Rusinowski et al v. Village of Hillside et al
Filing
209
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 2/6/2014:Mailed notice(wp, ) (Main Document 209 replaced on 2/6/2014) (wp, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN RUSINOWSKI and JOSEPH
RUSINOWSKI,
Plaintiffs,
v.
Case No. 11 C 4772
VILLAGE OF HILLSIDE, a
Municipal Corporation, JOSEPH
LUKASZEK, ROBERT DiDOMENICO,
DAVID ANDRESKI, and ELMHURST
MEMORIAL HEALTHCARE,
Hon. Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are four Motions for Summary Judgment and two
Motions to Strike, all filed by Defendants.
I.
BACKGROUND
Plaintiff Steven Rusinowski (“Steven”) is (or at least was) an
active user of “BattleCam.com,” a website where users broadcast
themselves on camera and role-play with other users in aggressive,
intimidating, and combative scenarios. On this website, users expect
to see pranks, threats, and unusual behavior.
Steven’s online role-
playing overflowed into real life, leading ultimately to this ninecount lawsuit against five defendants.
The principal events took place on and shortly after March 4,
2011, but relevant background goes back somewhat further.
Steven is
twenty-nine years old, enrolled in classes at Elmhurst College, and
lives with his father, Plaintiff Joseph Rusinowski, in Hillside,
Illinois.
On November 11, 2010, Hillside Police arrived unannounced
at the Rusinowski home based on a “concerned citizen” report from a
caller who claimed that Steven was suicidal.
The Police entered the
home and found Steven sleeping in his bedroom with no apparent
suicidal thoughts.
Joseph Rusinowski later learned from Hillside
Police Chief Joseph Lukaszek (“Chief Lukaszek”) that Defendant Robert
DiDomenico (“DiDomenico”) was the anonymous caller, though DiDomenico
disputes that he placed the call.
A few months later (the exact date is unclear), Elmhurst College
security received a call stating that Steven was bringing weapons to
and selling drugs on campus.
The College’s security employees
observed Steven on BattleCam.com and notified Elmhurst Police of
their concerns about Steven.
This brings us to March 4, 2011.
Starting around midnight,
Steven was on BattleCam.com with DiDomenico, a user with whom Steven
was acquainted.
straight.
The two were online for more than eight hours
Steven was displaying a handgun, making lewd comments
about other users, and drinking beer – all of which seem par for the
BattleCam.com course. DiDomenico decided to call the Hillside Police
– depending on whom you ask, DiDomenico was playing either a prank on
Steven or concerned for Steven’s safety and well-being.
DiDomenico
spoke with Chief Lukaszek and told him that Steven could be seen on
BattleCam.com
drinking,
waving
loaded
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weapons,
and
threatening
himself and others.
Chief Lukaszek later testified that DiDomenico
told him that Steven was suicidal.
In response to the call, Chief Lukaszek drove to the Rusinowski
house in his police vehicle.
Once there, he stayed in his car and
observed a live feed of Steven on BattleCam.com for 20-25 minutes.
He saw Steven waving guns around, drinking, “acting obnoxious,” and
threatening someone named Alex who lives in North or South Carolina.
Chief Lukaszek did not hear Steven threaten suicide, but based on the
circumstances, Chief Lukaszek was concerned for the safety of Steven
and others.
Chief Lukaszek called the Rusinowski house several times, but
nobody answered.
front door.
He then approached the house and knocked on the
Steven answered the door, but did not open it the entire
way, apparently because the door sticks easily. Chief Lukaszek could
see only one of Steven’s hands, so he asked Steven to show both
hands.
Steven says that he complied with this order, but Chief
Lukaszek contends that Steven refused eight commands to show both
hands
and
responded
with
“why”
and
“but
why”
after
each
one.
Lukaszek Dep. 87:13-88:14. Chief Lukaszek may have ordered Steven to
get on the ground, but the record is unclear.
The parties agree
that, eventually, Chief Lukaszek grabbed Steven’s arm and pulled him
outside.
Steven fell forward and scraped his hand on the concrete,
and then he was secured and taken to the Hillside Police Department.
Hillside Police Officers then searched the Rusinowski house and
recovered two handguns, one of which was loaded. After spending some
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time at the police department (the witnesses’ estimates range from
thirty minutes to two hours), Steven consented to being transported
to Elmhurst Memorial Hospital.
Events at the Hospital are disputed.
Defendants contend that
Steven was examined by Defendant Dr. David Andreski (“Dr. Andreski”),
but Steven insists that Dr. Andreski never examined him. Steven does
not contest, however, that he was examined by Melissa Kroll, a
clinician consultant, who concluded that Steven posed a danger to
himself and others.
Chief Lukaszek was called to the hospital, and
once there he spoke with medical staff and filled out a petition to
have Steven committed for mental health evaluation.
Dr. Andreski
signed a certificate that indicated that he had examined Steven and
determined that Steven was a danger to himself or others.
Steven was
transferred to Madden Health, where he remained until March 10, 2011.
Steven testified that these events exacerbated his anxiety.
In
the wake of his involuntary commitment, he suffered from pain,
anguish, difficulty sleeping, humiliation, and loss of appetite.
He
failed a midterm examination in one of his courses, and had to drop
the class.
Steven and his father brought this nine-count Amended
Complaint, alleging a variety of federal and state claims, against
Chief Lukaszek, the Village of Hillside, Robert DiDomenico, Dr.
Andreski, and Elmhurst Memorial HealthCare.
All Defendants have now
moved for summary judgment, and have moved to strike portions of
Plaintiffs’ filings.
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II.
MOTIONS TO STRIKE
Defendants have filed Motions to Strike that take issue with
Plaintiffs’ response to Defendants’ statements of material facts.
In
this
District,
a
motion
for
summary
judgment
must
be
accompanied by a “statement of material facts as to which the moving
party contends there is no genuine issue.”
Local Rule 56.1(a)(3).
The opposing party must respond to the movant’s statement and support
any disagreement with “specific references to the affidavits, parts
of the record, and other supporting materials relied upon.”
Rule 56.1(b)(3)(B).
Local
Local Rule 56.1 is supposed to facilitate this
Court’s adjudication of summary judgment motions “by requiring the
parties to nail down the relevant facts and the way they propose to
support them.”
Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398
(7th Cir. 2012).
While some of Plaintiffs’ answers comport with this requirement,
others
miss
the
mark
completely.
For
example,
the
Village’s
Statement 32 asserts that DiDomenico told Chief Lukaszek that Steven
had loaded weapons and was suicidal.
Village of Hillside L.R. 56.1
Statement of Facts (“Village SOF”) 32.
The Village supports that
statement with a citation to Chief Lukaszek’s deposition, in which he
testified
that
DiDomenico
Lukaszek Dep. 308-09.
conversation
with
told
him
Steven
threatened
suicide.
As we will see, the content of DiDomenico’s
Chief
Lukaszek
is
critical
to
whether
Chief
Lukaszek was justified in believing that Steven needed assistance
because he was about to commit suicide.
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Plaintiffs respond to Statement 32 not with any evidence that
DiDomenico did not say that Steven was suicidal, but with the
unhelpful declaration that “Plaintiff neither admits nor denies
[statement
32]
as
Plaintiff
lacks
personal
knowledge
of
what
DiDomenico actually told the Hillside Police.” Plaintiffs’ L.R. 56.1
Statement of Facts (“Pl. SOF”) 32.
Of course Plaintiff lacks
personal knowledge of the phone call – he was not a party to it.
Plaintiff’s response should have indicated what basis, if any,
Plaintiff has to contest Chief Lukaszek’s version of the phone call.
If Plaintiff cannot marshal any evidence to show that DiDomenico did
not tell Chief Lukaszek that Steven was suicidal, then the Court –
whether on summary judgment or at trial – will have no choice but to
rule on the basis of the evidence presented by the Village.
In
short, Plaintiff’s non-response fails to show that there is a genuine
factual dispute.
For many of Plaintiff’s responses, Plaintiff has failed to
provide evidence that controverts Defendant’s statements.
The Court
need not, at this point, go through each contested paragraph to
determine whether or not to strike it.
Rather, the Court will
address any insufficient statements when they arise in the summary
judgment analysis.
Dimmitt & Owens Fin., Inc. v. Superior Sports
Prods., Inc., 196 F.Supp.2d 731, 737 (N.D. Ill. 2002).
Therefore,
the Motion to Strike is granted as discussed throughout the analysis,
and denied without prejudice as to those paragraphs that do not arise
in the summary judgment analysis.
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III.
MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate “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).
The
Court construes all facts and draws all reasonable inferences in
favor of the non-moving party.
Ricci v. DeStefano, 557 U.S. 557, 586
(2009).
A.
Fourth Amendment Search and Seizure – Count I
1.
Seizure
Chief Lukaszek argues that he is entitled to summary judgment on
the illegal seizure claim because he had probable cause. The parties
appear to agree that this issue should be governed by the familiar
rule that a police officer has probable cause to arrest an individual
when the facts and circumstances that are known to him support a
reasonable belief that the individual has committed, is committing,
or is about to be commit a crime.
Holmes v. Village of Hoffman
Estate, 511 F.3d 673, 679 (7th Cir. 2007).
Chief Lukaszek argues
that he had probable cause to think that Steven was about to commit
suicide.
For this case, the problem with the regular probable cause test,
and with Chief Lukaszek’s proffered justification for the search and
seizure, is that suicide is not a crime in Illinois.
Royal Circle v.
Achterrath, 68 N.E. 492, 498 (Ill. 1903) (noting that “suicide is not
a crime under the statutes of this state”); People v. Peters, 536
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N.E.2d 465, 468 (Ill. App. Ct. 1989) (explaining that “suicide and
attempted suicide are not crimes in this State”).
The intrusion on
Steven’s Fourth Amendment rights cannot be supported by any fear that
he was about to commit a crime.
This case is better analyzed under precedent that governs police
responses
to
emergency
situations.
As
the
Supreme
Court
has
explained, “[t]he need to protect or preserve life or avoid serious
injury is justification for what would be otherwise illegal absent an
exigency or emergency.”
403 (2006).
Brigham City, Utah v. Stuart, 547 U.S. 398,
Exigent circumstances can justify a warrantless search
“where the police reasonably feared for the safety of someone inside
the premises.”
1995).
United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.
The officer must establish that the circumstances as they
appeared at the moment of entry, viewed objectively, would have led
“a reasonable, experienced law enforcement officer to believe that
someone inside the house, apartment, or hotel room required immediate
assistance.”
United States v. Richardson, 208 F.3d 626, 629 (7th
Cir. 2000).
The Seventh Circuit addressed this issue recently in Fitzgerald
v. Santoro, 707 F.3d 725 (7th Cir. 2013).
In that case, the
plaintiff called the police non-emergency number and spoke with the
late-night desk officer.
Id. at 728.
The officer could tell that
the plaintiff was intoxicated, and noted that she sounded very
depressed
and
possibly
suicidal.
Id.
Two
officers
and
two
paramedics were dispatched to the plaintiff’s house, where they made
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a forcible, warrantless entry.
Id.
That conduct did not violate the
Fourth Amendment because “the officers had an objectively reasonable
belief that they needed to enter without a warrant in order to
prevent serious injury.”
Id. at 732.
It is uncontested that, during the early morning hours of March
4, 2011, Steven was on Battlecam.com and could be seen consuming
alcohol and waving handguns.
It is also uncontested that DiDomenico
called the police. Chief Lukaszek testified that DiDomenico told him
that Steven was suicidal.
Village SOF 32.
As discussed above,
Plaintiff has failed to present evidence showing a genuine dispute as
to paragraph 32, and thus Chief Lukaszek’s testimony is deemed
admitted.
For the same reason, the Court considers it undisputed
that Chief Lukaszek then, while in his police vehicle, viewed a live
feed of Steven on Battlecam.com and confirmed that Steven was waving
guns around and drinking.
Village SOF 36.
On these facts, it was
objectively reasonable for Chief Lukaszek to believe that Steven was
about to hurt himself and required immediate assistance.
It is important to note several facts that do not change the
analysis.
First, no material issue of fact is created by Steven’s
testimony that he never threatened to harm himself.
This analysis
turns on the facts known to the officer at the time of entry.
Just
as in Fitzgerald, where the plaintiff argued that she did not
actually threaten suicide, the officer’s actions are judged based on
the information known to the officer at the time.
F.3d at 731.
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Fitzgerald, 707
Second, DiDomenico’s hazy memory of what he said to the police
does not create a genuine factual dispute because it does not
contradict Chief Lakuszek’s testimony.
Plaintiffs have not directed
the Court to any evidence that DiDomenico denies telling Chief
Lakuszek that Steven was suicidal.
Third, Plaintiffs’ challenge to Chief Lakuszek’s credibility
carries no weight on summary judgment, where the Court searches for
genuine disputes as to material facts and does not assess the
credibility of witnesses.
Springer v. Durflinger, 518 F.3d 479, 484
(7th Cir. 2008).
Fourth, while previous false reports that Steven was suicidal
could have given the police department some cause for skepticism of
this newest report, even Plaintiff concedes that “[t]he information
provided by DiDomenico may have warranted a well-being check and
further investigation.”
ECF No. 102 at 14.
Finally, it does not matter that Chief Lukaszek never observed
Steven threaten suicide.
Chief Lukaszek confirmed DiDomenico’s
reports that Steven was on Battlecam.com, drinking beer, and waving
handguns; those corroborating facts entitled Chief Lukaszek to credit
DiDomenico’s report and fear that Steven was suicidal.
Illinois v.
Gates, 462 U.S. 213, 242 (1983) (explaining that “an officer may rely
upon information received through an informant, rather than upon his
direct
observations,
reasonably
so
corroborated
long
by
as
other
the
informant’s
matters
knowledge”).
- 10 -
within
statement
the
is
officer’s
Thus, the Court grants summary judgment in favor of Chief
Lukaszek as to Fourth Amendment claims arising out of the seizure of
Steven Rusinowski at the Rusinowski home.
2.
Search
Separate issues arise due to the fact that Village police
searched the Rusinowski house after they secured Steven.
Chief
Lukaszek argues that this search, during which the police recovered
the weapons displayed on the webcam, was reasonable under the socalled
“protective
sweep
exception.”
As
the
Seventh
Circuit
explained recently, “a protective sweep is a quick and limited search
of premises conducted to protect the safety of police officers or
others.” United States v. Starnes, --- F.3d ---, 2013 WL 6731784, *2
(7th Cir. 2013).
Incident to an arrest, officers may “look in
closets and other spaces immediately adjoining the place of arrest
from which an attack could be immediately launched.”
Buie, 494 U.S. 325, 334 (1990).
Maryland v.
The search may extend beyond those
immediately adjoining spaces when “articulable facts . . . would
warrant a reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the arrest
scene.”
Id.
It is uncontested that Chief Lukaszek pulled Steven out of the
house and then handcuffed him.
At that point, Chief Lukaszek and
other officers had observed Steven drinking beer, waving around guns,
and resisting police instructions to either show his hands or get on
the ground. Officers then conducted a short, limited searched of the
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house to determine that the area was secure.
Chief Lukaszek went
directly to the room where Steven displayed the handguns and seized
the handguns in question, then searched the house to make sure there
were no victims in the house and no other occupants to pose a threat
to the officers.
There is no indication that the officers opened any
cabinets or drawers or otherwise expanded the scope of the search.
Even when the facts are viewed in the light most favorable to Steven,
the search was permissible under the protective sweep exception. See
also, Leaf v. Shelnutt, 400 F.3d 1070, 1086 (explaining that a
protective sweep can be reasonable to protect the safety of officers
and potential victims of violence).
is granted
as
to
Plaintiffs’
The Motion for Summary Judgment
Fourth Amendment
search
claim
in
Count I.
B.
Excessive Force – Count II
Chief Lukaszek has moved for summary judgment as to Count II, in
which Steven alleges that Chief Lukaszek used excessive force when
arresting him.
This claim is analyzed under the Fourth Amendment’s
objective-reasonableness standard.
395 (1989).
Graham v. Connor, 490 U.S. 386,
The Court focuses its inquiry on the totality of the
circumstances “to determine whether the intrusion on the citizen’s
Fourth
Amendment
interests
governmental interests.”
861 (7th Cir. 2010).
was
justified
by
the
countervailing
Cyrus v. Town of Mukwonago, 624 F.3d 856,
Important factors include (1) the severity of
the crime at issue, (2) whether the suspect poses an immediate threat
to the safety of the officers or others, and (3) whether the suspect
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is “actively resisting arrest or attempting to evade arrest by
flight.”
Id.
The parties do not dispute that Chief Lukaszek knocked on the
Rusinowskis’ front door, and that Steven opened the inside wood door
fully and the outside screen door halfway.
At that point Chief
Lukaszek instructed Steven to show both his hands.
Chief Lukaszek
testified in his deposition that Steven showed him only one hand and
asked “why” and “but why” repeatedly.
Lukaszek Dep. at 87-88.
Steven testified that Chief Lukaszek and other officers asked him to
get on the ground after he showed both hands.
444:7-9.
S. Rusinowski Dep.
It is undisputed that Chief Lukaszek then grabbed Steven’s
forearm and pulled him out of the doorway, at which point Steven fell
down the front steps.
Steven scraped his hand on the concrete
outside his home.
As discussed above, suicide is not a crime in Illinois.
Thus,
the Court is unable to assess the “severity of the crime at issue.”
Viewing the facts in the light most favorable to the non-moving
party, the Court must accept Steven’s testimony that he showed both
hands. But even with both hands showing, Steven could have had a gun
hidden – the officers had just seen Steven on camera drinking and
waving a gun around.
So the officers proceeded cautiously and asked
Steven to get to the ground.
When Steven resisted, the officers
grabbed Steven’s arm and threw him to the ground.
Even when these
facts are viewed in the light most favorable to Steven, the Court
sees no genuine dispute that the use of minimal force was justified
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by the threat that Steven posed to officer safety and Steven’s
resistance to the instructions he was given by police.
As to Count
II, Defendant’s Motion for Summary Judgment is granted.
C.
Battery – Count III
In Illinois, battery claims against police are limited by the
principle that an arresting officer “generally may use any force
reasonably necessary to effect an arrest.”
People v. Sims, 871
N.E.2d 153, 157 (Ill. App. Ct. 2007).
However, an officer has no
right to use excessive force.
As explained above, Chief
Id.
Lukaszek is entitled to summary judgment on Steven’s excessive force
claim.
Thus, Defendant’s Motion for Summary Judgment is granted as
to the battery claim as well.
D.
Medical Negligence – Count IV
Under Illinois law, a plaintiff alleging medical malpractice
must establish (1) the proper standard of care against which the
defendant physician’s conduct is measured, (2) an unskilled or
negligent failure to comply with the applicable standard, (3) a
resulting injury, and (4) proximately caused by the physician’s want
of skill or care.
Sullivan v. Edward Hosp., 806 N.E.2d 645, 653
(Ill. 2004).
1.
Against Dr. Andreski
Steven argues that Dr. Andreski committed negligence per se by
violating the Illinois Mental Health and Developmental Disabilities
Code.
The Code provides for involuntary commitment of a psychiatric
patient who, due to mental illness, is a danger to himself or others.
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405 Ill. Comp. Stat. 5/3-601.
Involuntary commitment must be based
on a petition that includes “[a] detailed statement of the reason for
the assertion that the respondent is subject to involuntary admission
on an inpatient basis.”
Id.
The petition “shall be accompanied by
a certificate executed by a physician” or other qualified individual
that
indicates
that
the
physician
“personally
examined
the
respondent” and details “clinical observations . . . relied upon in
reaching a diagnosis.”
405 Ill. Comp. Stat. 5/3-602.
It is uncontested that Chief Lukaszek filled out the petition,
and that Dr. Andreski completed the certificate.
Dr. Andreski
testified that he examined Steven before completing the certificate.
Andreski
Dep.
28:3-5.
Steven,
examination ever took place.
however,
insists
that
no
S. Rusinowski Dep. 372:23-373:1.
such
By
affidavit, Steven states that he met Dr. Andreski for the first time
when he took his grandmother to Elmhurst Memorial Hospital in October
2012.
S. Rusinowski Aff. ¶ 1, 3.
At that meeting, Steven did not
think that Dr. Andreski recognized him.
These
competing
positions
are
Id. at ¶ 5, 7.
irreconcilable:
examination took place, or it did not.
either
the
They evidence a genuine
dispute – on the evidence provided, a rational trier of fact could
credit either version.
directly
on
whether
This issue is material because it bears
Dr.
Andreski
complied
with
the
statute’s
requirement of a personal examination.
It
does
not
matter
that
the
evidence
supporting
position comes from his deposition and affidavits.
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Steven’s
Defendants argue
that a plaintiff cannot rely on self-serving evidence to defeat
summary judgment, but as explained recently by the Seventh Circuit,
“the term ‘selfserving’ must not be used to denigrate perfectly
admissible evidence through which a party tries to present its side
of the story at summary judgment.”
Hill v. Tangherlini, 724 F.3d
965, 967 (7th Cir. 2013) (overruling Albiero v. City of Kankakee, 246
F.3d 927 (7th Cir. 2001)).
As to this Count, the Motion for Summary
Judgment is denied.
2.
Against Elmhurst Memorial HealthCare
Steven’s case against Elmhurst Memorial HealthCare (“Elmhurst”
or “EMH”) is premised on an agency relationship between EMH and Dr.
Andreski.
Steven
has
not
argued
that
Dr.
Andreski
was
EMH’s
employee, nor has he argued that Dr. Andreski was EMH’s actual agent.
Thus, he must rely on a theory of apparent agency.
In Illinois, a hospital may be liable vicariously for the
medical
or
professional
negligence
of
a
non-employee
treating
physician if there is an apparent agency relationship between the
hospital and the treating physician. Gilbert v. Sycamore Mun. Hosp.,
622 N.E.2d 788, 794 (Ill. 1993).
In Gilbert, the Illinois Supreme
Court set out three elements that a plaintiff must prove to establish
apparent agency:
(1) the hospital, or its agent, acted in a
manner that would lead a reasonable person to
conclude that the individual who was alleged to
be negligent was an employee or agent of the
hospital; (2) where the acts of the agent create
the appearance of authority, the plaintiff must
also prove that the hospital had knowledge of
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and acquiesced in them; and (3) the plaintiff
acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary
care and prudence.
Id. at 795.
The Court stressed that “[i]f a patient knows, or should
have known, that the treating physician is an independent contractor,
then the hospital will not be liable.”
Id. at 794.
As an initial matter, Steven asserts that the Court should apply
the borrowed servant doctrine of agency law.
from Maryland that apply Maryland law.
Steven cites to cases
See, e.g., Rivera v. Prince
George’s County Health Dept., 649 A.2d 1212 (Md. App. 1994).
But
Gilbert is well-settled in Illinois, and Steven gives the Court no
reason to think that an Illinois court would apply the borrowed
servant principles from Maryland law.
Thus, the Court’s analysis
will follow the framework established by Illinois courts in Gilbert
and its progeny.
The parties do not dispute that, prior to March 4, 2011, Steven
had been to the emergency room at Elmhurst Memorial Hospital on at
least seven occasions.
They agree that on six of these occasions,
Steven signed consent forms that stated that:
[t]he emergency room physician, pathologist and
radiologist are not hospital, Elmhurst Clinic,
or Elmhurst Memorial HealthCare employees. They
are independent physician specialists providing
specialized treatment.
Elmhurst SOF 32.
Steven signed a similar form on the seventh visit.
Steven concedes that, had he read the consent forms, he would have
understood that the hospital did not employ the doctors.
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Steven
admits that no one at the hospital ever told him that the doctors
were employed by the hospital.
The presence of this sort of disclaimer in a signed waiver,
while not dispositive, is an important factor for courts to consider
when determining whether the hospital acted in a manner that would
lead a reasonable person to conclude that the doctor was an employee
or agent of the hospital.
James v. Ingalls Mem’l Hosp., 701 N.E.2d
207, 210-11 (Ill. App. Ct. 1998).
In one case, the plaintiff signed
a consent form with a similar disclaimer, then later asserted that
she believed the doctor was a hospital employee, but did not point to
any
specific
actions
the
hospital
took
that
led
her
to
that
conclusion. Churkey v. Rustia, 768 N.E.2d 842, 846-47 (Ill. App. Ct.
2002).
The court granted summary judgment for the hospital on the
apparent agency theory.
Id.
Just like the Churkey plaintiff, Steven signed a waiver that
explained that his doctors were not employed by the hospital. Steven
points to no specific actions that the hospital took that reasonably
would have given him the impression that Dr. Andreski was a hospital
employee – again just as in Churkey.
Accordingly, Elmhurst Memorial
HealthCare is granted summary judgment on Steven’s medical negligence
claim.
E.
EMTALA – Count V
The federal Emergency Medical Treatment and Active Labor Act
(“EMTALA”) imposes two requirements on covered hospitals.
First,
they must “provide for an appropriate medical screening examination”
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for those individuals who come to the hospital’s emergency department
and request treatment.
42 U.S.C. § 1395dd(a).
Second, if the
hospital determines that an individual has an emergency medical
condition, the hospital must either treat the condition or arrange
for the individual to be transferred to another medical facility. 42
U.S.C. § 1395dd(b)(1).
Steven argues that EMH violated both of its
duties under EMTALA.
1.
Screening Requirement
The statute does not define what it means by “an appropriate
medical screening examination.”
F.2d 872, 879 (4th Cir. 1992).
this issue.
Baber v. Hosp. Corp. of Am., 977
The Seventh Circuit has not addressed
Other Circuits, however, agree that hospitals satisfy
the screening requirement when they “apply their standard screening
procedure
for
identification
uniformly to all patients.”
of
an
emergency
medical
condition
Baber v. Hosp. Corp. of Am., 977 F.2d
872, 878 (4th Cir. 1992); Marshall v. E. Carroll Parish Hosp. Serv.
Dist., 134 F.3d 319, 322 (5th Cir. 1998) (examination is judged by
“whether it was performed equitably in comparison to other patients
with similar symptoms”).
It is uncontested that Steven was evaluated by at least one
nurse that Steven’s blood alcohol content was measured, and that
Steven was evaluated by a clinician to determine whether Steven
required psychiatric hospitalization.
However, the parties dispute,
as discussed above, whether Dr. Andreski examined Steven.
In his
sworn testimony, Steven has indicated repeatedly that Dr. Andreski
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never examined him.
The Court must view this disputed fact in the
light most favorable to Steven, the non-moving party.
It is reasonable to infer – given the hospital’s insistence that
its physician examined Steven – that the hospital’s regular practice
is for a physician to examine those patients presenting with symptoms
similar to Steven’s.
If Steven can show that Dr. Andreski never
examined him – and thus that Dr. Andreski’s representations to the
contrary were fabrications – then he should be able to show that the
hospital treated him differently that it treats other patients
presenting with similar symptoms.
For this reason, the Court must
infer that, if Steven’s version of his treatment is proven at trial,
Steven can also show that his treatment was not performed equitably
in comparison to other patients with similar symptoms.
Elmhurst
cites no authority for its argument that a screening examination can
be adequate even if it was not conducted by a physician.
Thus, EMH’s
Motion for Summary Judgment is denied as to Steven’s EMTALA screening
claim.
2.
Stabilization and Transfer Requirements
To succeed on a claim that a hospital failed to comply with
EMTALA’s stabilization and transfer requirements, a plaintiff must
establish that the hospital detected an emergency medical condition,
the patient was not stabilized before transfer, and the hospital
neither obtained the patient’s consent to transfer nor completed a
certificate indicating the transfer would be beneficial to the
patient and was appropriate.
Thomas v. Christ Hosp. and Med. Ctr.,
- 20 -
328 F.3d 890, 893-94 (7th Cir. 2003); Holcomb v. Monahan, 30 F.3d
116, 117 (11th Cir. 1994).
A hospital may not transfer the patient
unless a physician:
has signed a certification that based upon the
information available at the time of transfer,
the medical benefits reasonably expected from
the provision of appropriate medical treatment
at another medical facility outweigh the
increased risks to the individual.
42 U.S.C. § 1395dd(c)(1)(ii).
Steven has not provided evidence that the hospital detected an
“emergency medical condition” as defined by the statute.
contrary,
Steven
argues
throughout
his
filings
that
To the
he
never
threatened to harm himself or others and did not even need to be in
the hospital.
See, e.g., ECF No. 159-1 at 3.
Plaintiff bears the burden of proving the elements of an EMTALA
violation.
By pointing out the absence of evidence to support this
claim, EMH placed the burden on Steven to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Because Steven has
failed to present the Court with evidence to support a finding that
he suffered from an emergency medical condition, there is no factual
dispute for trial.
Thus, EMH’s Motion for Summary Judgment is
granted as to Steven’s EMTALA stabilization and transfer claim.
F.
In
Count
VI,
False Imprisonment – Count VI
Steven
alleges
a
state
law
imprisonment against Chief Lukaszek and Elmhurst.
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claim
for
false
To state a cause
of action for false imprisonment under Illinois law, “the plaintiff
must allege that his personal liberty was unreasonably or unlawfully
restrained against his will and that defendant(s) caused or procured
the restraint.” Arthur v. Lutheran Gen. Hosp., 692 N.E.2d 1238, 1243
(Ill. App. Ct. 1998).
provisions
of
Detention that is lawful pursuant to the
Illinois
imprisonment claim.
law
cannot
be
the
basis
of
a
false
Sassali v. DeFauw, 696 N.E.2d 1217, 1218-19
(Ill. App. Ct. 1998).
Illinois law allows a peace officer to:
take a person into custody and transport him to
a mental health facility when the peace officer
has reasonable grounds to believe that the
person is subject to involuntary admission on an
inpatient basis and in need of immediate
hospitalization to protect such person or others
from physical harm.
405 Ill. Comp. Stat. 5/3-606.
Steven
argues
that
there
was
no
objectively
reasonable
justification for Chief Lukaszek’s actions. But, as discussed above,
Chief Lakuszek seized Steven lawfully when he thought that Steven
required immediate assistance.
Chief Lukaszek’s actions were thus
permissible under 405 Ill. Comp. Stat. 5/3-606, and cannot be the
basis of a false imprisonment action.
the
same
argument
enforcement.
that
he
was
Against EMH, Steven relies on
never
lawfully
arrested
by
law
These arguments do not provide the Court with a basis
to deny summary judgment.
In addition, Steven attempts to argue that the detention, even
if initiated lawfully, became unlawful once Chief Lukaszek and Dr.
Andreski signed false certifications.
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As to Chief Lukaszek, Steven
has not presented any evidence that the certification was false – as
discussed above, Chief Lukaszek’s testimony does not contradict
DiDomenico’s.
And Dr. Andreski is not a Defendant as to this Count.
Dr. Andreski’s conduct cannot be attributed to Elmhurst because, as
discussed in part III.D.2., Steven cannot rely on any agency theories
to tie Dr. Andreski’s conduct to the hospital.
Thus, both Chief
Lukaszek’s and EMH’s Motions for Summary Judgment are granted as to
Count VI.
G.
Unlawful Detention – Count VII
In addition to the false imprisonment claim, Steven brings a
federal claim for unlawful detention against Chief Lukaszek.
As
discussed above, Chief Lukaszek did not violate the Fourth Amendment
when he seized Steven.
Shortly thereafter, when asked by a Hillside
officer if he wanted to go to Elmhurst Hospital, Steven responded
that he wanted to go to the hospital.
Within an hour or two of the
seizure, Steven was taken to Elmhurst.
Steven does not, at this
point,
the
contend
that
the
detention
at
police
station
was
unreasonable.
Plaintiff argues that the detention was unlawful because Chief
Lukaszek signed a false certification.
His only support for that
contention is his argument that some of Chief Lukaszek’s testimony
was contradictory.
But on summary judgment, Plaintiff must do more
than challenge a witness’s credibility; he must show that there is a
genuine dispute as to a material fact.
F.3d 479, 484 (7th Cir. 2008).
Springer v. Durflinger, 518
Because he has not presented any
- 23 -
facts that show that the certification was false, the Court grants
summary judgment for Chief Lukaszek on Count VII.
H.
Municipal Liability – Count VIII
In Count VIII, Plaintiffs bring a claim against the Village of
Hillside under Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658
(1978).
Monell instructs that:
[a] local governing body may be liable for
monetary
damages
under
§
1983
if
the
unconstitutional act complained of is caused by:
(1) an official policy adopted and promulgated
by its officers; (2) a governmental practice or
custom that, although not officially authorized,
is widespread and well settled; or (3) an
official with final policy-making authority.
Id. at 690.
As discussed above, the Court grants summary judgment
for Chief Lukaszek on all of Plaintiffs’ constitutional claims, so
Plaintiffs do not have any constitutional claims pending against
Chief
Lukaszek
or
the
Village.
But
even
if
they
did,
the
“policymaker” prong of Monell “requires more than the act of a
policymaker.”
McGreal v. Ostrov, No. 98 C 3958, 2002 WL 1784461, *3
(N.D. Ill. Aug. 1, 2002).
Municipal liability lies only where the
policymaker’s act “implement[s] . . . the government’s policy.”
Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992).
Plaintiff has
failed to produce any evidence that Chief Lukaszek’s decisions to
seize Steven in the manner that he did or search the house reflected
the Village’s policy.
Because there is no genuine dispute of
material fact, Defendant Village of Hillside is granted summary
judgment as to Count VIII.
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I. Intentional Infliction of
Emotional Distress – Count IX
Steven’s
final
Count,
brought
against
Defendant
Robert
DiDomenico, is for Intentional Infliction of Emotional Distress
(“IIED”).
In Illinois, a Plaintiff succeeds on an IIED claim by
proving four elements:
(1) extreme and outrageous conduct; (2)
intent or recklessness to cause emotional distress; (3) severe or
extreme emotional distress suffered by the plaintiff; and (4) actual
and proximate causation of the emotional distress by defendant’s
outrageous conduct.
Sornberger v. City of Knoxville, 434 F.3d 1006,
1030 (7th Cir. 2006) (citing Pub. Fin. Corp. v. Davis, 360 N.E.2d
765, 767–68 (1976).
1.
Extreme and Outrageous
To determine whether conduct is extreme and outrageous, courts
evaluate the conduct against an objective standard, based on all the
facts and circumstances.
Graham v. Commonwealth Edison Co., 742
N.E.2d 858, 866 (Ill. App. Ct. 2000).
“Liability does not extend to
mere insults, indignities, threats, annoyances, petty oppressions or
trivialities.”
Id.
A defendant will be liable only for conduct that
is “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency.”
Id.
It is undisputed that Steven and DiDomenico were acquainted
through
BattleCam.com,
identities
a
and nicknames
website
and
where
engage
in
users
aberrant
assume
various
behavior.
On
November 11, 2010, Hillside Police visited the Rusinowski home based
- 25 -
on a report from a concerned citizen that Steven was suicidal.
The
police discovered Steven asleep in his bed, and determined that the
call had been a prank and that Steven was not in any danger.
It is
also undisputed that on March 4, 2011, DiDomenico observed Steven’s
behavior on BattleCam.com before he contacted the Hillside Police
Department and spoke to Chief Lukaszek.
Despite these points of agreement, the parties dispute a variety
of facts related to Steven’s IIED claim.
Steven asserts that
DiDomenico was the “concerned citizen” who called the police prior to
their November 11, 2010 visit to the Rusinowski home.
DiDomenico
denies that accusation, but evidence in the record supports both
sides.
While there was no evidence to controvert Chief Lukaszek’s
testimony that DiDomenico told him that Steven was suicidal, the
record reflects a dispute over whether that report was truthful.
addition,
the
parties
disagree
over
whether
DiDomenico
In
was
responsible for the call to Elmhurst College.
It is not necessarily extreme and outrageous to make a false
police report.
Layne v. Builders Plumbing Supply Co., 569 N.E.2d
1104, 1108 (Ill. App. Ct. 1991).
Nonetheless, disputed facts are
viewed in the light most favorable to Steven indicate that DiDomenico
perpetrated a campaign of harassment by calling in multiple false
threats.
A rational jury could understand that BattleCam.com is a
roleplay website, where users expect unusual if not shocking conduct
from other users, and still credit Steven’s version of the facts.
- 26 -
When viewed in the light most favorable to the non-moving party,
DiDomenico’s conduct was extreme and outrageous.
2.
Intent
On this element, important facts remain disputed.
There is
evidence in the record that DiDomenico may have been responsible for
not only the March 4, 2011 call to the Hillside Police, but also the
November 11, 2010 call to Hillside Police and various prank calls to
Steven’s school. DiDomenico concedes that he thought it was funny to
call the police on Steven and have him sent to the hospital, but
disputes that he laughed about the arrest when he spoke with Joseph
Rusinowski.
A reasonable jury could view these facts and determine
that DiDomenico intended to inflict severe emotional harm on Steven,
or at the very least acted recklessly with regard to whether his
actions would inflict severe emotional harm on Steven.
3.
Severe Emotional Distress
To support an IIED claim, the emotional distress must be “so
severe that no reasonable man could be expected to endure it.”
Kleidon v. Rizza Chevrolet, Inc., 527 N.E.2d 374, 377 (Ill. App. Ct.
1988).
“The intensity and the duration of the distress are factors
to be considered in determining its severity.”
The
evidence
Steven’s anxiety.
shows
that
the
March
4
Id.
incident
exacerbated
Steven suffered from pain, anguish, difficulty
sleeping, humiliation, and loss of appetite.
He failed a midterm
examination in one of his classes, and had to drop the class.
- 27 -
A
reasonable jury could examine this evidence and determine that Steven
suffered from severe emotional distress.
4.
Finally,
Steven
must
was
Causation
prove
the
that
actual
DiDomenico’s
outrageous
conduct
and
distress.
proximate
Sornberger, 434 F.3d at 1030.
extreme
cause
of
and
his
DiDomenico argues that
Steven’s distress was caused not by Defendant’s phone call, but by
Steven’s failure to respond to lawful commands from police to come
out of the house and show both hands.
A reasonable jury could
determine that DiDomenico called the Hillside Police only one time,
and that Steven’s actions cut off the chain of causation.
a
reasonable
jury
could
conclude
instead
that
However,
DiDomenico
was
responsible for a pattern of harassment, and that Steven’s emotional
distress was a reasonably foreseeable consequence of DiDomenico’s
actions.
Accordingly, DiDomenico’s Motion for Summary Judgment is
denied.
V.
CONCLUSION
For these reasons stated herein, the Court rules as follows:
1.
The Motions to Strike [ECF Nos. 168,174] are granted in
part and denied in part;
2.
The Motion for Summary Judgment brought by the Village and
Chief Lukaszek [ECF No. 102] is granted.
3.
The
Motion
for
Summary
Judgment
brought
by
Elmhurst
Memorial HealthCare [ECF No. 146] is granted in part and denied in
part.
- 28 -
4.
The Motion for Summary Judgment brought by Dr. Andreski
[ECF No. 128] is denied.
5.
The Motion for Summary Judgment brought by DiDomenico [ECF
No. 143] is denied.
As a result of these rulings, summary judgment is granted in
favor of Defendants on Count I, Count II, Count III, Count IV against
Elmhurst Memorial HealthCare only, Count V for violations of the
stabilization and transfer requirements only, Count VI, Count VII,
and Count VIII.
Summary judgment is denied as to Count IV against
Dr. Andreski only, Count V for the alleged violation of the screening
requirement only, and Count IX.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:2/6/2014
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