Johnson v. Tinwalla

Filing 164

SUMMARY JUDGMENT OPINION: Plaintiff's Motion to Correct His Reply 138 is GRANTED. Plaintiff's Reply 137 is struck. Clerk is directed to docket the reply attached to Plaintiff's motion 138 . Plaintiff's Motion for Partial Su mmary Judgment 127 is DENIED. Plaintiff's Motions in Limine 141 144 146 are DENIED with leave to renew. Plaintiff's Motion in Limine 143 is GRANTED. Plaintiff's Motion to Strike Exhibit List 162 is GRANTED. The exhibit list 156 previously filed is struck. Clerk is directed to docket the exhibit list attached to Plaintiff's motion. Plaintiff's Motion for Leave to File Certain Exhibits Under Seal 148 is GRANTED. Defendant shall file any responses to the mo tions in limine 136 142 145 the Court took under advisement by November 9, 2017. Plaintiff is granted leave to file any reply by November 13, 2017. Plaintiff's request for sanctions directing Defendant to reimburse travel costs and attorney fees is denied. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 11/8/2017. (MJC, ilcd)

E-FILED

Wednesday, 08 November, 2017 05:08:20 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TERRY C. JOHNSON,
Plaintiff,
v.
ABDI TINWALLA, et al.
Defendants.

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13-3227

SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Seventh Circuit Court of Appeals reversed the Court’s
grant of summary judgment in Defendant’s favor and remanded the
case. See Johnson v. Tinwalla, 855 F.3d 747 (2017). The Court
subsequently appointed counsel for Plaintiff and reopened discovery
to allow Plaintiff’s counsel an opportunity to further investigate the
claims in this case. The matter is before the Court for ruling on
Plaintiff’s Motion for Partial Summary Judgment on Liability. (Doc.
127). The motion is denied.
PLAINTIFF’S MOTION TO CORRECT HIS REPLY (DOC. 138)
Plaintiff filed a motion seeking to refile a corrected version of
his reply to Defendant’s response to his motion for summary
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judgment. The motion is granted. The Court will consider
Plaintiff’s corrected reply for purposes of this ruling.
LEGAL STANDARD
Summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). All facts must be construed in the light most favorable to the
non-moving party, and all reasonable inferences must be drawn in
his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
The party moving for summary judgment must show the lack of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). In order to be a “genuine” issue, there must be
more than “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).

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FACTS
Plaintiff is civilly committed at Rushville Treatment and
Detention Facility (“Rushville” or “TDF”), a secure residential
treatment center operated by the Illinois Department of Human
Services (“IDHS”). UMF 1, 2. Defendant is a psychiatrist employed
by Wexford Health Services, a private company contracted to
provide health services at Rushville. UMF 3. In his capacity as a
psychiatrist, Defendant sees patients and prescribes medication.
UMF 5.
On June 23, 2013, Plaintiff reported to Defendant an anger
problem, feelings of hopelessness, and irritability. UMF 31, 32.
Plaintiff also expressed a desire to assault a staff member. At that
time, however, Defendant did not believe that Plaintiff would
imminently hurt a staff member, or that Plaintiff was a danger to
others. UMF 33, 34, 36. Defendant noted that Plaintiff was calm,
alert and oriented, able to express himself well, and that Plaintiff’s
thought processes were logical with no racing thoughts or
hallucinations. UMF 35. Defendant did not believe Plaintiff’s
situation was an emergency, or that Plaintiff was gravely disabled.
UMF 37, 38.
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During the appointment, Defendant suggested a prescription
for Risperdal, a psychotropic medication. UMF 39. Defendant
informed Plaintiff of the side effects of the medication, including
weight gain, increased body temperature, kidney failure, increased
cholesterol, tremors, shakes, abnormal movements, upset stomach,
constipation, nausea, and vomiting. UMF 40. Defendant also
discussed the risks and benefits of Risperdal, alternative
medications, and no treatment. UMF 41. Plaintiff initially signed
the consent form for Risperdal, but crossed out his signature upon
Defendant’s mention of the possibility of forced medication. UMF
42-44. Defendant noted on the consent form that Plaintiff had
“refused consent after signing.” UMF 46.
Defendant testified in his deposition that, after Plaintiff
scratched out his name, Defendant told Plaintiff he was “prescribing
him the medication…and providing access to the medication so
[Plaintiff] can take it if he wants to.” Tinwalla Dep. 96:24-97:6.
Defendant testified further: “then after I ordered the prescription, I
took the chart to the nurses. Of course, as common practice, after
the order is written, I would take the chart to the nurses’ station
and let them know that I’m starting so and so on a medication. So
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the nurses are aware to take that order down, sign off on it and fax
the prescription to the pharmacy.” Id. 139:4-12. Defendant did not
follow the procedure outlined in the Illinois Administrative Code
related to the forced administration of psychotropic medications
prior to prescribing the medication.
Plaintiff took Risperdal daily with his other prescribed
medications for approximately the next six (6) weeks. UMF 49-52,
64. Plaintiff testified that he did not know he was taking Risperdal
until he received a notice of such on August 4, 2013. Pl.’s Dep.
28:4-6. Upon Plaintiff’s inquiry, the nurse distributing the
medications replied that she was not aware that Plaintiff was taking
Risperdal. Id. 28:8-9. However, she was able to immediately
confirm the prescription. Id. 28:9-12 (“I gave her the papers. She
went back there, and she said yes, you have been on Risperdal
since June the 23rd, 2013.”). Thereafter, nurses removed the
Risperdal from Plaintiff’s daily medications upon Plaintiff’s request.
Id. 28:13-16 (“I was like every time I go to med line[,] I am like
which one of them—take that Risperdal out, and the nurse would
take it out.”).

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ANALYSIS
“[T]he Due Process Clause permits the State to treat a prison
inmate who has a serious mental illness with antipsychotic drugs
against his will, if the inmate is dangerous to himself or others and
the treatment is in the inmate’s medical interest.” Washington v.
Harper, 494 U.S. 210, 227 (1990). Factual disputes remain
regarding whether Plaintiff knew he was taking Risperdal during the
relevant time period.
Plaintiff argues that he withdrew consent by scratching his
signature out on the written consent form and then never took
steps thereafter to reinstate it. On the contrary, Defendant testified
that he told Plaintiff that he was going to prescribe the medication
to give Plaintiff access to it. Janet Anderson, the nurse who
processed the prescription in question, testified that it was her
common practice to inform residents of a new prescription if she
was the one who processed it. Anderson Dep. 139:9-140:16. If
believed by the trier of fact, this testimony supports the conclusion
that Plaintiff knew that he was prescribed Risperdal and took the
medication anyway. If so, the administration of medication was not
against Plaintiff’s will and does not raise constitutional concerns.
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The same holds true for Plaintiff’s medical battery claim as Illinois
law requires Plaintiff to show Defendant “committed an intentional,
unconsented-to act resulting in an offensive contact with the
plaintiff’s body.” Johnson, 855 F.3d at 751 (citing Sekerez v. Rush
University Medical Center, 954 N.E.2d 383, 394 (Ill. 2011))
(emphasis added).
The Seventh Circuit in this case also found that a reasonable
jury could “conclude that [Defendant] had been deliberately
indifferent to the plaintiff’s right to refuse Risperdal.” Id. at 750.
The basis for Defendant’s conclusion that Plaintiff would benefit
from Risperdal is not at issue, as the Seventh Circuit assumed that
Plaintiff’s complaints and medical history justified the prescription.
Johnson, 855 F.3d at 749 (“[W]e can assume that these complaints
and the medical history justified the prescription.”). The relevant
question is whether Defendant acted with deliberate indifference in
prescribing the medication while knowing a substantial risk existed
that Plaintiff would unknowingly consume the medication.
An official acts with deliberate indifference when “the official
knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
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inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994). An official’s subjective awareness of a
risk “is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, and a
factfinder may conclude that [an] official knew of a substantial risk
from the very fact that the risk was obvious.” Id. at 842. “[S]tate of
mind is an inquiry that ordinarily cannot be concluded on summary
judgment.” Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015).
Here, the parties agree that Defendant informed Plaintiff of the
risks and benefits of taking Risperdal, along with alternative
treatment options involving different medications or no medications
at all. Defendant testified that he told Plaintiff he was going to
prescribe Risperdal to Plaintiff after Plaintiff scratched out his
signature, and he took the prescription to the nurses to carry out
this order. The nurse who processed the order testified that she
would have told any resident about new medications of which she
was aware, and a reasonable inference exists from Plaintiff’s
testimony that the nurses dispensing the medication could have
identified, and removed, the pills in Plaintiff’s medication cup upon
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request. On these facts, the Court finds that a reasonable juror
could conclude that Defendant did not act with deliberate
indifference.
Finally, Defendant, as a private contractor, is not entitled to
qualified immunity. Estate of Clark v. Walker, 865 F.3d 544, 550
(7th Cir. 2017). Plaintiff’s motion for summary judgment is
therefore denied.
PLAINTIFF’S OTHER MOTIONS
Plaintiff’s Motions in Limine (Docs. 141, 144, 146) are denied
with leave to renew for the reasons stated on the record during the
final pretrial conference held November 6, 2017. Plaintiff’s Motion
in Limine (Doc. 143) is granted.
The Court reserves ruling on the remainder of Plaintiff’s
pending motions in limine. (Docs. 136, 142, 145). Defendant shall
file any responses to these motions by November 8, 2017. Plaintiff
is granted leave to file any reply by November 13, 2017.
Plaintiff’s unopposed Motion for Leave to File Certain
Documents Under Seal (Doc. 148) is granted.

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Plaintiff’s Motion to Strike Exhibit List (Doc. 162) is granted.
The Court will strike docket entry no. 156 and substitute the
exhibit list attached to Plaintiff’s motion.
PLAINTIFF’S REQUEST FOR REIMBURSEMENT OF COSTS AND
FEES REGARDING THE SETTLEMENT CONFERENCE
Defendant moved to cancel the settlement conference in a
motion filed one week before the settlement conference was
scheduled to occur, and one day after the deadline to submit
settlement statements. See (Doc. 115). The motion was granted.
(Doc. 119). Plaintiff, in responding to Defendant’s motion to cancel,
moved the Court for an order directing Defendant to reimburse
nonrefundable travel costs and attorney fees incurred before
Defendant filed the motion. (Doc. 117). Defense counsel was
ordered to show cause why an order to that effect should not enter.
Defense counsel responded that he “had approximately 48
hours between completing Defendant’s deposition and the
settlement statement’s due date to report to and confer with those
who would be making the ultimate decision on any settlement.”
(Doc. 125 at 3). Defense counsel stated further that he had
“virtually no time to update the carrier and company on
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Defendant’s deposition, to discuss the case, given all the
depositions that occurred over the previous several weeks, and to
make a reasoned recommendation,” especially given that he had
recently taken over the file from another attorney at his firm. Id.
According to email correspondence, Defendant Tinwalla’s deposition
was scheduled on a date initially suggested by Plaintiff’s counsel.
Defendant’s present counsel was not included in the emails where
scheduling the depositions or the settlement conference was
discussed.
Plaintiff’s counsel, in his request for reimbursement of costs
and attorney fees, did not identify the specific statute, rule, or other
legal authority upon which his request was based. See (Doc. 117).
The Court, however, has inherent authority to impose sanctions for
civil contempt. Jones v. Lincoln Elec. Co., 188 F.3d 709, 738 (7th
Cir. 1999). Remedial sanctions “seek to compensate an aggrieved
party for losses sustained as a result of the contemnor’s
disobedience of a court’s order or decree made for the aggrieved
party’s benefit,” but “any sanction imposed by the court must be
predicated on a violation of an explicit court order.” Id.

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The Court referred this case to the magistrate judge for
purposes of a settlement conference. See Text Order entered June
1, 2017. The parties were directed to inform the magistrate judge of
their availability for such a conference within 30 days of that order.
Id. The parties do not assert any failure to comply with this Order.
The magistrate judge later ordered a settlement conference
pursuant to Local Rule 16.1(B). Text Order entered July 3, 2017.
The parties were further ordered to “submit a statement describing
prior negotiations, including demands, offers, and counter-offers
that have been made and rejected and identify any particular
circumstances which may have impeded settlement efforts” prior to
the close of business on August 31, 2017. Id. Defendant
admittedly did not comply with this Order. Instead, he informed
the magistrate judge and opposing counsel via email of his intention
to move to cancel the settlement conference. (Doc. 119-1 at 1).
Counsel for both parties was actively engaged in the discovery
scheduling process. The email correspondence provided to the
Court shows that counsel for each party agreed that Defendant
Tinwalla’s deposition should occur “after document and third-party
discovery is substantially complete.” (Doc. 132-1 at 6-7) (email
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from Plaintiff’s counsel dated June 14, 2017). Defense counsel later
agreed to one of the potential deposition dates proposed by Plaintiff,
and, although Plaintiff’s counsel later attempted to reschedule,
defense counsel stated they were flexible in moving any proposed
date for a settlement conference. Id. at 3-5.
The parties had a 60-day window from the conclusion of
Defendant Tinwalla’s deposition until the final pretrial conference
scheduled for November 6, 2017 to participate in a settlement
conference, and the Court’s prior order made clear that the parties
were to confer amongst themselves to determine acceptable dates
for same. The record does not disclose why the parties sought to
discuss settlement so close to the conclusion of discovery, but it
appears the agreement to do so had unintended consequences for
both sides.
Given the timing of the events described above, it appears that
defense counsel was unable to give his client an accurate
assessment of the status of the case in the short time between the
conclusion of Defendant’s deposition and the due date for
settlement statements. Therefore, it appears defense counsel could
not obtain the final settlement authority necessary for a productive
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settlement conference. As the magistrate judge noted in his order
to show cause, a settlement conference held under those
circumstances would have been futile.
The only explicit court order defense counsel appears to have
violated is the magistrate judge’s order to submit settlement
statements by August 31, 2017. Admittedly, defense counsel failed
to do so, but he took steps to notify the Court and opposing counsel
of his intention to move to cancel the hearing within that deadline
and less than 48 hours after the conclusion of Defendant Tinwalla’s
deposition. Accordingly, the Court does not find that sanctions are
appropriate. Plaintiff’s request for reimbursement of costs and
attorney fees as a sanction is denied.
IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion to Correct His Reply [138] is GRANTED.
Plaintiff’s Reply [137] is struck. Clerk is directed to
docket the reply attached to Plaintiff’s motion [138].
2) Plaintiff’s Motion for Partial Summary Judgment [127] is
DENIED.
3) Plaintiff’s Motions in Limine [141][144][146] are DENIED
with leave to renew. Plaintiff’s Motion in Limine [143] is
GRANTED.
4) Plaintiff’s Motion to Strike Exhibit List [162] is GRANTED.
The exhibit list [156] previously filed is struck. Clerk is
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directed to docket the exhibit list attached to Plaintiff’s
motion.
5) Plaintiff’s Motion for Leave to File Certain Exhibits Under
Seal [148] is GRANTED.
6) Defendant shall file any responses to the motions in
limine [136][142][145] the Court took under advisement by
November 9, 2017. Plaintiff is granted leave to file any
reply by November 13, 2017.
7) Plaintiff’s request for sanctions directing Defendant to
reimburse travel costs and attorney fees is denied.
ENTERED:

November 8, 2017.

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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