Awalt v. Marketti et al

Filing 412

MEMORANDUM Opinion and Order:For the foregoing reasons, the County Defendants motion for summaryjudgment, R. 309, and the Medical Defendants motion for summary judgment, R.312, are denied in part, granted in part, and continued in part.The County Def endants motion for summary judgment on Counts I, III, IV,VII, VIII, X, and XII is denied, except that the County and Sheriffs Offices liability under Count I cannot be predicated upon a failure to implement a continuous quality improvement program, a failure to properly wean detainees off of medication, or a theory that Nurse Clauson possessed policy-making authority. The County Defendants motion for summary judgment on Counts II, V and VI is granted. The Medical Defendants' motion for summ ary judgment on Counts, I, III, IV, VII, VIII, IX and XII is denied, except that CHC/HPL's liability under Count I cannot be predicated upon a failure to implement a continuous quality improvement program, a failure to properly wean detainees of f of medication, or a theory that Nurse Clauson possessed policy-making authority. The Medical Defendants' motion for summary judgment on Counts II, V, and VI is granted. Signed by the Honorable Thomas M. Durkin on 11/24/2014:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELIZABETH AWALT, as Administrator of
the Estate of Robert Awalt,
Plaintiff,

No. 11 C 6142

v.

Judge Thomas M. Durkin

RICK MARKETTI, as Administrator of the
Estate of Terry Marketti; KEVIN
CALLAHAN, in his official capacity as
Sheriff of Grundy County; DUANE
MCCOMAS, individually and in his
official capacity as Superintendent of
Grundy County Jail; MELANIE VAN
CLEAVE; PATRICK SEALOCK; MATTHEW
WALKER; KIM LEAR; ROGER THORSON;
ROBERT MATTESON; DAVID OBROCHTA;
COUNTY OF GRUNDY; CORRECTIONAL
HEALTH COMPANIES, INC.; HEALTH
PROFESSIONALS, LTD.; DR. STEPHEN
CULLINAN; MARJORIE CLAUSON;
unknown employees of Correctional
Healthcare Companies, Inc. and Health
Professionals, LTD; unknown Grundy
County Correctional Officers; unknown
Medical Personnel,
Defendants.
MEMORANDUM OPINION AND ORDER
Elizabeth Awalt (“Plaintiff”), as administrator for the estate of her husband
Robert Awalt (“Awalt”), alleges that Grundy County and the Grundy County
Sheriff’s Office, directly and doing business through its prison medical services
providers Correctional Health Companies, Inc. (“CHC”), and Health Professional,

Ltd. (“HPL”), caused Awalt’s death by being deliberately indifferent to his medical
needs while he was in custody at the Grundy County Jail. R. 120. Plaintiff also
alleges that former Grundy County Sheriff, Terry Marketti (“Sheriff Marketti”),
Duane McComas, individually and in his official capacity as Superintendent of
Grundy County Jail, and correctional officers Melanie Van Cleave, Patrick Sealock,
Matthew Walker, Kim Lear, Roger Thorson, Robert Matteson, David Obrochta (the
“Correctional Officers”), along with CHC employees Dr. Stephen Cullinan and
Nurse Marjorie Clauson, are liable for Awalt’s death. Id. Specifically, Plaintiff
alleges the following claims: Count I for unreasonable and deliberately indifferent
denial of medical care, in violation of the Fourth and Fourteenth Amendments, as to
the conduct of both the individual defendants’ actions and the policies and practices
of the entity defendants under the doctrine of Monell v. Dep’t of Social Services of
the City of New York, 436 U.S. 658 (1978); Count II for conspiracy to commit the
civil rights violations alleged in Count I; Count III for failure to intervene to
prevent the civil rights violations alleged in County I; Count IV under the Illinois
Survival Act for intentional infliction of emotional distress in violation of Illinois
law; Count V under the Illinois Wrongful Death Act for intentional battery in
violation of Illinois law; Count VI under the Illinois Survival Act for intentional
battery in violation of Illinois law; Count VII under the Illinois Wrongful Death Act
for negligent or willful and wanton conduct in violation of Illinois law; Count VIII
under the Illinois Survival Act for negligent or willful and wanton conduct in
violation of Illinois law; Counts IX and X against CHC/HPL and Sheriff Marketti

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in his official capacity for respondeat superior liability for the state law Counts;
Count XI for indemnification of any judgment against County employees by the
County; and Count XII for spoliation of evidence in violation of Illinois law. Grundy
County, the Sheriff’s Office, Sheriff Kevin Callhan, Rick Marketti (as administrator
for Sheriff Marketti’s estate), Superintendent McComas, and the Correctional
Officers (collectively, the “County Defendants”), have moved for summary judgment,
R. 309, on all counts, excluding the issues of “whether [Officers] Sealock, Walker,
Lear, and Thorson gave Awalt his medications as they say they did, and whether
[Officer] Van Cleave knew Awalt had suffered seizures in the Jail, but took no
action.” R. 321 at 7. CHC, HPL, Dr. Cullinan, and Nurse Clauson (collectively, the
“Medical Defendants”), have also moved for summary judgment on all counts. R.
312.
On November 17, 2014, the Court entered an order stating that the motions
were denied in part, granted in part, and continued with respect to Plaintiff’s theory
of liability based on a failure to train. R. 394. On November 18, 2014, the Court
partially vacated the November 17 order with respect to Count XII against the
Medical Defendants only. R. 402. This memorandum opinion and order states the
reasons for the Court’s prior orders, and additionally, denies Defendants’ motions
for summary judgment with respect to Plaintiff’s failure to train theory of liability,
and denies the Medical Defendants’ motion with respect to Count XII.1

Plaintiff does not object to summary judgment on the federal claims against
Sheriff Marketti in his personal capacity, or summary judgment on the claims
against unknown defendants. R. 339 at 6 n.3. Therefore, summary judgment on

1

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Legal 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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Background
I.

Awalt’s Detention and Death
The Grundy County Jail (the “Jail”) is not a large facility. In 2010 it had a

capacity of 72 detainees. R. 311-2 at 87:22–88:8. The Jail is divided into sections A
through L, see R. 336-6 at 349-53, with each section having approximately three or

Counts I, II, and III is granted in Sheriff Marketti’s favor in his personal capacity,
and summary judgment is granted in Defendants’ favor as to all claims against
unknown defendants. Plaintiff’s counsel also stated on the record during a status
hearing on November 6, 2014, that Plaintiff’s purposefully failed to oppose
Defendants’ motions for summary judgment on Plaintiff’s battery allegations in
Counts V and VI, and thus, summary judgment is granted in Defendants’ favor on
Counts V and VI.
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four cells, containing single or bunk beds, id., and a common area, see generally R.
311-2, where the detainees spend most of their waking hours. See 336-4 at 197
(15:21–16:10). Section A is immediately adjacent to the guard station, while Section
C is 15 feet from the guard station. R. 311-3 at 138:13-21; 142:2-6. The Jail has a
video surveillance system that records activity in the common areas and the
hallways leading to the cells, but not inside all of the individual cells themselves. R.
311-2 at 224:2-3, 229:21-23, 231:8-15. Correctional officers are required to conduct
security cell checks every 30 minutes. R. 311-42 at 31:21-22, 32:1-3. Correctional
officers have access to the video monitors from the guard station, and there are also
video monitors in the superintendent’s office. R. 336-6 at 477 (121:12-16).
Awalt was arrested and taken to the Grundy County Jail on September 14,
2010, at about 10:34 p.m. R. 329 ¶¶ 3-4. Officer Obrochta completed Awalt’s intake
form, noting that he suffered from seizures and was taking the medications Dilantin
and Topamax.2 R. 311-6 at 4. Awalt was initially placed in Section A, which was
immediately adjacent to the guard station. See R. 336-6 at 349.
The next morning at 9:00 a.m., Awalt saw Nurse Clauson and he told her
that he was taking Dilantin and Topamax for seizures. R. 311-6 at 50. Nurse
Clauson testified that she told Awalt he needed to have the proof that he required
these medications brought to the jail. R. 311-14 at 88:9-21. Plaintiff testified that

It is undisputed that “Dilantin is a common primary antiseizure medication,” and
“Phenytoin is the generic equivalent.” R. 334 ¶ 9. The Court will refer to both as
“Dilantin.” It is also undisputed that “Topamax is approved by the United States
Food and Drug Administration . . . as an adjuvant or additional antiseizure
medication.” Id. ¶ 10.

2

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Awalt told her he had seen a nurse, but he never asked Plaintiff to bring him proof
of his medications. R. 336-2 at 279:16–281:12.
At 3:00 p.m., after Awalt was not released after his preliminary hearing
(which took place from approximately 1:35 to 1:55 p.m. on September 15), Nurse
Clauson told a correctional officer at the jail to call Dr. Cullinan to order Dilantin
for Awalt. R. 329 ¶ 8. Officer Thorson contacted Dr. Cullinan, and Dr. Cullinan
ordered that 400 mg of Dilantin be given to Awalt immediately and two daily doses
of 200 mg thereafter. Id. ¶ 9. There is no record of what information Dr. Cullinan
had about Awalt’s condition when he decided to prescribe this medication for Awalt.
R. 336-3 at 109:19-22. Officer Thorson does not remember what he told Dr.
Cullinan, R. 311-8 at 88:11-21, and Dr. Cullinan does not remember either. R. 336-3
at 32 (109:5-11). But Dr. Cullinan testified that it was his “usual and customary”
practice to inquire what medications a new detainees was reportedly taking. R. 3363 at 112:2-4.
Nurse Clauson did not secure a Topamax prescription for Awalt. Nurse
Clauson testified that she did not tell Thorson to request a prescription for
Topamax for Awalt from Dr. Cullinan because she “had forgotten about it.” R. 31114 at 129:13. Nurse Clauson also testified that she had never heard of Topamax, id.
at 82:4-9, and “wanted to check it out before [she] had anybody call on it.” Id. at
129:14-15. Nurse Clauson decided to research Topamax and planned to discuss it
with Awalt on September 20, knowingly depriving him of the drug during his time
at the Jail. See R. 311-14 at 119:6–120:7, 108:1-5. The 2010 Nursing Spectrum

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Handbook that Nurse Clauson consulted regarding Topamax includes a graphicallyemphasized warning stating, “Don’t stop therapy suddenly. Dosage must be
tapered.” R. 336-8 at 347.
Dr. Cullinan testified that he cannot remember if he was ever told that Awalt
was taking Topamax, R. 336-3 at 116:1-8, and he has “no record of being told that
[Awalt] took Topamax.” R. 336-3 at 115:4-6. However, the Jail’s records show that
Dr. Cullinan reviewed the note on Awalt’s chart stating that Awalt reported he was
taking Topamax. R. 311-6 at 14. Dr. Cullinan also testified that Awalt’s chart
indicates that he discussed Awalt’s intake form with Nurse Clauson. R. 336-3 at
53:11-18. Yet, he also testified that he did not call Nurse Clauson to ask her any
questions about Awalt, R. 336-3 at 429:8-18. In any case, Dr. Cullinan also testified
that he was “not really familiar with [Topamax],” and he has “never really
prescribed it independently.” R. 336-3 at 114:14-16.
Plaintiff’s expert, Dr. Laura Pedelty, testified that Topamax is not a wellknown, or frequently abused medication, making it likely that a patient who claims
to be taking the medication is actually taking it. R. 336-1 at 50 (191:8-14). Dr.
Pedelty also testified that the risk from abrupt withdrawal of Topamax is far
greater than the risk of any negative drug interaction with Dilantin. Id. at 51
(194:21–196:15).
The evening of September 14, Plaintiff called the jail and spoke with
Superintendent McComas. R. 336-2 at 266:9-17. Plaintiff told Superintendent
McComas that Awalt suffered from seizures and was taking Dilantin. R. 336-2 at

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266:9-17; R. 311-2 at 125:1-5. Superintendent McComas told Plaintiff to bring the
medication to the jail, R. 311-2 at 125:10-21, and that if she could not do that the
Jail would get the medication for Awalt. R. 336-2 at 266:21–267:7. Plaintiff spoke to
Superintendent McComas the next morning and asked whether Awalt was
receiving his medication. R. 336-2 at 269:4-10. Superintendent McComas assured
Plaintiff that there was a nurse on site and Awalt would receive his medication. R.
336-2 at 271:4-7, 272:22–273:4. Superintendent McComas testified that he told
Nurse Clauson about his conversation with Plaintiff on September 15, R. 311-2 at
127:22–131:4, and the Sheriff’s Office testified by interrogatory that Superintendent
McComas told Nurse Clauson about his call with Plaintiff. R. 336-6 at 279 (¶ 5).
Nurse Clauson, however, did not include any communications with Superintendent
McComas in a list she produced during discovery of communications she had
regarding Awalt’s health. R. 336-4 at 19 (¶ 5).
Jail records indicate that Awalt was given Dilantin on a regular schedule
while he was in the Jail. R. 311-15. Several people detained at the Jail with Awalt,
however, testified that Awalt suffered seizures multiple times each day while he
was in the Jail, R. 329 ¶ 21, and was constantly asking the jail staff for his
medication and to see a doctor. R. 329 ¶ 22. One detainee testified that he told a
correctional officer that Awalt was having seizures, and that the officer told the
detainee the officer would contact Nurse Clauson. R. 336-4 at 206 (53:8-11), 207
(56:15–57:12). Another detainee testified that he saw Awalt complete grievance and
medical request forms that were collected by the correctional officers. R. 336-5 at

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237 (30:7-9). Nurse Clauson, Superintendent McComas, and the correctional officers
testified it was their practice to forward medical request forms to Nurse Clauson. R.
311-25 at 129:13-17; R. 311-2 at 296:16-19; R. 336-10 at 231 (356:8-357:18). Nurse
Clauson’s practice whenever she learned that a detainee was not reacting well to
seizure medication was to tell Dr. Cullinan. R. 336-10 at 197 (220:16–221:1). Sheriff
Marketti admitted during discovery that it was the Jail’s practice to file detainees
grievance and medical request forms, R. 336-9 at 11 (¶¶ 46-49), and Nurse Clauson
testified that she placed such forms in a file. R. 336-10 at 231 (356:8-357:18).
In addition to disputing whether the correctional officers gave Awalt Dilantin
as prescribed (which will be an issue at trial but is not relevant to these motions),
the parties also dispute whether the Jail had sufficient Dilantin in stock to satisfy
Awalt’s need. CHC/HPL’s representative testified that its nurses are responsible for
determining when to order medication for a correctional facility, and that
CHC/HPL’s policy is that the pharmacy’s manual governs when it is appropriate for
the nurse to order additional medication. R. 311-12 at 332:22–335:3. CHC/HPL’s
representative also testified that she believed that “the pharmacy” does not permit
a reorder of any given medication until the facility’s stock was less than seven-days’
worth of the medication. R. 311-12 at 327:6-15, 335:8-18.
Nurse Clauson testified that she ordered medications for the Jail from
Diamond Pharmacy Services, and that Diamond’s rules prevented her from ordering
additional stock of a particular medication until only eight pills of that particular
medication remained in the Jail’s stock. R. 311-14 at 150:5–152:19. Diamond’s

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manual states that “reorders will be sent up to a quantity needed to reach the cut
date,” but it does not explain what a “cut date” is or how to calculate the cut date in
order to understand when reorders were permitted. R. 351-17 at 3. Diamond’s
manual is part of the record but Plaintiff has not cited any provision in the manual
that requires a nurse to wait to order additional pills until there are only eight pills
in stock. See id. Nurse Clauson also testified that she could order medication from
an alternate pharmacy, Health Mart Pharmacy, R. 311-14 at 166:6-14, and that
CHC/HPL did not give her any instruction about when she should or could reorder
medications. R. 311-14 at 152:20-22.
Nurse Clauson ordered 30 Dilantin pills from Diamond on May 19, 2010, and
did not place another order until she ordered 30 more pills on September 3. R. 336-7
at 126, 128. There is no evidence that Nurse Clauson placed any other orders for
Dilantin during that time period, whether from Diamond, Health Mart, or any other
pharmacy. The Medical Defendants cite a chart created by Plaintiff’s counsel to
contend that no detainees received Dilantin between May 19 and September 3,
meaning that the Jail had 30 Dilantin pills in stock on September 3. R. 334 ¶ 44
(citing R. 317-11). Plaintiff contends to the contrary that if Nurse Clauson could not
order more Dilantin until there were only eight pills left in the Jail’s stock (as she
testified), then when Nurse Clauson ordered more Dilantin on September 3 there
could not have been more than eight Dilantin pills remaining in the Jail’s stock that
day. R. 334 at 17-18.

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Based on the Jail’s record showing Dilantin usage between September 3 and
September 15, if Plaintiff’s re-order scenario is correct there were 30 Dilantin pills
in stock at the beginning of the day on September 15. See R. 334 ¶ 24. By contrast,
if the Medical Defendants’ re-order scenario is correct there were 42 Dilantin pills
in stock at the beginning of the day on September 15. See R. 334 ¶ 44. There was
one other detainee receiving Dilantin while Awalt was in the Jail. R. 336-7 at 134.
The Jail’s records also show that both Awalt and the other detainee received a total
of 26 Dilantin pills from September 15 through September 17. See R. 336-7 at 134;
R. 311-15. If Plaintiff’s re-order scenario is correct, and the Jail had only 30
Dilantin pills in stock on September 15, and Awalt and the other detainee used 26
of those pills through September 17, then by the morning of September 18 the Jail
had only four Dilantin pills left in stock. Awalt and the other detainee each required
four pills every day. See R. 311-15; R. 336-7 at 134. Nurse Clauson ordered more
Dilantin on September 17, but it did not arrive at the Jail until September 20, after
Awalt had already died. There is no evidence in the record that Nurse Clauson
ordered Dilantin from any pharmacy other than Diamond while Awalt was in the
Jail.
Officer Obrochta was on duty at the Jail on September 14, 17, 18, and 19
from 7:00 p.m. to 7:00 a.m. R. 311-3 at 165:3-21. Officer Obrochta testified that he
did not do anything to ensure that Awalt received his medication. R. 311-3 at
196:15-21. Officer Obrochta also testified that he never saw anyone give Awalt any
medication. R. 311-3 at 153:1-8.

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Superintendent McComas was on duty at the Jail for various shifts on
September 14, 15, 16, and 17. R. 336-6 at 340. Despite his conversation with
Plaintiff regarding Awalt’s medical condition, and his assurances that Awalt would
receive the medication he required, Superintendent McComas testified that he did
not ever personally see Awalt receive any medication. R. 311-2 at 112:3-7.
Superintendent McComas was able to view the footage from the jail’s security
cameras on his computer whenever he wanted. R. 311-2 at 90:19-21.
Officer Matteson was on duty at the Jail from 7:00 a.m. to 7:00 p.m. on
September 17, and for six hours on September 18. R. 336-6 at 342. Officer Matteson
knew that Awalt required medication to treat seizures. R. 311-13 at 207:7–212:16.
Officer Matteson, however, never provided any medication to Awalt, id. at 218:1013, and Officer Matteson never checked to make sure that another correctional
officer had given Awalt his medication. Id. at 213:1-9, 215:19–216:16.
On the morning of September 19, Awalt was moved to Section C in the Jail.
R. 311-33 at 137:8-9. Later that day, at about noon, Officer Van Cleave called Dr.
Cullinan to tell him that Awalt was being belligerent and Officer Van Cleave was
afraid Awalt might hurt himself. R. 311-25 at 208:11-15. According to the County
and Sheriff Marketti, Officer Van Cleave and Dr. Cullinan discussed “Awalt’s
physical and/or medical health condition.” R. 336-6 at 280 (¶ 5). Dr. Cullinan asked
whether Awalt had acted like this before, and if Awalt was allergic to Benadryl. R.
311-25 at 207:3–209:12. Dr. Cullinan prescribed Benadryl to calm Awalt down. See
R. 336-3 at 1.

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On September 19, at about 4:30 p.m., Awalt was found unconscious and not
breathing in his cell. R. 329 ¶¶ 34-35. He was taken to the hospital where he died
shortly after midnight on September 20. Id. ¶¶ 41-42. The coroner found that Awalt
suffocated because he put a sock in his mouth during a seizure. R. 311-48 at 212:21–
213:8. Plaintiffs’ experts testified that the level of Dilantin in Awalt’s blood at the
time of his death demonstrates that he had not been given Dilantain while he was
in the Jail. R. 336-3 at 185; 336-3 at 147-48; 336-3 at 159.
Shortly after Awalt was taken to the hospital, Superintendent McComas and
Sheriff Marketti had a conversation on the phone about the surveillance video. R.
344 ¶ 66. The County and Sheriff’s Officer’s representative testified that “a death
investigation” would “fall within that category where the Sheriff’s Department and
the jail would have a practice of retaining the video.” R. 336-6 at 164:5-19. After
speaking with Marketti, Superintendent McComas preserved certain excerpts of
video from September 19 (the day Awalt was taken to the hospital). R. 344 ¶ 66.
Superintendent McComas did not preserve video from any day other than
September 19. Id. Twenty-two days later, the video Superintendent McComas did
not preserve was recorded over due to the regular functioning of the surveillance
system. Id.
Superintendent McComas testified that he did not preserve the video for the
purposes of the investigation into Awalt’s death. R. 311-2 at 360:6–361:7. He now
states in an affidavit, however, that he did preserve the video for the purposes of
the investigation into Awalt’s death. R. 311-33 ¶ 5. Superintendent McComas also

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states in his affidavit that he did not preserve the video in anticipation of litigation
regarding Awalt’s death. R. 311-33 ¶ 5.
II.

Health Care Policies and Practices at the Grundy County Jail
Beginning on December 1, 2008, Grundy County had a contract with HPL (a

wholly owned subsidiary of CHC, R. 334 ¶ 3) to provide “health care services and
related administrative services at the JAIL.” R. 336-4 at 94 (¶ 1.0) (emphasis in
original). The contract required HPL to provide a nurse at the jail ten hours per
week, a doctor at the jail one hour per week or two hours every other week, and “an
on-call physician and/or nurse 24 hours per day and seven days per week.” Id. at 98
(¶¶ 2.0.1-2, 2.0.4). The contract also provided that “HPL shall provide monitoring of
pharmacy usage as well as development of a Preferred Medication List.” Id. at 96 (¶
1.14).
The contract further provides that “HPL shall conduct an ongoing health and
mental health education and training program for the COUNTY Deputies and
Jailers in accordance with the needs mutually established by the COUNTY and
HPL.” Id. at 99 (¶ 3.0) (emphasis in original). The County and the Sheriff’s Office,
however, determined that they did not need HPL to provide “health training for
correctional officers,” because the Jail “covers training for [correctional officers] and
is determined by the jail not only by HPL.” R. 336-8 at 533. Superintendent
McComas testified that HPL provided training. R. 311-2 at 142:23–146:16. Officers
Obrochta and Sealock testified, however, that they were not trained to distribute
medications and document their distribution. R. 311-3 at 90:10-23; R. 311-43 at

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15:1-3, 21:11-13. The Sheriff’s Office could not identify any records documenting
training of its correctional officers. R. 336-4 at 251-52 (52:9–55:19).
The correctional staff at the jail retained responsibility for administering
medication and for reporting medical conditions requiring the attention of the
medical staff. R. 311-42 at 205:3-13; R. 311-13 at 25:10-26-9; R. 311-03 at 100:8-14;
see also R. 336-8 at 533 (“ALL security staff has responsibility for making sure
inmates healthcare needs are addressed when nurses are not on site.”).
Superintendent McComas, Officers Obrochta, Thorson, Peterson, and Matteson, and
Nurse Clauson all testified that CHC/HPL policy was for correctional officers to
record medication administration on the appropriate form. R. 329 ¶ 15.
The correctional officers were not trained to recognize or attend to detainees
suffering seizures. R. 336-4 at 124:11–125:8. A detainee testified that he overheard
Officer Van Cleave say to Awalt as he was being taken to the hospital, “stop faking
seizures, that’s not what they look like.” R. 336-6 at 253-54 (113:24–115:3-15; 117:118), 257 (127:2-16). Besides this lack of training, the Jail had no written policy
regarding when an officer should call for medical assistance. Rather officers had
discretion to decide what medical issues required medical assistance. R. 344 ¶ 16.
Neither the Jail nor CHC has a written policy or procedure for monitoring or
retaining grievances filed by detainees. R. 344 ¶ 22; R. 350 ¶ 22. At the request of
the Sheriff’s Office, CHC removed the grievance policy it normally includes in its
contracts. R. 350 ¶ 22; R. 336-8 at 532. The practice at the Jail was to give medical
grievances to Nurse Clauson. R. 311-25 at 129:13-17; R. 311-2 at 296:16-19; R. 336-

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10 at 231 (356:8-357:18). According to Plaintiff’s expert and the testimony and
affidavits of several detainees, delays in responses to grievances and provision of
medical care were commonplace at the Jail. See R. 336-7 at 61-62 (¶ 146); R. 336-5
at 243-44 (52:22–56:15); R. 335-6 at 2; R. 336-6 at 184 (250:7–252:7); R. 336-9 at 96
(¶ 7); R. 336-9 at 100 (¶ 10); R. 336-9 at 103 (¶ 10); R. 336-9 at 107 (¶ 13). Detainees
also testified that the Jail staff did not explain how to file a grievance. R. 336-9 at
78 (84:17–85:24); R. 336-5 at 304-05 (10:17–11:6); R. 336-6 at 17-18 (57:6–59:17).
One detainee testified that Officer Van Cleave threatened retaliation if he asked for
grievance forms too often. R. 336-9 at 254-55 (45:2–46:5).
Plaintiff’s expert, Dr. Greifinger, testified that Dr. Cullinan’s standard of care
fell below the standard of care for a correctional facility. R. 336-8 at 381 (128:22–
129:5). Dr. Greifinger’s review of all inmate and medical files produced by the
Sheriff and CHC/HPL reveals that 24 of the detainees booked at the Jail in the
three months leading up to and including Awalt’s incarceration, identified a medical
issue at intake. R. 336-7 at 51-52 (¶¶ 114), 60 (¶ 143c). Of those 24 individuals,
seven detainees (including Awalt), or 29%, were denied timely access to care or
received care that fell far below the standard for correctional health care. Id.; id. at
65-70. In Dr. Greifinger’s opinion, based on his experience and visits to several
hundred jails across the United States, this was a high rate of substandard care
that suggested systemic failures in the policies and practices of the County, Sheriff’s
Office, and CHC/HPL. R. 336-7 at 63-64 (¶ 153).

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The following is a summary of Dr. Greifinger’s analysis of the records of the
six detainees (besides Awalt) who, in his opinion, received a level of medical care
that fell below the standard of care for a correctional facility:


Detainee M.B. arrived at the Jail on August 24, 2010 and reported that he
had a history of asthma, arthritis, high blood pressure, and ulcers, and that
he had previously been hospitalized for mental and/or emotional problems.
M.B. was not provided a medical evaluation or medication. The Jail’s “refusal
to provide care” for M.B. “put him at risk of serious harm.” See R. 336-7 at 6566.



Detainee T.C. arrived at the Jail on August 16, 2010, and reported suffering
from a cracked tooth and a hernia. Despite T.C.’s complaints of extreme pain,
he was not examined by the Jail’s medical staff until October 4, 2010, and
was provided only Motrin and Benadryl on September 7-8. T.C. was not
examined by the Jail’s staff after October 4, and he was released on October
27. The Jail’s failure to provide T.C. with dental care put him “at risk of harm
from infection,” and the Jail’s “den[ial] or timely access to care for [T.C.’s]
cracked tooth and for his acute back pain . . . . falls far below the standard of
correctional care.” See R. 336-7 at 66.



Detainee J.D.S. arrived at the Jail on September 4, 2010, and reported high
blood pressure and asthma. Two days later he reported severe abdominal
pain, chest pain, and a history of hypertension. The medical staff prescribed
aspirin and an anti-hypertension medication, but did not examine J.D.S.
J.D.S. continued to complain of abdominal pain, but was only given what Dr.
Greifinger describes as incomplete examinations by Jail medical staff on
September 21, October 15, and October 29. On February 10, 2011, J.D.S. was
taken to the hospital where he was diagnosed with a bowel obstruction that
required surgery. J.D.S. returned to the Jail on February 13, but he was not
examined by the Jail medical staff before his release from the Jail on May 2,
2011. J.D.S.’s condition was diagnosed late due to the inadequate
examinations he was given at the Jail. See R. 336-7 at 66-68.



Detainee D.D. arrived at the Jail on June 21, 2010, after being transferred
from the hospital with “advice to institute ‘suicide precautions.’” D.D.
reported to the Jail’s staff that he was taking Xanax and Depakote. The
medical staff prescribed this medication for him, but it was administered in
an inconsistent fashion—notably D.D. went for a month without receiving
Xanax—such that D.D. began to suffer withdrawal symptoms. These
withdrawal symptoms included severe agitation and anger, which caused
D.D. to be placed on lockdown. See R. 336-7 at 68-69.
17



Detainee G.G. was admitted to the Jail with a preexisting vertebra fracture.
Dr. Greifinger notes that there is no record that G.G. received his prescribed
pain medication during the 19 hours he was in the Jail. See R. 336-7 at 69.



Detainee S.P. arrived at the Jail on September 2, 2010, and reported a
variety of medical issues, including seizures, high blood pressure, mental
health problems, and an allergy to Haldol. The medical staff prescribed
Dilantin for S.P.’s seizures, but administered it inconsistently, thereby
“put[ting] her at risk of harm.” S.P. remained at the Jail until November 22,
and made several requests for medical attention that were not addressed. For
instance, she reported that she had not had a bowel movement in over three
weeks, and that a tampon was lodged in her vagina. The medical staff
decided to wait for the tampon to come out “on its own,” thereby placing S.P.
at risk of harm because “that prolonged presence [of the tampon] in the
vagina can lead to conditions such as toxic-shock syndrome.” See R. 336-7 at
69-70.
In addition to S.P., there is evidence in the record that two other people who

suffered from seizure conditions received sub-standard medical care while they were
detainees at the Jail:


K.M. testified that when she arrived at the Jail on November 2, 2009, she
told the Jail staff that she suffered from seizures and required certain
medication. She also testified that the guard repeatedly ignored her requests
for medication over the first night she was at the Jail. R. 336-7 at 7 (16:24–
17:15), 9 (23:15-20). K.M. began vomiting due to withdrawal. Id. at 8 (19:1324). Hours later, the medical staff visited K.M., but still refused to provide
her with any medication. Id. at. 10-11 (27:10–31:22); R. 335-16. The next day,
K.M. had a seizure during a court appearance and was taken to the hospital.
R. 336-7 at 5 (8:1-23).



N.W. is another former detainee who suffered from seizures. A person who
was a detainee with N.W. testified that the medical staff failed to refill his
prescriptions. R. 336-6 at 153 (125:24–126:16); R. 336-9 at 144 (147:20–
148:5). Other fellow detainees testified that the correctional officers ignored
N.W.’s complaints of headaches. R. 336-5 at 314 (47:20–48:14); R. 336-5 at
283-84 (149:21–150:2). Detainees also testified that N.W. subsequently
suffered seizures while in the Jail, which the detainees brought to the officers
attention. R. 336-5 at 282 (143:4-7, 144:13); R. 336-6 at 92 (204:9-11), 94
(209:2-4). N.W.’s fellow detainees testified that the officers ignored the

18

seizures and N.W. did not receive medical attention. R. 336-5 at 282-83
(144:12-18, 145:23-146:7); R. 336-6 at 92 (204:12-205:2).3
Plaintiff also cites the following additional evidence in the record regarding
medical treatment detainees have received at the Jail in the past:


D.T. suffers from Type 2 diabetes and was detained at the Grundy County
Jail from January 26, 2010 to February 24, 2010. R. 335-18; R. 335-19. D.T.
testified that he saw a nurse one time while at Grundy County Jail, about
one week after he was booked into the Jail, R. 336-9 at 175 (36:1–13), and he
never saw a doctor while at the Jail. Id. at 176 (38:12-14). D.T. also testified
that Officer Van Cleave accused him of faking his symptoms, and frequently
provided him with an incorrect or untimely dose of insulin. Id. at 179-80
(51:19–56:15). According to D.T., he experienced disorientation and trouble
speaking while at the Jail because his diabetes was not under control. Id. at
187 (82:15-85:16).



D.B. suffers from bipolar disorder and manic depressive disorder, and has
been detained at Grundy County Jail four times, once each in 2005, 2007,
2009, and 2012. R. 336-9 at 105 (¶¶ 3-4). D.B. takes the medications
Seroquel, Lithium, Prozac, and Ambien. Id. In 2005, 2007, and 2009, the Jail
staff either did not provide D.B. medication at all, or failed to provide him
care such that he suffered discomfort and withdrawal during his time in the
Jail, and he had to immediately visit a doctor upon release to stabilize his
mental health. Id. at 106 (¶¶ 6-11). D.B. did receive his medications during
his 2012 stay at the Jail because he hired a private attorney to obtain a court
order allowing him to bring his medications into the Jail. Id. (¶ 10).



D.W. was detained at the Jail from May 2010 to January 2011. R. 336-6 at 45
(16:3-13). Upon arrival at the Jail, D.W. reported that he had broken his jaw
three weeks prior, suffered severe weight loss as result, and suffered from
high blood pressure and Hepatitis C. R. 335-21 at 3. D.W. states that he had
a prescription for Percoset. R. 335-22 at 13. Instead of Percoset, D.W.
received the medications Trazodone, Benadryl, and Ibuprofen during his time
at the Jail. Id. at 1-5.

Defendants argue that Plaintiff’s citation to a complaint in another lawsuit
regarding N.W.’s experiences at the Jail cannot constitute admissible evidence in
this case. However, Plaintiff also cites deposition testimony about N.W.’s
experiences at the Jail that is admissible.
3

19



C.D. states in an affidavit that when he was detained at the Jail in 2007, he
told the guards he was taking medication for depression, but he was never
provided any medication. See R. 336-9 at 163.



A.R. states in an affidavit that she was detained at the Jail from December
2008 through early January 2009. She states that she reported to the
correctional officers that she was taking several medications to treat mental
health conditions, including Seroquel, but did not receive any medication for
the first three to five days she was in custody. When she did receive
medication she received different medication from those she had been
prescribed. A.R. states that she suffered anxiety and an inability to sleep
from lack of proper medication. See R. 336-9 at 101-02.



B.M. states in an affidavit that he was detained at the Jail for four months
beginning in December 2009. He states that he reported to the correctional
officers that he was taking several medications for a variety of ailments. He
states that he ran out of his medications while he was in the Jail and the Jail
did not provide him with additional medication. He states that the denial of
his medications caused him pain and withdrawal symptoms. R. 336-10 at 4142.
In addition to this evidence that the correctional officers and medical staff did

not respond to the detainees’ verbal requests for medical attention, at least five
detainees also specifically testified or stated in their affidavits that they filed
grievance or medical request forms that went unanswered, or that they were not
told how to file such forms. See R. 336-7 at 65 (M.B.); R. 336-9 at 164 (C.D.); R. 3369 at 78 (84:17–85:24) (T.C.); R. 336-5 at 304-05 (10:17–11:6) (D.D.); R. 336-6 at 1718 (57:6–59:17) (M.H.).

20

Analysis
Count I – Deliberate Indifference
A.

The Correctional Officers
1.

Liability

In Count I, Plaintiff alleges that the correctional officers violated Awalt’s civil
rights because they knew he was suffering from seizures and ignored him. “Prison
officials violate the Eighth Amendment’s proscription against cruel and unusual
punishment when they display deliberate indifference to serious medical needs of
prisoners.” Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008) (internal quotation
marks omitted). This standard also applies to pre-trial detainees once they have
received a preliminary hearing, “though pursuant to the Fourteenth Amendment
rather than the Eighth Amendment.” Estate of Miller v. Tobiasz, 680 F.3d 984, 989
(7th Cir. 2012). To establish a deliberate indifference claim under this standard
premised upon inadequate medical treatment a plaintiff must show (1) that the
plaintiff suffered an objectively serious risk of harm and (2) that the defendant
acted with a subjectively culpable state of mind in acting or failing to act in
disregard of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). For a medical
condition to satisfy the objective element, the condition must be “diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person
would perceive the need for a doctor’s attention.” Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). The “condition need not be life-threatening to be serious; rather, it
could be a condition that would result in further significant injury or unnecessary

21

and wanton infliction of pain if not treated.” Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010). To satisfy the subjective element, the plaintiff must demonstrate
that the defendant knew of a substantial risk of harm to the plaintiff and either
acted, or failed to act, in disregard of that risk. Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011).
The County Defendants (wisely) do not argue that Awalt’s medical condition
was not objectively serious. See King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012)
(“Medical conditions much less serious than seizures have satisfied the standard.”);
see also Roe, 631 F.3d at 857 (“A medical condition is considered sufficiently serious
if the inmate’s condition has been diagnosed by a physician as mandating treatment
or . . . is so obvious that even a lay person would perceive the need for a doctor’s
attention.”). Instead, the County Defendants argue that there is no evidence that
Superintendent McComas, Officer Obrochta, or Officer Matteson knew of Awalt’s
condition and ignored his seizures.
There is simply no question, however, that both Officers and Superintendent
McComas knew that Awalt suffered from seizures and required medication for that
condition. That information was contained in Awalt’s prison records which Officer
Obrochta created; Superintendent McComas spoke with Awalt’s wife on the phone
about his medical condition; and Officer Matteson testified that he was aware of
this information.
Despite their knowledge of Awalt’s medical needs, Officer Obrochta,
Superintendent McComas, and Officer Matteson all deny that they knew that Awalt

22

was not receiving his medication or that he was suffering seizures while he was in
the Jail. There is enough evidence, however, for a reasonable juror to find that they
were aware of those circumstances, and ignored them. Several other detainees have
testified that Awalt suffered seizures while he was in the Jail, and that correctional
officers were aware this was happening because Awalt was constantly complaining
that he required medical attention. One detainee testified that he specifically told a
correctional officer that Awalt was suffering seizures. Furthermore, the Jail is not a
very large facility, and Awalt was in a part of the Jail only five feet from the guard
station until September 19 when he was moved to a section only 15 feet away.
Additionally, all the correctional officers were either assigned to make rounds
checking on detainees or had access to the video monitors. This evidence is a
sufficient basis for a reasonable juror to find that Officer Obrochta, Superintendent
McComas, or Officer Matteson were deliberately indifferent to Awalt’s medical
needs.4

To the extent Plaintiff’s claims arose prior to the time of Awalt’s preliminary
hearing the afternoon of September 15, her claims are evaluated under the
reasonableness standard of the Fourth Amendment. See Ortiz v. City of Chicago,
656 F.3d 523, 530 (7th Cir. 2011) (“Our cases thus establish that the protections of
the Fourth Amendment apply at arrest and through the Gerstein probable cause
hearing, due process principles govern pretrial detainee’s conditions of confinement
after the judicial determination of probable cause, and the Eighth Amendment
applies following conviction.”). The following four factors are relevant to
determining whether an officer’s response to a detainee’s medical needs was
“objectively reasonable”: “(1) whether the officer has notice of the detainee’s medical
needs; (2) the seriousness of the medical need; (3) the scope of the requested
treatment; and (4) police interests, including administrative, penological, or
investigatory concerns.” Id. Since this standard is lower than that for deliberate
indifference under the Eighth and Fourteenth Amendments, and the Court has
found that there is evidence sufficient to defeat summary judgment under the
4

23

2.

Qualified Immunity

The factual disputes the Court has identified also prevent the Court from
granting summary judgment to Superintendent McComas and Officers Obrochta
and Matteson on the basis of qualified immunity. “Qualified immunity protects
public servants from liability for reasonable mistakes made while performing their
public duties.” Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013); see also
Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is
to acknowledge that reasonable mistakes can be made as to the legal constraints on
particular

police

conduct.”).

A

“plaintiff

seeking

to

defeat

a

defense

of qualified immunity must establish two things: first, that she has alleged a
deprivation of a constitutional right; and second, that the right in question was
‘clearly established.’” Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012) (quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “In undertaking this analysis . . . .
[i]t is not enough . . . to say that it is clearly established that those operating
detention facilities must not engage in cruel or unusual punishment.” Miller, 698

deliberate indifference standard, there is necessarily sufficient evidence to defeat
summary judgment under the lower reasonableness standard of the Fourth
Amendment.
Additionally, to the extent that the Court has held that the individual
correctional officers’ liability can be based on a jury’s finding that the officers knew
or should have known that Awalt was not receiving the medical care and
medications he needed, the Court has found that the officers’ liability is based on a
“failure to intervene,” and thus, summary judgment is denied as to Plaintiff’s claim
for a failure to intervene in Count III with respect to Officer Obrochta,
Superintendent McComas, and Officer Matteson. See Fillmore v. Page, 358 F.3d
496, 506 (7th Cir. 2004) (“[A]n official satisfies the personal responsibility
requirement of § 1983 if she acts or fails to act with a deliberate or reckless
disregard of the plaintiff’s constitutional rights.”) (emphasis in original).
24

F.3d at 962. “The way that the right is translated into the particular setting makes
a difference.” Id. “The plaintiff must show that the contours of the right are
‘sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The County Defendants contend that the Officers are entitled to qualified
immunity “in light of the limited and, in some cases, non-existent information
available to them.” R. 321 at 11. The County Defendants argue that because the
Officers “lacked the requisite degree of personal involvement with, or knowledge of,
any failure to dispense medication to Awalt,” id. at 12, they have immunity for any
rights violation they may have committed. As the County Defendants have
themselves conceded, however, whether Awalt received his medication is not at
issue on this motion. Rather, as the Court discussed, the question is whether there
is sufficient evidence for a reasonable juror to conclude that the Officers knew that
Awalt was suffering seizures while he was in the Jail and failed to take appropriate
action. There is no question that the right to medical assistance for a seizure is
“clearly defined,” such that a reasonable officer would know that he is violating the
detainee’s rights by failing to provide medical attention in such circumstances. See
King, 680 F.3d at 1018 (“Medical conditions much less serious than seizures have
satisfied the standard.”). Since the Court has found that there are genuine
questions of material fact on this issue, the Court will not grant summary judgment
to Superintendent McComas, Officers Obrochta, or Officer Matteson on the basis of
qualified immunity.

25

B.

Dr. Cullinan and Nurse Clauson
1.

Liability

In addition to the deliberate indifference allegation against the correctional
officers, Plaintiff also alleges in Count I that Dr. Cullinan and Nurse Clauson
violated Awalt’s civil rights because of their reckless response to (1) Awalt’s claim
that he was taking Topamax and (2) Awalt’s worsening condition while he was in
the Jail. In the prison context, “medical professionals . . . are entitled to deference in
treatment decisions unless no minimally competent professional would have so
responded under the circumstances at issue.” McGee v. Adams, 721 F.3d 474, 481
(7th Cir. 2013). “When a medical professional acts in his professional capacity, he
may be held to have displayed deliberate indifference only if the decision by the
professional is such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person responsible actually did
not base the decision on such a judgment.” Id.; see also Youngberg v. Romeo, 457
U.S. 307, 323 (1982). This standard—“akin to criminal recklessness,” Williams v.
Fahim, 572 Fed. App’x, 445, 448 (7th Cir. 2014)—is high enough such that
“[m]edical malpractice does not become a constitutional violation merely because
the victim is a prisoner,” but is not so high that the plaintiff is “required to show
that he was literally ignored.” King, 680 F.3d at 1019. A prison doctor may exhibit
deliberate indifference to a known condition (i) “through inaction,” (ii) “by persisting
with inappropriate treatment,” or (iii) “by delaying necessary treatment and thus

26

aggravating the injury or needlessly prolonging an inmate’s pain.” Gatson v. Ghosh,
498 Fed. App’x 629, 631-32 (7th Cir. 2012) (citations omitted).
A reasonable juror could find that neither Dr. Cullinan nor Nurse Clauson
made a reasoned medical judgment not to prescribe Topamax to Awalt. It is
undisputed that Nurse Clauson knew Awalt said he was taking Topamax, and that
this information was in Awalt’s records at the Jail. Nurse Clauson also testified
that she decided that she needed five days in order to research Topamax before she
again planned to discuss Awalt’s Topamax use with him. Yet, the reference book
Nurse Clauson says she planned to consult only has a little more than two pages
about Topamax and emphasizes that Topamax use should not be stopped suddenly.
Nurse Clauson’s testimony does not explain why she needed five days to review this
material and why she ignored a significant recommendation in the authority she
chose to rely upon. A reasonable juror could find that Nurse Clauson’s decisions
exhibited deliberate indifference.
Dr. Cullinan cannot remember if he knew that Awalt said he was taking
Topamax. Evidence in the record, however, indicates that he reviewed records
containing this information and discussed them with Nurse Clauson. Moreover, if
Dr. Cullinan did not have this information, it was due to his own failure to
thoroughly review Awalt’s records and communicate with Nurse Clauson. Dr.
Cullinan and Nurse Clauson are the only two medical professionals responsible for
the detainees in the Jail. Awalt’s records and Nurse Clauson’s knowledge were the
only two sources of professional medical information that Dr. Cullinan had to

27

consult. Dr. Cullinan does not argue that the fact that Awalt said he was taking
Topamax accidently slipped through the cracks, and with such a small universe of
information sources it would be difficult to maintain such a contention. If Dr.
Cullinan did not know that Awalt said he was taking Topamax, a reasonable juror
could conclude that Dr. Cullinan was being deliberately indifferent to Awalt’s
medical condition in failing to acquire this information.
If Dr. Cullinan knew that Awalt was taking Topamax, a reasonable juror
could also conclude that Dr. Cullinan was deliberately indifferent because he failed
to prescribe that medication for him. The evidence in the record—both Plaintiff’s
expert, Dr. Pedelty, and the medical text Nurse Clauson testified she consulted—
emphasized that abrupt or sudden withdrawal of Topamax involves great risk to the
patient. Further, there is no evidence in the record that Dr. Cullinan or Nurse
Clauson would not have been able to acquire Topamax for Awalt if they had tried. A
reasonable juror could find that failing to prescribe Topamax under these
circumstances exhibited deliberate indifference.
A Fourteenth Amendment violation, however, also requires that the
“indifference caused [the plaintiff] some injury.” Gayton, 593 F.3d at 620. The
County Defendants contend that “Awalt’s medical records establish that he had
never previously been prescribed Topamax.” The County Defendants argue that this
evidence is “relevant to causation,” because “if Awalt had not been taking Topamax
when he arrived at the jail, there can be no failure to taper him from that
medication.” R. 349 at 7-8. As an initial matter, the fact that the medical records

28

that are in the record for this case do not show that Awalt was prescribed Topamax
does not necessarily mean that Awalt was never prescribed Topamax. Awalt would
have been the only person who could confirm whether the medical records in
evidence reflects the totality of his contact with medical professionals and the
medications they prescribed for him. Thus, the fact that there are no medical
records in evidence that Awalt was prescribed Topamax is not a basis to find that
no reasonable jury could determine that he was taking Topamax.
Moreover, Awalt’s statement, memorialized in the Jail’s records, that he was
taking Topamax is evidence that this is true, at least at this stage of the case. There
is no reason to believe that Awalt was lying since it is highly unlikely that he was
anticipating his own death and plotting this litigation. The reliability of Awalt’s
statement is further corroborated by Dr. Pedelty’s testimony that Topamax is not a
well-known drug, and that Awalt’s statement that he was taking Topamax makes it
likely that it had in fact been prescribed for him. Thus, there is sufficient evidence
of causation for this question to go to the jury.5
2.

Qualified Immunity

Dr. Cullinan and Nurse Clauson also argue that they are entitled to qualified
immunity. However, “[i]t is all but certain in this circuit that private doctors

As with the correctional officers’ liability under Plaintiff’s claim for “failure to
intervene” in Count III, to the extent that the Court has held that Dr. Cullinan and
Nurse Clauson can be liable based on a jury’s finding that they knew or should have
known that Awalt was not receiving the medical care and medications he needed,
the Court has found that their liability is based on a “failure to intervene,” and
thus, summary judgment is denied as to Count III with respect to Dr. Cullinan and
Nurse Clauson. See Fillmore, 358 F.3d at 506.

5

29

providing medical services to inmates are not entitled to assert qualified immunity.”
Ford v. Ghosh, 2014 WL 4413871, at *9 (N.D. Ill. Sept. 8, 2014) (citing Currie v.
Chhabra, 728 F.3d 626, 631-32 (7th Cir. 2013)). Without “definitively decid[ing] the
issue,” the Seventh Circuit has noted that it finds persuasive the Sixth Circuit’s
holding, and application of recent Supreme Court precedent, that “a doctor
providing psychiatric services to inmates at a state prison is not entitled to assert
qualified immunity.” Currie, 728 F.3d at 632. This is certainly a strong enough
statement from the Seventh Circuit for this Court to find that qualified immunity is
not available for Dr. Cullinan and Nurse Clauson.
In any event, it cannot be denied that Awalt’s right to the medication he
needed to control his seizure condition is “clearly established.” The Court has found
that questions of fact exist regarding whether Dr. Cullinan and Nurse Clauson were
deliberately indifferent to Awalt’s medical needs. Thus, neither Dr. Cullinan nor
Nurse Clauson are entitled to qualified immunity.
C.

The County, the Sheriff’s Office, CHC and HPL

Beyond the deliberate indifference allegations against Dr. Cullinan, Nurse
Clauson, and the individual correctional officers, Plaintiff also alleges in Count I
that the Sheriff’s Office and CHC/HPL were deliberately indifferent to Awalt’s
medical condition for the following reasons: (1) Superintendent McComas, Dr.
Cullinan, and Nurse Clauson were final policymakers or were delegated final
policymaking authority, and their actions caused Awalt’s death; (2) the Sheriff’s
Office and CHC/HPL’s failure to institute (a) a grievance mechanism, (b) an

30

oversight or continuous quality improvement program, and (c) a policy of weaning
detainees off of medications, caused Awalt’s death; (3) the Sheriff’s Office and
CHC/HPL’s failure to provide health care training to the correctional officers caused
Awalt’s death; (4) the Sheriff’s Office and CHC/HPL have a widespread practice of
denying medical care to detainees at the Jail that caused Awalt’s death; and (5) the
Sheriff’s Office and CHC/HPL’s policy of limiting reordering of medication caused
Awalt’s death.
Although “a municipality cannot be held liable under § 1983 on a respondeat
superior theory,” “municipalities and other local government units [are] included
among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs. of the
City of N.Y., 436 U.S. 658, 690-91 (1978); accord Calhoun v. Ramsey, 408 F.3d 375,
379 (7th Cir. 2005). “A local governing body may be liable for monetary damages
under § 1983 if the unconstitutional act complained of is caused by”: (1) “an official
with final policy-making authority”; (2) “a governmental practice or custom that,
although not officially authorized, is widespread and well settled”; and (3) “an
official policy adopted and promulgated by its officers.” Thomas v. Cook Cnty.
Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010). Plaintiff argues that the Sheriff’s
Office and CHC/HPL are liable under all three theories and the Court addresses
Plaintiff’s arguments under each theory in turn.
1.

Policymaker Theory

Plaintiff argues that Superintendent McComas, Dr. Cullinan, and Nurse
Clauson each “was either the final policymaking authority or delegated final

31

policymaking authority for the [J]ail on all health care-related matters.” R. 339 at
29. To create liability for the corporate entity—whether municipal or private—the
official in question does not have to be “a policymaker on all matters for the [entity],
but . . . [only] a policymaker in [the] particular area, or on [the] particular issue.”
Valentino v. Village of South Chicago Heights, 575 F.3d 664, 676 (7th Cir. 2009).
The Seventh Circuit has held that the following factors are “helpful in determining
whether an official is a final decisionmaker”: “(1) whether the official is constrained
by policies of other officials or legislative bodies; (2) whether the official’s decision
on the issue in question is subject to meaningful review; and (3) whether the policy
decision purportedly made by the official is within the realm of the official’s grant of
authority.” Vodak v. City of Chicago, 639 F.3d 738, 748 (7th Cir. 2011). “But simply
because a municipal employee has decisionmaking authority, even unreviewed
authority, with respect to a particular matter does not render him a policymaker as
to that matter.” Ball v. City of Indianapolis, 760 F.3d 636, 643 (7th Cir. 2014); see
also Valentino, 575 F.3d at 675 (“The fact that a particular official—even a
policymaking official—has discretion in the exercise of particular functions does not,
without more, give rise to municipal liability based on an exercise of that
discretion.”). Rather, a “municipality must have delegated authority to the
individual to make policy on its behalf.” Ball, 760 F.3d at 643 (emphasis added).
Whether a particular official is a policymaker can be a question of fact for a jury.
See Kujawski v. Bd. of Comm’rs of Bartholomew Cnty., 183 F.3d 734, 739 (7th Cir.
1999).

32

Plaintiff contends that Superintendent McComas was a policymaker for the
Jail, whereas the County Defendants argues that “Plaintiff has adduced no evidence
that anyone other than Sheriff Marketti was a ‘policymaker’ for the [J]ail.” R. 321 at
17. The County Defendants, however, cannot dispute that the document revising
the Sheriff’s Office’s agreement with CHC/HPL to remove a number of services
CHC/HPL generally provides to its clients lists Superintendent McComas as the
signatory on behalf of the Sheriff’s Office. See R. 336-8 at 532-35; R. 333 ¶ 28.
Additionally, Superintendent McComas testified that his practice was to forward
medical complaints to Dr. Cullinan or Nurse Clauson, and that he could not recall a
meeting of a grievance committee at the Jail. Superintendent McComas’s decision to
pass medical grievances on to the medical staff creates a question of fact as to
whether Superintendent McComas created a de facto grievance policy for the Jail.
Moreover, Superintendent McComas was the superintendent of the Jail, and the
County Defendants have not put forward any evidence to show that Sheriff
Marketti exercised any meaningful review of Superintendent McComas’s control of
the Jail’s medical policies. This evidence is sufficient for a reasonable juror to find
that the Sheriff’s Office delegated policymaking responsibility with respect to the
Jail’s medical policies to Superintendent McComas.
Although the Medical Defendants do not address the theory that Dr. Cullinan
or Nurse Clauson could be policymakers for CHC/HPL, CHC’s Chief Operating
Officer, Dr. Larry Wolk, testified that he was final policymaker with respect to
“inmate complaints regarding health care” at the Jail. R. 336-4 at 137 (87:6-14). Dr.

33

Cullinan testified by interrogatory, however, that he did not have a supervisor. R.
336-8 at 500 (¶ 12). Dr. Cullinan also testified at his deposition that he could not
remember any information he reported to Dr. Wolk regarding the Jail, and that he
did not remember any specific or general practice he had of making such reports. R.
336-3 at 30:21–31:10. This evidence is sufficient for a reasonable juror to conclude
that Wolk delegated policymaking for medical practices at the Jail to Dr. Cullinan.
Plaintiff highlights the discretion Nurse Clauson wielded in her position to
argue that she was a policymaker. But there is no dispute that Nurse Clauson was
supervised by Dr. Cullinan. Furthermore, Nurse Clauson’s decisions regarding how
to handle detainee grievances and treat detainee medical conditions are not
policymaking decisions. Rather, these decisions are discrete exercises of discretion
that nearly all professionals make every day. See Gernetzke v. Kenosha Unified Sch.
Dist. No. 1, 274 F.3d 464, 469 (7th Cir. 2001) (“Every public employee, including the
policeman on the beat and the teacher in the public school, exercises authority
ultimately delegated to him or her by their public employer’s supreme governing
organs. . . . [But] if a police department or school district were liable for employees’
actions that it authorized but did not direct, we would be back in the world of
respondeat superior.”). There is no evidence in the record that the County, the
Sheriff’s Office, CHC/HPL, or Dr. Cullinan intended to delegate any policymaking
authority to Nurse Clauson beyond her discretion to make day-to-day decisions
regarding the detainees’ medical care. Thus, Nurse Clauson’s actions cannot be a
basis for liability of the Sheriff’s Office or CHC/HPL.

34

2.

Widespread Custom or Practice Theory

“To demonstrate that [a municipal entity] is liable for a harmful custom or
practice, the plaintiff must show that [the municipal entity’s] policymakers were
‘deliberately indifferent as to [the] known or obvious consequences.’” Thomas, 604
F.3d at 303 (quoting Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)). “In
other words, they must have been aware of the risk created by the custom or
practice and must have failed to take appropriate steps to protect the plaintiff.”
Thomas, 604 F.3d at 303. “[T]here is no clear consensus as to how frequently
[certain] conduct must occur to impose Monell liability [under the custom and
practice theory], except that it must be more than one instance, or even three.” Id.
(internal quotation marks and citations omitted). While the number of incidents is
relevant to whether an implicit policy exists, the Seventh Circuit has made clear
that, absent an express policy, Monell liability is only appropriate where the
“plaintiff [can] introduce evidence demonstrating that the unlawful practice was so
pervasive that acquiescence on the part of policymakers was apparent and
amounted to a policy decision.” Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir.
2006) (the evidence must be such that the plaintiff can “weave . . . separate
incidents together into a cognizable policy”). Additionally, for a municipality to be
liable, the causal relationship between the policy or practice and the harm must be
such that the policy was the “moving force behind the constitutional violation.” City
of Canton v. Harris, 489 U.S. 378, 379 (1989); accord Teesdale v. City of Chicago,
690 F.3d 829, 833 (7th Cir. 2012).

35

Furthermore, the Seventh Circuit has held that a municipal defendant
“cannot shield itself from § 1983 liability by contracting out its duty to provide
services.” King, 680 F.3d at 1020. “[T]he private company’s policy becomes that of
the County if the County delegates final decision-making authority to it.” Id.
Like municipalities, “[p]rivate corporations acting under color of state law
may . . . be held liable for injuries resulting from their policies and practices.” Rice
v. Correctional Med. Servs. of Ill., Inc., 675 F.3d 650, 675 (7th Cir. 2012); see also
Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 789 (7th Cir. 2014) (“Most
defendants under § 1983 are public employees, but private companies and their
employees can also act under color of state law and thus can be sued under §
1983.”). “[A] corporate entity violates an inmate’s constitutional rights if it
maintains a policy that sanctions the maintenance of prison conditions that infringe
upon the constitutional rights of the prisoners.” Woodward v. Correctional Med.
Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004).
a.

Failure to Implement a Grievance Mechanism

Plaintiff argues that the Sheriff’s Office and CHC/HPL’s decision not to
implement a standardized grievance mechanism led to a widespread practice at the
Jail of ignoring or delaying response to grievances and medical requests made by
detainees. R. 339 at 36. Plaintiff contends that the Sheriff’s Office’s successful
endeavor to convince CHC/HPL not to implement a grievance mechanism is
evidence of deliberate indifference to detainee medical needs on the part of both the
Sheriff’s Office and CHC/HPL. The County Defendants and the Medical Defendants

36

argue that there is no evidence that grievances and medical request forms were not
reviewed. See R. 349 at 18; R. 348 at 11.
Contrary to the Defendants’ denials, however, several detainees testified that
officers at the Jail routinely failed to respond to grievance and medical request
forms. One detainee also testified that he saw Awalt submit “a lot” of medical
request forms which were collected by officers. R. 311-18 at 30:5-6. The County
Defendants argues that “Plaintiff has produced no evidence of a widespread custom
or practice that put the Sheriff’s Office on notice that there were such problems with
these topics, or that such problems directly caused Awalt’s death.” R. 348 at 11.
There is sufficient evidence, however, in the deposition testimony and affidavits of
detainees at the Jail that Jail officers routinely ignored grievances. Further,
Plaintiff’s expert testified that a failure to routinely address detainee grievances
created a substantial risk of injury. R. 336-7 at 61-62 (¶ 146). See also Thomas, 604
F.3d at 304 (“The dangers of delayed responses to medical requests are readily
apparent . . . .”). This is sufficient evidence for a reasonable jury to find a
“cognizable policy,” Phelan, 463 F.3d at 790, of failing to establish a reliable
grievance process.
Furthermore, this evidence is also a sufficient basis for a reasonable jury to
find that this failure was the moving force behind Awalt’s death. A reasonable jury
could conclude that if the Jail had a practice of routinely following up with
grievances and medical requests that Awalt’s condition would have been addressed.
And furthermore, a reasonable jury could also find that if Awalt’s condition had

37

been addressed, the seizure that led to his death would have been prevented or
treated such that it would not have caused his death.
b.

Failure to Implement
Improvement Program

a

Continuous

Quality

Plaintiff argues that the Sheriff’s Office and CHC/HPL’s decision not to
implement a continuous quality improvement program led to widespread practices
at the Jail of failing to engage in “self-critical analysis . . . tantamount to a
deliberate decision to blind themselves to ongoing medical care failures at the Jail.”
R. 339 at 36. As with her argument regarding the lack of a grievance policy,
Plaintiff contends that the Sheriff’s Office’s successful endeavor to convince
CHC/HPL not to implement an improvement program is evidence of deliberate
indifference to detainee medical needs on the part of both the Sheriff’s Office and
CHC/HPL.
Unlike the evidence relevant to the Jail’s grievance mechanism, a reasonable
juror could not conclude that the Sheriff’s Office and CHC/HPL’s failure to
implement a quality improvement program at the Jail caused Awalt’s death.
Although Plaintiff’s expert testified that the Jail should have a quality control
program, he did not testify that the lack of such a program created a substantial
risk of injury, as he did with respect to the lack of a grievance mechanism.
Furthermore, unlike the evidence that Awalt submitted grievance forms that went
unaddressed, there is no evidence that a quality control program would have caused
any of the individual defendants to take different actions that would have resulted
in Awalt receiving different medical care. The patently serious nature of seizures is
38

such that both the correctional officers and Dr. Cullinan and Nurse Clauson should
have addressed Awalt’s condition if they knew about it. There is no reason to believe
that a quality control program would have added anything to the relevant
individuals’ ability to address Awalt’s needs. Thus, there is no basis for a reasonable
juror to conclude that the lack of a quality control program caused Awalt’s death.
c.

Failure to
Medication

Properly

Wean

Detainees

Off

of

Plaintiff argues that “[t]he County and CHC/HPL had no policy for weaning
detainees off medication.” R. 339 at 37. Plaintiff, however, has not explained why
the Sheriff’s Office and CHC/HPL should have a general policy in this area when
common sense says that changes to a detainee’s medication regimen should be
individually tailored to each detainee, as they are when initially prescribed. As the
Court discussed above, there are questions of fact regarding whether Nurse Clauson
and Dr. Cullinan appropriately responded to Awalt’s statement at in-take that he
was taking Topamax, including consideration of the proper process for weaning him
from that drug if necessary. But there is no evidence (from Plaintiff’s experts or
otherwise) that it would have been medically appropriate for the Sheriff’s Office or
CHC/HPL to have a general policy for weaning detainees off medication, or that the
lack of such a general policy caused Awalt’s death. Absent such evidence, a
reasonable juror could not conclude that the Sheriff’s Office or CHC/HPL is liable
for Awalt’s death for failing to implement such a policy. See Fitzgerald v. Greer, 324
Fed. App’x 510, 515 (7th Cir. 2009) (a deliberate indifference analysis does not call
for the court to “second-guess [doctors’ treatment] decisions”). Thus, summary
39

judgment is granted in the Sheriff’s Office and CHC/HPL’s favor on Plaintiff’s
theory that they were deliberately indifferent to Awalt’s medical needs by failing to
have a policy for weaning detainees off medications.
d.

Failure to Train

“The failure to provide adequate training to its employees may be a basis for
imposing liability on a municipality or private corporation, but as with any other
policy or practice for which the plaintiff seeks to hold the municipal or corporate
defendant liable, the plaintiff must show that the failure to train reflects a
conscious choice among alternatives that evinces a deliberate indifference to the
rights of the individuals with whom those employees will interact.” Rice, 675 F.3d at
675.
There is a dispute as to the extent of the medical training the officers at the
Jail received. R. 329 ¶¶ 71-72. Plaintiff cites testimony by the County’s
representative and correctional officers to the effect that there either was no
training or minimal training. See id. ¶ 71. The County Defendants and the Medical
Defendants point to a three ring binder with information regarding documentation
of medication distribution, and a copy of a power point presentation that could be
used for training correctional officers. Id. ¶ 71-72. Plaintiff argues, however, that
there is no evidence that this power point presentation was ever used. Id. ¶ 72.
Although the evidence the Medical Defendants rely on indicates that some training
may have taken place, the testimony from correctional officers that they did not
receive training, the failure by the Sheriff’s Office to produce any records of

40

training, and CHC/HPL’s agreement to remove the training provision from its
contract with the Sheriff’s Office is sufficient to create a question of fact regarding
whether there was training, and thus, whether the Sheriff’s Office and CHC/HPL
were deliberately indifferent to the medical needs of detainees at the Jail.
It is not clear, however, that more comprehensive training would have
necessarily saved Awalt’s life. Plaintiff’s own expert testified that the “corrections
officers did not need any special training to determine whether Robert Awalt was
having a seizure if he was having seizures as described by the [other detainees at
the Jail].” R. 316-9 at 89:4-10. And as Plaintiff’s expert noted, other detainees have
testified that they noticed Awalt having seizures and thought it appropriate to seek
assistance from the correctional officers. Even if the officers could not immediately
or accurately identify Awalt’s condition as a seizure, they would certainly have
known that Awalt required medical attention and that they should call for that
attention (and ensure that he did not choke on a sock).
Nevertheless, correctional officers must be permitted a certain level of
discretion in determining which medical conditions merit alerting medical
professionals. Not every pain is a sign of a more dangerous medical condition and
correctional officers likely need to be trained to determine which conditions warrant
professional medical attention. A reasonable jury could find that the lack of training
at the Jail was so stark that the correctional officers were left without any
reasonable frame of reference to determine when the attention of a medical
professional was required. Common sense says that more training would create in

41

the correctional officers a heightened awareness of, and sensitivity to, the detainees’
medical needs. Regardless of whether training could change the correctional
officer’s ability to determine when a medical condition required professional
attention, a reasonable jury could conclude that more extensive training would
simply have made it more likely that a correctional officer would have been
motivated to alert a medical professional to Awalt’s condition in time to prevent his
death. Although it is a close question on this factual record, the Court finds that
there is sufficient evidence for a reasonable jury to find that the Sheriff’s Office and
CHC/HPL’s failure to train the correctional officers caused Awalt’s death.6
e.

Failure to Provide Necessary Medical Care or
Medication

Plaintiff argues that the Sheriff’s Office and CHC/HPL’s motions for
summary judgment on Plaintiff’s Monell claims should be denied because the
Sheriff’s Office and CHC/HPL had a widespread custom or practice of failing to
provide necessary medical care or medication to detainees at the Jail. The County
Defendants and the Medical Defendants argue that there is an insufficient number
of incidents in the record to establish a custom or practice, and the incidents in the
record are not sufficiently similar to Awalt’s case.

Plaintiff also argues that the failure to train could have left the correctional
officers without the ability “to understand the importance of providing timely
medication to Awalt.” R. 339 at 39. This argument is not viable. If the officers were
told to give Awalt certain medication at certain times, no other training was
required than that the officers be trained to follow the instructions of the medical
professionals. Plaintiff does not argue that the officers were not trained to do so.
6

42

Plaintiff has highlighted evidence showing that three detainees besides
Awalt had seizure conditions, and were either not provided the medication they
required or were ignored by the correctional officers while they suffered seizures at
the Jail. Plaintiff has also identified six other detainees who did not receive the
medical care or medication they needed while they were at the Jail. Furthermore,
Plaintiff’s expert has testified that of the 24 detainees booked at the Jail during the
three months leading up to Awalt’s booking, seven (including Awalt) identified a
medical issue at intake, but were denied timely access to medical care or received
medical care that fell far below the standard for correctional health care. Plaintiff’s
expert also testified that this rate of failure to provide medical care indicated that
there was a systemic failure to provide medical care at the Jail. This is sufficient
evidence for a reasonable jury to find that the Sheriff’s Office and CHC/HPL had an
implicit policy of deliberate indifference to the medical care provided to detainees.
The County Defendants also contend that the denials of medical care Plaintiff
cites are not “sufficiently similar” to Awalt’s experience. The County Defendants
argue that Awalt must show that the Sheriff’s Office and CHC/HPL have a
widespread practice of causing detainee deaths by denying them anti-seizure
medication. The County Defendants cite Hahn v. Walsh, 762 F.3d 617 (7th Cir.
2014), in which the plaintiff claimed that his wife’s death was caused by a jail’s
failure to have a policy to treat a diabetic detainee who refused to participate in her
own care. The plaintiff in Hahn relied of evidence that seven other detainees had
died in the defendant’s jail from causes unrelated to diabetes. The court held the

43

seven deaths were insufficient to alert the jail to any problem with its policy (or lack
of a policy) for treating detainees like the plaintiff’s wife. Id. at 637. Here, by
contrast, Plaintiff does not claim merely that the Sheriff’s Office and CHC/HPL
have a policy of specifically denying detainees anti-seizure medication. Rather,
Plaintiff argues that the Sheriff’s Office and CHC/HPL are reckless in their medical
care of detainees generally, and Awalt’s death was caused by this general
recklessness. In this case, evidence that detainees did not receive proper medical
attention or were denied their medication is sufficiently similar to Awalt’s
experience because he too did not receive proper medical attention or medication.
The County Defendants also argues that even if CHC/HPL was deliberately
indifferent to the detainees medical care, the Sheriff’s Office cannot be liable for
CHC/HPL’s practices unless the Sheriff’s Office was “on notice” that CHC/HPL’s
practices were deficient. R. 348 at 11. The County Defendants cite King v. Kramer,
763 F.3d 635 (7th Cir. 2014), in support of its argument, but in that case (in two
separate opinions) the Seventh Circuit also held that it was proper to deny
summary judgment to the defendant county because the jury could find that it
delegated decision-making authority to the medical provider. See King, 763 F.3d at
648 (“We were concerned about the Sheriff’s Office’s potential delegation of final
decision-making authority to HPL . . . . Even if the County retained final
decisionmaking authority, we noted that the County ‘was on notice that HPL's
physician- and medication-related policies were causing problems at the jail’ . . . .”);
King, 680 F.3d at 1021 (“The County’s express policies as embodied in the contract

44

show that the County delegated to HPL final authority to make decisions about
inmates’ medical care. . . . Even if the County had not delegated final decisionmaking authority to HPL, it was on notice that HPL’s physician- and medicationrelated policies were causing problems at the jail.”). Notably, HPL was also the
medical provider in King, and the language in the contract between the county and
HPL in King that formed the basis for the Seventh Circuit’s affirmance of the
district court’s denial of summary judgment to the county, is identical to the
language in the contract between the Sheriff’s Office and CHC/HPL in this case:
“HPL shall provide monitoring of pharmacy usage as well as development of a
Preferred Medication List.” R. 311-11 at 9 (¶ 1.14). Moreover, the County
Defendant’s more general argument—citing the language of the contract—that the
Sheriff’s Office did not “delegate final policymaking authority for medical care to
HPL,” but “only ‘responsibility for administering, managing, and supervising the
health care delivery system,’” R. 348 at 13 (citing R. 311-11 at 26), is a distinction
without a difference, especially in light of the additional contractual language that
CHC/HPL was responsible for “monitoring pharmacy usage.” The contract is a
sufficient basis for a jury to find that the Sheriff’s Office delegated policymaking
authority for medical care to CHC/HPL, such that Plaintiff is not required to
demonstrate notice to survive summary judgment. See King, 680 F.3d at 1020
(“[T]he private company’s policy becomes that of the County if the County delegates
final decision-making authority to it.”).

45

3.

Express Policy Theory

The parties dispute whether the Sheriff’s Office and CHC/HPL had an
express policy that prevented Nurse Clauson from restocking a particular
medication until there were only eight pills left in stock. Nurse Clauson testified
that it was Diamond Pharmacy’s rules that prevented her from restocking a
medication until the pill count fell to eight, and the Medical Defendants argue on
that basis that CHC/HPL was merely complying with pharmacy policy, not creating
its own policy. But CHC/HPL’s representative also testified that CHC/HPL told its
nurses to follow pharmacy rules when restocking medication. In so instructing its
nurses, CHC/HPL abdicated its responsibility to ensure that the Jail had sufficient
medication to satisfy the needs of the detainees in the Jail at any given time, in
favor of a policy that assumed that eight pills of any given medication would be
sufficient to satisfy whoever happened to be detained at the Jail from the time the
order was placed until it was filled. The evidence suggests that re-ordering did not
result in an immediate delivery, even if a detainee’s needs were immediate. And
why a medical provider would abdicate its responsibility to provide timely
medication because of a private pharmacy’s “policy” is inexplicable. Perhaps an
explanation will be made at trial. Nurse Clauson’s testimony is a sufficient basis for
a reasonable juror to conclude that CHC/HPL had a medication reordering policy
that constituted deliberate indifference to Awalt’s medical needs.
The Medical Defendants also argue that this policy was not the moving force
behind Awalt’s injuries because the Jail had sufficient Dilantin in stock while Awalt

46

was in the Jail. But the parties dispute whether the Jail ran out of Dilantin while
Awalt was there. The Medical Defendants highlight the fact that Nurse Clauson
ordered 30 pills of Dilantin in May and that the Jail’s records do not reflect that
these pills were used until September, in which case there would have been
sufficient Dilantin for Awalt and the other detainee taking Dilantin while Awalt
was in the Jail. Plaintiff, however, argues that Nurse Clauson testified that she was
prevented from ordering additional stock of a particular medication until only eight
pills of the medication were remaining, so that when Nurse Clauson reordered
Dilantin on September 17, there must have been only eight pills remaining in stock,
which would have been insufficient to satisfy the needs of both Awalt and the other
detainee until September 20, the day the September 17 order was delivered (both
Awalt and the other detainee required four pills per day). Nurse Clauson’s
testimony is a sufficient basis for a reasonable juror to conclude that the Jail ran
out of Dilantin while Awalt was there, and that was the moving force behind
Awalt’s death.
The County Defendants argues that even if CHC/HPL had a policy of not
restocking a medication until there were only eight pills left, the Sheriff’s Office
cannot be liable for this policy because “the County [did not have] ‘notice’ that
HPL’s policies ‘were causing problems at the jail.’” R. 348 at 16-17. This argument
fails because, as the Court discussed above with reference to Plaintiff’s allegations
that the Sheriff’s Office and CHC/HPL had practice of failing to provide medical
care or medication to detainees, there is sufficient evidence for a reasonable jury to

47

conclude that the Sheriff’s Office delegated policy making authority regarding
medical care and medication distribution to CHC/HPL.
Counts II: Conspiracy
“[T]o prevail on [a] Section 1983 conspiracy claim, [a plaintiff] must prove: (1)
an express or implied agreement among defendants to deprive [the plaintiff] of his
constitutional rights, and (2) actual deprivations of those rights in the form of overt
acts in furtherance of the agreement.” Cook v. City of Chicago, 2014 WL 4493813, at
*6 (N.D. Ill. Sept. 9, 2014) (citing Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.
1988)). Plaintiffs argue that summary judgment should be denied because “Cullinan
and Clauson talked. So did Cullinan and Van Cleave. And so did Clauson and
Thorson.” R. 339 at 45. After all of the extensive discovery in this case, this evidence
amounts to nothing more than “speculation and conjecture,” which is not enough to
survive summary judgment. See Sow v. Fortville Police Dep’t, 636 F.3d 293, 304-05
(7th Cir. 2011); see also Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013)
(“[V]ague and conclusory allegations of the existence of a conspiracy are not enough
to sustain a plaintiff's burden at summary judgment[.]”); Cook, 2014 WL 4493813,
at *6 (“The fact that [the defendants] worked together over an extended period of
time and that [one defendant] previously approved illegal conduct by [the other
defendant] are not alone proof of an agreement . . . .”). Therefore, summary
judgment is granted in Defendants’ favor on Count II.

48

Count IV: Intentional Infliction of Emotional Distress
Plaintiff also alleges that the Correctional Officers intentionally inflicted
emotional distress on Awalt in violation of Illinois law. Under Illinois law, for an
intentional infliction of emotional distress claim to be successful, the following
elements must be proven: “(1) the defendants’ conduct was extreme and outrageous;
(2) the defendants knew that there was a high probability that their conduct would
cause severe emotional distress; and (3) the conduct in fact caused severe emotional
distress.” Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir.
2010) (citing Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992)). “To
meet the ‘extreme and outrageous’ standard, the defendants’ conduct ‘must be so
extreme as to go beyond all possible bounds of decency, and to be regarded as
intolerable in a civilized community.’” Swearnigen–El, 602 F.3d at 864 (quoting
Kolegas, 607 N.E.2d at 211). In determining whether conduct meets the “extreme
and outrageous” standard, courts consider three main factors: (1) “the more power
or control the defendant has over the plaintiff, the more likely the conduct will be
deemed extreme”; (2) “whether the defendant reasonably believed its objective was
legitimate”; and (3) “whether the defendant was aware the plaintiff was ‘peculiarly
susceptible to emotional distress, by reason of some physical or mental peculiarity.’”
Franciski v. Univ. of Chi. Hosp., 338 F.3d 765, 769 (7th Cir. 2003) (quoting McGrath
v. Fahey, 533 N.E.2d 806, 811 (Ill. 1998)). The Illinois Supreme Court has
explained, “Conduct is of an extreme and outrageous character where ‘recitation of
the facts to an average member of the community would arouse his resentment

49

against the actor, and lead him to exclaim, ‘Outrageous!’” Doe v. Calumet City, 641
N.E.2d 498, 507 (Ill. 1994) (quoting Restatement (Second) of Torts § 46, cmt. D, at
73 (1965)).
The Court has found that there are questions of fact regarding whether the
Officers knew Awalt was suffering seizures and ignored his suffering, such that
they can be liable for violating his civil rights. The evidence creating these
questions of fact is also a sufficient basis for a reasonable juror to conclude that the
Officers are liable for intentional infliction of emotional distress. Assuming that the
Officers knew Awalt was suffering from seizures while he was in the jail—as the
Court must in considering the evidence in the light most favorable to the Plaintiff—
there is no question that their conduct caused Awalt severe emotional distress,
since he in fact died. There is also no question that the Officers knew that there was
a high probability that ignoring a seizure would cause severe emotional distress.
And a reasonable juror could find that ignoring a patently severe medical condition
such as a seizure is “extreme and outrageous” conduct, especially because the
Officers “had complete authority over [Awalt] because [he] was incarcerated as a
pretrial detainee.” See Cobige v. City of Chicago, 752 F. Supp. 2d 860, 871 (N.D. Ill.
2010).
Additionally, the Officers are not entitled to immunity under the Illinois
Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS
10/4-105. Under the Act, public employees like the Officers are not “liable for injury
proximately caused by the failure of the employee to furnish or obtain medical care

50

for a prisoner in his custody,” unless the employee “knows . . . that the prisoner is
need of immediate medical care and, through willful and wanton conduct, fails to
[act].” The Seventh Circuit has noted that the “willful and wanton standard is
remarkably similar to the deliberate indifference standard.” Pittman v. County of
Madison, 746 F.3d 766, 781 (7th Cir. 2014); Williams v. Rodriguez, 509 F.3d 392,
404 (7th Cir. 2007). Further, the Seventh Circuit has held that a genuine question
of fact regarding whether certain conduct constitutes deliberate indifference also
serves as a genuine question of fact regarding whether that conduct was willful and
wanton. See Pittman, 746 F.3d at 781 (“Accordingly, if [either of the defendant
officers] is determined to have been deliberately indifferent to the immediate
medical needs of [the plaintiff], the district court also will have to address the
liability of these individuals under state law . . . .”). Thus, the Officers are not
immune to Plaintiff’s intentional infliction of emotional distress claim under 745
ILCS 10/4-105.
The Correctional Officers and the Sheriff’s Office are also not entitled to
immunity under 745 ILCS 10/4-103, as the County Defendants contend. Under 745
ILCS 10/4-103, “[n]either a local public entity nor a public employee is liable for
failure to provide a jail, detention or correctional facility, or if such facility is
provided, for failure to provide sufficient equipment, personnel, supervision or
facilities therein. Nothing in this Section requires the periodic inspection of
prisoners.” Plaintiff seeks redress, however, not for a “failure to provide sufficient
equipment, personnel, supervision or facilities,” but for Awalt’s death, which was

51

caused by such failures. Section 4-103 provides immunity for claims about
substandard correctional facilities per se, not claims for injuries those substandard
conditions may cause. Thus, 745 ILCS 10/4-103 does not serve to provide immunity
to Defendants in this case.
Under 745 ILCS 10/6-105, “[n]either a local public entity nor a public
employee acting within the scope of his employment is liable for injury caused by
the failure to make a physical or mental examination, or to make an adequate
physical or mental examination of any person for the purpose of determining
whether such person has a disease or physical or mental condition that would
constitute a hazard to the health or safety of himself or others.” As discussed with
reference to

745 ILCS 10/4-103, however, Plaintiff alleges a failure to address

patent medical conditions, whether because the symptoms were obvious or the
detainees told the Jail staff that they suffered from certain conditions or requires
certain medication. The failure to conduct examinations, to the extent such failures
occurred, may be relevant to show that the Sheriff’s Office and CHC/HPL had a
policy of providing insufficient medical care which caused Awalt’s death. But
Plaintiff does not allege that the lack of medical examination per se caused Awalt’s
death. Thus, 745 ILCS 10/6-105 is inapplicable here. See Harrison v. County of
Cook, 2011 WL 4036115, at *10 n.1 (N.D. Ill. Sept. 12, 2011) (“Section 6-105 speaks
to liability flowing from a failure to examine, not to a failure to react to injuries that
are patent.”) (internal quotation marks and citation omitted).

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Under 745 ILCS 10/2-204, “a public employee, as such and acting within the
scope of his employment, is not liable for an injury caused by the act or omission of
another person,” “[e]xcept as otherwise provided by statute.” This statute does not
abrogate respondeat superior liability, but only grants immunity to public
employees in their personal capacity. See Lopez v. Dart, 2008 WL 4889088, at *5 n.8
(N.D. Ill. July 17, 2008) (“745 ILCS 10/2-204 . . . protects employees of public
entities from being individually liable on a vicarious basis for the conduct of other
employees. . . . and does not apply to a public entity’s liability for the conduct of one
of its employees who is subject to liability.”) Plaintiff, however, asserts claims
against all Defendants directly, except for claims against the Sheriff in his official
capacity, which is the equivalent of suing the Sheriff’s Office itself, and CHC/HPL
as a corporate entity. Thus, 745 ILCS 10/2-204 does not provide immunity from any
of the claims to any of the Defendants.
The County Defendants also cite 745 ILCS 10/2-201 as providing them
immunity. Section 2-201 provides that “a public employee serving in a position
involving the determination of policy or the exercise of discretion is not liable for an
injury resulting from his act or omission in determining policy when acting in the
exercise of such discretion even though abused.” Plaintiff, however, does not claim
that any of the individual defendants who are policymakers caused Awalt’s death by
their policymaking. Rather, the individual defendants are alleged to have caused
Awalt’s death by their individual conduct. Thus, 745 ILCS 10/2-201 does not serve
to provide immunity to any of the Defendants here.

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Counts VII & VIII: Wrongful Death and Survival Act Claims
The County Defendants argue that the Court should grant summary
judgment in their favor on Plaintiffs’ Wrongful Death and Survival Act claims
because “Illinois law does not recognize an independent cause of action for willful
and wanton conduct.” R. 321 at 22. Defendants in this case made the same “highly
conclusory” argument more than two years ago when pursuing a motion to dismiss,
and the Court explained that “Counts VII and VIII . . . are not simply claims for
willful and wanton conduct[,] [r]ather they are claims arising under the Illinois
Wrongful Death Act and the Illinois Survival Act.” R. 76 at 8 (Awalt v. Marketti,
2012 WL 1161500, at *4 (N.D. Ill. Apr. 9, 2012)). The County Defendants offer no
other argument to support summary judgment, thus their motion for summary
judgment on Counts VII and VIII is denied.7
Count XII: Spoliation
Plaintiff argues that Superintendent McComas spoliated evidence when he
saved only a portion of the Jail’s surveillance video. Plaintiff also argues that Nurse
Clauson spoliated evidence when she destroyed Awalt’s grievance forms.
Under Illinois law, “a plaintiff claiming spoliation of evidence must prove
that: (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the
defendant breached that duty by losing or destroying the evidence; (3) the loss or

Since the Court has denied summary judgment on Plaintiff’s intentional infliction
of emotional distress claim (Count IV), and Plaintiff’s Wrongful Death Act and
Survival Act claims (Counts VII & VIII), the Sheriff and CHC/HPL can be liable
under a respondeat superior theory and summary judgment on Counts IX and X is
denied.
7

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destruction of the evidence was the proximate cause of the plaintiff’s inability to
prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual
damages.” Martin v. Keeley & Sons, Inc., 979 N.E.2d 22, 27 (Ill. 2012). “The general
rule in Illinois is that there is no duty to preserve evidence.” Id. “[I]n order to
establish an exception to the general no-duty rule,” a plaintiff must first show that a
relationship such as “an agreement, contract, statute, special circumstance, or
voluntary undertaking has given rise to a duty to preserve evidence on the part of
the defendant.” Id. The plaintiff must then show that the “the duty extends to the
specific evidence at issue by demonstrating that a reasonable person in the
defendant’s position should have foreseen that the evidence was material to a
potential civil litigation.” Id.
A.

Illinois Tort Immunity Act

As an initial matter, the County Defendants argue that Superintendent
McComas is immune from Plaintiff’s spoliation claim under 745 ILCS 10/2-201,
which provides that “a public employee serving in a position involving the
determination of policy or the exercise of discretion is not liable for an injury
resulting from his act or omission in determining policy when acting in the exercise
of such discretion even though abused.” The County Defendants argue that Plaintiff
cannot “question whether the decision to view and preserve only a portion of the
Jail’s video involved the exercise of discretion, since Plaintiff admits there were not
Jail policies mandating under what circumstances video had to be preserved.” R.

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348 at 19. But Plaintiff has admitted only that there was no “written” policy
regarding preservation of video surveillance. R. 329 ¶ 52.
Moreover, the Sheriff’s Office’s representative testified that “a death
investigation” would “fall within that category where the Sheriff’s Department and
the jail would have a practice of retaining the video.” R. 336-6 at 164:5-19. This is
evidence that the there was a policy or practice at the Jail that Superintendent
McComas should have followed in preserving the surveillance tape, meaning that
he did not have unfettered discretion to make that decision. Absent such discretion,
Superintendent McComas is not entitled to immunity under 745 ILCS 10/2-201.
Thus, the testimony of the Sheriff’s Office’s representative is sufficient evidence for
a reasonable jury to find that Superintendent McComas is not entitled to immunity
under 745 ILCS 10/2-201.8

The County Defendants cite Moore v. City of Chicago, 2014 WL 2457630 (N.D. Ill.
May 30, 2014), in which the court granted summary judgment to the defendants on
a spoliation claim where a police investigator retrieved surveillance video from a
convenience store of a police shooting and the immediate aftermath of the shooting,
but not video of the evidence-collection process after the shooting. The court in that
case, however, did not reach the issue of whether the investigator’s decision
qualified as “determining policy when acting in the exercise of such discretion”
under 745 ILCS 10/2-201, because the court held that 745 ILCS 10/2-201 provided
immunity to the defendants for all negligence claims. The Illinois Supreme Court,
however, has interpreted Section 2-201 to “recognize[] a distinction between
‘discretionary duties, the negligent performance of which does not subject a
municipality to tort liability, and ministerial duties, the negligent performance of
which can subject a municipality to tort liability.” Harrison v. Hardin Cnty.
Community Unit Sch. Dist. No. 1, 758 N.E.2d 848, 852 (Ill. 2001); accord Lane v.
DuPage Cnty. Sch. Dist. 45, 2014 WL 518445, at *3 (N.D. Ill. Feb. 10, 2014). Thus,
this Court will not follow Moore’s holding that Section 2-201 provides broad
negligence immunity.
8

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B.

Duty to Preserve Evidence

The parties argue over whether the circumstances of Awalt’s case satisfy the
elements for a duty arising due to “special circumstance” or a “voluntary
undertaking” as they are articulated in the case law. But the testimony from the
Sheriff’s Office’s representative that it was the Jail’s practice to preserve
surveillance video in the context of an event like a detainee dying in custody is
evidence that the Jail had a duty of preservation to Awalt even absent evidence of
the elements of notice and intent relevant to an analysis of “special circumstances”
and “voluntary undertakings.” Detainees are dependent on the Sheriff’s Office’s
policies and practices to protect their rights and well-being while they are in
custody. To the extent that the Jail assumes responsibility for preserving certain
evidence under certain circumstances, the Jail has assumed a duty with respect to
the detainees. Thus, the testimony of the Sheriff’s Office’s representative that it was
the Jail’s practice to preserve surveillance video in circumstances like Awalt’s death
is sufficient evidence for a reasonable jury to conclude that the Sheriff’s Office had a
duty to do so.
Similarly, Sheriff Marketti admitted during discovery for this litigation that
the Sheriff’s Office “kept health-care related grievances filed by an inmate at the
Grundy County Jail in that inmate’s file but in no other place.” R. 336-9 ¶¶ 46-49.
Additionally, Nurse Clauson testified that detainees’ medical grievances would be
brought to her and she would file them. R. 336-10 at 228:1-16; 351:9-13; 356:8–
357:18. This evidence suggests that the Jail had a policy of retaining medical

57

grievances. If a jury were to find that the Jail did have such a policy, the Court finds
that such a policy creates a duty for the Jail to preserve the medical grievance forms
for the same reasons discussed above with respect to the evidence suggesting that
the Jail had a policy of preserving surveillance video in case of a detainee’s death.
The facts of this case also satisfy the elements for establishing a duty to
preserve evidence under the “special circumstances” and “voluntary undertaking”
theories. Illinois appellate courts have held that “special circumstances” create a
duty to preserve where the plaintiff (or the potential plaintiff) gave notice or
constructive notice to the defendant (or potential defendant) of “the potential for
litigation” that “function[ed] as a request to preserve evidence.” Combs v. Schmidt,
976 N.E.2d 659, 667 (Ill. App. Ct. 2d Dist. 2012); see also Miller v. Gupta, 672
N.E.2d 1229, 1231 (Ill. 1996) (the plaintiff’s attorney “requested her medical records
from [the defendant]”); Brobbey v. Enterprise Leasing Co., 935 N.E.2d 1084, 1097
(Ill. App. Ct. 1st Dist. 2010) (car-renter’s complaints about a car’s mechanical
problems to rental company served to put rental company on notice of potential
litigation after car-renter was involved in a car accident). Here, Awalt’s grievances
and medical complaints functioned to put the Sheriff’s Office on notice of potential
litigation regarding Awalt’s time in the Jail. Indeed, it is not extraordinary or
unexpected in a jail setting that medical complaints by detainees lead to lawsuits.
This notice combined with the evidence that it was the Jail’s policy or practice to
preserve grievance forms and surveillance video under these circumstances created
a duty for the Jail to preserve the evidence Plaintiff seeks.

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Additionally, a duty arose for the Jail to preserve the grievance forms and the
surveillance video because the Jail engaged in a “voluntary undertaking to preserve
evidence”

when

Superintendent

McComas

selectively

preserved

the

video

surveillance. Superintendent McComas testified that he was not anticipating
litigation when he destroyed part of the video. The timing and circumstances of his
actions, however, are such that a jury could find his testimony incredible and that
his actions “manifest[ed] an intention to preserve [the excerpts of the video] as
evidence or . . . acknowledge the significance of the [video excerpts] as evidence in
potential future litigation.” Martin, 979 N.E.2d at 30. Superintendent McComas
failed to preserve video recordings of Awalt’s treatment at the Jail the same day
Awalt was found unconscious in his cell and taken to the hospital. Clearly,
Superintendent McComas was motivated to selectively preserve the video by the
event of Awalt’s injury, whatever the goal of that action may have been. See
Schaefer v. Univ. Scaffolding & Equip., LLC, 2014 WL 509344, at *7 (S.D. Ill. Feb.
10, 2014) (summary judgment on spoliation claim denied where evidence “was not
destroyed within days of the accident, but rather immediately segregated as
evidence and, years later, lost. [The] segregation of the [evidence] was affirmative
conduct showing [the defendant’s] intent to undertake a duty to preserve the
evidence”); Stoner v. WalMart Stores, Inc., 2008 WL 3876077, at *4 (C.D. Ill. Aug.18,
2008) (motion to dismiss spoliation claim denied where Wal–Mart employees
segregated and preserved some of the relevant footage, but destroyed the footage
that had the most potential to help the plaintiff).

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Moreover, if the jury found that the Sheriff’s Office was motivated to preserve
certain excerpts of the video in anticipation of potential litigation, this motivation
also extends to other evidence of Awalt’s treatment, including the grievance forms.
By preserving part of the video, the Sheriff’s Office is not only assuming a duty with
respect to the video but to evidence of Awalt’s treatment generally. Thus, if a jury
finds that Superintendent McComas, and by extension the Sheriff’s Office, intended
to preserve evidence in anticipation of litigation, the Plaintiff can succeed on her
spoliation claim with respect to both the video and the grievance forms.9
Conclusion
For the foregoing reasons, the County Defendants’ motion for summary
judgment, R. 309, and the Medical Defendants’ motion for summary judgment, R.
312, are denied in part, granted in part, and continued in part.
The County Defendants’ motion for summary judgment on Counts I, III, IV,
VII, VIII, X, and XII is denied, except that the County and Sheriff’s Office’s liability
under Count I cannot be predicated upon a failure to implement a continuous
quality improvement program, a failure to properly wean detainees off of
medication, or a theory that Nurse Clauson possessed policy-making authority. The
County Defendants’ motion for summary judgment on Counts II, V and VI is
granted.
Plaintiff’s complaint also included claims for spoliation of a version of the Medical
Administration Form that recorded the medications given to Awalt, and tissue
paper that purportedly was discovered inside of Awalt’s nostrils. Plaintiff failed to
respond to Defendants’ arguments that summary judgment should be granted on
Plaintiff’s spoliation claims based on this evidence. R. 321 at 27; R. 313 at 18. Thus,
summary judgment is granted on the spoliation claims for the loss of this evidence.
9

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The Medical Defendants’ motion for summary judgment on Counts I, III, IV,
VII, VIII, IX and XII is denied, except that CHC/HPL’s liability under Count I
cannot be predicated upon a failure to implement a continuous quality improvement
program, a failure to properly wean detainees off of medication, or a theory that
Nurse Clauson possessed policy-making authority. The Medical Defendants’ motion
for summary judgment on Counts II, V, and VI is granted.
ENTERED

______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: November 24, 2014

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