Jacoby v. DuPage County et al

Filing 157

OPINION AND ORDER Signed by the Honorable Joan H. Lefkow on 3/7/2018: Plaintiff's motion for summary judgment 146 is denied. All defendants' motion for summary judgment on the excessive force claim 114 is denied. Sheriff Zaruba's motion for summary judgment on the Monell claim 114 is granted. This case will be called for a status hearing on April 17, 2018, at 11:00 a.m. to set a date for trial. In the meantime, the parties are directed to participate in good faith discussions about whether the case can be settled and to report on the status of those discussions at the status hearing.Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID P. LEIBOWITZ, Trustee of
The Bankruptcy Estate of Mark Jacoby,
Plaintiff,
v.
DUPAGE COUNTY ILLINOIS, JOHN E.
ZARUBA, in his official capacity as
Sheriff of DuPage County, Illinois, and
DUPAGE COUNTY DEPUTY SHERIFFS
TOM REPA, PHILIP HECK, and
JOSEPH PROSSER, individually,
Defendants.

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Case No. 12 C 6539
Judge Joan H. Lefkow

OPINION AND ORDER
Mark Jacoby filed this section 1983 lawsuit for compensatory and punitive damages
against DuPage County Sheriff John E. Zaruba and three deputy sheriffs. As the pleadings now
stand, Jacoby alleges excessive force arising from his detention at the DuPage County Jail and a
Monell claim against Sheriff Zaruba in his official capacity, alleging failure to train and
supervise subordinates. He has sued the County of DuPage as the indemnitor of the county
officials. 1
After filing the complaint, Jacoby petitioned in bankruptcy; thereafter, David P.
Leibowitz, the bankruptcy trustee, was substituted as plaintiff on behalf of the creditors of the
bankruptcy estate. All defendants have moved for summary judgment. For the reasons stated
below, the officer defendants’ motion is denied and the Sheriff’s motion for judgment on the

1

This court’s jurisdiction rests on 28 U.S.C. §§ 1331, 1343, and 1367. Venue is proper under 28
U.S.C. § 1391(b)(2), as the events giving rise to plaintiff’s claims occurred in this judicial district.

Monell claim is granted. Plaintiff has filed a cross-motion for summary judgment. This motion
is denied.
BACKGROUND 2
Mark Jacoby was arrested on the afternoon of June 20, 2011 by officers of the Glen Ellyn
Police Department and taken to the Glen Ellyn lockup where he remained for two to three hours.
He was charged with three misdemeanor offenses, two of domestic battery and one of criminal
trespass to vehicles. At the time of his arrest, Jacoby had been taking seven prescription
medications to treat, among other illnesses, bipolar disorder, schizoaffective disorder, high blood
pressure, and diabetes. At 5 feet 9 inches in height, he weighed 280 pounds. 3
Officers of the Glen Ellyn Police Department handcuffed Jacoby behind his back and
drove him to the DuPage County jail. Joseph Prosser, the watch commander, undertook intake
responsibility for Jacoby. Upon arrival, Jacoby was in an agitated state and at least somewhat
uncooperative 4 with Prosser. He refused to answer medical status questions and refused to stay

2

The facts in this section are taken from the parties’ Local Rule 56.1 statements and supporting
documents and are construed in the light most favorable to the non-moving party. The court will address
many but not all of the factual allegations in the parties’ submissions, as the court is “not bound to discuss
in detail every single factual allegation put forth at the summary judgment stage.” Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011). In accordance with its regular practice, the
court has considered the parties’ objections to the statements of fact and includes in this background only
those portions of the statements and responses that are appropriately supported and relevant to the
resolution of this motion. Any facts that are not controverted as required by Local Rule 56.1 are deemed
admitted.
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The parties dispute whether Jacoby was obese, morbidly obese, or “hefty.” According to a
National Institute of Health calculator of body mass index,
https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm, Jacoby had a BMI of 43.1. A
BMI of 30.0 and above is classified as obese. (The term “morbidly obese” is not used.)
4

Defendants state he was “generally uncooperative,” refusing to answer standard intake
questions, including his medical condition, and disobeying orders. Jacoby admits that he disobeyed an
order to face the wall but denies that he disobeyed any other order or that he engaged in any physical
resistance to the officers. Prosser’s testimony is substantially consistent with Jacoby’s statement. (See
dkt.140-5, Prosser dep. at 82–86). Jacoby concedes that the intake officer perceived the situation as an
emergency.

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situated facing the wall. Due to his agitated state and his refusal to answer questions and face the
wall, Prosser summoned Tom Repa and Philip Heck, who were members of the Corrections
Emergency Response Team, to handle Jacoby. (CERT team members receive extra training in
handling incidents including the use of force.) Prosser grabbed him on the right shoulder and,
along with Repa and Heck, escorted Jacoby to a receiving cell.
In the receiving cell, one of the defendant deputies pushed Jacoby from behind and on his
upper back, causing him to fall face down on his belly and right arm onto a mat on a bed or the
floor. 5 One of the deputies folded the mat over him and pressed downward on his back and arms
such that Jacoby felt suffocated. One or more deputies proceeded to remove the handcuffs by
applying upward force to his arms. By this time, approximately 13 people were in the room,
including a nurse, who performed a medical examination. The holding cell incident took 7 to 10
minutes.
Jacoby got up and changed into a jail uniform as directed. He noticed his right hand
swelling and his arm turning blue, red, and purple from fingers to shoulder. Two days later,
Jacoby was taken to a hospital for examination. The examining physician reported that he had
suffered a spiral fracture of the right humerus and, although the physician recommended surgery,
Jacoby declined. (Several years later, he had surgery at a Johns Hopkins University hospital.) He
was transported back to the jail where he remained until he was released on bail on July 1, 2011.
Under Sheriff’s Department policy, “use of force” may occur when a deputy’s hands are
placed upon an inmate and the deputy is directing the inmate’s movements. All of the individual
defendants admit they used force on Jacoby.

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Jacoby testified that he fell to the floor (dkt. 148, Jacoby dep. at 34–35), but he does not disputed that he
was pushed onto a cot or bed in the receiving room. (Dkt. 152 ¶¶ 15–17.) The difference is immaterial.

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A general order required deputy sheriffs to make observations of ease of movement in
newly admitted inmates. Prosser, however, had received no specific training in how to make
observations of ease of movement in newly admitted inmates and had no understanding of how
to make an observation of an inmate’s ease of movement while that inmate was wearing
handcuffs. 6
Other inmates had arrived at the jail who could not get their arms behind their back
because of obesity (or heftiness) and needed two sets of handcuffs (Whether Jacoby was wearing
two sets of handcuffs is not indicated in the statements of material fact), but the Sheriff had no
special or general procedure to be followed when a grossly overweight inmate is handcuffed with
his hands behind his back and placed face down on a bed.
Summary Judgment Standards
Summary judgment is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. A genuine issue
as to any material fact exists only when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505 (1986). “While the evidence is viewed in a light most favorable to the non-moving
party, the non-moving party musty come forward with specific facts showing that there is a
genuine issue for trial. …Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Armato v. Grounds, 766
F.3d 713 (7th Cir. 2014).

6

Defendants dispute this statement as not documented in the record. Prosser during his deposition
conceded it, however. (Dkt. 148, Prosser dep. at 50.)

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Excessive Force Claim
A claim of excessive force must be analyzed under the Fourth Amendment’s objective
reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865
(1989). “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the
question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.” Id. at
397. Defendants do not contend that they are entitled to summary judgment because no
reasonable jury could find the defendants’ actions objectively unreasonable. Rather, they argue
that Jacoby has failed to produce evidence that any of the individual defendants was personally
involved in the alleged excessive use of force. They point to Jacoby’s admission that he is unable
to identify which of the officers pushed him down and removed his handcuffs in a manner that
allegedly caused his arm to fracture. Nor could he describe the officers he met that day.
Defendants rely on the principle that, in order to succeed on an individual capacity claim
against a state actor under § 1983, a plaintiff must show that a defendant was personally involved
in the alleged constitutional deprivation. Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir.
2003); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). Likewise, supervisors may only
be held liable where they “kn[ew] about the unconstitutional conduct [of a subordinate] and
facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what they might
see.” T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (quoting Jones v. City of Chicago, 856
F.2d 985, 992 (7th Cir.1988)); see also Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982).
That Jacoby is unable to identify specifically which officer(s) pushed him and/or
fractured his arm, however, does not defeat Jacoby’s claim under these principles. As the
Seventh Circuit explained in Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000):

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[W]hile it is true that a plaintiff must establish a defendant’s personal
responsibility for any claimed deprivation of a constitutional right, a defendant’s
direct participation in the deprivation is not required. An official satisfies the
personal responsibility requirement of § 1983 if he acts or fails to act with a
deliberate or reckless disregard of the plaintiff’s constitutional rights. Under this
rule, police officers who have a realistic opportunity to step forward and prevent a
fellow officer from violating a plaintiff’s rights through the use of excessive force
but fail to do so have been held liable.
This is not a case in which nobody did it. The defense witnesses simply have failed or declined
to remember. Should the jury find excessive force, it is unlikely that it would find no individual
defendant responsible. 7
Monell Claim
Plaintiff argues three theories of municipal liability: (1) failure to train officers to
recognize the danger of placing a morbidly obese person face down on a mat while applying
upward force to his arms with his hands behind his back, (2) failure to train officers to
distinguish mental illness from lack of cooperation by a person in custody, and (3) failure to train
officers to avoid the method of restraint of placing a mat on top of a detainee and then pressing
down on it where the detainee is mentally ill and/or morbidly obese. The Sheriff contends that
Jacoby has failed to produce sufficient evidence to sustain a claim of municipal liability based on
the Sheriff’s failure to train or supervise deputy sheriffs.
Local governments may be held liable for constitutional violations arising from their
policies, customs, or practices. See Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S. Ct.
2018 (1978); see also Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009).
Under “limited circumstances, a local government’s decision not to train certain employees

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A jury instruction may be useful to avoid a situation where the jury would find excessive force
but be unable to find by a preponderance of the evidence which of the defendants, specifically, is
responsible. See Thomas v. Cook Cnty. Sheriff's Dept., 604 F.3d 293, 305 (7th Cir. 2010) (“[A]
municipality can be held liable under Monell even when its officers are not, unless such a finding would
create an inconsistent verdict.”).

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about their legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983.” Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct.
1350 (2011). Municipal culpability for a deprivation of rights, however, “is at its most tenuous
where a claim turns on a failure to train.” Id. As such, “[a] municipality will be held liable for the
violation of an individual’s constitutional rights for failure to train adequately its officers only
when the inadequacy in training amounts to deliberate indifference to the rights of the
individuals with whom the officers come into contact.” Jenkins v. Bartlett, 487 F.3d 482, 492
(7th Cir.2007) (emphasis added). This is a stringent standard, “requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61
(quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410, 117 S. Ct.
1382 (1997)).
Ordinarily, a plaintiff must show a pattern of similar constitutional violations by
untrained employees to demonstrate deliberate indifference for purposes of failure to train. See
id. at 62. Jacoby has not identified a single similar incident that resulted in a constitutional
violation. Thus, he must resort to a single-incident-liability theory to survive summary judgment
on his failure-to-train claim. That approach finds its origin in City of Canton, Ohio v. Harris, 489
U.S. 378, 109 S. Ct. 1197 (1989), where the Court left open the possibility that a pattern of
similar violations might not be necessary to show deliberate indifference.
As recounted by the Court in Connick, the Canton “Court posed the hypothetical example
of a city that arms its police force with firearms and deploys the armed officers into the public to
capture fleeing felons without training the officers in the constitutional limitation on the use of
deadly force.” Connick, 563 U.S. at 63 (citing Canton, 489 U.S. at 390 n.10). “Given the known
frequency with which police attempt to arrest fleeing felons and the predictability that an officer

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lacking specific tools to handle that situation will violate citizens’ rights,” the Court explained,
“a city’s decision not to train the officers about constitutional limits on the use of deadly force
could reflect the city’s deliberate indifference to the highly predictable consequence, namely,
violations of constitutional rights.” Id.at 64–65; see also Jenkins, 487 F.3d at 492 (recognizing
that a municipality may be deemed to have acted with deliberate indifference “when, in light of
the duties assigned to specific officers… the need for more or different training is so obvious that
the deficiency exhibits deliberate indifference on the part of municipal policymakers).”
Jacoby’s evidence, viewed in a light most favorable to him, does not permit an inference
that any of his Monell theories could succeed, primarily because he presents no evidence that it is
highly, or even somewhat, predictable that an officer who lacks specific tools to handle an
individual who presents in an agitated state and refuses to cooperate in a medical assessment is
likely to violate his constitutional rights such that failure to train amounts to deliberate
indifference. Although it may have been obvious to the officers that Jacoby was severely obese,
plaintiff has no evidence specific to obesity that would distinguish such a person from any other
detainee in the same situation. For example, he proffers no expert testimony about law
enforcement practices that suggest that acceptable practices in correctional or detention settings
should include particular protocols for obese or agitated detainees, nor does he identify a course
of training that might have made a difference here. In short, the issue in this case is
straightforward. It is whether the individual defendants used excessive force against Jacoby on
this single occasion in violation of the Fourth Amendment.
For these reasons, the Sheriff is entitled to summary judgment on the failure-to-train
claim.

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Plaintiff’s Cross-Motion
Plaintiff’s cross-motion for summary judgment, rather than seeking judgment as a matter
of law, asks the court to find certain facts established. Under Federal Rule of Civil Procedure
56(g), “if the court does not grant all the relief requested by the motion [for summary
judgment],” the court may make findings of material fact that appear to be undisputed. The rule
presupposes that the motion asks for judgment, which plaintiff does not, making his motion
appear to be more in the nature of requests to admit. Furthermore, the advisory notes explain
that “[e]ven if the court believes that a fact is not genuinely in dispute it may refrain from
ordering that the fact be treated as established. The court may conclude that it is better to leave
open for trial facts and issues that may be better illuminated by the trial of related facts that must
be tried in any event.” Fed. R. Civ. P. 56(g), advisory committee’s note. As this case is headed
for trial, the better course is to hear the witnesses through direct and cross examination.
Plaintiff’s motion is therefore denied.
CONCLUSION AND ORDER
Plaintiff’s motion for summary judgment (dkt. 146) is denied. All defendants’ motion for
summary judgment on the excessive force claim (dkt. 114) is denied. Sheriff Zaruba’s motion for
summary judgment on the Monell claim (dkt. 114) is granted. This case will be called for a status
hearing on April 17, 2018, at 11:00 a.m. to set a date for trial. In the meantime, the parties are
directed to participate in good faith discussions about whether the case can be settled and to
report on the status of those discussions at the status hearing.

Dated: March 7, 2018

_______________________________
U.S. District Judge Joan H. Lefkow
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