Fontana v. Kane County Adult Justice Center

Filing 76

MOTION for summary judgment 59 is granted; Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 10/9/2015: Defendants' motion 59 for summary judgment is granted. Status hearing date of 10/14/2015 is stricken. Civil case terminated. Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICHOLAS FONTANA,
Plaintiff,
v.
DR. KUL SOOD and DR. RENATO
DE LOS SANTOS,
Defendants.

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No. 13 C 1888
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiff Nicholas Fontana filed an amended one-count complaint against defendants Dr.
Kul Sood and Dr. Renato De Los Santos, alleging that defendants were deliberately indifferent to
his serious medical need in violation of 42 U.S.C. § 1983. Defendants have filed the instant
motion for summary judgment pursuant to Fed. R. Civ. P. 56, contending that no genuine issue
of material fact exists and that they are entitled to a judgment as a matter of law. For the reasons
discussed below, defendants’ motion for summary judgment is granted.
BACKGROUND1
Plaintiff was arrested on December 1, 2012, by the Carpentersville Police Department in
connection with a bipolar episode. Plaintiff’s then-girlfriend gave paramedics on the scene of

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The following facts are, unless otherwise specified, undisputed and come from the
parties’ Local Rule 56.1 statements and responses. However, plaintiff’s responses to defendants’
L.R. 56.1 statements contain improper answers. L.R. 56.1(b)(3) requires “a concise response to
the movant’s statement.” Many of plaintiff’s “concise” responses overflow with argument and
factual assertions wholly unrelated to defendants’ statements. This additional information will
not be considered by the court. See, e.g., Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011).
The court reminds counsel that the purpose of L.R. 56.1 statements is to “identify the relevant
admissible evidence supporting the material facts, not to make factual or legal arguments.”
Warner Bros. Entm’t, Inc. v. Synergex Corp., No. 12-C-8483, 2014 WL 518085, at *1 (N.D. Ill.
February 10, 2012).

the arrest a pill bottle with a prescription date from 2008, that was half-full with Zyprexa
medication. Following his arrest, plaintiff was taken to Sherman Hospital where his medical
records indicate that he tested positive for THC, was mildly intoxicated, and had previously been
diagnosed with bipolar disorder. From the hospital, on December 2, 2012, plaintiff was taken to
the Carpentersville Police Department. The police department property inventory form notes
that plaintiff entered with a bottle of Zyprexa pills and hospital papers. An intake form indicates
that plaintiff’s medication was 15 milligram pills of Zyprexa and that plaintiff was currently
being treated by a doctor in Elgin, Illinois.
Later that same day, plaintiff was transferred to the custody of the Kane County Adult
Justice Center (the “jail”). Jail intake forms do not indicate that plaintiff had the pill bottle or
hospital papers upon arrival. During initial booking at the jail, plaintiff tried to escape, after
which he was placed in a restraint chair. Intake records note that plaintiff was very disoriented
and classified him as an “Urgent/Emergent Mental Health Referral.” Plaintiff was placed on
“psych deadlock” until he could be evaluated by the jail’s mental health personnel. Records also
note that plaintiff had been diagnosed as bipolar, was “sweating and shaking,” and very anxious.
On December 3, 2012, a mental health clinician employed by the jail conducted a mental
health evaluation of plaintiff. The evaluation form indicates that plaintiff’s primary care
physician was in Elgin, Illinois, that his current medication was Zyprexa, which he had last taken
two days prior, and that he used a Walgreens pharmacy in Carpentersville to fill his
prescriptions. The form also indicates that plaintiff had previously used the medications
Risperdal and Depakote to treat his bipolar disorder. The evaluation form notes that plaintiff
was agitated and upset about the current circumstances and made threats to break objects and act

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out. The clinician explained the availability of mental health services at the jail to plaintiff, but
did not refer plaintiff for psychiatry, and recommended that he be placed in general population
housing. Plaintiff told the mental health clinician that he had recently used alcohol and
marijuana. Later that day, a clinical intern at the jail attempted to verify plaintiff’s Zyprexa
prescription with the Walgreens pharmacy plaintiff had identified, but was unable to do so.
Plaintiff submitted written requests to jail administrators on December 10 and
December 12, 2012, concerning a cut on his right foot. Plaintiff also submitted a request on
December 12, 2012, for a public defender. On December 19, 2012, a mental health clinician met
with plaintiff following a request from a jail classification sergeant. According to notes from the
meeting, plaintiff “reported feeling ‘better’ and presented [with] even affect.” According to the
notes, plaintiff “was calm/cooperative throughout conversation and actively participated.” He
was also alert, oriented, and agreeable to contacting mental health staff as needed. Plaintiff
reported “utilizing positive coping skills such as drawing to help cope [with] incarceration.”
On December 23, 2012, Dr. Sood, the jail’s Medical Director, saw plaintiff for a small
cut on his right foot. Plaintiff did not request any psychiatric medication from Dr. Sood, nor did
plaintiff make any mental health complaints to Dr. Sood during the appointment.2 On

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Defendants’ L.R. 56.1 statement number 37 asserts that plaintiff “made no mental
health complaints to Dr. Sood and did not make a request for psychiatric medication,” during his
December 23, 2012, appointment. Plaintiff’s response admits that he did not request any
medication, but “objects to ‘made no mental health complaints’ as vague and ambiguous.”
Because there is nothing “vague or ambiguous” about defendant’s statement and plaintiff did not
deny the statement, it is undisputed that plaintiff did not make mental health complaints to Dr.
Sood during his December 23, 2012, appointment. See, e.g., McGuire v. United Parcel Serv.,
152 F.3d 673, 675 (7th Cir. 1998) (“An answer that does not deny the allegations in the
numbered paragraph with citations to supporting evidence in the record constitutes an
admission.”).
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December 31, 2012, plaintiff made a written request for “a prescription for Zyprexa or
something equivalent for bipolar disorder.” That same day, plaintiff was seen by a jail mental
health clinician. The medical progress notes from the appointment state that plaintiff “reported
need to be back on meds.” The notes also indicate that plaintiff was irritable, guarded, and
paranoid, as well as spontaneously crying during the meeting. Plaintiff “appeared distraught
over level of functioning in the community; i.e. problems [with] employment, relationship
problems.” The clinician’s notes report that plaintiff “verbalized [a] positive response to
Zyprexa in the community.”
Following the evaluation, the clinician notified Dr. De Los Santos, the jail’s psychiatrist,
by phone of his meeting with plaintiff. Based on the clinician’s observations, Dr. De Los Santos
prescribed plaintiff Risperdal, a bipolar medication that is equivalent to Zyprexa, which was later
administered to plaintiff. On January 2, 2013, a mental health clinician met with plaintiff per the
request of a classification sergeant who reported that plaintiff was “acting strange and getting
very close to other detainees.” Medical progress notes from the meeting state that plaintiff
“denied current [mental health] issues and reported [that] his med[ication] has been helpful.”
The mental health clinician reported plaintiff’s status to Dr. De Los Santos via telephone, who
discontinued plaintiff’s Risperdal prescription and replaced it with an injectable form of Haldol,
a long-acting antipsychotic medication. The parties dispute whether the Haldol medication was
administered to plaintiff on January 2, 2013.
On January 3, 2013, plaintiff was found in his cell standing on a table with a wet t-shirt
covering his head and face. A mental health clinician met with plaintiff that day to check his
mental health status. During the meeting, plaintiff appeared paranoid and had to be “redirected

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back to conversation.” Plaintiff informed the clinician that he did not want to take the injectable
form of Haldol, but was agreeable to take the medicine orally. After talking with plaintiff, the
clinician “observed [him] sitting calmly on his bunk.” The clinician notified Dr. De Los Santos
of the plaintiff’s status over the phone. Dr. De Los Santos discontinued the injectable
prescription and prescribed an oral form of Haldol, which plaintiff took on January 3. Dr. De
Los Santos also prescribed plaintiff Cogentin medication to help prevent side effects associated
with Haldol.
A mental health clinician met with plaintiff again on January 4, 2013, for a mental health
check. An officer reported to the clinician that plaintiff had torn his shirt and shoes up. When
asked about this, plaintiff informed the clinician that he “was hungry and bored.” Although
plaintiff reported that he was not eating, the officer stated that plaintiff had eaten breakfast.
Plaintiff also told the clinician that he was keeping the bread on his bunk for his chili later. The
clinician reported that plaintiff was disheveled and stated that he would “shower if they let [him]
out of this place.” Plaintiff reported that his medicine and mood was “good.”
Thereafter, mental health clinicians met with plaintiff on January 6, 7, and 9, 2013.
Medical progress notes from these dates indicate that plaintiff was alert, oriented, calm, and
cooperative. Plaintiff reported doing well on his current medication. The clinician educated
plaintiff on the medicines he was taking. On January 9, the medical progress notes report that
plaintiff “appeared stable at this time” and that psychiatric observations be discontinued.
Plaintiff was first seen by Dr. De Los Santos on January 11, 2013. Dr. De Los Santos’
notes report that plaintiff had a history of psychiatric hospitalization and a bipolar diagnosis.

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The notes indicate that plaintiff had a negative reaction to Risperdal, but a positive response to
Haldol and Cogentin. Plaintiff was alert and oriented during the meeting.
Medical progress notes from the jail show that plaintiff met with a mental health clinician
on January 12, 2013, and February 7, 2013, after requesting to be seen. On January 12, plaintiff
reported that his mood was “good,” and inquired about his jail classification. Plaintiff refused to
take his medications on February 6, 2013, and on February 7 reported getting limited sleep,
anxiety, and feeling as if his “body is tired but mind is racing.” Plaintiff stated that he was
otherwise “doing ‘fine,’” and that he was “exercising and socializing to stay busy.” Plaintiff also
told the clinician that he had previously taken Zyprexa medication and had liked it. That same
day, by telephone, Dr. De Los Santos discontinued plaintiff’s oral prescription for Haldol and represcribed the injectable form of Haldol.
Mental health staff met with plaintiff on February 8, 2013, following an officer’s report
that plaintiff was hitting his head. The staff member’s notes report that plaintiff stated he was
“feeling very anxious,” could not sit still, and that his “body [felt] tired, but [he] can’t shut [his]
mind off.” Plaintiff reported that he had only slept approximately one hour each night for the
last four days. In regard to hitting his head, plaintiff stated that he “was sitting in the chair and it
slipped and [he] hit his head on the lock of the door.” According to the mental health notes,
plaintiff “did not display evidence of psychosis or paranoia,” but had excessive energy. The
notes reflect that the staff member discussed with plaintiff that Dr. De Los Santos had adjusted
his oral Haldol prescription to an injectable Haldol prescription, taken every three weeks.
Thereafter, plaintiff was given an injection of Haldol, “without incident.”

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Mental health staff met with plaintiff on February 9, 2013, for a mental health check.
Notes from the meeting indicate that plaintiff reported “feeling ‘a little’ better since receiving
shot,” but was still anxious. He also reported that he had slept three-to-four hours the night
before and felt more rested. On February 10, 2013, plaintiff refused to take his Cogentin
medication. Plaintiff met with medical staff again on February 11, 2013, at which time he
reported feeling less anxious and sleeping better. Plaintiff reported that he had stopped taking
his Cogentin medication the day before, and that he started feeling better thereafter. The medical
progress notes from the meeting indicate that plaintiff was educated on the purpose of taking the
Cogentin and of his right to refuse to take any medication. Plaintiff agreed to take his Cogentin
to prevent side effects from the Haldol medication.
Plaintiff was seen by a mental health clinician for a mental health check on
February 12, 2013. According to the clinician’s notes, plaintiff reported feeling better, less
anxious since the injection, and denied having any thought processing impairments. The
clinician noted that plaintiff’s thoughts appeared “clear and concise” and that he “actively
participated in the conversation.” Plaintiff denied any sleep or appetite problems, neck or
extremity stiffness, and any other side effects with his current medicines. Plaintiff was alert and
oriented.
On February 14, 2013, plaintiff was examined by Dr. De Los Santos, who changed his
bipolar medication from Haldol to Depakote. Dr. De Los Santos testified that he changed
plaintiff’s medication because during his February 14 meeting with plaintiff, plaintiff informed
him that he had previously been prescribed Depakote and had a positive response to the
medication. Plaintiff testified that his medication was switched because the Haldol medication

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was causing negative side effects. Plaintiff was administered a dose of Depakote on
February 15, 2013. Plaintiff remained on Depakote during the remainder of his time in the jail
and was still taking the medication at the time defendants filed the instant motion.
A mental health clinician met with plaintiff on February 17, 2013, after officers at the jail
reported that he was “acting strange” and was requesting to speak with mental health staff. One
officer reported that plaintiff had been “slurring his words,” and plaintiff complained of
drooling, mostly when sleeping and sometimes while awake. The clinician’s notes indicate that
plaintiff did not appear to have difficulty talking and had a “clean speech pattern” during the
meeting. Plaintiff reported some neck stiffness, but stated that he felt better since getting some
sleep after a nurse and medical technician checked on him the night before. Following the
clinician’s meeting with plaintiff, Dr. Sood ordered that plaintiff be given two milligrams of
Cogentin right away. Medical staff met with plaintiff again later that day, at which time he said
he felt better, “but reported still experiencing dystonia (lock jaw) and drooling.”
That same day plaintiff had a fellow prisoner type a grievance complaining about his
medication and its negative side effects. Plaintiff testified that he was incapable of typing, could
not concentrate, spell or sit, at the time the grievance was prepared. In the grievance, plaintiff
complained that the mental health staff had “changed [his] medicine several times now as if [he]
were a guinea pig to experiment on.” He further stated that he had informed the mental health
staff about the medicine he was taking prior to his arrest and that he had been functioning “quite
well” when he was given the “proper medicine.” Plaintiff noted that “the current level of
treatment [he] is receiving is leaving [him] out of sync and uncomfortable.” He stated that “the
mental health staff must seek out the medicine [he] was taking before [he] came to this jail.”

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Records indicate that plaintiff met with mental health staff on February 20, 2013, at
which time he reported “improvement in mood since changing medications” and that the side
effects from his previous medication had been lessening each day. Plaintiff was alert and
oriented during the meeting. Mental health staff met with plaintiff again on February 23, 2013,
following his request to speak with them about a psychiatric evaluation for court. During the
meeting, plaintiff described his mood as “good,” and stated that his medications were also good
as prescribed. Medical records from the jail also indicate that plaintiff was seen by medical staff
on March 8, 2013, after plaintiff made a written request to be seen concerning his Cogentin
prescription. Plaintiff inquired as to why he had not received his Cogentin medication the night
before, and was told by the medical staff that his previous prescription was for a limited time
period to address the side effects he reported having at the time. Plaintiff reported that he
initially had side effects such as jaw tightness, but that he currently was not experiencing any
side effects from his medications. Plaintiff was told to contact mental health staff if his side
effects reappeared.
On March 16, 2013, plaintiff refused to take his Depakote because it made his “hands
feel funny.” Mental health staff met with plaintiff that same day following his verbal request to
be seen. Plaintiff reported feeling shaky, and that he believed his Depakote prescription was too
high. The medical notes indicate that plaintiff’s most recent blood work was reviewed, showing
a high level of Depakote. Plaintiff’s dose of Depakote was ordered to be held pending a
recommendation from the psychiatrist. Plaintiff was seen again by mental health staff on
March 20, 2013, at which time he reported that the decreased dose of Depakote had “eliminated
his shakiness.” Plaintiff reported feeling “mentally stable” and happy with his current

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medication regime. He denied any current mental health issues and denied the need to be seen
by the jail psychiatrist. Plaintiff was released from jail in May 2013.
DISCUSSION
A.

Legal Standard
A movant is entitled to summary judgment pursuant to Fed. R. Civ. P. 56 when the

moving papers and affidavits show that there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Once a moving party has met its burden, the nonmoving party must go
beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See
Fed. R. Civ. P. 56(c); Becker v. Tenenbaum–Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990).
The court considers the record as a whole and draws all reasonable inferences in the light most
favorable to the party opposing the motion. See Green v. Carlson, 826 F.2d 647, 651 (7th Cir.
1987).
A genuine issue of material fact exists 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 (1986). The nonmoving party must, however, “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of the
[nonmoving party's] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252.

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B.

Analysis
Although not entirely clear from the complaint, plaintiff’s response to the present motion

seems to articulate three ways in which defendants were allegedly deliberately indifferent to his
medical needs in violation of his constitutional rights. First, plaintiff alleges that defendants
failed “to provide [him] any medical treatment for his bipolar disorder for the first month in
which he was incarcerated.” (Emphasis included.) Second, plaintiff alleges that when
defendants began treating his bipolar disorder they prescribed medications that caused adverse
side effects. Third, plaintiff alleges that despite defendants knowing he had been prescribed
Zyprexa medication prior to his incarceration and despite his request for the medication, “at no
time during his detention at [the jail] was he ever prescribed or given Zyprexa to treat his bipolar
disorder.”
Defendants first argue that they are entitled to summary judgment because the evidence
establishes that plaintiff failed to exhaust his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”). Plaintiff does not dispute that he did not exhaust his
administrative remedies with respect to the claims in his complaint, but argues that this failure
should be excused because his “medical condition and lack of medical care rendered him
incapable of exhausting his administrative remedies in jail.” The court disagrees.
The Prison Litigation Reform Act of 1996 requires comprehensive administrative
exhaustion. Under that statute, “No action shall be brought with respect to prison conditions
under section 1983 . . . by a prisoner confined in any jail . . . until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Massey v. Wheeler, 221 F.3d
1030, 1033-34 (7th Cir. 2000). “[I]f a prison has an internal administrative grievance system

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through which a prisoner can seek to correct a problem, then the prisoner must utilize that
administrative system before filing a claim” under section 1983. Massey v. Helman, 196 F.3d
727, 733 (7th Cir. 1999).
Administrative remedies, however, cannot be exhausted where they are not available to
the prisoner. See, e.g., Kincaid v. Sangamon, 435 Fed. Appx. 533, 536-37 (7th Cir. 2011)
(unpublished). The Seventh Circuit has held that if circumstances could not possibly allow the
prisoner to exhaust the institution’s administrative remedies, then the remedies are not
“available” within the meaning of the PLRA. See Hurst v. Hantke, 634 F.3d 409, 411-12 (7th
Cir. 2011). As plaintiff points out, “physical incapacity to pursue the institution’s administrative
remedies renders those remedies unavailable for purposes of the PLRA.” Richmond v. Dart,
No. 11-C-65, 2012 WL 6138751, at *4 (N.D. Ill. Dec. 11, 2012).
Plaintiff argues that because he was “entirely untreated from December 2, 2012 to
December 31, 2012,” he was unable to exhaust the jail’s administrative remedies to grieve his
alleged lack of treatment during that time. According to plaintiff, the fact that “two different
sergeants issued reports urging the mental health department” to see him and that a progress
report from December 2012 indicated that he made paranoid and delusional statements during
the meeting, establishes that he was unable to exhaust the jail’s administrative remedies to
during the first month of his incarceration.
The record, however, establishes that there is no material fact at issue regarding
plaintiff’s ability to grieve his complaints through the jail’s administrative remedies in December
2012. In fact, plaintiff filed four written requests with jail administrators in December 2012. He
grieved about the temperature of his cell on December 16 and made written requests about a cut

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on his foot on December 10 and for a public defender on December 12, 2012. Further, on
December 31, 2012, plaintiff made a written request for “Zyprexa or something equivalent for
bipolar disorder.” On that same day, plaintiff was seen by the jail’s mental health staff and
prescribed a bipolar medication equivalent to Zyprexa. Plaintiff took no further action
concerning his request.
With respect to his failure to exhaust the jail’s administrative remedies after
December 2012, plaintiff argues that the side effects from his prescribed medications were so
severe that he was left physically and mentally incapable of filing a grievance. Plaintiff argues
that his continued delusions, as well as his reliance on another inmate to write both his
February 17, 2013, grievance and March 5, 2013, complaint, support his claim of incapacitation.
However, the record again is replete with examples of plaintiff utilizing the jail’s administrative
system and advocating on his own behalf during the remainder of his time in the jail. As
defendants point out, plaintiff made numerous requests to jail administrators from January to
March 2013. Plaintiff made written requests for issues unrelated to his mental health on January
1 and 20, February 23, March 7 and March 18, 2013. Plaintiff made a request through a jail
computer kiosk on January 31, 2013, in regard to his left eye being irritated. Further, on March
7, 2013, plaintiff made a separate written request to the jail’s mental health staff to speak to
someone about his Cogentin prescription.
Even plaintiff’s use of another detainee to help him file a grievance on February 17,
2013, evidences the availability of the jail’s administrative process. Although plaintiff may not
have been able to type the grievance himself, he was capable of requesting help from a fellow
detainee and adequately articulating his complaints. Moreover, whatever ailments that may have

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prevented plaintiff from typing his own grievance on February 17 dissipated by February 22,
2013, when he typed his own request to have a hard copy of his February 17 grievance. Plaintiff,
however, failed to appeal this grievance through the jail’s administrative process.
Given plaintiff’s repeated use of the jail’s administrative remedy system, his claim of
physical incapacitation, which left him “unable to file grievances on his own behalf and exhaust
his administrative remedies,” is without merit.3 There is no genuine issue of material fact with
respect to whether the jail’s administrative remedies were available to plaintiff between
December 2012 and March 2013. Consequently, plaintiff’s failure to exhaust the jail’s
administrative remedies bars his action from moving forward.4
CONCLUSION
For the reasons stated above, the court grants defendants’ motions for summary judgment
and enters judgment in favor of defendants Dr. Kul Sood and Dr. Renato De Los Santos, and
against plaintiff Nicholas Fontana.5
ENTER:

October 9, 2015
__________________________________________
Robert W. Gettleman
United States District Judge

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Johnson-Ester v. Elyea, No. 07-CV-4190, 2009 WL 632250 (N.D. Ill. March 9, 2009),
does not persuade the court otherwise. In Johnson-Ester, the court held that the plaintiff, who
suffered from severe multiple sclerosis, was physically and mentally unable to exhaust any
administrative procedures. Id. at *9. Although the plaintiff had previously filed grievances, his
condition had significantly worsened by the time at issue in the case. Id. at *1.
4

“[E]xhaustion is a threshold issue that must be resolved by the district court judge prior
to addressing the merits of the case.” Johnson-Ester, 2009 WL 632250 at *1.
5

The court expresses its appreciation to attorneys Michael Barry and Elizabeth Lopez,
who represented plaintiff pursuant to their obligations as members of this district’s trial bar.
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