Hughes et al v. Mitchell-Lawshea et al
Filing
125
OPINION: The motion for leave to file excess pages is granted 99 . The motion for summary judgment by Defendants Bednarz, Hougas, and Scott is granted in part and denied in part 100 . Summary judgment is denied to Defendants Bednarz and Scott on Pl aintiff's dental claims. Summary judgment is denied to Defendants Hougas and Scott on Plaintiff Hughes' retaliation claim. Summary judgment is granted to Defendant Hougas and Scott on Plaintiff's petition claim and claim for indiffere nce to Plaintiff's mental disorder. Defendant Walker's motion for an extension to file a summary judgment motion is granted 105 . Defendant Walker's motion for leave to file a late reply is granted over Plaintiffs' objection [12 3]. Defendant Walker's motion for summary judgment is denied 107 . The motion for summary judgment by Defendant Simpson is granted in part and denied in part 102 . Summary judgment is denied to Defendant Simpson on Plaintiff Hughes' reta liation claim. Summary judgment is granted to Defendant Simpson on Plaintiff Hughes' petition claim and claim for indifference to his mental disorder. The motion to bifurcate is granted 98 . Plaintiff Hughes' retaliation claims against Defendants Simpson, Hougas, and Scott are severed into a new case. The Doe defendants are dismissed without prejudice because they have not been identified. The motion for sanctions against Defendant Hughes is denied 112 . Defendants may seek to im peach Defendant Hughes with his purported inconsistent statements at trial, but those inconsistencies do not arise to sanctionable behavior. The clerk is directed to open a new case with Michael Hughes as the Plaintiff and Sandra Simpson, Sally Houga s, and Gregg Scott as Defendants. The clerk is directed to file this order in the new case. Attorney Pliura will be listed as counsel for Plaintiff Hughes in the severed case, subject to a motion to withdraw by Mr. Pliura. This case proceeds on th e dental claims against Defendants Mitchell, Wexford, Scott, Bednarz, and Walker. The clerk is directed to terminate Defendants Simpson and Hougas from this case. The clerk is directed to terminate the Doe defendants. The final pretrial conference in this case is set for June 21, 2019, at 10:00 a.m. Plaintiffs and their counsel will appear by video conference. Defense counsel will appear in person. The jury trial in this case will begin Tuesday, July 16, 2019, at 9:00 a.m. Magistrate Judge Schanzle-Haskins will pick the jury, with the consent of the parties, on Monday, July 15, 2019 at 1:30 p.m. The Court will send out proposed jury instructions for discussion at the final pretrial conference. By June 13, 2019, the parties shall file: 1) an agreed proposed final pretrial order in substantially the same form as the sample attached as Appendix 2-1 to the Central District of Illinois Local Rules(www.ilcd.uscourts.gov); 2) alternate or additional proposed jury instructions (not dupli cative of the Court's); 3) motions in limine (to be orally argued at the final pretrial conference); and 4) proposed voir dire questions that are additional to the Court's standard voir dire (set forth on the District's website under Orders and Rules by Judge). The clerk is directed to issue a video writ for the final pretrial conference. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 03/07/2019. (SKN, ilcd)
E-FILED
Thursday, 07 March, 2019 11:12:31 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHAEL HUGHES, et al.,
)
)
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Plaintiffs,
v.
JACQUELINE MITCHELL,
et al.,
Defendants.
15-CV-3114
OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiffs, all detainees in the Rushville Treatment and
Detention Center, pursue claims for lack of adequate dental care.
There are nine Plaintiffs, five of whom were consolidated into this
case from case number 15-cv-3127.
There are also separate claims by Plaintiff Hughes regarding
retaliation, indifference to Plaintiff Hughes’ mental disorder, and the
violation of Plaintiff Hughes’ right to petition for redress of
grievances. These claims originally proceeded in a separate case,
15-cv-3151, and were then consolidated into this case.
Before the Court are summary judgment motions by all the
Defendants except for Defendant Mitchell (a dentist) and Defendant
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Wexford (Mitchell’s employer). Summary judgment on the dental
claims is denied for the reasons explained below. Summary
judgment on Plaintiff Hughes’ separate claims is granted except as
to Plaintiff’s retaliation claim, which will be severed and proceed in a
separate case.
Dental Claims
Plaintiffs maintain that they all suffered serious dental
problems or pain as a result of the understaffing of dental service
providers at Rushville. They argue that, “[b]ased on the evidence
contained within the record, a jury could find that Defendants made
the decision to ignore the understaffing and deficient operation of
the dental department at Rushville TDF, with purposeful, knowing,
or reckless disregard of the consequences.” (d/e 109, p. 32.)
Defendants Scott (Rushville’s Director), Bednarz (Rushville’s
former Medical Director), and Walker (Rushville’s former Director of
Nursing) move for summary judgment.
Defendants Scott and Bednarz argue that no evidence supports
the conclusion that they knew of systemic understaffing and
deficiencies in the provision of dental care. However, they provide
no affidavits of their own. An inference arises from their positions
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that they, along with anyone else working at Rushville, would have
been aware of serious understaffing and systemic problems with the
provision of adequate dental care. Defendant Dr. Mitchell, the only
dentist, was purportedly working 20 hours a week to provide
services for nearly 600 residents, cramming that time into
unreasonably long hours, performing dental work at 1:00 a.m. 1
(Pegues Dep. 8; Rogers Dep. 59.) According to Plaintiffs, Dr.
Mitchell, either through incompetence or the sheer inability to meet
the volume of the need, extracted teeth that could have been saved,
sometimes without taking x-rays, extracted the wrong teeth, and
cracked teeth during procedures. (Pegues Dep. 8 (“I had teeth
pulled out of my head that was not really bad.”); Paige Dep. 28-30,
34, 39)(pulled one tooth unnecessarily and pulled wrong teeth
without taking x-rays); Hughes Dep. 13-15 (tried to pull two teeth
that were fine). Several Plaintiffs testified that they were afraid to go
back to Dr. Mitchell after these experiences and have refused to do
so. (Swanson Dep. 27-28)(frightened to agree to treatment by Dr.
Mitchell because Dr. Mitchell had purportedly cracked a tooth while
1
Dr. Mitchell’s hours were increased to 40 hours per week in August 2017. (d/e 110, p. 12.)
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trying to fill the tooth, making the tooth hurt more.) Some simply
gave up requesting dental care because the wait was so long as to be
futile. (Steward Dep. 31.) Further, Plaintiff Hughes purportedly
spoke directly to Defendant Bednarz about the problem as well as
sending a grievance directly to Defendant Scott. (Hughes Dep. 19,
88, 89.) A reasonable inference arises that there was an obviously
serious problem of which Defendants Bednarz and Scott had to have
been aware.
Therefore, Defendants Bednarz and Scott have not met their
burden on summary judgment. Defendants do make some good
points about the lack of damages as to Plaintiffs, but a reasonable
inference arises that Plaintiffs did suffer some harm as a result of
deficient dental care and systemic understaffing. The amount of
harm suffered is for the jury to decide.
Defendants Bednarz and Scott are also not entitled to qualified
immunity. They do not dispute Plaintiff’s contention that the dental
services at Rushville were woefully inadequate or that Defendants
knew about this, could have taken action, and failed to do so.
Defendants’ argument is focused on the lack of personal
responsibility and respondeat superior liability. The Court has
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rejected the personal responsibility argument, and Plaintiffs do not
seek to hold Defendants liable on the basis of respondeat superior.
Defendant Walker also moves for summary judgment. She is a
registered nurse who worked as the Director of Nursing during the
relevant time. Plaintiffs’ claim against Walker is based on Walker’s
alleged “failure to take any action about the insufficient dental
staffing and procedures for obtaining dental care at Rushville TDF.”
(d/e 110, p. 10.)
Defendant Walker focuses on her lack of personal
responsibility in processing requests for dental care and her lack of
authority over the contractual hours provided by Wexford employees
to Rushville.
Plaintiffs assert that Defendant Walker knew about the
understaffing and knew that some requests for dental care were not
being answered. Plaintiffs also assert that Defendant Walker was
Dr. Mitchell’s direct supervisor and knew that Dr. Mitchell was
unable to meet the residents’ dental needs. Defendant Walker
testified that she supervised Dr. Mitchell “somewhat,” in that “[i]f
there is something that needs to be discussed with her, then I will
discuss it with her. For the most part, I try to let my regional
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manager supervisor her. If there is an issue at the facility, then I
will discuss it with her, as well . . . .” (Walker Dep. 12-13.)
A reasonable inference arises on the evidence offered by
Plaintiffs that Defendant Walker knew about the staffing shortage
and knew that residents’ dental needs were not being met. An
inference also arises that Defendant Walker knew that some
residents complained that they were not receiving responses to their
requests for dental care. There is no dispute that Defendant Walker
could not increase the contractual hours provided by Wexford, but
arguably she could have notified someone with that authority that
the hours needed to be increased. She could have talked to Dr.
Mitchell about Dr. Mitchell’s spreading herself too thin over her
private practice, work for prisons, and work for Rushville. (Dr.
Mitchell’s Dep. 34-36.) Expecting to be able to provide competent
dental services at 1:00 or 2:00 a.m. is arguably an unrealistic
expectation. Defendant Walker also could have looked into whether
the dental requests were arriving at their destination and whether
they were being processed properly. Additionally, the Court is
confused about where the nurses’ duties stop because Dr. Mitchell
filed an affidavit in Smego v. Adams, 08-cv-3142, stating that the
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nurses prepare a list of patients for Dr. Mitchell to see. Smego v.
Adams, 18-cv-3142, Mitchell Aff. d/e 117-3, ¶ 5. Summary
judgment is denied for Defendant Walker.
Plaintiff Hughes’ Separate Claims
In May 2015, Plaintiff filed a lawsuit against Defendants
Hougas, Scott, and Simpson. Hughes v. Scott, 15-cv-3151 (C.D.
Ill.). Plaintiff alleged that his grievances were not being answered
and acknowledged. Further, Defendant Scott forwarded to
Defendant Simpson a letter Plaintiff had sent to Scott complaining
about Simpson’s failure to answer Plaintiff’s grievances. After
Simpson received the letter, Plaintiff was summoned to a room
where Defendants Simpson and Hougas asked Plaintiff why he filed
grievances and lawsuits, told Plaintiff he was “ignorant” and “stupid”
for filing grievances and lawsuits, and told Plaintiff his life would
improve if he filed fewer grievances and lawsuits. (Merit Review
Order in 15-cv-3151.)
This Court dismissed case 15-cv-3151 for failure to state a
claim, reasoning that no constitutional right exists to a grievance
procedure and that the name-calling and vague threats made by
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Defendants Hougas and Simpson were not sufficiently adverse to
give rise to a constitutional claim.
The Seventh Circuit reversed this Court’s dismissal, finding
that Plaintiff Hughes stated a First Amendment retaliation claim:
Hughes alleges that after he filed the grievances Simpson
summoned him to a meeting with herself and Hougas
and at the meeting yelled at him and told him that he
was “ignorant” and “stupid” and a “moron” and that his
life at Rushville would go better if he stopped
complaining (a statement that could well be thought a
threat). His grievances were never answered, and
whenever Hougas crossed paths with Hughes she called
him “ignorant.”
. . . We are mindful that for retaliation for filing petitions
to be actionable, the means of retaliation must be
sufficiently clear and emphatic to deter a person of
“ordinary firmness” from submitting such petitions in
the future. . . .(citations omitted). DeWalt v. Carter, 224
F.3d 607, 612 (7th Cir.2000), suggests that “simple
verbal harassment” of a prisoner does not suffice, and
Antoine v. Uchtman, 275 Fed.Appx. 539, 541 (7th
Cir.2008), that even threats may not suffice. But the
abuse to which Hughes was subjected by the defendants
and the warning that his life would be better if he
stopped filing grievances went beyond simple verbal
harassment.
Hughes v. Scott, 816 F.3d 955, 956 (7th Cir. 2016). The Seventh
Circuit also stated that Plaintiff Hughes might not be a person of
“ordinary firmness” given the reason for his detention. The Seventh
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Circuit found that the fact the Plaintiff Hughes had continued to
engage in some First Amendment protected activity was not
dispositive. Id. The case was remanded for this Court to “make
sense of the conduct of the defendants and their institution, and to
determine whether they are in fact improperly impeding the
plaintiff’s constitutional right to petition for redress of grievances.”
Id.
On remand, this Court defined the claims proceeding as
constitutional claims for retaliation, hindrance of Plaintiff's right to
petition for redress of grievances, and deliberate indifference to
Plaintiff's mental disorder. (15-cv-3151, 4/8/16 text order.)
Defendants Scott, Simpson, and Hougas now move for summary
judgment on these claims.
As to the retaliation claim, summary judgment must be denied
based on the Seventh Circuit’s reversal. Plaintiff offers no evidence
that he is not a person of ordinary firmness, but the Seventh Circuit
already found that the purported conduct of Defendants Simpson
and Hougas was sufficiently adverse to deter a person of ordinary
firmness from pursuing protected First Amendment activities. That
Plaintiff was in fact not deterred is not dispositive. The purported
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retaliation includes the name-calling, threats, and refusal to process
Plaintiff’s grievances.
Defendant Scott asserts that the evidence does not support a
retaliation claim against him because all he did was refer Plaintiff’s
letter complaining about Simpson to Simpson to handle. Defendant
Scott can certainly delegate the handling of the letter, but why to the
person about whom the letter complains? A grievance against an
individual normally would not be handled by that individual in order
to avoid what purportedly happened here. In any event, Defendant
Scott does not submit an affidavit explaining the reason for
delegating the handling of the letter to Simpson. Summary
judgment is not appropriate without affidavits from the moving
parties, nor is qualified immunity.
The Court does agree that Plaintiff has no evidence to support
a petition for redress claim or a claim for indifference to his serious
mental disorder. These claims are based on the same allegations as
Plaintiff’s retaliation claim. Plaintiff does not dispute that he was
never prevented from filing grievances. Nor does he have evidence
that Defendants’ conduct amounted to indifference to his mental
disorder.
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IT IS ORDERED:
1.
The motion for leave to file excess pages is granted.
(d/e 99.)
2.
The motion for summary judgment by Defendants
Bednarz, Hougas, and Scott is granted in part and denied in
part. (d/e 100.) Summary judgment is denied to Defendants
Bednarz and Scott on Plaintiff’s dental claims. Summary
judgment is denied to Defendants Hougas and Scott on Plaintiff
Hughes’ retaliation claim. Summary judgment is granted to
Defendant Hougas and Scott on Plaintiff’s petition claim and
claim for indifference to Plaintiff’s mental disorder.
3.
Defendant Walker’s motion for an extension to file a
summary judgment motion is granted. (d/e 105.)
4.
Defendant Walker’s motion for leave to file a late
reply is granted over Plaintiffs’ objection. (d/e 123.)
5.
Defendant Walker’s motion for summary judgment is
denied. (d/e 107.)
6.
The motion for summary judgment by Defendant
Simpson is granted in part and denied in part. (d/e 102.)
Summary judgment is denied to Defendant Simpson on
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Plaintiff Hughes’ retaliation claim. Summary judgment is
granted to Defendant Simpson on Plaintiff Hughes’ petition
claim and claim for indifference to his mental disorder.
7.
The motion to bifurcate is granted. (d/e 98.) Plaintiff
Hughes’ retaliation claims against Defendants Simpson,
Hougas, and Scott are severed into a new case.
8.
The Doe defendants are dismissed without prejudice
because they have not been identified.
9.
The motion for sanctions against Defendant Hughes
is denied. (d/e 112.) Defendants may seek to impeach
Defendant Hughes with his purported inconsistent statements
at trial, but those inconsistencies do not arise to sanctionable
behavior.
10. The clerk is directed to open a new case with
Michael Hughes as the Plaintiff and Sandra Simpson, Sally
Hougas, and Gregg Scott as Defendants. The clerk is directed
to file this order in the new case. Attorney Pliura will be listed
as counsel for Plaintiff Hughes in the severed case, subject to a
motion to withdraw by Mr. Pliura. This case proceeds on the
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dental claims against Defendants Mitchell, Wexford, Scott,
Bednarz, and Walker.
11. The clerk is directed to terminate Defendants
Simpson and Hougas from this case.
12. The clerk is directed to terminate the Doe
defendants.
13. The final pretrial conference in this case is set for
June 21, 2019, at 10:00 a.m. Plaintiffs and their counsel will
appear by video conference. Defense counsel will appear in
person.
14. The jury trial in this case will begin Tuesday, July
16, 2019, at 9:00 a.m. Magistrate Judge Schanzle-Haskins will
pick the jury, with the consent of the parties, on Monday, July
15, 2019 at 1:30 p.m.
15. The Court will send out proposed jury instructions
for discussion at the final pretrial conference. By June 13,
2019, the parties shall file: 1) an agreed proposed final pretrial
order in substantially the same form as the sample attached as
Appendix 2-1 to the Central District of Illinois Local Rules
(www.ilcd.uscourts.gov); 2) alternate or additional proposed
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jury instructions (not duplicative of the Court's); 3) motions in
limine (to be orally argued at the final pretrial conference); and
4) proposed voir dire questions that are additional to the
Court's standard voir dire (set forth on the District's website
under Orders and Rules by Judge).
16. The clerk is directed to issue a video writ for the final
pretrial conference.
ENTER: 03/07/2019
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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