Gant v. Chicago et al

Filing 113

MEMORANDUM Opinion and Order: For the reasons stated in the attached memorandum opinion and order, defendants' motion for summary judgment 78 is granted. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 2/14/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT GANT,
PLAINTIFF,
v.
CITY OF CHICAGO, CARLOS C. CANNON
RONALD O. FORGUE, MAURICE A. RHONE
RASASHOD P. FENNER, JASON B. NICHOLS,
DEFENDANTS.

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No. 13 C 6231
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Pending before the court is Defendants’ joint motion for summary judgment.
This case was set for trial on March 14, 2016. At the pretrial conference held March
10, 2016, Plaintiff’s counsel made clear that after review of the medical testimony in
this matter, Plaintiff would be unable to prove what was previously a central tenet
of his case: that Defendants’ failure to provide him with eye drops while he was in
lockup caused his vision loss in his left eye. Counsel said instead that Plaintiff
would be seeking damages at trial related to the anxiety he suffered during the time
he was in custody arising from his mistaken belief that the failure to administer the
eye drops would cause him to lose his eyesight. Given the change in Plaintiff’s
theory, counsel for the defendants asked for the opportunity to move for summary
judgment, which the Court allowed, and the trial date was vacated. The motion for

summary judgment has been fully briefed. For the reasons set forth below, it is
granted.
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
The facts, taken in the light most favorable to the plaintiff, are as follows. On
June 20, 2012 Plaintiff was stabbed in his left eye and he suffered an extremely
serious eye injury. He had surgery the next day. Prior to the surgery, his vision was
limited to light perception. Following surgery, his prognosis for useful vision in his
left eye was poor. He was prescribed three medications to prevent infection and
reduce inflammation in the eye. None of the three medications was prescribed to

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restore Plaintiff’s vision. One of the prescriptions, an oral antibiotic, Plaintiff never
filled. The other two prescriptions were for eye drop medications—one, a topical
antibiotic to prevent infection, and the other, a steroid to reduce inflammation. Both
drops were to be administered four times a day.
At a follow up appointment a week after the surgery, Plaintiff was examined
and found still to have vision limited to light perception in his left eye, a poor
connection of the nervous tissue between the eye and the brain, as well as
significant bleeding within the globe. The prognosis for the eye remained poor, and
Plaintiff was told he would need a second surgery.
Four days after the follow up appointment, on June 30, 2012, Plaintiff was
arrested by the Chicago police sometime in the late morning or early afternoon. At
the time of the arrest, he was wearing a large eye patch over his left eye and had
some medical supplies on his person, including a bottle of eye drops. It is unclear
from the record whether these eye drops were the ones prescribed to Plaintiff after
his surgery. After his arrest, Plaintiff was taken to the Fifth District police station.
During his processing at the station, he made no request for any medication or
medical attention. At 2:00 p.m. there was a shift change, following which Plaintiff
told one of the lockup keepers that he needed to go to a doctor, although he did not
tell him why. In response, the lockup keeper told Plaintiff “this ain’t no hospital;
should have thought of that before you got here.”
Several hours later, around 10:30 p.m., a friend of Plaintiff’s came to the
police station with his medication and asked an officer to give it to Plaintiff. She

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told the officer that Plaintiff had recently undergone surgery and that without the
medication, he could lose his eyesight. The officer refused to take the medication on
the basis that he did not know what was in the bottle(s).
Plaintiff was released from custody on July 1, 2012, less than 24 hours after
his arrest. He missed, at most, four doses of the prescribed drops during that time.
On July 20, 2012, he underwent a second surgery on his left eye as planned.
Unfortunately, the surgery was unsuccessful; there were no improvements in
Plaintiff’s vision and his prognosis for useful vision in the left eye remained poor.
Significantly, there is no dispute that none of the medications prescribed following
the first surgery would have prevented or limited the scar tissue which formed in
Plaintiff's left eye, which is the reason the second surgery was unsuccessful.
Discussion
Plaintiff sued a number Chicago Police Department employees for failure to
provide medical attention under Section 1983 and the Fourteenth Amendment of
the United States Constitution. Because Plaintiff’s claims arose prior to any
preliminary hearing, his 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 [ ] 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

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pre-hearing detainee’s medical needs is “objectively unreasonable:” “(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. The plaintiff must also
establish that the defendants’ conduct caused the harm of which he complains. Id.
“[T]he severity of the medical condition under this standard need not, on its own,
rise to the level of objective seriousness required under the Eighth and Fourteenth
Amendments. Instead, the Fourth Amendment’s reasonableness analysis operates
on a sliding scale, balancing the seriousness of the medical need with the third
factor—the scope of the requested treatment.” Id. (quoting Williams v. Rodriguez,
509 F.3d 392, 403 (7th Cir. 2007)).
Taking the facts in the light most favorable to Plaintiff, a reasonable jury
could find that at least some of the defendant officers were on notice of Plaintiff’s
request for medical treatment. 1 Plaintiff had a very conspicuous patch over his left
eye and asked to see a doctor. A friend of his came to the lockup with medication
and explained to at least one officer that Plaintiff had recently undergone eye
surgery. Still, no action was taken to address Plaintiff’s request for treatment.
But the failure to act despite notice of a serious medical condition is not in
itself “objectively unreasonable.” See Williams, 509 F.3d at 401-02. Rather, for this

There are various factual disputes as to who was aware of Plaintiff’s request
for treatment and the record appears undisputed that at least several of the
defendants were unaware of the request. Because the Court decides this motion on
other grounds, it does not need to address which of the defendants knew what
exactly, and when.
1

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failure to violate Plaintiff’s civil rights, he must show that at the time he was
detained and interacting with the defendants, he actually had a serious medical
need for the requested treatment. See Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.
2010) (a serious medical need is “a condition that would result in further significant
injury or unnecessary and wanton infliction of pain if not treated”). Of course,
Plaintiff had a serious injury—the stab wound to his eye. That is not the issue. The
key question is whether he had a serious medical need for the eye drops such that
his failure to receive them caused him further significant injury. 2 No reasonable
jury could find that the defendants’ failure to respond to Plaintiff’s request for
treatment caused or exacerbated the damage to his eye; there is simply no evidence
that Plaintiff’s condition worsened after missing his eye drops while in police
custody. Plaintiff did not develop an infection during or after his time in custody nor
did he suffer inflammation not otherwise attributable to the stab wound or surgery.
Despite Plaintiff’s serious medical condition, he had no serious need for the

Plaintiff does not advance a claim for wanton infliction of pain. Taken in the
light most favorable to Plaintiff, the eye drops, if he had received them, may have
reduced itching or irritation in his left eye for the period he was in police custody.
Minor discomforts like itching and irritation do not, without more, rise to the level
of compensable pain under Section 1983. See, e.g., Cooper v. Casey, 97 F.3d 914, 916
(7th Cir. 1996) (holding that a prison employee’s “refus[al] to dispense bromides for
the sniffles or minor aches and pains or a tiny scratch or a mild headache or minor
fatigue—the sorts of ailments for which many people who are not in prison do not
seek medical attention—does not by its refusal violate the Constitution.”); see also
Perez v. Hardy, 2015 WL 5081355, at * 7 (N.D. Ill. Aug. 27, 2015) (collecting
authority for the proposition that chronic or even intense itching, without more, is
not a “serious medical need” for the purposes of a deliberate indifference inquiry).
2

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prescribed medication during the relatively limited period of time he was in lockup.
This is fatal to his claim.
In many ways, this is similar to the situation in Williams v. Rodriguez. The
plaintiff in that case had chronic asthma and repeatedly requested his inhaler and
emergency medical treatment following his arrest. 509 F.3d 392. His requests were
ignored. Id. The Seventh Circuit found that while the plaintiff’s asthma had at
times been serious and even life-threatening, the condition alone was an insufficient
basis for a deliberate indifference claim where the medical records showed that he
did not require treatment for asthma on the night of his arrest. Id. at 401-02.
Williams teaches that it is the need for treatment, and not just the condition itself
that must be objectively serious. Plaintiff’s medical records show, and Plaintiff
concedes, that he did not need the prescribed eye drops to prevent the further
deterioration of his medical condition. Indeed his medical condition, though
undoubtedly serious, did not deteriorate while he was in lockup (he only believed it
could). In evaluating the reasonableness of the officers’ conduct, the Court considers
the absence of a serious medical need dispositive of the claim.
To the extent Plaintiff claims he suffered anxiety because he thought he
needed the drops to prevent further vision loss, it is unclear whether anxiety
premised on a subjective belief, even if reasonably held, is a cognizable
constitutional injury. See, e.g., Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996)
(“However legitimate [the plaintiff’s] fears may have been, we nevertheless believe
that it is the reasonably preventable [injury] itself, rather than any fear of [injury],

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that gives rise to a compensable claim under the Eighth Amendment” for deliberate
indifference.); Cooper, 97 F.3d at 916 (“The Constitution is not a charter of
protection for hypochondriacs.”). What is clear, however, is that to prevail against
any of the defendants, Plaintiff must show that it was their conduct that caused
him harm. See Ortiz, 656 F.3d at 530. Plaintiff’s anxiety here was caused, at least in
part, by his own mistaken belief regarding the purpose of the eye drops. There is no
evidence that any doctor ever told Plaintiff that the eye drops would restore or
prevent further deterioration of his already severely compromised eyesight. To the
extent the defendants caused Plaintiff to suffer emotional damages, then, it was
only because Plaintiff ascribed false significance to their failure to provide him with
eye drops. There is no need for the Court to decide whether Plaintiff’s anxiety
constitutes a compensable injury, however, because it finds there was no serious
medical need for the eye drops in the first place.
Conclusion
The Court is troubled by the defendants’ apparent lack of concern for the
plaintiff’s readily-apparent serious medical condition. A detainee’s request for
medication after sustaining a stab wound to the eye and undergoing recent eye
surgery should have at the very least prompted the officers to make further inquiry
about the nature of the plaintiff’s need for the medication. Simply ignoring the
plaintiff was not right. The defendants are fortunate, however, as is the plaintiff,
that the failure to provide the plaintiff with the eye drops caused no further damage
to his eye. It is because the eye drops were not needed, and because the plaintiff

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was not harmed by the defendants’ inaction, that the motion for summary judgment
is granted.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge
Dated: February 13, 2017

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