Tobias v. Dart et al

Filing 56

MEMORANDUM Opinion and Order: For the reasons stated above, the Court grants Defendants' motion for summary judgment 42 and enters judgment in their favor. Tobias' claims are dismissed. This Case is closed. Tobias' "Motion of Filing" 55 is granted to the extent the Court has accepted it and considered it as part of his response to the summary judgment; this motion is denied as to any other relief it seeks. Case Terminated Signed by the Honorable Thomas M. Durkin on 6/11/2013:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Garry L. Tobias (2013-0104228 ),
Plaintiff,
v.
Tom Dart, et al.
Defendants.

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Case No. 11 C 5913
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Garry Tobias (“Tobias”), a pretrial detainee confined at the Cook County Jail, filed
this 42 U.S.C. § 1983 action against Defendants Cook County Sheriff Tom Dart and Jail
Superintendent Robert Lyles. Tobias alleges that after entering the jail he waited two
months to receive his prescription eye drops for Glaucoma.

He contends that he

submitted requests for eye drops and to see an eye doctor to Superintendent Lyles, the
officer in charge of Division 5 where Tobias was housed, but his requests were ignored.
Tobias further alleges that there was a custom or policy of not timely providing pretrial
detainees with their prescribed medications. Currently before the Court is Defendants’
motion for summary judgment, to which Tobias has responded. For the reasons stated
below, the Court grants Defendants’ motion and dismisses this case.
SUMMARY JUDGMENT STANDARD
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); Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012).
When addressing a motion for summary judgment, this Court construes all facts and
makes all reasonable inferences in favor of the non-moving party. Jajeh, 678 F.3d at 566.

If the moving party demonstrates the absence of a disputed issue of material fact, “the
burden shifts to the non-moving party to provide evidence of specific facts creating a
genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-movant
must go beyond the pleadings and “set forth specific facts showing that there is a genuine
issue for trial.” Hannemann v. Southern Door County School Dist., 673 F.3d 746, 751
(7th Cir. 2012). A genuine issue of material fact exists only if there is evidence “to permit
a jury to return a verdict for” the nonmoving party. Egonmwan v. Cook County Sheriff's
Dept., 602 F.3d 845, 849 (7th Cir. 2010).
When addressing a summary judgment motion, this Court derives the background
facts from the parties’ factual statements submitted pursuant to Local Rule 56.1 (N.D.
Ill.), which assist the Court by “organizing the evidence, identifying undisputed facts, and
demonstrating precisely how each side propose[s] to prove a disputed fact with admissible
evidence.” Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000).
The movant’s Rule 56.1 Statement must “consist of short numbered paragraphs, including
within each paragraph specific references to the affidavits, parts of the record, and other
supporting materials relied upon to support the facts set forth in that paragraph.” Rule
56.1(a)(3). The non-movant must respond “to each numbered paragraph in the moving
party’s statement, including, in the case of any disagreement, specific references to the
affidavits, parts of the record, and other supporting materials relied upon.”

Rule

56.1(b)(3)(B). The non-movant may submit “any affidavits or other materials” to support
his responses to the movant’s statements of fact, as well as any additional facts requiring
denial of summary judgment. Rule 56.1(b)(1); see also Fed. R. Civ. P. 56(c). A nonmovant’s failure to respond to a Local Rule 56.1 factual statement results in that fact
being considered admitted. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.
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2006); see also Rule 56.1(b)(3)(C) (“ All material facts set forth in the statement required
of the moving party will be deemed to be admitted unless controverted by the statement
of the opposing party”).
In the present case, because Tobias is proceeding pro se, the Defendants served him
with a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment” as required
by Local Rule 56.2 (N.D. Ill.). The notice explains the consequences of failing to properly
respond to a motion for summary judgment and to the facts set out in Defendants’ Rule
56.1 Statement. (R. 43-1.) In response to the summary judgment motion, Tobias
submitted a letter that included his own affidavit and copies of medical request slips but
did not respond to the Defendants’ Rule 56.1 Statement. (R. 50.) Because it was unclear
whether Tobias intended his letter to be his response to the summary judgment motion,
the Court asked him to clarify whether he was going to file an additional response. (R.
51.) Tobias informed the Court that his letter and attachments should be considered his
response. (R. 52.) After briefing was complete, Tobias submitted a “Motion for Filing.”
(R. 55.) While this motion more fully responds to Defendants’ memorandum supporting
their summary judgment motion, and the Court has considered it when addressing the
summary judgment motion, the Motion for Filing, like Tobias’ prior letter, does not
address the facts in Defendants’ Rule 56.1 Statement.
This Court liberally construes pleadings from pro se litigants, like Tobias in this
case; however, such litigants must still comply with the Court’s local procedural rules.
Dale v. Poston 548 F.3d 563, 568 (7th Cir. 2008); Cady v. Sheahan, 467 F.3d 1057, 1061
(7th Cir. 2006). Accordingly, this Court will consider the facts in Defendants’ Rule 56.1
Statement to be admitted. Raymond, 442 F.3d at 608. The Court notes, however, that
considering Tobias’ filings and Defendants’ Rule 56.1 factual statements, the parties do
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not appear to disagree as to which facts are disputed. With these standards in mind, the
Court turns to the facts of this case, noting the facts that are disputed.
FACTS
Tobias entered the Cook County Jail on May 16, 2011 and was asked a series of
medical questions from a form as part of routine intake screening procedures. (R. 45,
Defs. SOF ¶¶ 9-10.) The intake screening form responses correctly showed that Tobias
had high blood pressure, that he reported feeling nausea during the questioning, and that
he did not suffer from various medical conditions such as diabetes, epilepsy, asthma,
emphysema, heart problems, liver or kidney disease, sickle-cell anemia, etc. (Id. ¶ 11.)
The only answer which Tobias contends was incorrect was the intake screening form’s
response to the question of whether he had Glaucoma. The form indicated a negative
response, but Tobias contends that he told the examiner “yes.” (Id. ¶ 12; see also Exh. C,
Intake Screening Form at 4.) The form also showed, though not addressed by the parties,
that Tobias answered “no” when asked if he used eyeglasses. (R. 45-3, Exh. C at 4.)
After answering questions about his medical history, Tobias was referred for a medical
examination by a physician. Tobias told the physician that he had been using heroin for
the previous 10 years. (R. 45-2, Exh. B, Pl. Depo. at 73-74.) Tobias and the physician also
discussed whether he was taking medication for high blood pressure. (Id. at 75-76.)
Tobias did not discuss Glaucoma with the physician because she did not ask about it, even
though he was concerned about getting his Glaucoma medication. (Id. at 76-77.) At the
conclusion of the intake exam, Tobias was diagnosed with opioid withdrawal, for which
he was given medication, and with hypertension, which was to be controlled “off
medication.” (Defs. SOF ¶ 13.)

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Tobias was referred to Primary Care for an examination on May 31, 2011, and was
shown how to request medical attention through Health Service Request forms. (Id.)
According to Tobias, he told the primary care physician, Dr. Kahn, that he had Glaucoma,
to which Dr. Kahn responded that the jail must have been backed up with providing him
with medication or an examination. (Pl. Depo. at 84.) Tobias was not sure if Dr. Kahn
had the authority to prescribe anything for Glaucoma because he was not an
ophthalmologist. (Id.)
On June 14, 2011, Tobias submitted a health request form seeking to see an eye
doctor for eye drops and reading glasses. The request form stated that he had been
experiencing headaches and was unable to read mail and books. The request form did not
mention Glaucoma or indicate that Tobias had been diagnosed with the condition. (Defs.
SOF ¶ 14, see also Exh. E, copy of 6/14/11 Detainee Health Service Request Form.)
Three days later, on June 17, 2011, Tobias filed a grievance stating that he needed
reading glasses and eye drops for Glaucoma. (Defs. SOF ¶ 15, see also Exh. F, 6/17/11
grievance.) The summary judgment evidence indicates that the June 17, 2011 grievance
is the first time Tobias stated in a written request for medical attention that he had
Glaucoma.
According to Tobias, he submitted two written detainee request forms to
Superintendent Lyles in June 2011 about his Glaucoma. Copies of the detainee request
forms are not in the record, and Tobias provided no dates as to when he submitted the
requests. (Defs. SOF ¶ 18; see also Exh. B, Pl. Depo. at 123-27.)
In response to the June 14, 2011 medical request slip, Tobias was scheduled for an
appointment with a general physician on June 28, 2011, and an ophthalmologist on
September 6, 2011. (Defs. SOF ¶ 17; see also Exh. E.) Tobias saw a physician on June
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28, 2011, either Dr. Khan or Dr. Fowler. (Pl.’s Dep. at 94.) Tobias indicates that he was
seen for his hypertension and heroin withdrawal. (Id. at 94-95.) Tobias was not treated
for Glaucoma at that time. According to Tobias, he asked the receptionist whether her
department had received his medical request slips for his Glaucoma, but he did not talk
to any other medical staff person that day about the condition. (Id. at 95.)
On June 30, 2011, Tobias submitted another health service request form stating
he needed eye drops for his Glaucoma. (Defs. SOF ¶ 16, see also Exh. G.) The form was
“referred” on July 1, 2011 (possibly to patient scheduling), and was reviewed on July 12,
2011. (Id.) The Provider Notes state that Tobias had not received medication for
Glaucoma since incarceration and that he had an ophthalmology exam scheduled for
September 6, 2011. (Id.)
On July 10, 2011, Tobias filed another health request form and a grievance seeking
drops for Glaucoma. (Defs. SOF ¶ 19, see also Exh. I.)
At some point in July of 2011, Tobias spoke about his medical needs to Sergeant
Moore, a Division 5 officer subordinate to Superintendent Lyles. Moore told Tobias that
he did not need to fill out another form and that Moore would make sure Tobias saw a
doctor. Tobias credits Moore with getting him an earlier eye exam. (Defs. SOF ¶¶ 20-22.)
Tobias saw an optometrist, Dr. Weinstein, on July 20, 2011, who prescribed eye
drops for Glaucoma. (Id. ¶ 23; see also Exh. L, Aff. of Dr. Dimitrios Patriamakos, at ¶ 6.)
Tobias later saw an ophthalmologist, Dr. Patriamakos, on August 4, 2011, who also
checked Tobias’ eye pressure and vision and who instructed him to continue using eye
drops. (Defs. SOF ¶ 24.) Tobias continued seeing Dr. Patriamakos on a regular basis and
has had a continual supply of eye drops while at the jail. (Id. ¶¶ 24-25.)

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Tobias never met Superintendent Lyles, and communicated with Lyles only
through the health service request forms and grievances he submitted and through the
two detainee request forms he allegedly submitted while in Division 5. (Id. ¶ 26.) Sheriff
Tom Dart had no involvement with Tobias’ requests for medical attention other than
Dart’s supervisory role overseeing the Cook County Jail. (Id. ¶ 27.) The express policy
of the jail is to provide medical care that meets or exceeds the standards of the American
Medical Association to every inmate during his or her confinement and to conduct an
initial screening to learn of each inmate’s medical needs (Id. ¶¶ 28-30.)
Defendants have included affidavits from two ophthalmologists named
Patriamakos. The first affidavit is from Dr. Dimitrios Patriamakos, who examined Tobias
on August 4, 2011 and December 27, 2011. (R. 45, Exh. L.) The second affidavit is from
Dr. Thomas Patriamakos (possibly Dimitrios’ son), who reviewed Tobias’ medical records.
(Id. at Exh. M.) Both ophthalmologists state that Glaucoma is a slow progressing disease
involving fluid build up in the eye; that Tobias’ vision was within normal limits for both
eyes at his August 4, 2010 visit; and that Tobias’ condition would not have progressed to
a medically significant degree between June 17, 2011 (when Tobias submitted a grievance
stating a need for treatment of his Glaucoma) and July 20, 2011 (when he received eye
drops). (R. 45, Exh. L at ¶ 7 and Exh. M at ¶ 6.) Dr. Thomas Patriamakos further states
that the fluid pressure in Tobias’ left eye would have taken several years to accumulate
and could not be attributed to a two-month delay with receiving treatment and, further,
that the condition could not have spread from the left to the right eye. (R. 45, Exh. M at
¶ 5.)
Tobias’ affidavit, as well as his more recent filing, states that he was housed in
Division 5 during the summer of 2011, that Superintendent Lyles was in charge of that
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division, that Sheriff Dart was in charge of the jail, and that Tobias received inadequate
medical attention during that time. (R. 50, 55.)
DISCUSSION
Tobias names both Superintendent Lyles and Tom Dart as Defendants. Although
Tobias does not state whether he seeks to hold them liable in their individual or official
capacities, the summary judgment evidence demonstrates they are not liable in either
capacity.
Individual and Official Capacity
Individual liability under the Civil Rights Act requires a defendant’s personal
involvement in the alleged constitutional violation. See Palmer v. Marion County, 327
F.3d 588, 594 (7th Cir. 2003). Direct participation is not required, but the individual
must have acquiesced in some demonstrable manner in the alleged constitutional
violation. Id. With respect to a supervisor, he “must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye [to it]. In short, some casual
connection or affirmative link between the action complained about and the official sued
is necessary.” Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003)
(quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
A claim against a § 1983 defendant in his official capacity is actually a claim
against the governmental entity that employs him, which in this case is Cook County.
See Kentucky v. Graham, 473 U.S. 159, 167 (1985). To prevail on a § 1983 claim against
a municipality, a plaintiff must demonstrate that an alleged constitutional violation was
caused by a policy, custom, or practice. Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 692
(1978). “An official policy or custom may be established by means of an express policy,
a widespread practice which, although unwritten, is so entrenched and well-known as to
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carry the force of policy, or through the actions of an individual who possesses the
authority to make final policy decisions on behalf of the municipality.” Rice ex rel. Rice
v. Corr. Med. Serv., 675 F.3d 650, 675 (7th Cir. 2012).
Tobias acknowledges that he never communicated with Sheriff Dart and named
him only “because he’s the one that runs the Cook County Jail, and this is his facility.”
(R. 45-2, Pl. Depo. at 131.) Tobias’ claims against Sheriff Dart are clearly only in his
official capacity.
As to Superintendent Lyles, Tobias acknowledges that he neither met nor
personally spoke to Lyles. However, Tobias contends that he communicated with Lyles
in June 2011 through two detainee request forms about needing to see an eye doctor. (Id.
at 123-27.) Also, Lyles was one of three persons who signed Tobias’ June 17, 2011
grievance seeking eye drops for Glaucoma, (R. 45-6, Exh. F), and may have been aware
of his other requests to see an eye doctor. Lyles thus appears to be sued in his individual
capacity. He also appears, however, to be sued in his official capacity, given Tobias’
contention that Lyles, as superintendent of Tobias’ division, oversaw the needs of the
inmates in the division and could have gotten Tobias to an eye doctor sooner. (R. 45-2,
Pl. Depo. at 128.) The Court will thus consider the claims against Lyles to be in both his
individual and official capacities.
Deliberate Indifference to Serious Medical Need
A pretrial detainee is constitutionally entitled to adequate medical care, and jail
officials violate this right when they act with deliberate indifference to the serious
medical needs of a detainee. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle v.
Gamble, 429 U.S. 97, 103 (1976); see also Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th
Cir. 2008) (courts use the same standards for a deliberate indifference claim by a pretrial
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detainee and one brought by a convicted person, even though the former is governed by
the Fourteenth Amendment’s Due Process Clause, while the latter is governed under the
Eighth Amendment’s prohibition against cruel and unusual punishment). To succeed on
a deliberate indifference claim, a § 1983 plaintiff must demonstrate both: (1) that his
medical condition was “objectively, sufficiently serious,” and (2) that the defendant acted
with a “sufficiently culpable state of mind.” Holloway v. Delaware County Sheriff, 700
F.3d 1063, 1072 (7th Cir. 2012) (citing Farmer, 511 U.S. at 834).

In addition to

establishing a constitutional violation, a § 1983 plaintiff must also establish that the
violation caused his injury or damages. Roe v. Elyea, 631 F.3d 843, 864 (7th Cir. 2011).
The Defendants do not dispute that Glaucoma is a serious medical condition, and
courts have found that such a condition satisfies the first prong of a deliberateindifference claim. See Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (a medical
condition is sufficiently serious if it “has been diagnosed by a physician as mandating
treatment or . . . is so obvious that even a lay person would perceive the need for a doctor's
attention”) (internal quotation marks and citation omitted); see also Byrd v. Shannon,
__ F.3d __, 2013 WL 1760848, *9 (3rd Cir. 2013); Talley v. Dart, No. 08 C 5485, 2012 WL
1899393, *3 (N.D. Ill. May 24, 2012) (Feinerman, J.) (both courts finding that Glaucoma
is a serious medical condition for purposes of a deliberate indifference claim). This case
thus turns on whether there is evidence that could establish the second prong of Tobias’
deliberate indifference claim, as well as evidence that could establish that such a
violation caused Tobias’ injuries.
With respect to the claim against Superintendent Lyles in his individual capacity,
Tobias must prove that Lyles actually knew of a serious risk to Tobias’ health and
consciously disregarded that risk. Holloway, 700 F.3d at 1073. This requires more than
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negligence or gross negligence and necessitates a state of mind comparable to criminal
recklessness. Id. As a non-medical officer, Lyles’ role was to ensure that Tobias was
receiving medical attention. Greeno v. Daley, 414 F.3d 645, 655-56 (7th Cir. 2005). Once
an inmate is under the care of a physician, a non-medical officer “will generally be
justified in believing that the prisoner is in capable hands,” unless the officer has “‘a
reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner.’” Arnett, 658 F.3d at 755 (quoting Hayes v.
Snyder, 546 F.3d 516, 525 (7th Cir.2008)).
Viewing the summary judgment evidence in a light most favorable to Tobias, there
was no reason for Superintendent Lyles to know that Tobias had any eye condition
requiring medical attention until June 14, 2011, when he filed a medical request slip
requesting to see an eye doctor for eye drops and reading glasses. Not until his June 17,
2011 grievance did Tobias mention Glaucoma. In response to Tobias’ June 14, 2011
medical request slip, an appointment with a general physician was made for June 28,
2011, and with an ophthalmologist for September 6, 2011. Although the ophthalmology
exam was scheduled for two and one-half months later, Tobias’ condition could have been
addressed at the June 28, 2011 doctor visit where drops for Glaucoma might have been
prescribed or, at the very least, where the doctor could have directed that Tobias see an
eye doctor sooner.
It is unclear whether Tobias discussed his Glaucoma at the June 28, 2011 visit –
when asked if he told any medical personnel about his condition at that visit, Tobias
responded that he only discussed it with the receptionist. Regardless whether the
condition was discussed, the fact that an appointment with a physician was made two
weeks after Tobias complained of a need for eye drops and reading glasses indicates no

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deliberate indifference by Lyles. See Greeno, 414 F.3d at 656 (no deliberate indifference
existed where a non-medical prison official “investigated the complaints and referred
them to the medical providers who could be expected to address [the inmate]’s concerns”).
Following the June 28, 2011 doctor visit, when Tobias complained that he still
needed treatment for Glaucoma, an appointment was made with an optometrist on July
20, 2011, where eye drops were provided. Tobias was then seen by an ophthalmologist
on August 4, 2011, and continued to receive prescription eye drops.
The summary judgment evidence thus demonstrates that Tobias was scheduled to
see a doctor shortly after he complained to officers of his need for treatment for Glaucoma
and was scheduled to see an optometrist when he complained that he still needed
treatment following the doctor’s visit.

Such evidence does not support a claim of

deliberate indifference. See Greeno, 414 F.3d at 656.
At most, Lyles could be held responsible for two short delays (two weeks in June
and three weeks in July) between the time Tobias requested medical attention and when
he saw a physician. While deliberate indifference may exist for “delaying the treatment
of a serious medical need,” Langston v. Peters, 100 F.3d 1235, 1241 (7th Cir. 1996), “the
length of delay that is tolerable depends on the seriousness of the condition and the ease
of providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). The
affidavits from the two ophthalmologists, which Tobias does not dispute, state that
Glaucoma is “a chronic condition that is very slow to progress” and that it was “very
unlikely that, even without treatment, Mr. Tobias’ glaucoma would have progressed to
any medically significant extent between June 17, 2011 . . . and July 20, 2011.” (R. 45-12
and 13, Exhs. L and M, Affs. of Drs. Patriamakos.) Viewing the evidence in a light most

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favorable to Tobias, he cannot establish that Lyles, in his individual capacity, acted with
deliberate indifference.
The Court must come to a similar conclusion with respect to Tobias’ claims of an
unconstitutional policy or custom. The evidence shows that Tobias was asked about his
medical conditions in an intake screening procedure, followed by an exam with a
physician. Though it is disputed whether the intake screening form mistakenly indicated
that Tobias answered no when asked if he had Glaucoma, there is no indication that the
error was deliberate or done with a conscious disregard to Tobias’ condition.
Furthermore, Tobias could have discussed his Glaucoma with the physician who
examined Tobias on the day of his entry, which he admits he did not do. The initial delay
with Tobias not receiving treatment for his Glaucoma was thus due, at least in part, to
him not making his condition known to doctors and not requesting medical attention for
the condition until some time later. See Pinkston v. Madry, 440 F.3d 879, 892 (7th Cir.
2006) (deliberate indifference does not exist where an inmate’s actions were the cause of
delay in treatment).
When Tobias made known his need for treatment for Glaucoma in mid-June 2011,
as noted above, appointments with physicians were made. The evidence shows, at most,
only two occasions when he may have told jail officials of his need for treatment and his
requests were ignored: (1) during his May 31, 2011 doctor visit and (2) during his
discussion with a receptionist when seeing a physician on June 28, 2011. However, one
or two occasions of not receiving treatment does not establish a policy or custom of
deliberate indifference. See Thomas v. Cook Cnty. Sheriff's Dep’t, 604 F.3d 293, 303 (7th
Cir. 2010) (“there is no clear consensus as to how frequently such conduct must occur to
impose Monell liability, except that it must be more than one instance, or even three.”)

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(quotation marks and citation omitted); see also Palka v. City of Chicago, 662 F.3d 428,
435 (7th Cir. 2011).
Furthermore, as noted above, the affidavits from the two ophthalmologists state
that the two-month delay with Tobias receiving treatment did not cause his Glaucoma
condition to progress to any medically significant degree and that the fluid build up seen
on August 4, 2011 could not be attributed to the delay. Even if Tobias could establish a
policy or custom of inadequate medical care at the jail, he cannot demonstrate that the
delay caused by such a policy “exacerbated [his] injury or unnecessarily prolonged [his]
pain.” Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011). Accordingly, the summary
judgment evidence demonstrates that Tobias cannot succeed on a claim of an
unconstitutional custom or policy with respect to the delay he experienced at the jail with
receiving eye drops for Glaucoma.
CONCLUSION
For the reasons stated above, the Court grants Defendants’ motion for summary
judgment (R. 42) and enters judgment in their favor. Tobias’ claims are dismissed. This
case is closed. Tobias’ “Motion of Filing” (R. 55) is granted to the extent the Court has
accepted it and considered it as part of his response to the summary judgment; this
motion is denied as to any other relief it seeks.

ENTERED: _____________________________
Thomas M. Durkin
United States District Judge
DATE: June 11, 2013

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