Jacobo v. County Of Will et al

Filing 151

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 9/29/2011:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IGNACIO JACOBO,

)
)
Plaintiff,
)
)
v.
)
)
WILL COUNTY SHERIFF’S OFFICE, et al., )
)
Defendants.
)

No. 09 C 3392
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Pro se plaintiff Ignacio Jacobo, currently an inmate in the Illinois Department
of Corrections, has brought a civil rights suit, 42 U.S.C. § 1983, challenging his
treatment at the Will County Adult Detention facility. Pending are Defendants’
motions for summary judgment, R. 102, 114, and Jacobo’s renewed motion for
appointment of counsel, R. 133.1 For the reasons discussed below, the Court grants the
motion for appointment of counsel, R. 133; grants the medical defendants’ motion for
summary judgment, R. 102; and grants in part and denies in part the Sheriff’s and
deputies’ motion for summary judgment, R. 114.
I.
The following facts are drawn from the parties’ Local Rule 56.1 materials, R.
103, 116, 129, 131, and is presented in the light most favorable to Plaintiff, the nonmoving party, with all reasonable inferences drawn in his favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 639

1

The Court has federal question jurisdiction under 28 U.S.C. § 1331.

(7th Cir. 2010). Plaintiff has also received the Local Rule 56.2 warning regarding
summary judgment, R. 105, 117; see also Timms v. Frank, 953 F.2d 281, 285 (7th Cir.
1992), and the parties have complied with Local Rule 56.1.
On the evening of November 14, 2007, Jacobo was detained at the Will County
Adult Detention Facility (for convenience’s sake, the “Jail”) facing various felony
charges. R. 103 at 2, R. 116 at 1, R. 129 at 1, R. 131 at 1. Jacobo was being housed in
a general population cell in the “A-Pod” area. R. 116 at 2, R. 131 at 1. At around 11:30
p.m., Defendant Rita Ramos, a nurse at the Jail, was called to Jacobo’s cell. R. 103 at
2, R. 116 at 2, R. 129 at 1, R. 131 at 1. Jacobo claimed that he was suicidal and Nurse
Ramos ordered Jacobo relocated to the Jail’s medical unit and placed on suicide watch.
R. 103 at 2-3, R. 116 at 2, R. 129 at 1, R. 131 at 1.
Members of the Jail’s Emergency Response Team (ERT), Defendants Lopez,
Calderon, and Owens, were called to transport Jacobo to the medical unit. R. 116 at
2, R. 131 at 1. Lopez, Calderon and Owens are Will County Sheriff’s deputies working
at the Jail. Id. Lopez, Calderon, and Owens transported Jacobo to Cell 8 in the medical
unit. R. 103-2 at 6.2 Cell 8 is around 10-feet by 10-feet with a bed. Id. at 7, 9. It has
three block walls and a solid door with a window. Id. at 7. The detainee is locked inside
the cell and there is a buzzer with a speaker that allows him to communicate with an
officer. Id. Officers also come to the cell to speak to detainees. Id.

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The cites to pages of Jacobo’s deposition are to the pages of the .pdf filed as an
attachment to R. 103.
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Another detainee, Hernandez, was already in Cell 8 when Jacobo arrived with
Lopez, Calderon, and Owens. R. 116 at 3, R. 131 at 3. Jacobo had never seen
Hernandez before or since that evening. Id. Neither Jacobo nor Hernandez had a
history of fighting or making threats against other detainees. Id. Jacobo told Lopez,
Calderon, and Owens that he did not want to be in a cell with another person who he
thought would also be suicidal. R. 116 at 2-3, R. 131 at 2-3. Jacobo believed that he was
being taken to Cell 8 because he was on suicide watch, and assumed that Hernandez
would be as well. Id.
Despite his protests, Jacobo was placed in Cell 8. Lopez, Calderon, and Owens
left the scene. While in Cell 8, Jacobo was monitored by Defendant Micah, a deputy
sheriff. The next 20 minutes were uneventful. Hernandez lay down on the cell floor
while Jacobo renewed his requests to be moved from the cell explaining that he did not
feel safe with another person in Cell 8. R. 116 at 3, R. 131 at 3.
Detainee Quentin Robinson was then brought to Cell 8 by Lopez, Calderon,
Owens, and Adams. Id. Defendant Adams is also an ERT member and sheriff’s deputy.
R. 116 at 2, R. 131 at 1. Jacobo protested Robinson’s placement into the cell to Lopez,
Calderon, Owens, and Adams. R. 103-2 at 8. In addition to his general concern about
sharing Cell 8 with two other detainees he presumed to be on suicide watch, Jacobo
had specific concerns regarding Robinson. Robinson was very aggressive when he was
brought to the cell and Lopez, Calderon, Owens, and Adams had to force him into Cell
8. Id. Robinson was allegedly threatening the guards during the incident, saying he
was going to kill them. Id. Jacobo was also concerned that Robinson was drunk or
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under the influence of drugs. Id. Once in Cell 8, Robinson threatened to beat up Jacobo.
Id. Robinson did not have any type of restraints or handcuffs on in the cell. Id.
Once again, Owens, Calderon, Lopez, and Adams left the scene after the
detainee (this time Robinson) was placed in Cell 8, leaving deputy Micah to monitor
the cell. R. 116 at 3, R. 131 at 3. Jacobo again expressed his concerns for his safety to
Micah, explaining that he was afraid to go to sleep because Robinson was threatening
to beat him up. R. 103-2 at 8. Indeed, Jacobo was attacked four hours later by Robinson
around 3:30 a.m. Id.
Jacobo states that he complained to Micah on five different occasions in the
period after Robinson’s placement into the cell but before the attack. Id. at 9. Jacobo
alleges that he used the buzzer and banged on the door to get Micah’s attention. Id.
Micah allegedly stopped going over to check at some point despite Jacobo’s repeated
efforts to get his attention. Id. Jacobo claims that Robinson “talk[ed] to himself like a
crazy person.” Id. Robinson also supposedly pointed at Jacobo and said that he was
going to kill or hit him. Id. Eventually Jacobo, Hernandez, and Robinson went to sleep.
Hernandez was sleeping on the bed while Jacobo and Robinson were each sleeping on
a separate air mattress on the cell floor. Id. at 9.
Jacobo was awoken by Robinson’s assault against him at approximately 3:30
that morning. R. 103-2 at 10. Robinson was hitting Jacobo and saying that he was
going to kill him. Id. Robinson kicked and punched Jacobo and eventually put him into
a choke hold. Id. Nurse Ramos responded to a loud banging on the door to Cell 8 and

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saw that Robinson had Jacobo in a choke hold. R. 103 at 3, R. 129 at 1. Owens, Lopez,
Calderon, and Adams then entered Cell 8 and removed Robinson. R. 103-2 at 10.
Jacobo states that around five minutes passed between him being initially awoken by
Robinson’s assault and Robinson’s removal from the cell. Id.
Jacobo was relocated to Cell 10 in the medical unit. Id. He was bleeding from his
head and nose. Id. Nurse Ramos took Jacobo out of Cell 10 and cleaned his face. Id. at
11. She states that she examined Jacobo and found a one-half inch laceration on his
forehead and a bloody nose, but there was no disfigurement of the nose. R. 103 at 3
¶ 15. Jacobo believes that Ramos did not do much for him at this time and did not
provide him additional bandages while he continued to bleed. R. 103-2 at 11. Jacobo
conceded during his deposition, that he did not make any additional complaints to
Ramos about his condition. Id. Ramos states that Jacobo denied having any nausea or
vomiting, and said he did not lose consciousness. R. 103 at 3.
Recognizing that Jacobo needed additional care, Ramos contacted defendant Dr.
Kul Sood (an employee of the Will County Jail) at around 4:15 a.m., and informed him
that Jacobo had been in a fight and required stitches. R. 103 at 4, R. 129 at 18. (The
record does not state where Sood was located when Nurse Ramos called.)
Dr. Sood arrived two hours later, at around 6:30 a.m. R. 103 at 4, R. 129 at 2.
The parties disagree about what medial treatment Nurse Ramos provided to Jacobo
before Sood’s arrival. Jacobo states that he continued to bleed and was in pain during
this period. R. 129 at 2. However, during his deposition, Jacobo conceded that he did
not tell Ramos that he was in pain. R. 103-2 at 11. Jacobo stated that he was surprised
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that Ramos did not provide him stitches immediately and that he had to wait for Sood.
Id. at 18. However, Ramos states that she cannot prescribe medication or apply
stitches. R. 103 at 3, R. 129 at 2. Ramos also states that she continued to provide
Jacobo with gauze to stop his bleeding and he was monitored both by her and the
guards until Sood arrived. R. 103 at 4. Jacobo was able to take a shower and did not
make any additional complaints to the guards or Ramos. Id.
The parties do not dispute the extent of Sood’s medical treatment of Jacobo.
When Sood arrived at the Jail, he found Jacobo was in no apparent distress. R. 103 at
4, R. 129 at 2. Jacobo was alert and oriented to person, place, and time. R. 103 at 4-5,
R. 129 at 2. His nose had stopped bleeding and he only had some dried blood on his
nostril. R. 103 at 5, R. 129 at 2. Jacobo also had a laceration on his forehead that was
bleeding slightly and bruising on the bridge of his nose. Id.
Sood applied four stitches to the head laceration and prescribed Doxycycline, an
antibiotic, and Motrin, a pain medication. Id. He also ordered that Jacobo’s dressing
be changed daily and that he receive Bacitracin, an antibacterial drug. Id. Finally,
Sood ordered an x-ray of Jacobo’s nose. Id.
The x-ray of Jacobo’s nose was taken later that afternoon by the Suburban
Mobile X-Ray company, an outside firm that came to the Jail. Id. The x-ray showed
that Jacobo suffered a “slight displaced fracture to [his] mid nasal bone.” Id. Sood
conducted a follow up appointment with Jacobo two days later. Id. Jacobo said that he
was fine and denied having any problems. Id. Jacobo was seen a second time by Sood

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four days after the incident, and again Jacobo said he was fine. R. 103 at 5-6, R. 129
at 2. During this second follow-up visit, Sood told Jacobo that the x-ray showed a
slightly displaced fracture of the mid nasal bone and not to blow his nose too hard. Id.
A third follow-up visit occurred six days later, on November 21, 2007. R. 103 at
6, R. 129 at 3. Jacobo complained that he was still in pain and Dr. Sood prescribed him
Motrin. Id. Sood removed Jacobo’s sutures a day later, on November 22. Id. Sood saw
Jacobo on November 24, and again on November 27, when Sood also prescribed Motrin
for Jacobo. Id. Sood conducted a final follow-up exam of the nose on December 24, 2007.
Id. Jacobo did not have any apparent problems and he said that he was fine. Id.
Jacobo now uses a nasal spray at times to help him clear his nostrils for his breathing,
but Jones had not detailed any other long-term consequences from his nose injury. R.
103-2 at 16.
Jacobo’s amended complaint brings suit against the Will County Sheriff’s Office,
Will County Sheriff Paul Kaupas (in his official capacity), and Adams, Owens, Lopez,
Calderon, Micah, Sodd, and Ramos in their individual capacities. R. 68. The suit
advances two causes of action from the November 14 incident: Count One, a failure to
protect claim against Owens, Lopez, Calderon, Adams, and Micah; and, Count Two,
denial of medical care against Owen, Lopez, Calderon, Adams, Ramos, and Sood.
Jacobo also raises a third cause of action regarding a failure to protect claim from a
different incident occurring on January 3, 2008.

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II.
There are three motions before the Court: (1) Owens, Micah, Lopez, Kaupas,
Adams, and Calderon’s motion for summary judgment, R. 114; (2) Ramos and Sood’s
motion for summary judgment, R. 102; and (3) Jacobo’s renewed motion for
appointment of counsel, R. 133.
A.

Jacobo’s Renewed Motion For Counsel

With regard to the renewed motion for appointment of counsel, the previouslyassigned judge denied two motions for counsel before the reassignment of the case to
this Court. R. 5, 60, 107. Jacobo points out in his present motion that he is a Spanish
speaker (an interpreter was needed for his deposition), and counsel would have helped
him obtain additional discovery to support his claims. R. 133. However, Jacobo does not
state what additional information he desires through discovery, and has not brought
a motion under Rule 56(d) of the Federal Rules of Civil Procedure stating that facts are
unavailable to him. Accordingly, discovery is closed and the prior denials of
appointment of counsel were appropriate.
Moving forward, however, as explained below, some of the claims against the
individual deputies will survive summary judgment. Although Jacobo has litigated the
case admirably so far, as the case moves into the pre-trial preparation stage (although
the Court also encourages settlement negotiations after both sides have reviewed this
opinion), it is now time for appointment of counsel. Jacobo now has to prepare a pretrial order, motions in limine, and at trial, would have to present witnesses and crossexamine witnesses. The complexity of the case now exceed his abilities to litigate it on
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his own behalf. Romanelli v. Suliene, 615 F.3d 847, 851-52 (7th Cir. 2010) (citing Pruitt
v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc)). Jacobo’s renewed motion for
appointment of counsel, R. 133, is granted.
B.

Defendants’ Motions For Summary Judgment

Turning to the motions for summary judgment, “[t]he Court shall grant
summary judgment 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); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). The Court
may not weigh conflicting evidence or make credibility determinations, but the party
opposing summary judgment must point to evidence demonstrating a genuine dispute
of material fact. Omnicare v. UnitedHealth Group, 629 F.3d 697, 705 (7th Cir. 2011)
(citations omitted). Evidence relied on by the parties must be competent evidence that
would be admissible at trial. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009)
(citations omitted). Defendants, as the moving parties, have the initial burden of
showing there is no genuine dispute and they are entitled to judgment as a matter of
law. Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008)). If Defendant meets this burden, Jacobo must respond with specific facts
showing that the jury could find in his favor, and that there is a genuine dispute that
needs to be decided at trial. Carmichael, 605 F.3d at 460 (citing Anderson, 477 U.S. at
251-52; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);

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Wheeler, 539 F.3d at 634). A genuine material dispute is one that could change the
outcome of the suit, and there is evidence sufficient to allow a reasonable jury to return
a favorable verdict for the plaintiff. Spivey v. Adaptive Mktg., 622 F.3d 816, 822 (7th
Cir. 2010) (citations omitted).
1.

The Sheriff and Deputies

Jacobo has brought suit against the Will County Sheriff’s Office, Will County
Sheriff Paul Kaupas (in his official capacity), and deputies Adams, Owens, Lopez,
Calderon, and Micah. They have moved for summary judgment on all claims. R. 114.
As an initial matter, Jacobo’s suit against Sheriff Kaupas in his official capacity is
actually a suit against the Sheriff’s Office. Sow v. Fortville Police Dep’t, 636 F.3d 293,
300 (7th Cir. 2011) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Monell
v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). In any event,
Jacobo’s suit against the Sheriff’s Office must be evaluated for municipal liability
under Monell.
“A municipality may be held liable for a constitutional deprivation under Monell
v. Dep’t of Soc. Servs. of City of New York.” Waters v. City of Chicago, 580 F.3d 575, 580
(7th Cir. 2009) (citing 436 U.S. 658 (1978)). “Misbehaving employees are responsible
for their own conduct, ‘units of government are responsible only for their policies rather
than misconduct by their workers.’” Lewis v. City of Chicago, 496 F.3d 645, 646 (7th
Cir. 2007) (quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir. 2007)). “To
establish municipal liability under § 1983 . . . a plaintiff must present sufficient

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evidence to show that the constitutional violation resulted from a municipal policy,
custom or practice.” Waters, 580 F.3d at 580 (citing Monell, 436 U.S. at 694). “To
establish an official policy or custom, a plaintiff must show that his constitutional
injury was caused by (1) the enforcement of an express policy of the [municipality], (2)
a widespread practice that is so permanent and well settled as to constitute a custom
or usage with the force of law, or (3) a person with final policymaking authority.”
Wragg v. Village of Thornton, 604 F.3d 464, 467-68 (7th Cir. 2007) (citing Latuszkin
v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001); McCormick v. City of Chicago, 230
F.3d 319, 324 (7th Cir. 2000)). Jacobo fails to allege any facts that could demonstrate
municipal liability under Monell. He only mentions the singular (so far as the
complaint alleges) events that occurred to him at the Jail without demonstrating how
this is part of a custom or practice sufficient to establish a Monell claim. See Calhoun
v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005). (He also does not plausibly suggest how
he was harmed by an express policy or decision by a final policymaker. In fact, Jacobo
points out that defendants allegedly violated the established policies of the Jail by
placing him in the cell with other detainees.) Thus, the motion for summary judgment
as to the Will County Sheriff’s Office and Will County Sheriff Paul Kaupas (in his
official capacity) is granted and they are terminated from this action.
The motion for summary judgment as to Adams, Owens, Lopez, Calderon, and
Micah is granted in part and denied in part. “The Due Process Clause of the
Fourteenth Amendment protects pre-trial detainees from punishment and places a

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duty upon jail officials to protect pre-trial detainees from violence.” Fisher v. Lovejoy,
414 F.3d 659, 661 (7th Cir. 2005) (citing Swofford v. Mandrell, 969 F.2d 547, 549 (7th
Cir. 1992)). “Prison officials have a duty to protect prisoners from violence at the hands
of other prisoners.” Lewis v. Richards, 107 F.3d 549, 552-53 (7th Cir. 1997) (citing
Farmer v. Brennan, 511 U.S. 825, 831-33 (1994); Langston v. Peters, 100 F.3d 1235,
1237 (7th Cir. 1996) (internal quotation marks omitted)). However, not every act of
inmate-on-inmate violence results in a constitutional violation. Borello v. Allison, 446
F.3d 742, 747 (7th Cir. 2006).
Although the claim arises under the Fourteenth Amendment because Jacobo
was a pretrial detainee, the Court applies the deliberate indifference standard that
governs Eighth Amendment claims. Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir.
2010). The standard contains both an objective prong, requiring a sufficiently serious
risk, and a subjective prong, requiring actual knowledge of the risk. Dale v. Poston, 548
F.3d 563, 569 (7th Cir. 2008) (citing Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).
As to the objective requirement, Jacobo must show that “(1) he suffered an objectively
sufficient serious injury; and (2) he was incarcerated under conditions posing a
substantial risk of serious harm.” Id. (citing Farmer, 511 U.S. at 834). A condition that
poses a substantial risk of harm is one where the “risks [are] so great that they are
almost certain to materialize if nothing is done.” Brown v. Budz, 398 F.3d 904, 911
(7th Cir. 2005). This standard has been analogized to placing a detainee in a cell with

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a cobra. Id. at 911 (citing Billman v. Indiana Dep.’t of Corr., 56 F.3d 785, 788 (7th Cir.
1995)).
For the subjective element, the official is deliberately indifferent only if he
“‘effectively condones the attack by allowing it to happen.’” Santiago v. Walls, 599 F.3d
749, 756 (7th Cir. 2010) (quoting Lewis, 107 F.3d at 553). “[D]efendants [must have]
actual knowledge of an impending harm easily preventable, so that a conscious,
culpable refusal to prevent the harm can be inferred from defendants’ failure to
prevent it.” Santiago, 599 F.3d at 756 (quoting Lewis, 107 F.3d at 553). “Mere
negligence or even gross negligence does not constitute deliberate indifference.”
Borello, 446 F.3d at 749. However, “[a] prison official cannot escape liability by
showing that he did not know that a plaintiff was especially likely to be assaulted by
the specific prisoner who eventually committed the assault.” Dale, 548 F.3d at 569
(citations omitted). A reasonable response to a risk can only refute a deliberate
indifference claim, but “[t]he ultimate measure of the adequacy of the response is
therefore reasonableness in light of the surrounding circumstances.” Id.
As a threshold point, there is no doubting that Jacobo suffered an objectively
sufficient serious injury from Robinson’s assault. Jacobo’s injuries were quickly
diagnosed by Nurse Ramos and Dr. Sood as requiring treatment. Lee v. Young, 533
F.3d 505, 509 (7th Cir. 2008). Jacobo required stitches and a follow up x-ray revealed
a broken nose.

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With that said, in order to analyze the failure-to-protect claim in an intelligible
way, the Court will subdivide Jacobo’s Count One claims into four separate events: (1)
Jacobo’s initial placement into Cell 8 with Hernandez; (2) Jacobo’s complaints to Micah
after his placement into Cell 8 with Hernandez but before Robinson’s placement in the
cell; (3) Robinson’s placement into Cell 8 by Lopez, Calderon, Owens, and Adams; and
(4) Jacobo’s complaints to Micah after Robinson’s placement into Cell 8 before the
assault.
Jacobo’s claim must be rejected as to his initial placement into the cell with
Hernandez, as well as his complaints to Micah before Robinson’s placement in the cell.
As a general principle, detainees have no general right to a private jail cell. Bell v.
Wolfish, 441 U.S. 520, 541 (1979); Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir.
2003) (“College dorms, hospitals, and military barracks house more than one person
to a room without amounting to punishment.”). Jacobo provides no evidence to suggest
that Hernandez posed a threat or in any way contributed to Robinson’s attack. The
evidence before the Court at this time shows that Hernandez was a simple bystander
who was sleeping when Robinson attacked Jacobo.
Robinson, of course, is the one who attacked Jacobo. According to Jacobo,
Robinson was extremely confrontational when he was placed in Cell 8 by Lopez,
Calderon, Owens, and Adams. He threatened to kill the guards and Jacobo believed
that Robinson was under the influence of drugs or alcohol. R. 103-2 at 8. A correctional
official acts with deliberate indifference when he witnesses a volatile situation between
two inmates and just walks away without trying to defuse the situation. Fisher, 414
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F.3d at 664. This case presents a common failure-to-protect fact pattern: placing a
dangerous detainee in a cell with the ultimate victim. Brown, 398 F.3d at 914-15
(citations omitted). Here Jacobo’s evidence, when viewed in the light most favorable
to him, shows that Robinson was a dangerous individual who posed a serious risk of
violence those around him, even threatening to kill the officers. Lopez, Calderon,
Owens, and Adams did not address this situation but instead shoved Robinson into
Cell 8, where Robinson ultimately assaulted Jacobo. Summary judgment is denied as
to the claim that Lopez, Calderon, Owens, and Adams acted with deliberate
indifference by placing Robinson into a cell with Jacobo.
Similarly, Jacobo’s renewed calls for help to deputy Micah, once Robinson was
in the cell, also comprise a claim that survives summary judgment. Robinson was
allegedly threatening Jacobo, and Jacobo claims he called Micah for help several times
but was ignored. A correctional official may be held liable when he ignores repeated
detainee complaints that he is under the threat of violence and there is a subsequent
assault. Borello, 446 F.3d at 749 (citing Velez v. Johnson, 395 F.3d 732, 736-37 (7th
Cir. 2005); Haley, 86 F.3d 642); Brown, 398 F.3d at 914 (noting that a typical claim
often involves a defendant-custodian failing to take protective action after a plaintiffdetainee complained of a feared threat posed by a specific person) (citations omitted).
Finally, the Court notes that the individual deputies’ motion for summary
judgment does not address the claim (Count Two) that Owen, Lopez, Calderon, and
Adams denied Jacobo medical care after the assault by Robinson, and the motion
makes only a passing reference to the December 2007 attack (Count Three). These
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claims do not appear to have been addressed in Jacobo’s November 2010 deposition and
no evidence was presented in Defendants’ Local Rule 56.1 materials on these claims.
Naturally, then, these claims also remain in the case.
2.

The Medical Officials

Jacobo challenges the medical treatment that he received from Nurse Ramos
and Dr. Sood in Count Two of the complaint. To make out a claim for deliberate
indifference to a medical need, a prisoner must allege that defendants were
intentionally indifferent to an objectively serious medical need or condition —
negligence, gross negligence, or medical malpractice is insufficient. Farmer, 511 U.S.
at 834; Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008); Guzman v. Sheahan,
495 F.3d 852, 857 (7th Cir. 2007); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir.
2007). Ramos and Sood do not contest for purposes of summary judgment that Jacobo
had an objectively serious medical need after Robinson’s assault. R. 136 at 1. The
motion therefore centers around whether the care they provided constituted deliberate
indifference to that medical need.
In evaluating whether a medical professional’s actions constitute deliberate
indifference, the “‘medical professional is entitled to deference in treatment decisions
unless no minimally competent professional would have so responded under those
circumstances.’” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (quoting Sain v. Wood,
512 F.3d 886, 894-95 (7th Cir. 2008). “‘Deliberate indifference may be inferred based
upon a medical professional’s erroneous treatment decision only when the medical
professional’s decision is such a substantial departure from accepted professional
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judgment, practice, or standards as to demonstrate that the person responsible did not
base the decision on such a judgment.’” Gayton v. McCoy, 593 F.3d 610, 622-23 (7th
Cir. 2010) (quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir.
1996)). “‘Deliberate indifference is not medical malpractice. . . .’” Roe, 631 F.3d at 857
(quoting Duckworth, 532 F.3d at 679).
Nurse Ramos and Dr. Sood’s actions were within the traditional standard of care
and far short of the egregious actions required for deliberate indifference. After the
assault, Ramos immediately evaluated Jacobo’s condition. R. 103-2 at 10; R. 103 at 3
¶ 15. Jacobo believes that she should have done more for him during this period, such
as providing more bandages to help his bleeding, medicine for his pain, or stitches for
his wound. But as Ramos explained, and Jacobo did not refute, as a Registered Nurse
she is unable to prescribe medicine or apply stitches. R. 103 at 3 ¶ 17. Notably, Jacobo
does not argue that Ramos should have called 911 or rushed him to the hospital when
she first evaluated him after the attack. And even if he did argue this, this would
simply be a mere disagreement with Ramos’s medical decision. That type of
disagreement does not establish a deliberate indifference claim. See Jackson v. Kotter,
541 F.3d 688, 697-98 (7th Cir. 2008) (citations omitted) (“There is not one ‘proper’ way
to practice medicine in prison, but rather a range of acceptable choices based on
prevailing standards in the field.”).
Jacobo’s other argument is that Ramos waited too long before calling Dr. Sood.
The assault occurred around 3:30 a.m. and Ramos called Sood around 45 minutes later,
at 4:15 a.m. “A delay in treatment may constitute deliberate indifference if the delay
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exacerbated the injury or unnecessarily prolonged an inmate’s pain.” McGowan v.
Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (citations omitted). To be sure, there was a
delay between the 3:30 a.m assault and the 4:15 a.m. call. Walking through the 45minute period, the 3:30 a.m. attack lasted for about five minutes. R. 103-2 at 10.
Ramos heard the assault and called Owens, Lopez, Calderon, and Adams, who then
relocated Jacobo to Cell 10. Id. Jacobo was then evaluated and had his face cleaned by
Ramos. Id. at 11. The record does not state how much time lapsed between Ramos’s
evaluation of Jacobo and calling Sood. In any event, the record does show several
things happened after 3:30 a.m. but before Ramos could call Sood, including relocating
Jacobo to a safe location and conducting an initial medical evaluation.
Furthermore, in order to prevail, Jacobo must show Ramos acted with a reckless
state of mind. Roe, 631 F.3d at 857. Here, she checked the cell door when she heard the
assault, called the ERT to stop the assault, immediately addressed Jacobo’s injuries
when it was safe to do so, and called Sood in the middle of the night to inform him of
Jacobo’s condition, around 45 minutes after the assault started. No reasonable jury
could conclude that she acted with the recklessness needed to prove a deliberate
indifference claim. Grieveson, 538 F.3d at 777.
Finally, Jacobo does not present evidence that any of Dr. Sood’s actions reflected
deliberate indifference. Sood was called at 4:15 a.m and arrived to evaluate Jacobo by
6:30 a.m., three hours after the assault. Jacobo does not suggest that Dr. Sood should
have arrived sooner. Sood ordered an x-ray, which was taken later that day. Jacobo

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received stitches and necessary medications, and Sood performed a number of followup visits, providing additional treatment and medications over the next several days.
Jacobo likely has not even shown negligence, let alone deliberate indifference. Nurse
Ramos and Dr. Sood’s motion for summary judgment, R. 102, is granted and they are
terminated from this action.
III.
In summary, Plaintiff’s renewed motion for counsel, R. 133, is granted.
Defendants Owens, Micah, Lopez, Kaupas, Adams, Calderon, and Will County Sheriff’s
Office’s motion for summary judgment, R. 114, is granted in part, and denied in part.
Summary judgment is granted as to the Will County Sheriff’s Office and Sheriff
Kaupas (who was sued in his official capacity), and they are terminated from this
action. With regard to Adams, Owens, Lopez, Calderon and Micah, summary judgment
is granted as to Count One only to the extent that Jacobo is challenging his initial
placement in Cell 8 with Hernandez and claiming that he complained to Micah
regarding his placement in the cell with Hernandez before Robinson’s placement in the
cell. Jacobo’s claim regarding Robinson’s placement in the cell and his later complaints
to Micah after Robinson’s placement in the cell remain intact. Count Two (deliberate
indifference to medical need) and Count Three (a December 2007 failure-to-protect),
to the extent that they name Adams, Owens, Lopez, Calderon, and Micah, also remain.
Nurse Ramos and Dr. Sood’s motion for summary judgment, R. 102, is granted and
they are terminated from this action. The case will be set for status on October 18,
2011, at 9 a.m. The Court requests that defense counsel make arrangements for
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Plaintiff to be available by telephone at the status (or to help newly-appointed counsel
make those arrangements).
ENTER:

___________________________________
EDMOND E. CHANG
UNITED STATES DISTRICT JUDGE
Date: September 29, 2011

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