“there is no vicarious liability under Section 1983 . . .”)
That other “high ranking officials” (Pl.’s Resp. cite) at the Jail
knew about Plaintiff’s condition is not enough, by itself, to
conclude the information was communicated to Williamson,
much less that Williamson condoned or was somehow
personally involved in the denial of adequate medical care.
II. Motions to Strike Supplemental Disclosures
Defendants move to strike Plaintiff’s supplemental expert
disclosures which Plaintiff mailed to the parties on or around April
30, 2015, the close of discovery. There is no dispute that Plaintiff’s
expert disclosure deadline was October 29, 2014, and the
Page 12 of 19 

deposition of Plaintiff’s expert was taken on December 30, 2015.
The depositions of Defendants’ experts were taken on February 23,
February 27, and March 6, 2015, which would set the deadline for
rebuttal of the expert deposition testimony near the end of March or
the beginning of April.
If these disclosures are truly supplemental, then the
disclosures are not untimely Fed. R. Civ. P. 26(e)(2), which sets the
same deadline as pretrial disclosures under Rule 26(a)(3)—30 days
before the trial.
Defendants argue that the supplemental disclosures are not
supplemental, but rather new opinions not previously disclosed.
Plaintiff does not appear to disagree, instead arguing that the
supplemental opinions are in rebuttal to the expert reports and
depositions of Defendants’ experts. Plaintiff concedes that the
rebuttal opinions were provided three to four weeks late because he
improperly relied on the April 30 deadline for the close of discovery,
rather than the deadline for rebuttal opinions in Rule 26(a)(2)(D).
Plaintiff asks for leave to file the rebuttal opinions late, consistent
“with the courtesies offered by Plaintiff” to Defendants over
deadlines in the past. He also offers to allow a supplemental
Page 13 of 19 

deposition of his expert, Dr. Giffin, by phone to reduce Defendants’
costs, but objects to the costs of the deposition being shifted to him.
The Court has reviewed the additional expert disclosures, and
statements 1, 5, or 6 do not appear to be expert opinions at all or
even supplemental information. These are statements about what
the medical records show or do not show, not expert opinions. The
records show what they show, and Dr. Giffin can testify about what
the records say or do not say. The Court will not strike disclosures
1, 5, and 6.
Additional disclosures 2 and 3 appear to be making the point
that Plaintiff’s complaint of chest pain in December 2006 was or
could have been a symptom of Plaintiff’s gallbladder disease. This
is a new opinion. Dr. Giffin’s original opinion did criticize the
handling of Plaintiff’s complaints of chest pain and dizziness in
December of 2006, but Dr. Giffin did not link those complaints to
possible gallbladder disease. (Dr. Giffin’s original report, para. 1,
d/e 274-2 p. 6.)2 Dr. Giffin’s original opinion attributes Plaintiff’s
other symptoms—weight loss, nausea, vomiting, difficulty

2

 The original report appears to be missing the first  page. 

Page 14 of 19 

swallowing, food intolerances, and abdominal discomfort—to
underlying gallbladder disease. Id. paras. 2, 4, 6.
However, disclosures 2 and 3 are fairly characterized as
rebuttal opinions to the opinion of Defendant’s expert, Dr. Peckler,
that Plaintiff did not complain of right upper abdomen pain until
April 11, 2007. (Dr. Peckler’s report, 278-3, p. 1.) Disclosures 2
and 3 seem to counter that gall bladder pain can masquerade as
heart pain.
Disclosures 2 and 3, even as rebuttal opinions, are late, but
they cause no significant prejudice or surprise to Defendants.
According to Nurse Moore (Defendants’ expert), Dr. Maurer already
testified in his deposition that chest tightness and dizziness can be
symptoms of gallbladder disease. (Moore Report, para. 4, d/e 2781.) Dr. Peckler (defense expert) also stated that Plaintiff
“complained of chest pain and/or stomach pain” in April, which, in
Dr. Peckler’s opinion, was consistent with acute cholecystitis.
(Peckler Letter, second para. d/e 278-3.) Thus, Plaintiff could get
this information admitted even without Dr. Giffin’s testimony.
Disclosures 2 and 3 will not be stricken.

Page 15 of 19 

Disclosure 4—that patients with cardiac problems should be
told to report further symptoms, and that this instruction should be
documented—is somewhat supplemental to Dr. Giffin’s original
opinion that the response to Plaintiff’s complaint of chest pain in
December of 2006 was substandard. Disclosure 4 is also arguably
in rebuttal to the nurse expert’s opinion that only giving Plaintiff an
aspirin was appropriate. Disclosure 4 will not be stricken.
Disclosure 7 states that medical documentation should
include a history, physical, positive and negative findings, and
instructions to the patient. Plaintiff does not explain how this
statement is in rebuttal. However, the statement seems already
implied in Dr. Giffin’s expected testimony about what the records do
or do not show. It is no surprise that Dr. Giffin would testify what
the records do not show and what they should show. It is certainly
no surprise that a doctor would opine that medical records should
contain a history, physical, findings, and instructions. Plaintiff
could elicit that information from Defendants’ experts without any
testimony from Dr. Giffin. The Court will not strike disclosure 7.
The Court reaches a different conclusion on disclosures 8 and
9. Statement 8—that dizziness can be a symptom of a cardiac
Page 16 of 19 

condition—is new, and Plaintiff does not adequately explain how the
opinion is in rebuttal to any statements by Defendants’ experts.
Statement 9 (the symptoms and causes of angina) is also new and
is not offered in rebuttal. Further, the point and relevance of these
disclosures is unclear. Plaintiff has not adequately explained how
these statements are rebuttal opinions or even why they are
important to his case. Therefore, the Court concludes that
statements 8 and 9 are new, not supplemental or rebuttal opinions,
and that Plaintiff has not established a good reason why the new
opinions should be allowed late. Disclosures 8 and 9 will be
stricken.
To ameliorate any prejudice, Defendants may depose Dr. Giffin
on the additional disclosures, but costs will not be shifted to
Plaintiff. To ensure that the trial will go in September as scheduled,
Defendants may have their experts address disclosures 1-7 on the
stand without prior written disclosure of their surrebuttal.
IT IS ORDERED:
1)

The renewed motion to strike by Defendants Williamson,

et al., is denied (299). The Court has not relied on inadmissible
hearsay in determining that disputed questions of fact exist for the
Page 17 of 19 

jury. Plaintiff’s own testimony about his experience and the
testimony of his witness’s personal observations and actions are the
evidence that create disputed material facts.
2)

The motions for summary judgment filed by Defendants

Cowdrey, Brauer and Ramsey are denied (279, 281).
3)

The motion for summary judgment filed by Defendant

Sheriff Williamson is granted (280).
4)

The motions to strike Plaintiff’s supplemental disclosures

are granted in part and denied in part (274, 275, 277). Disclosures
8 and 9 are stricken. The other additional disclosures are not
stricken.
5)

By August 17, 2015, Defendants may take a

supplemental deposition of Dr. Giffin regarding his additional
opinions. Defendants shall pay the cost of the supplemental
deposition, per Fed. R. Civ. P. 26(b)(4)(E).
6)

The unopposed motions for leave to file amended answers

are granted (295, 296, 297).
7)

The motion for sanctions by Defendants’ Williamson, et

al., is denied (298). Plaintiff maintains that he did not tell Dr.
Szoke that he had voluntarily lost 100 pounds. Dr. Szoke maintains
Page 18 of 19 

that Plaintiff did say this and that the statement was accurately
recorded in Plaintiff’s records. This is a credibility question, not a
grounds for sanctions.
8)

Jury instructions will be circulated in a separate order.

9)

The clerk is directed to terminate Sheriff Williamson.

10)

The clerk is directed to docket the amended answers

attached to motions 295, 296, 297.
ENTER: August 3, 2015
FOR THE COURT:

s/Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES DISTRICT JUDGE

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