Potts v. Dart et al
MEMORANDUM Opinion and Order. Defendants' motion for summary judgment 178 is granted in part and denied in part. Summary judgment is granted for defendant Moreci on the excessive force claim and for Sheriff Dart on the claim against him in his individual capacity; the motion is otherwise denied. Signed by the Honorable Jorge L. Alonso on 9/29/2017. Notice mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
REGINALD M. POTTS, Jr.,
JOHN MANOS, DANIEL SCHICKEL,
ARTHUR RUSHING, THOMAS CINTRON,
VICTOR THOMAS, HAZEL DERDEN,
GILBERTO ROMERO, DANIEL MORECI,
WILLIAM THOMAS, TERESA CALVIN,
THOMAS DART, and COOK COUNTY,
No. 11 C 3952
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiff Reginald Potts sues defendants, John Manos, Daniel Schickel, Arthur Rushing,
Thomas Cintron, Victor Thomas, Hazel Derden, Daniel Moreci, William Thomas, Teresa Calvin
(all of whom are employees of the Cook County Sheriff’s Office), Sheriff Thomas Dart, and Cook
County, pursuant to 42 U.S.C. § 1983 for using excessive force against him and failing to protect
him during his pretrial detention in the Cook County Jail. Defendants have moved for summary
judgment. For the following reasons, the motion is granted in part and denied in part.
Plaintiff entered pretrial detention in Cook County Jail (“the Jail”) on November 10, 2007.
(Defs.’ LR 56.1 Stmt., ¶ 1, ECF No. 179.) He has filed over forty grievances, including appeals,
concerning his treatment at the Jail, including the use of oleoresin capsicum (“OC”) spray (i.e.
pepper spray) or other excessive force used against him. (Pl.’s LR 56.1 Stmt. of Add’l Facts, ¶ 1,
ECF No. 191.) On some occasions, Jail officers sprayed plaintiff with OC spray or otherwise
used excessive force based on their perception that plaintiff was not complying with their orders or
commands, even if he was not behaving in a threatening manner. (See, e.g., id., ¶¶ 8, 10, 13, 18.)
Defendants Cintron and William Thomas were among the supervisory officers tasked with
reviewing uses of OC spray by Jail officers on detainees such as plaintiff and assessing their
reasonableness. (Id., ¶¶ 23, 28.)
One on occasion in particular, on May 27, 2009, defendant Calvin sprayed plaintiff with
OC spray because she judged that he was not complying with her command to rinse and exit the
shower. (See id., ¶¶ 10, 24.) Defendants Schickel and Manos arrived to transport plaintiff to the
infirmary to receive medical attention. (Id., ¶ 10.) Plaintiff had not rinsed the OC spray off, and
he refused to move when Schickel and other officers attempted to escort him to the infirmary. (Id;
Defs.’ LR 56.1 Stmt., ¶ 13.) Officer Schickel dragged plaintiff for approximately ten feet, before
he and other officers picked him up and began to carry him to the infirmary. (Defs.’ LR 56.1
Stmt., ¶¶ 15, 17.) Eventually, plaintiff decided he would walk on his own. (Id., ¶ 17.)
According to plaintiff, Sheriff Dart was personally aware of these issues, but took no
action. (Pl.’s LR 56.1 Stmt., ¶¶ 31-32, 34-35.)
The operative Second Amended Complaint consists essentially of two claims, both resting
on allegations of violations of constitutional rights pursuant to 42 U.S.C. § 1983: use of excessive
force (Count I), and failure to protect plaintiff from use of excessive force (Count II). Plaintiff
also claims that Cook County is (a) liable for these violations of constitutional rights under Monell
v. Department of Social Services of City of New York, 436 U.S. 658, 690-91 (1978) (Count III), and
(b) required by Illinois law to indemnify the defendants for any judgment they become liable to
pay for conduct within the scope of their duties (Count IV).
“The 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 competent evidence that would be admissible at trial to
demonstrate a genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629
F.3d 697, 705 (7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). A genuine
dispute is one that could change the outcome of the suit, and is supported by evidence sufficient to
allow a reasonable jury to return a favorable verdict for the non-moving party. Spivey v. Adaptive
Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010).
Defendants seek partial summary judgment on the following grounds: (1) the evidence that
defendant Schickel used excessive force is insufficient to sustain a jury verdict against him on that
claim; (2) the evidence that defendants Cintron, Moreci, or William Thomas failed to protect
plaintiff from the use of excessive force is insufficient to sustain a jury verdict against them on that
claim; (3) plaintiff’s claim against Sheriff Dart in his individual capacity fails because there is no
evidence that Sheriff Dart knew anything about plaintiff or the incidents in which plaintiff alleges
that Jail officers used excessive force against him; and (4) plaintiff’s Monell claim fails because he
does not establish that Sheriff Dart or the Sheriff’s Office had any official policy or widespread
practice that caused a violation of plaintiff’s rights.
EXCESSIVE FORCE CLAIM AGAINST SCHICKEL
A pretrial detainee’s excessive force claim is governed by the due process clause of the
Fourteenth Amendment. The Seventh Circuit has recently explained the standard for excessive
force claims under the Fourteenth Amendment as follows:
[T]he Fourteenth Amendment's Due Process Clause prohibits holding pretrial
detainees in conditions that “amount to punishment.” [Bell v. Wolfish,] 441 U.S.
520, 535 (1979). A pretrial condition can amount to punishment in two ways:
first, if it is “imposed for the purpose of punishment,” or second, if the condition “is
not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court
permissibly may infer that the purpose of the government action is
punishment.” Id. at 538-39. The Supreme Court recently explained that “a pretrial
detainee can prevail by providing only objective evidence that the challenged
governmental action is not rationally related to a legitimate governmental
objective or that it is excessive in relation to that purpose.”
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015).
Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 856 (7th Cir. 2017) (emphasis added)
(internal citations altered) petition for cert. filed on other grounds (Aug. 14, 2017) (No. 17-245).
Thus, even if a challenged action is “rationally related to a legitimate governmental objective, the
deprivation it imposes must not be excessive in relation to that purpose.” Id. at 858. Assessing
whether a jail officer’s actions are excessive in relation to his objective requires “considering not
just the government's interest but also the dignity interests” of the plaintiff, because “dignity serves
an important balancing function alongside the legitimate safety and management concerns of jails
and prisons.” Id.
Defendants argue that Schickel is entitled to summary judgment on the excessive force
claim because there is no evidence that he did anything more than drag plaintiff approximately ten
feet across a smooth floor because plaintiff was refusing to walk, which is a reasonable, even de
minimis, use of force that cannot form the basis of a constitutional excessive force claim.
According to defendants, dragging plaintiff such a short distance in an apparent effort to induce
him to walk could not have caused any significant injury (and indeed, based on medical records,
plaintiff appears to have sustained only minor, de minimis injuries, if any), and Schickel’s conduct
does not “‘offend the conscience.’” (Defs.’ Mem. at 12, ECF No. 180 (quoting Lunsford v.
Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994).)
But under the Fourteenth Amendment, the proper inquiry is not the seriousness of
plaintiff’s injury or whether Schickel’s conduct rises to the level of offensiveness, but whether
objective evidence establishes that Schickel’s conduct was not “rationally related to a legitimate
governmental objective or that it [was] excessive in relation to that purpose.” Kingsley, 135 S.
Ct. at 2473-74. Plaintiff has argued that there were other options open to Schickel besides
dragging plaintiff on the floor, such as, for example, carrying plaintiff to the infirmary in a restraint
chair. A jury could reasonably find that dragging plaintiff on the floor, even briefly, was
excessive in relation to the governmental objective because it caused plaintiff to suffer pain and
indignity unnecessarily, given the other options available. There is a triable issue of fact on this
claim, so defendants’ motion for summary judgment in favor of defendant Schickel on the
excessive force claim is denied.
FAILURE TO PROTECT CLAIMS AGAINST CINTRON, THOMAS, AND
[I]t is “well-settled” that . . . [correctional] officials [have] a duty to “take
reasonable measures to guarantee the safety of the inmates” in their care. Farmer
v. Brennan, 511 U.S. 825, 832 (1994)) 1. . . . For a failure to protect claim, as
[plaintiff] asserts here, he must show that “he was incarcerated under conditions
posing a substantial risk of harm[.]” Grieveson v. Anderson, 538 F.3d 763, 775 (7th
Cir. 2008). . . . [B]ecause the Constitution is only implicated when prison officials
Notably, Farmer v. Brennan was decided under the cruel and unusual punishment clause of the Eighth Amendment,
not the due process clause of the Fourteenth Amendment, which applies to pretrial detainees such as plaintiff.
However, the Seventh Circuit has explained that this distinction makes no difference for purposes of a
failure-to-protect claim because “‘deliberate indifference’ is the recognized standard of protection afforded to both
convicted prisoners and pretrial detainees under the Eighth and Fourteenth Amendments respectively.” Palmer v.
Marion Cty., 327 F.3d 588, 593 (7th Cir. 2003).
have a “sufficiently culpable state of mind[,]” an inmate must show that the prison
officials acted with “‘deliberate indifference’ to inmate health or
safety.” Farmer, 511 U.S. at 834 (citation omitted).
Byron v. Dart, 825 F. Supp. 2d 958, 962 (N.D. Ill. 2011) (internal citations altered). Defendants
Cintron, William Thomas, and Moreci argue that they are entitled to summary judgment on
plaintiff’s failure to protect claim because there is no evidence that any of them had any realistic
opportunity to prevent the use of excessive force against plaintiff.
Plaintiff makes no response with respect to defendant Moreci, apparently conceding that
Moreci is entitled to summary judgment on this claim, but he argues that with respect to William
Thomas and Cintron, defendants mischaracterize both the record and plaintiff’s claim. There is
evidence that defendant Cintron habitually reviewed reports of incidents in which officers under
his supervision used force against plaintiff, and based on his review of those reports, Cintron was
aware of the habitual use of OC spray against plaintiff—but he took no action. (See Pl.’s Resp.
Br. at 9; Defs.’ LR 56.1 Resp. ¶ 23.) Similarly, there is evidence that William Thomas reviewed
reports of incidents in which Jail officers used force, particularly OC spray, against plaintiff, and
had the ability to intervene to stop the officers from habitually using OC spray against plaintiff, but
did not. (See Pl.’s Resp. Br. at 9-10; Defs.’ LR 56.1 Resp. ¶¶ 28-30.) Based on this evidence,
plaintiff argues, a jury could reasonably find that these defendants “had subjective knowledge of
the risk of harm, which they personally disregarded.” Grieveson, 538 F.3d at 775.
Defendants seem to suggest that plaintiff can only prevail on his failure-to-protect claim
against defendants who had a specific opportunity to intervene to protect plaintiff from an
imminent use of excessive force on a specifically identified occasion. See, e.g., id. at 778
(plaintiff failed to demonstrate genuine issue of material fact except as to officer who witnessed a
particular beating and failed to intervene). But an inmate can prevail on a claim of failure to
protect even if officers knowingly exposed him only to a generalized threat of harm. See Brown
v. Budz, 398 F.3d 904, 915 (7th Cir. 2005) (“[D]eliberate indifference can be predicated upon
knowledge of a victim’s particular vulnerability (though the identity of the ultimate assailant [is]
not known in advance of attack), or, in the alternative, an assailant’s predatory nature (though the
identity of the ultimate victim not known in advance of attack).”). Viewing the evidence in the
light most favorable to plaintiff and making all reasonable inferences in his favor, there is evidence
that defendants Cintron and William Thomas were aware that Jail officers were habitually using
OC spray or other force on plaintiff in situations in which that level of force was unwarranted, but
they did not take steps to protect plaintiff from that threat. Based on this evidence, there is a
genuine issue of material fact on the failure to protect claim against defendants Cintron and
INDIVIDUAL CAPACITY CLAIM AGAINST SHERIFF DART AND QUALIFIED
Defendants contend that Sheriff Dart is entitled to summary judgment (or in the alternative,
qualified immunity) on the claim against him in his individual capacity. According to defendants,
there is no evidence that Sheriff Dart was ever aware of plaintiff’s complaints of excessive force
against Jail officers.
Plaintiff responds that defendants’ position ignores the evidence that (1) plaintiff’s name
was at least mentioned in some of the agendas and other documents pertinent to certain of the
“Sheriff’s Accountability Meetings,” which Sheriff Dart attended; (2) Sheriff Dart was aware of
who plaintiff was; and (3) according to plaintiff, Sheriff Dart personally conversed with plaintiff
about his conditions of confinement on a few occasions. (See Pl.’s LR 56.1 Stmt., ¶¶ 31-36.)
Based on this evidence, plaintiff argues, a jury could reasonably infer that Sheriff Dart knew of
defendants’ unconstitutional treatment of plaintiff and “‘facilitate[d] it, approve[d] it, condone[d]
it, or turn[ed] a blind eye for fear of what [he] might see,’” Potts v. Manos, No. 11 C 3952, 2013
WL 5968930, at *3 (N.D. Ill. Nov. 7, 2013) (quoting T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir.
2010)), and he is therefore personally liable for the harm that befell plaintiff.
The Court agrees with plaintiff. True, the evidence of Sheriff Dart’s knowledge of the
incidents of alleged excessive force against plaintiff is scant, but to rule that no reasonable
factfinder could believe that he knew that officers were using excessive force against plaintiff, as
defendants urge, would be to weigh evidence, which the Court may not do at this stage of this case.
There is sufficient evidence to create a genuine issue of material fact for the jury to resolve on the
claim of individual liability against Sheriff Dart for failure to protect plaintiff from use of
excessive force by Jail officers.
Defendants also argue that Sheriff Dart is entitled to qualified immunity. A defendant is
entitled to qualified immunity if his “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010). Although it is clearly established in the law, and a reasonable
person would surely have known, that law enforcement officers may use only force that is
reasonably necessary and not excessive under the circumstances, it is not clearly established in
Seventh Circuit case law when the use of pepper spray is excessive. Brooks v. City of Aurora, Ill.,
653 F.3d 478, 487 (7th Cir. 2011) (“[C]ontrolling law would not have communicated to a
reasonable officer the illegality of applying pepper spray to an arrestee who has ceased active,
physical resistance for a couple of seconds but has not submitted to the officer’s authority.”). The
evidence plaintiff has cited as support for his position that Sheriff Dart was aware of the use of
excessive force against plaintiff tends to be in the form of reports that state that Jail officers used
OC spray against plaintiff because he was contumaciously refusing to comply with the orders of
Jail officers. It may be at least arguable that it is not clearly established in the law that use of
pepper spray in such circumstances is improper. Ultimately, the Court need not delve into the
matter because plaintiff does not respond at all to defendants’ qualified immunity argument in his
response brief, and therefore forfeits this claim. See Merry Gentleman, LLC v. George & Leona
Prods., Inc., 76 F. Supp. 3d 756, 761 (N.D. Ill. 2014). Summary judgment is entered for Sheriff
Dart in his individual capacity based on qualified immunity.
MONELL LIABILITY AND WIDESPREAD PATTERN OR PRACTICE
Defendants contend that they are entitled to summary judgment on plaintiff’s claim that
Cook County is liable under Monell, 436 U.S. at 690-91, for the constitutional violations plaintiff
has alleged because plaintiff has not demonstrated that any municipal policy, custom, or action of
a person with final policymaking authority on behalf of Cook County has caused any violations of
his constitutional rights. See Glisson v. Ind. Dep't of Corr., 849 F.3d 372, 379 (7th Cir. 2017)
(“The critical question under Monell . . . is whether a municipal . . . policy or custom gave rise to
the harm (that is, caused it), or if instead the harm resulted from the acts of the entity’s agents.”).
Plaintiff responds that there is evidence of municipal liability creating a genuine issue of
fact on all of his claims because Jail officers’ repeated actions toward him demonstrate a custom or
widespread practice. See Thomas v. Sheahan, 499 F. Supp. 2d 1062, 1095 (N.D. Ill. 2007) (“To
establish a widespread custom or policy, Plaintiff is not required to show that Cook County’s
alleged unconstitutional widespread practices actually caused pain and suffering to other inmates .
. . . Instead, it is enough that Plaintiff provides competent evidence tending to show that the alleged
practices were, indeed, widespread . . . . [and] truly evince the existence of a policy.”) (citing Davis
v. Carter, 452 F.3d 686, 695 (7th Cir. 2006) and Phelan v. Cook County, 463 F.3d 773, 789-90
(7th Cir. 2006)). The Court agrees that, viewing the facts in the light most favorable to plaintiff
and drawing all reasonable inferences in his favor, there is evidence of a series of alleged
constitutional transgressions that is sufficiently lengthy to constitute a widespread practice or
custom. Additionally, plaintiff argues that there is evidence that Sheriff Dart was aware of the
string of incidents of excessive force against plaintiff, but they continued unabated, which,
according to plaintiff, shows that there is a genuine issue of fact as to whether Sheriff Dart—who is
an authorized final policymaker for Cook County, within the scope of his office, see Maldonado v.
Garcia, No. 13 C 8981, 2015 WL 4483975, at *4 (N.D. Ill. July 22, 2015) (“In Illinois, sheriffs
final policymaking authority
omitted)—tacitly approved of them. Again, the Court agrees. There is a genuine dispute of
material fact on plaintiff’s Monell claim, and defendants’ motion for summary judgment on that
claim must be denied.
For the foregoing reasons, defendants’ motion for summary judgment  is granted in
part and denied in part. Summary judgment is granted for defendant Moreci on the excessive
force claim and for Sheriff Dart on the claim against him in his individual capacity; the motion is
ENTERED: September 29, 2017
HON. JORGE L. ALONSO
United States District Judge
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