Ebrahime v. Cook County Department of Corrections et al

Filing 100

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 1/6/2012. (gmr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAROUSH EBRAHIME,
Plaintiff,
v.
THOMAS DART, Sheriff of Cook County,
COOK COUNTY, et al.,
Defendants.

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No. 09 C 1534
Magistrate Judge
Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiff was attacked and beaten in a county courthouse holding cell on February 17,
2009. At the time, he was a pre-trial detainee in the custody of the Sheriff of Cook County. He is
suing the Sheriff and the County under 42 U.S.C. §1983, alleging that the defendants violated his
Eighth Amendment rights by failing to properly and timely address his medical needs following the
assault. He also brings a state law claim for intentional infliction of emotional distress. The
defendants have moved for summary judgment, arguing that there is no genuine issue of fact that
plaintiff’s constitutional rights were violated, and that they are immune from liability for the state
law claim under Illinois’s Local Governmental and Governmental Employees Tort Immunity Act
(“Tort Immunity Act”).

I.
A.
Summary Judgment
At the summary judgment stage, facts must be viewed in the light most favorable to the
nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c);
Scott v. Harris, 550 U.S. 372, 380 (2007). Once the moving party has made a properly supported
motion for summary judgment, “its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no ‘genuine issue’ for trial.” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (footnote omitted). “[T]he
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in
original).
B.
Local Rule 56.1
As always, the facts underlying this summary judgment proceeding are drawn from the
parties’ Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment
to include with its motion “a statement of material facts as to which the ... party contends there is
no genuine issue and that entitle the ... party to a judgment as a matter of law.” Local Rule
56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph
must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate
the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627,

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633 (7th Cir. 2005) The party opposing summary judgment must then respond to the movant's
statement of proposed material facts; that response must contain both “a response to each numbered
paragraph in the moving party's statement,” Local Rule 56.1(b)(3)(B), and a separate statement
“consisting of short numbered paragraphs, of any additional facts that require the denial of summary
judgment,” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each
asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco
v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d
at 633.
If the moving party fails to comply with the rule, the motion can be denied without further
consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n.1 (7th Cir. 2003). If the
responding parting fails to comply, its additional facts may be ignored, and the properly supported
facts asserted in the moving party’s submission are deemed admitted. Local Rule 56.1(b)(3)(C);
Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008); Cracco, 559 F.3d at 632; Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). District courts are “‘entitled to expect strict
compliance’” with Rule 56.1, and do not abuse their discretion when they opt to disregard facts
presented in a manner that does follow the rule's instructions Cracco, 559 F.3d at 632; Ciomber,
527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The court
is not required to hunt for evidence in the record that supports a party’s case if a party fails to point
it out; that is the job of counsel. See Bay Area Business Council., 423 F.3d at 633 (court properly
disregarded affidavits not referenced in 56.1 submission).

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C.
Facts
On February 17, 2009, plaintiff was a pre-trial detainee at the Cook County Department of
Corrections (“CCDOC”), awaiting trial on criminal charges. (Defendants’ Local Rule 56.1
Statement of Facts (“Def.St.”), ¶ 9; Plaintiff’s Response to Def.St.(“Pl.Rsp.”), ¶ 9). He was escorted
to the criminal courts building located at 2600 South California Avenue in Chicago, Illinois, so that
he could appear on a regularly scheduled court status date, and placed in a holding cell near the
courtroom. (Def.St., ¶¶ 11-12; Pl.Rsp., ¶¶ 11-12). There, he was attacked and beaten by another
detainee. (Def.St., ¶ 12; Pl.Rsp., ¶ 12).
At the time, plaintiff was fifty-seven years old. (Def.St., ¶ 10; Pl.Rsp., ¶ 10). He had a heart
condition and had previously undergone heart surgery and received six stents. (Plaintiff’s Statement
of Additional Facts (“Pl.St.”), ¶ 48; Defendants’ Response to Pl.St. (“Def.Rsp.”), ¶ 48). A sheriff’s
deputy described his assailant as a “big guy . . . in his 20s, . . . at least 6 feet tall, . . . nearly 200
pounds, . . . who appeared “very strong.” (Pl.St., ¶ 1; Def.Rsp., ¶ 1). Plaintiff says that he was hit
about ten times about his head, face, chest, torso, and back. (Def.St., ¶ 13; Pl.Rsp., ¶ 13). He claims
he suffered a split tongue, chipped tooth, lacerations to his scalp and lip, contusions to his skull,
back, and ribs, and severe injury to his right eye. (Def.St., ¶ 14; Pl.Rsp., ¶ 14). When Cook County
Sheriffs’ deputies became aware of the attack, the first responding officer called for back-up
officers, and 911 emergency personnel were called for medical assistance. (Def.St., ¶ 15; Pl.Rsp.,
¶ 15). Approximately twenty officers responded. (Def.St., ¶ 16; Pl.Rsp., ¶ 16).
Once the backup officers arrived, they took plaintiff to a separate holding area. (Def.St., ¶
17; Pl.Rsp., ¶ 17). Emergency medical personnel bandaged plaintiff’s head and transported him by

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ambulance a short distance to St. Anthony’s Hospital; he was checked in about 2 p.m. (Def.St., ¶¶
18-20; Pl.Rsp., ¶¶ 18-20). Medical personnel observed that plaintiff had multiple abrasions and
contusions all over his head, and "tiny" lacerations to the right lateral orbit and inner cheek.
(Def.St., ¶ 21; Defendant Ex. 4, at 1765-66; Pl.Rsp., ¶ 21). The attending physician ranked his
injuries as moderately severe. (Def.Ex. 4, at 1766). Plaintiff complained of left-side chest pain,
shortness of breath, headache, and dizziness. (Def.Ex. 4, at 1766-67). He denied having lost
consciousness. (Def.Ex. 4, at 1766-67). He rated his pain as a 10 out of 10. (Def.Ex. 4, at 1765).
He was treated with aspirin and Tylenol, and given oxygen. (Def.Ex. 4, at 1767-68). A portable
chest x-ray revealed clear lungs and an enlarged heart. (Def.Ex. 4, at 1774). A CT scan of
plaintiff’s head showed a mild septal deviation, but no evidence of intracranial hemorrhage or skull
fracture. (Def.Ex. 4, at 1771). Plaintiff’s pain subsided completely at about 4 p.m. – he then
reported his pain as 0 out of 10 – and he was released from St. Anthony Hospital in stable condition
later that day at 6:15 p.m., still saying he was in no pain. (Def.Ex. 4, at 1765).
From St. Anthony’s, plaintiff was taken to Cermak Hospital, on CCDOC grounds, where
medical personnel examined him again. (Def.St., ¶ 22; Pl.Rsp., ¶ 22). Plaintiff testified that his
problem with his treatment is that he did not receive timely medication or timely medical visits from
Cermak personnel. (Def.St., ¶ 40; Pl.Rsp., ¶ 40). Over the next two days, plaintiff was given a cold
compress for his pain. (Def.St., ¶ 23; Pl.Rsp., ¶ 23). Plaintiff says he got a single cold compress in
those two days (Pl. Ex. 8, Pl.Dep., at 120), but the medical record indicates that he was to have been
given a cold compress four times a day – “QID” – during that period. (Def.Ex. 2(7), at 3). There
is no order for any type of pain medication during that time. (Def.Ex. 2(7), at 3). Cermak Nurse
Judy Price testified that she was unable to confirm whether plaintiff actually received the ice-packs

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as often as he was supposed to because her nurses were “very bad with documenting.” (Pl.St., ¶ 16;
Pl.Ex. 5, Price Dep., at 91; Def.St., ¶ 16). The Cermak physician treating plaintiff who ordered the
four daily compresses– Dr. Paul Skirvan – testified that if plaintiff hadn’t received them as directed,
he would have suffered pain and swelling. (Pl.St., ¶ 23; Pl.Ex. 6, at 106; Def.Rsp., ¶ 23).
Plaintiff filled out a Detainee Health Service Request Form on or about February 20, 2009,
requesting treatment for pain in the shoulder, head, right eye, ear, ribs and back, as well as trouble
sleeping, dizziness, and possible bleeding from the right ear. (Def.St., ¶ 26; Pl.Rsp., ¶ 26; Def.Ex.
3(1)). He also filed a Detainee Grievance, dated February 20th, stating that he “need[ed] to see a
doctor ASAP.” (Pl.Ex. 10).1 When there was no response, he filled out a second health service
request form the next day. (Pl.Ex. 10(2)). Three days after his initial request, plaintiff was seen at
“sick call” by Nurse Price and Dr. Ledvora on February 23, 2009, and was said to have vital signs within
normal ranges and be in "no acute distress." (Def.St., ¶ 27; Pl.Rsp., ¶ 27). Dr. Ledvora examined
plaintiff’s eye and observed some bruising about the right eye, a small bump or swollen area on the right
temple area; exam of the eye itself was normal. (Def.St., ¶ 28; Pl.Rsp., ¶ 28). Upon further
examination, the doctor found no lesions in plaintiff’s mouth. (Def.St., ¶ 29; Pl.Rsp., ¶ 29). Lungs were
clear, but there was some left rib cage tenderness. (Def.St., ¶ 30; Pl.Rsp., ¶ 30). Dr. Ledvora referred
plaintiff to an ophthalmologist for an eye exam, ordered rib x-rays, and a brain CT scan. (Def.St., ¶ 31;

Pl.Rsp., ¶ 31). The doctor also prescribed plaintiff Robaxin (a muscle relaxant) and Atarax (an
anxiety medicine), and made a notation in the record to have plaintiff follow up with a medical visit
in ten days. (Def.St., ¶ 32; Pl.Rsp., ¶ 32).

1

The form indicates that the February 20th grievance, for whatever reason, was not received until
February 23rd.

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Plaintiff saw an ophthalmologist at Cermak later that day. (Def.St., ¶ 33; Pl.Rsp., ¶ 33). He
also had his ribs x-rayed, a CT scan of his eye sockets, and a CT scan of his head. (Def.St., ¶ 34;
Pl.Rsp., ¶ 34). The CT scan of the head revealed nothing other than “soft tissue swelling over the
left frontal and parietal region.” (Def.Ex. 3(6)). Dr. Ledvora characterized the scan as normal.
(Def.St., ¶ 35; Pl.Rsp., ¶ 35). He said that the results were "really good for someone who's had head
trauma." (Def.St., ¶ 36; Pl.Rsp., ¶ 36). The CT scan of the eye sockets revealed “a defect along the
anterior nasal septum and underlying post traumatic defect of the septum is most likely.” (Pl.Ex.
3(6)). Dr. Ledvora said that plaintiff “might have had a little blunt trauma to the nose. Nothing he’s
going to run off to a surgeon for an immediate procedure for.” (Pl.St., ¶ 35; Def.Rsp., ¶ 35; Pl.Ex.
7, at 72).
The rib x-ray revealed healed fractures to the left 5th, 6th, 7th, 8th, and 9th ribs. (Def.Ex. 2(3)).
Dr. Ledvora testified that he:
kn[e]w he’s got a rib fracture. A rib fracture, the management is some pain
medication and you let it heal. A rib fracture knocks a pro football player out of the
game for a few weeks. Is there any reason to expect he’s not going to have any
discomfort? He’s a 60-year-old guy. But if I keep layering medicines on top of what
he’s already on, I could do him a great disservice.
(Def.Ex. 3, Ledvora Dep., at 84).
Plaintiff was given muscle relaxers and a pain relievers from February 23, 2009 to March 21,
2009. (Def.St., ¶ 37; Pl.Rsp., ¶ 37). Plaintiff testified that the medication didn’t work, and upon

request to the Cermak doctor, the doctor doubled his prescription. (Def.St., ¶ 38; Pl.Rsp., ¶ 38). All
told, between February 17, 2009, and February 23, 2009, plaintiff got medications from Cermak
personnel for his heart, cholesterol, sleeping, and psychiatric conditions. (Def.St., ¶ 39; Pl.Rsp., ¶
39).

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On March 5, 2009, plaintiff received Tylenol and a cold compress from Cermak personnel.
(Def.St., ¶ 41; Pl.Rsp., ¶ 41). On March 9, 2009, Dr. Ledvora ordered a non-emergency EKG4 for
Plaintiff, as part of plaintiffs routine health maintenance. (Def.St., ¶ 42; Pl.Rsp., ¶ 42). Plaintiff
filed his lawsuit on March 11th. He filled out a "Detainee Health Service Request Form" to be seen
for difficulty walking, blurry vision and back pain on March 23, 2009, and was seen by Dr. Ledvora
the same day. (Def.St., ¶ 43; Pl.Rsp., ¶ 43). Plaintiff’s back and torso were x-rayed on April 1,
2009, (Def.St., ¶ 44; Pl.Rsp., ¶ 44). On the 10th, he saw a Cermak doctor for back pain, sore throat
and runny nose. (Def.St., ¶ 45; Pl.Rsp., ¶ 45).
On May 20, 2009, Dr. Ledvora renewed plaintiff's prescription for Robaxin, the muscle relaxant,
in response to his complaints of back pain and trouble sleeping. (Def.St., ¶ 46; Pl.Rsp., ¶ 46). Dr.

Ledvora testified that giving plaintiff stronger pain medications, at that time, could have been
contrary to plaintiff's best interest since plaintiff was already on multiple other medications for other
ailments, and adding stronger pain medication may have upset those existing medications. (Def.St.,
¶ 47; Pl.Rsp., ¶ 47). On May 26, 2009, plaintiff saw Dr. Ledvora with complaints of back pain and
difficulty sleeping; plaintiff was put on a more powerful pain medication, Salsalate, at that point.

(Def.St., ¶ 48; Pl.Rsp., ¶ 48; Pl.St., ¶ 39; Def.Rsp., ¶ 39). Dr. Ledvora ordered a chest x-ray to follow
up on the healing of plaintiff’s rib fractures. The doctor felt plaintiff "looked pretty good for what he's
been through and his multiple problems." (Def.St., ¶ 49; Pl.Rsp., ¶ 49).

Dr. Ledvora testified that he didn’t think plaintiff “ever presented with the manifestations
of a severe injury" and that he remembered “in a subjective way his presentations were very
consistently on the dramatic side for what my physical exam showed." (Def.St., ¶ 50; Pl.Rsp., ¶ 50).
The doctor felt he "ordered enough tests to make sure that there was nothing serious there."

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(Def.St., ¶ 51; Pl.Rsp., ¶ 51). “Now that I've seen so many records,” Dr. Ledvora said, “he's getting
a lot of follow-up from medical and psychiatric staff here. So he's had a lot of – well, I shouldn't say
he's had a lot. He's had multiple visits and follow-up with medical providers and psychiatric
providers.” (Def.St., ¶ 52; Pl.Rsp., ¶ 52).
II.
ANALYSIS
A.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary
and wanton infliction of pain ... proscribed by the Eighth Amendment,” and this includes
“indifference ... manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally interfering with
the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)(footnotes and
internal quotation marks omitted); Erickson v. Pardus, 551 U.S. 89, 90 (2007).2 On the other hand,
“an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary
and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’” Estelle, 429 U.S.
at 105-06. Physician negligence, or medical malpractice, “does not become a constitutional
violation merely because the victim is a prisoner.” Id.

2

Prisoners’ rights are guaranteed by the Eighth Amendment; they are protected only from the
infliction of cruel and usual punishment. Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009); Payne, 161
F.3d at 1040 (7th Cir. 1998). The plaintiff was not a prisoner, but a detainee, meaning he was not
“punishable” at all. Lewis, 581 F.3d at 473; Paynefor Hicks v. Churchich, 161 F.3d 1030, 1040 (7th Cir.
1998). As such, his rights – like the rights of all detainees – are guaranteed by the Fourteenth Amendment.
Lewis, 581 F.3d at 473; Payne, 161 F.3d at 1040. In the context of a medical needs claim, the Fourteenth
Amendment analysis is identical to the Eighth Amendment analysis. Lewis, 581 F.3d at 473; Williams v.
Rodriguez, 509 F.3d 392, 401 (7th Cir.2007); Guzman v. Sheahan, 495 F.3d 852, 856-57 (7th Cir. 2007).

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In order to survive summary judgment on a claim for deliberate indifference to serious
medical needs, a plaintiff must show that he had an objectively serious medical need, and that the
defendants were deliberately indifferent to it. See Grieveson v. Anderson, 538 F.3d 763, 779 (7th
Cir.2008); Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir.1996) (“[A] prison official may
evidence deliberate indifference by failing to treat or delaying the treatment of a serious medical
need. However, for liability to exist the medical need must be objectively serious.”). A delay in the
provision of medical treatment for painful conditions-even non-life-threatening conditions-can
support a deliberate-indifference claim, Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir.1997),
so long as the medical condition is “ ‘sufficiently serious or painful,’ ” id.(quoting Cooper v. Casey,
97 F.3d 914, 916 (7th Cir.1996)).
A successful deliberate indifference claim comprises both an objective and a subjective
element. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011). An inmate must demonstrate that, objectively, the deprivation he suffered was “sufficiently
serious; that is, it must result in the denial of the minimal civilized measure of life's necessities.”
Roe, 631 F.3d at 857; Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). A medical need is
considered sufficiently serious if the inmate's condition “has been diagnosed by a physician as
mandating treatment or ... is so obvious that even a lay person would perceive the need for a doctor's
attention.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005); Roe, 631 F.3d at 857. “A medical
condition need not be life-threatening to be serious; rather, it could be a condition that would result
in further significant injury or unnecessary and wanton infliction of pain if not treated.” Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010); Roe, 631 F.3d at 857.

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Second, an inmate must establish that prison officials acted with a “sufficiently culpable state
of mind” to support liability under § 1983. Farmer, 511 U.S. at 834; Roe, 631 F.3d at 857.
Although negligence or inadvertence will not support a deliberate indifference claim, an inmate need
not establish that prison officials actually intended harm to befall him from the failure to provide
adequate care. Walker, 293 F.3d at 1037. “[I]t is enough to show that the defendants knew of a
substantial risk of harm to the inmate and disregarded the risk.” Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). A delay in treatment may constitute deliberate indifference if the delay exacerbated
the injury or unnecessarily prolonged an inmate's pain. Estelle, 429 U.S. at 104-05; McGowan v.
Hulick, 612 F.3d 636, 640 (7th Cir. 2010); Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.2010)(7th
Cir.2007). The defendants submit that plaintiff has failed to create a genuine issue of fact that would
require a trial on either element.
B.
The defendants’ position on the objective element may be readily dismissed. As already
noted, a medical need is serious enough in this analysis if the inmate's condition “has been
diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would
perceive the need for a doctor's attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005); Roe,
631 F.3d at 857. Indeed , n discussing the underlying principles governing the obligation to provide
medical care to inmates, the Court in Estelle made clear that the obligation extends not only to those
cases in which the denial of care “may actually produce physical torture or a lingering death” but
also those in which “denial of medical care may result in pain and suffering which no one suggests
would serve any penological purpose.” Gutierrez, 111 F.3d at 1371.

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The plaintiff was beaten by a man at least thirty years his junior, who was significantly taller
than him and outweighed him substantially. He was trapped in a confined area with his attacker.
The beating resulted in several broken ribs, multiple, albeit small, lacerations and abrasions to the
head, and perhaps a broken nose. The attending physician at St. Anthony’s categorized his injuries
as moderately severe. Dr. Ledvora acknowledged that the injuries the diminutive, fifty-seven-yearold plaintiff suffered would knock an NFL athlete out of action for weeks. It can safely be said that
plaintiff’s condition was serious enough that a lay person would realize he needed to see a doctor.
Broken ribs alone would be sufficient to meet the objective prong. Moore v. Brown, 2010 WL
381331, *2 (S.D.Ill. 2010); Griffin v. Donelli, 2010 WL 681394, *8 (N.D.N.Y. 2010); Glass v.
Woodford, 2009 WL 3126240, *5 (E.D.Cal. 2009); Torres v. New York City Dep't of Corrs., 1995
WL 63159, at *1 (S.D.N.Y. 1995); see also Estelle, 429 U.S. at 107 (lower back strain enough);.
Grieveson v. Anderson, 538 F.3d 763, 778-80 (7th Cir.2008)(broken nose sufficiently serious);
Gutierrez, , 111 F.3d 1364)(infected cyst sufficiently serious); Cooper v. Casey, 97 F.3d 914, 91617 (7th Cir.1996)(cuts, muscle pain, and burning eyes from mace sufficiently serious)Gutierrez,111
F.3d at 1372 (“ This Court's post- Estelle decisions, as well as those of the other circuit courts, have
repeatedly recognized that delays in treating painful medical conditions that are not life-threatening
can support Eighth Amendment claims.”).
In Grieveson, the plaintiff was taken to the hospital on December 3, following a beating by
a fellow inmate on November 30. On November 31, Grieveson told a guard that his nose was broken
and was bleeding down his throat. Nothing was done. The next day he told other guards of his
injuries, but still did not receive any medical care. On December 2, Grieveson filled out a “medical
call card.” Finally on December 3, he was taken to the hospital where it was confirmed that he had

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a broken nose. This was sufficient to raise an issue of fact. 538 F.3d at 779. See infra at 15. To argue
otherwise, as the defendants have done, is unpersuasive. Their reply brief asserts that “the medical
records and medical testimony by Dr. Ledvora indicate that [plaintiff’s] injuries from February 17,
2009, do not rise to the level of implicating the objective prong of the deliberate indifference
analysis” and cite Gutierrez in support. Beyond the fact that the medical evidence does not support
the defendants’ position, Gutierrez found that an infected cyst on the plaintiff’s back was a
sufficiently serious medical condition for these purposes. That seems to pale by comparison with
the beating the plaintiff suffered. Moreover, nowhere in his testimony did Dr. Ledvora state that
plaintiff’s condition did not warrant medical treatment. He testified that the plaintiff was definitely
in pain, that he had been through a lot, and he prescribed the plaintiff a regimen of painkillers,
changing to a stronger type of medication when lesser medicines were initially ineffective. Given
the record and the caselaw, there is at least a genuine issue of material fact as to whether the
plaintiff’s injuries were sufficiently serious as measured by objective standards.3
C.
The plaintiff contends that there is a genuine issue of material fact regarding the subjective
element of his claim because:
[he] was forced to suffer significant pain for several days while waiting for treatment
of his injuries. When [he] did finally receive treatment, it was either insufficient to
manage his pin, woefully tardy, or blatantly incomplete. . . . Dr. Ledvora prescribed
a more powerful painkiller, Salsalate, two and a half months after [plaintiff] filed the
instant lawsuit on March 11, 2009. . . . The Defendants’ actions constituted a refusal

3

One hopes that this position is that of misguidedly zealous counsel rather than the defendants
themselves, because if it is the defendants’ true position that injuries like those the plaintiff sustained while
in their custody are not sufficiently serious to warrant medical attention, they are essentially admitting that
they have a policy of deliberate indifference to serious medical needs.

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to treat his chronic pain and created a delay in providing proscribed pain medication.
As a consequence, [plaintiff] suffered in serious, intractable pain.
(Plaintiff’s Memorandum, at 6-7).
After the attack on February 17th, plaintiff received almost immediate medical treatment at
a local hospital. Upon his release later that same day, he was in stable condition and, after having
been treated with aspirin and Tylenol, reported he was in no pain. He then received further
evaluation at Cermak Hospital. Accordingly, it would be difficult to say that there is a genuine issue
of material fact regarding the defendants’ claimed deliberate indifference to plaintiff’s medical needs
on the day he was beaten. Plaintiff’s needs were swiftly attended to and he was provided treatment
until he said he was no longer in pain. If this were all there were to the claim, summary judgment
would be appropriate.
But, what happened after he was in the hands of the Cermak medical personnel from the
evening of February 17th on is not so clear cut. Grieveson compels the conclusion that there is a
genuine issue of material fact with regard to the period between February 20 and February 23,
during which Mr. Ebrahime did not receive medical treatment the Cermak doctor prescribed, which
was four cold compresses per day. Beginning on February 20th, plaintiff repeatedly informed the
defendants, through health service requests and a grievance, that he was, once again, experiencing
significant pain. That’s not surprising after the beating he received, and given the fact that plaintiff
had not been given any medication after he left St. Anthony’s. Over a course of three days
following his attack, he may have received only a single cold compress. The nurse in charge
suggested there was no way to tell from the medical records because the staff’s documentation

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procedures are very lax.4 See Aldridge v. Montgomery, 753 F.2d 970 (11th Cir.1985)(reversing
directed verdict for defendants where evidence indicated that jailers refused to give inmate ice packs
and aspirin for sutured cut above inmate's eye).
After two days with only a single cold compress, on February 20th, the plaintiff filled out a
request for medical treatment because he was feeling too much pain and bleeding from his ear.
Nothing happened that day, and plaintiff tried again on the 21st. It wasn’t until February 23rd that
medical personnel looked in on plaintiff. In short, after suffering a beating from a very large and
strong man, severe enough to break a few ribs, blacken an eye, draw blood, and maybe break a nose,
the plaintiff may well have been treated with a single cold compress over a several-day period, and
received no treatment at all for three days after he alerted the defendants to his medical situation.
In Grieveson, the Seventh Circuit found that a less than two-day delay in treating a broken
nose was enough to survive summary judgment:
Based on the evidence provided by Grieveson, a jury could further
infer that the delays of Officers Highbaugh, Cornell, and Duncan in
arranging medical treatment caused Grieveson “that many more
hours of needless suffering for no reason.” Id. According to
Grieveson, these three guards knew that he was in pain, but they did
not secure medical treatment for him until, at the earliest, one-and-ahalf days after they knew about the injury. Grieveson's affidavits
create a genuine issue of fact as to the officers' states of mind.
“Although a negligent or inadvertent failure to provide adequate
medical care is insufficient to state a deliberate indifference claim, it
is enough to show that a defendant actually knew of a substantial risk
of harm to the inmate and acted or failed to act in disregard to that
risk.” Gil v. Reed, 381 F.3d 649, 661 (7th Cir.2004); see also
Williams, 491 F.3d at 716 (“[A] jury could find that the defendants'

4

Indeed, as things now stand, there is no evidence that he received the prescribed treatment, and the
plaintiff has said he did not.

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delay caused [the inmate] six extra hours of pain and dangerously
elevated blood pressure for no good reason.”).
538 F.3d at 779 - 780.5
Here, also, the defendants were informed of the plaintiff’s situation – more than once, and
in writing – yet did not act for three days. Although the plaintiff cites Grieveson in his response to
defendants’ summary judgment motion, the defendants fail to address it in their reply. That omission
is significant. Gonzalez -Servin v. Ford Motor Co., 662 F.3d 931, 933 (7th Cir. 2011)(failure to
respond to a cited case is an “implicit concession” of its accuracy).
Instead, they point out that during the period under scrutiny, plaintiff received cholesterol
and heart medication, as well as medication for sleeping and psychiatric conditions. (Defendants’
Reply, at 3). While true, the argument is irrelevant. The gravamen of the plaintiff’s case is the
absence of treatment for the effects of the beating for three days. While Grieverson did not set
down a universal rule, if two days is too long for a broken nose, then it’s safe to say it’s too long for
broken ribs – at least on summary judgment. In sum, the defendants have failed to demonstrate they
are entitled to summary judgment. “The issue . . . [of] whether the plaintiff[] w[as] in sufficient pain
to entitle [him] to pain medication” during the few days “after the beating. . . . [is] an issue for the
jury.” Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996).
After the 23rd, however, plaintiff’s arguments do not fare well. He was given CT scans of
his head and his eye sockets, and his ribs were x-rayed. Dr. Ledvora prescribed muscle relaxers and

5

While Mr. Grieveson also received several subsequent beatings and was denied medical care in
connection with them, they were not the basis of the court’s conclusion as to the broken nose, as evidenced
from the section quoted above.

16

anti-anxiety drugs to manage plaintiff’s pain. Plaintiff also received medical attention for his
injuries on March 5th, March 9th, March 23rd, April 1st, and April 10th. That’s a fairly regular
schedule. Dr. Ledvora renewed plaintiff’s prescription for muscle relaxants on May 20th, when
plaintiff complained about difficulty sleeping due to his injuries. And, when that level of medication
proved insufficient, the doctor prescribed something stronger on May 26th.
Plaintiff’s position on this period of time is that he should have gotten stronger medication
far earlier than May 26th. The problem with this argument is that he points to nothing in the record
that suggests he need anything stronger or even asked for it. The plaintiff claims that he “submitted
several grievance forms to Cook County Jail personnel seeking medical treatment.” (Pl.St., ¶ 45).
But the exhibit he cites to support this assertion shows he submitted a single grievance, the one he
filed February 20, 2009. (Pl.St., ¶ 45; Pl.Ex. 10). Moreover, the exhibit also demonstrates that
plaintiff has only filed five health service requests: the two in the immediate wake of his attack in
February 2009, one on March 23, 2009, one the previous September, and one the previous June.
(Pl.Ex. 10). The last two obviously have nothing to do with the subject of this litigation, the attack
in the courthouse lockup. The September 2008 request simply said “kidneys,” while the June 2008
request dealt with headaches from an eyeglasses prescription. The March 23rd request resulted in
an immediate visit with Dr. Ledvora.
So, in the aftermath of his beating, the only requests for medical attention that did not elicit
a prompt response were those in the first few days after the beating. If plaintiff was in need of more
medical attention thereafter than he was receiving, or his medication regimen was ineffective, he
certainly did not make this known to the defendants. The level of his pain – like anyone’s pain –
is subjective. The Cermak medical personnel could not be expected simply to guess that his
17

medication wasn’t working before May 26th. Consequently, there is nothing to show that the
defendants were aware of his medical need, a key element of the deliberate indifference claim. See
Farmer, 511 U.S. at 829 (plaintiff must show official was subjectively aware of risk); McGowan,
612 F.3d at 640 (“Even gross negligence is insufficient to establish a constitutional violation if the
defendants are not subjectively aware of a risk of harm from their inadequate treatment.”); Estrada
v. Reed, 346 Fed.Appx. 87, 91, 2009 WL 2922951, *4 (7th Cir. 2009)(no deliberate indifference
where plaintiff received treatment when he made his needs known to staff).
Moreover, it should be noted that Dr. Ledvora indicated that he had to be careful about
prescribing stronger painkillers for the plaintiff because his was already on an array of medications
for various ailments he had before he was in custody. He said he was reluctant to keep “layering”
medication on top of those plaintiff was already receiving because it could be a “great disservice”
to plaintiff. On this record, that is a permissible choice of treatment by a physician and does not give
rise to an Eighth Amendment claim. McGowan, 612 F.3d at 641. The plaintiff offers no expert
opinion to the contrary.
D.
Defendants next argue that plaintiff cannot maintain a claim for supervisory liability against
them because he cannot show that they maintained policies, practices or customs which
demonstrated deliberate indifference to serious medical needs and led and caused him to suffer a
violation of his Constitutional rights. Supervisory liability under § 1983 may be shown by
“‘creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or
allowing such a policy or custom to continue.’” Vance v. Rumsfeld, 2011 WL 3437511, *10 (7th

18

Cir. 2011)(quoting Richardson v. Goord, 347 F.3d 431, 435 (2nd Cir.2003)). The policy or custom
may take the form of an implicit policy or a gap in expressed policies. Thomas v. Cook County
Sheriff's Dept., 604 F.3d 293, 303 (7th Cir. 2010). Beyond these threshold requirements, the jury
must make a factual determination as to whether the evidence demonstrates that the County had a
widespread practice that the caused the alleged constitutional harm. Grieveson, 538 F.3d at 772;
Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 928 (7th Cir. 2004).
To make the required showing, the plaintiff relies on a few pieces of evidence, beginning
with the defendants’ policy regarding the treatment of grievances for medical attention, as set forth
in the defendants’ General Order 14.5. (Plaintiff’s Memorandum, at 7-10; Pl.St., at ¶¶ 3-14; Pl.Ex.
3). In pertinent part, the official policy on grievances states:
2. The grievances will be placed in the designated locked box located on each living
unit within fifteen (15) days after the alleged grievable event has occurred . . . .
3. Written grievances shall be collected Monday through Friday by the Correctional
Rehabilitation Worker. Special procedures for the collection of emergency
grievances are set forth under article III, E of this General Order. 2 [sic]
4. Within 48 hours (not including weekends) after the grievance is collected, the
[Correctional Rehabilitation Worker] will obtain an assigned Grievance Case
Number. . . .
*

*

*

10. If the grievance is not resolved in a timely fashion (not to exceed 30 days from
the date the grievance was filed), the [Correctional Rehabilitation Worker] will
notify the divisional Superintendent for status review.

19

Grievances regarding “emergencies” are handled differently: “Emergency grievances” are
defined as “those involving an immediate threat to the welfare or safety of a detainee.” ¶E (emphasis
supplied):
E. Emergencies
*

*

*

2. Processing for all emergency grievances will begin with the initial determination
by the receiving [Correctional Rehabilitation Worker] or Shift Commander that the
issue raised is an emergency.
3. Responses and decisions to emergency grievances shall occur no later than 48
hours from receipt and sooner if warranted. In the absence of the Administrator of
Program Services or designee the shift commander will forward a written response
to the detainee within the time frame.
(Pl.Ex. 3, at 2311-13)(emphasis supplied).
In the case of an ordinary, non-emergency medical grievance, the defendants’ staff can
follow official policy, which may take up to 30 days to resolve. In an emergency situation, i.e., one
involving “an immediate threat” to the welfare or safety of a detainee, the policy allows up to two
days for a written response, “or sooner if warranted,” which presumably will depend on the
individual employees’ perception of the exigency of the situation. If the danger is immediate, it
would certainly seem that postponing the response for up to two days would be inappropriate and
would effectively authorize in cases of real exigency indifference to medical needs. “Danger invites
rescue. The cry of distress is the summons to relief.” Wagner v. Int'l Ry. Co., 232 N.Y. 176, 133
N.E. 437, 437 (1921) (Cardozo, J.). And not at some indeterminate point in the future.

20

Apart from its terms, which authorize a response time of up to two days, in actual practice,
the policy is far less exacting and operates in a way that fosters and condones medical indifference
for extended periods beyond the prescribed two-day period. The testimony of John Mueller, the
assistant administrator of the Cook County Department of Corrections, is significant. (Pl.St., ¶¶ 311; Pl.Ex. 2). He explained how the policy works in actual operation and the practical aspects of
handling detainee grievances for medical attention. The 48-hour period is actually the time that
passes before the correctional rehabilitation worker even delivers it to the Cermak Hospital. (Pl.Ex.
2, at 61-62).6 He added the proviso that “no one works on weekends” (Pl.Ex. 2, at 62), so that could
double the lag time before the medical staff even see a grievance depending on the day it was filed.
Mr. Meuller said that, in a typical month, there are 180 medical grievances. (Pl.Ex. 2, at 67-68).7
Of those 180, there are generally 20 that he has to follow up on because Cermak fails to respond one
way or the other for 30 days. (Pl.Ex. 2, at 67-69). Mr. Mueller said his office treats all grievances
the same, regardless of the urgency of the medical condition because they are not qualified to make
such medical severity determinations. There is no difference between how a request for a band aid
is handled and how a complaint about a broken leg is handled; both are still subject to that two-day
lag time. His office leaves such medical determinations to the Cermak Hospital. (Pl.St., ¶ 5; Pl.Ex.

6

Defendants argue that the Sheriff is not responsible for providing medical care to detainees and
should not be subject to plaintiff’s deliberate indifference claims. (Defendants’ Memorandum, at 12-13).
But this argument is not compelling given the fact that plaintiff is relying on the Cook County Department
of Corrections policy for processing grievances, including those for medical attention, and that is within the
Sheriff’s purview, and allegedly in this case caused the failure to receive medical attention.
7

The plaintiff misreads Mr. Meuller’s testimony as indicating that a typical month produced just 20
medical grievances. (Pl.St., ¶ 3).

21

2, at 77-78).8 If Cermak turns down the detainee’s medical grievance, it might be another 90 days
for the appeal process to run its course. (Pl.St., ¶ 5; Def.Rsp., ¶ 6).
The response to this consists of the observation that “[p]laintiff filed a grievance regarding
medical care on February 20, 2009, and he was seen by Dr. Ledvora only three days later, which was
the same day the form was received by the [Correctional Rehabilitation Worker] . . . .” (Defendants’
Reply, at 4). But the difficulty with this argument is that it does not answer the question of whether
there is in place a policy that allows and almost inevitably causes indifference to the need for prompt
medical care. Cases like Grieveson hold that a less than three-day response time may not pass
muster. Here, three days passed. Moreover, one can easily imagine many more situations involving
similar or worse injuries or even more pressing medical needs where three days would clearly be
too long to wait.
So, again, the evidence shows that the manner in which the procedures in place are executed
not merely allows for but actively results in constitutionally unacceptable delays in certain cases in
providing needed medical care to detainees. See Grieveson.9 In Thomas, the Seventh Circuit found

8

Although neither party points this out, under the defendants’ written procedure, the correctional
rehabilitation worker is supposed to make an initial determination of whether a grievance presents an
emergency. (Pl.Ex. 3, at 2313). So, it is not entirely clear why Mr. Mueller would testify that his staff has
no responsibility to separate paper cuts from broken legs.
9

The plaintiff also points to the testimony of Nurse Price from Cermak, but she covered what
happened with medical request forms, not grievances. (Pl.St., ¶ 13-15). The plaintiff offers no evidence as
to what the official policy for processing such requests, only Nurse Price’s testimony as to delays concerning
his request. (Pl.St., ¶ 13-17). This is a single instance, and that’s not enough to demonstrate a policy or
custom. While the Seventh Circuit has refused to adopt any bright-line rules defining a “widespread custom
or practice,” one instance – as with the plaintiff here – is insufficient; in fact, three such instances would also
be insufficient. Thomas, 604 F.3d at 303. Moreover, none of Nurse Price’s explanations for what happened
– less than dedicated fellow nurses, some nurse’s reluctance to be called into depositions, and the possibility
that she forgot to enter some information on plaintiff’s injuries – are linked to a policy or custom. So there
is no evidence of an express policy either.

22

that similar testimony about the realities of processing medical request forms was sufficient to
present an issue for a jury. Given such testimony, the Seventh Circuit said the situation was not “an
isolated act of an individual employee, which would be insufficient to establish a widespread custom
or practice.” 604 F.3d at 303-04. The combination of the written policy, and the realities of daily
practice as described by Mr. Mueller, are enough to make summary judgment inappropriate.10
E.
Finally, the defendants submit that, under the Illinois Tort Immunity Act, they – the Sheriff
and Cook County – are immune from liability for infliction of emotional distress. They cite the
following portion of the Act:
Neither a local public entity nor a public employee is liable for injury proximately
caused by the failure of the employee to furnish or obtain medical care for a prisoner
in his custody; but this Section shall not apply where the employee, acting within the
scope of his employment, knows from his observation of conditions that the prisoner
is in need of immediate medical care and, through willful and wanton conduct, fails
to take reasonable action to summon medical care. Nothing in this Section requires
the periodic inspection of prisoners.
745 ILCS 10/4-105. Cook County is obviously a local public entity, and the defendants submit that,
because he is sued only in his official capacity, the Sheriff is as well. They cite no case law to
support this proposition, which would ordinarily mean their argument is waived. Judge v. Quinn,
612 F.3d 537, 557 (7th Cir. 2010); United States v. Useni, 516 F.3d 634, 658 (7th Cir. 2008). But
the plaintiff does not even respond to the defendants’ argument, apparently abandoning this claim.

10

The plaintiff also adverts to the July 2008 Department of Justice investigatory report which found,
inter alia, that “certain conditions at [Cook County Jail] violate the constitutional rights of inmates” and that
“inmates do not receive adequate medical and mental health care.” (Pl.St., ¶ 50; Def.Rsp.¶ 50). The
defendants make no response to this part of plaintiff’s presentation (Defendants’ Reply, at 4-5), and so any
argument they might have made about its admission or import is waived. Gonzalez -Servin,, 662 F.3d at 933.

23

And he has therefore waived any waiver argument he might have made. United States v. Woods,
148 F.3d 843, 849 n.1 (7th Cir. 1998); Riemer v. Illinois Dept. of Transp., 148 F.3d 800, 805 n.4 (7th
Cir. 1998).
In any event, the defendants are correct. The Seventh Circuit has indicated that, an official
capacity suit against the Sheriff is against the Sheriff’s office, and for the purposes of the Illinois
Tory Immunity Act, the “office itself seems to be a “local public entity.’” Carver v. Sheriff of
LaSalle County, Illinois, 243 F.3d 379, 383 (7th Cir. 2001). Accordingly, the defendants are immune
under the pertinent provision of the Act and summary judgment is appropriate on plaintiff’s
intentional infliction of emotional distress claim.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment [#89] is DENIED
in part, and GRANTED in part. It cannot be too strongly stressed that a denial of summary
judgment is not an endorsement is not an endorsement of a plaintiff’s testimony or of the
persuasiveness of the evidence offered in opposition to the motion. It simply means that on the
current record there are genuine issues of material fact that must be resolved by a jury.

ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: January 6, 2012

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