Birdo v. Gomez et al
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 4/3/2017. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 13-cv-6864
DEPUTY DIRECTOR DAVE GOMEZ,
Judge John Robert Blakey
This Court began a jury trial in the subject case on January 23, 2017. At the
beginning of trial, five causes of action against eight individual Defendants
remained from Plaintiff’s First Amended Complaint : 1
Cause of Action
Intentional Infliction of
Retaliation Pursuant to
42 U.S.C. § 1983
Excessive Force Pursuant to
42 U.S.C. § 1983
Failure to Protect Pursuant
to 42 U.S.C. § 1983
1. John Combs
2. Anthony Egan
1. Catherine Larry
2. Susan Wilson
1. Kenneth Nushardt
1. David Gomez
2. Michael Lemke
Plaintiff’s First Amended Complaint  originally alleged nine causes of action against eleven
individual defendants. On July 27, 2016, the Court granted summary judgment as to certain counts
and certain Defendants. Mem. Opinion and Order . On October 17, 2016, the Court dismissed
additional counts and Defendants. Mem. Opinion and Order .
Intentional Infliction of
1. Jenny McGarvey
2. Catherine Larry
3. Susan Wilson
On January 25, 2017, at the conclusion of Plaintiff’s case-in-chief, all
Defendants moved for judgment as a matter of law pursuant Federal Rule of Civil
Procedure 50(a). After considering the parties’ written submissions ,  and
oral arguments, the Court orally granted in part and denied in part the Defendants’
Specifically, the Court granted Defendants’ motions as to Plaintiff’s
intentional infliction of emotional distress (“IEED”) claims (Counts I and VIII), but
denied Defendants’ motions as to Plaintiff’s retaliation, excessive force, and failure
to protect claims under 42 U.S.C. § 1983 (Counts IV, VI, and VII). At the conclusion
of trial, the jury rejected Plaintiff’s claims and returned a verdict in favor of all
remaining Defendants on each of Plaintiff’s three remaining causes of action.
This Memorandum Opinion supplements the Court’s oral ruling. The jury’s
verdict on Plaintiff’s retaliation, excessive force, and failure to protect claims
(Counts IV, VI, and VII) rendered the Court’s denial of Defendants’ motions as to
those claims moot.
Therefore, they will not be further discussed.
analysis explains the Court’s rationale for granting Defendants’ motions as to
Plaintiff’s IEED claims (Counts I and VIII).
A court should render judgment as a matter of law when “a party has been
fully heard on an issue” and there is no “legally sufficient evidentiary basis” for a
reasonable jury to find for that party on that issue. Fed. R. Civ. P. 50(a). The
standard for granting judgment as a matter of law “mirrors the standard for
granting summary judgment.” Pandya v. Edward Hosp., 1 F. App’x 543, 545 (7th
Cir. 2001) (internal quotations omitted). Thus, the Court examines the record in its
entirety and views the evidence in the light most favorable to the nonmoving party.
After doing so, the Court determines “whether the evidence presented,
combined with all reasonable inferences permissibly drawn therefrom, is sufficient
to support [a] verdict.” Mathur v. Bd. of Trustees of S. Illinois Univ., 207 F.3d 938,
941 (7th Cir. 2000) (quotations omitted). Judgment as a matter of law is proper “if
a reasonable person could not find that the evidence supports a decision for a party
on each essential element of the case.” Campbell v. Peters, 256 F.3d 695, 699 (7th
In making this determination, the Court “may not step in and substitute its
view of the contested evidence for the jury’s.” Emmel v. Coca-Cola Bottling Co. of
Chicago, 95 F.3d 627, 634 (7th Cir. 1996).
“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
Nevertheless, “there must be more than a mere scintilla of
evidence” in support of the nonmoving party’s case. Estate of Escobedo v. Martin,
702 F.3d 388, 403 (7th Cir. 2012). Thus, judgment should be entered where the
evidence “is so one-sided that one party must prevail as a matter of law.” Anderson,
477 U.S. at 251-52.
To establish an intentional infliction of emotional distress claim under
Illinois law, Plaintiff was required to introduce sufficient evidence that: (1) the
defendant’s conduct was extreme and outrageous; (2) the defendant intended to
inflict severe emotional distress or knew that there was at least a high probability
that his conduct would inflict severe emotional distress; and (3) the defendant’s
conduct did cause severe emotional distress. Naeem v. McKesson Drug Co., 444
F.3d 593, 605 (7th Cir. 2006).
Extreme and Outrageous Conduct
The standard for extreme and outrageous conduct is high. It is not enough
that the defendant act “with an intent which is tortious or even criminal, or that he
intend to inflict emotional distress, or even that his conduct be characterized by
‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort.” Cook v. Winfrey, 141 F.3d 322, 331 (7th Cir. 1998);
Restatement (Second) of Torts § 46 cmt. d (1965). Extreme and outrageous conduct
“does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Honaker v. Smith, 256 F.3d 477, 490 (7th Cir.
2001). Rather, extreme and outrageous conduct exists only where the conduct “has
been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Bergstrom v. McSweeney, 294 F. Supp. 2d 961, 969 (N.D.
Ill. 2003). Generally, the case is one in which “the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim: ‘Outrageous!’” Lewis v. Sch. Dist. #70, 523 F.3d 730, 747
(7th Cir. 2008) (ellipses omitted).
The Supreme Court of Illinois has promulgated a number of non-exclusive
factors that help inform this analysis. See McGrath v. Fahey, 533 N.E.2d 806, 809
(Ill. 1988). First, “the degree of power or authority which a defendant has over a
plaintiff” can impact whether that defendant’s conduct is outrageous. Honaker, 256
F.3d at 490 (quoting McGrath, 533 N.E.2d at 809). The “more control which a
defendant has over the plaintiff, the more likely that defendant’s conduct will be
deemed outrageous, particularly when the alleged conduct involves either a veiled
or explicit threat to exercise such authority or power to plaintiff’s detriment.” Id. at
Another factor is whether the defendant “reasonably believed that his
objective was legitimate.” Id. Greater latitude is given to a defendant “pursuing a
reasonable objective even if that pursuit results in some amount of distress for a
A final consideration is whether the plaintiff “is particularly
susceptible to emotional distress because of some physical or mental condition or
Behavior “that otherwise might be considered merely rude,
abrasive or inconsiderate may be deemed outrageous if the defendant knows that
the plaintiff is particularly susceptible to emotional turmoil.” Id.
In determining whether conduct is extreme and outrageous, courts use an
objective standard based upon all the facts and circumstances of a particular case.
Cobige v. City of Chicago, No. 06-cv-3807, 2009 WL 2413798, at *13 (N.D. Ill. Aug.
6, 2009). Conduct “does not exist in a vacuum and must be viewed in its pertinent
context.” Carr v. Vill. of Richmond, No. 96-cv-50203, 1996 WL 663921, at *8 (N.D.
Ill. Nov. 15, 1996).
Intent to Inflict Severe Emotional Distress
Prong two of an IEED claim “can be established with proof of either
intentional or reckless conduct.” Fielding v. Lavender, No. 02-cv-0991, 2003 WL
742190, at *4 (N.D. Ill. Mar. 3, 2003) (citing Vance v. Chandler, 597 N.E.2d 233, 237
(Ill. App. Ct. 1992)). In other words, the tort applies “where the actor desires to
inflict severe emotional distress,” where “he knows that such distress is certain, or
substantially certain, to result from his conduct,” or where he acts recklessly “in
deliberate disregard of a high degree of probability that the emotional distress will
follow.” Restatement (Second) of Torts § 46 cmt. i (1965) (emphasis added).
Severe Emotional Distress
In Illinois, “emotional distress alone is not sufficient to give rise to a cause of
action. The emotional distress must be severe.” Sornberger v. City of Knoxville, Ill.,
434 F.3d 1006, 1030 (7th Cir. 2006).
Emotional distress “passes under various
names, such as mental suffering, mental anguish, mental or nervous shock, or the
like.” Restatement (Second) of Torts § 46 cmt. j (1965). It includes “all highly
unpleasant mental reactions, such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry, and nausea.”
“only where it is extreme,” however, “that the liability arises.”
emotional tranquility is seldom attainable in this world, and some degree of
transient and trivial emotional distress is a part of the price of living among
people.” Id. The law intervenes “only where the distress inflicted is so severe that
no reasonable man could be expected to endure it.” Id.
Over time, Illinois courts “have delineated with some precision the type of
emotional distress that is sufficiently severe to meet the law’s requirements.”
Honaker v. Smith, 256 F.3d 477, 496 (7th Cir. 2001). Plaintiffs fail when they
complain that a defendant’s actions “caused them simply to become annoyed,
frustrated, stressful, distressed, embarrassed, humiliated or nervous.”
(collecting cases). 2
In contrast, Illinois courts “have been more inclined to
See, e.g., Karkomi v. American Airlines, Inc., 717 F. Supp. 1340, 1345 (N.D. Ill. 1989) (airline
passengers, whose tickets were confiscated by airline, sustained at worst brief “public humiliation
and embarrassment” and perhaps fleeting fear of being unable to return home); Johnson v. K Mart
Corp., 723 N.E.2d 1192, 1198 (Ill. App. Ct. 2000) (plaintiffs merely noted “feelings of stress or
distrust” when employer placed private detectives in workplace to uncover personal information);
Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1999) (employees of nuclear
power station who suffered “anxiety, humiliation and extreme and severe emotional distress” could
not demonstrate sufficient severity due to demotions that allegedly arose from their voicing of safety
concerns), appeal denied, 720 N.E.2d 1107 (Ill. 1999); Adams v. Sussman & Hertzberg, Ltd., 292
N.E.2d 935, 942 (Ill. App. Ct. 1997) (fear and embarrassment for reputation regarding arrest for
traffic violations, reducing plaintiff to tears, insufficient to show emotional distress); Knysak v.
Shelter Life Ins. Co., 652 N.E.2d 832 (Ill. App. Ct. 1995) (depression and distress suffered as a result
of insurer’s failure to pay insured spouse’s medical bills not sufficient); Khan v. American Airlines,
639 N.E.2d 210, 215 (Ill. App. Ct. 1994) (recurring nightmares, problems with sleeping and fear of
re-arrest were not severe distress for passenger wrongly charged with theft of ticket by airline);
Sutherland v. Illinois Bell, 627 N.E.2d 145, 154 (Ill. App. Ct. 1993) (insufficient distress shown
where customer was “frustrated, annoyed and disgusted” with her phone service and was pressured
by phone company to pay bills); Lundy v. Calumet City, 567 N.E.2d 1101, 1104 (Ill. App. Ct. 1991)
(embarrassment or distress suffered by plaintiff police officers when they were stripped of badges
and guns and relieved of duty until they could undergo a psychological reevaluation did not support
claim); Miller v. Equitable Life Assurance Soc’y, 537 N.E.2d 887, 889-90 (Ill. App. Ct. 1989) (plaintiffemployee’s “stress” was not severe enough to establish cause of action where she alleged that her
coworkers were inconsiderate, uncooperative, unprofessional and unfair).
characterize the emotional distress as severe” when the distress has manifested
itself “either through physical symptoms or has necessitated medical treatment.”
Id. (collecting cases). 3 Physical injury and medical treatment, of course, are not
indispensable, and Illinois courts have still found severe emotional distress “when
no physical manifestation of the emotional distress existed and where no medical
treatment was sought.” Id. Such cases, however, are extreme. See, e.g., Amato v.
Greenquist, 679 N.E.2d 446, 455 (Ill. App. Ct. 1997) (plaintiff satisfactorily alleged
that minister’s actions caused him severe distress when minister abused counseling
relationship with plaintiff's wife by engaging in affair with her, causing “depression,
despair, insomnia, anxiety, nervousness and emotional trauma” in plaintiff); Vance
v. Chandler, 597 N.E.2d 233, 237 (Ill. App. Ct. 1992) (plaintiff could survive motion
to dismiss when her estranged husband allegedly conspired to have her murdered,
which caused her to become “extremely fearful for her life, safety, health and
welfare” and to suffer “great emotional distress”).
As a final point, the individual elements of an IIED claim are, to a certain
degree, linked. That is, in many cases, “the extreme and outrageous character of
the defendant’s conduct is in itself important evidence that the distress has
existed.” Honaker, 256 F.3d at 496 (quoting Wall v. Pecaro, 561 N.E.2d 1084, 1088
See, e.g., Doe v. Calumet City, 641 N.E.2d 498, 508 (Ill. 1994) (severe distress established where
plaintiff required psychological care after the incident); McGrath v. Fahey, 533 N.E.2d 806, 808 (Ill.
1988) (severe distress shown where plaintiff alleged that defendant engaged in pattern of extortion
to defraud plaintiff out of millions of dollars, and where plaintiff experienced anxiety, became
physically ill when discussing the situation, and later suffered a heart attack); Pavilon v. Kaferly,
561 N.E.2d 1245, 1252 (Ill. App. Ct. 1990) (severe distress established where employer’s threatening
conduct forced employee to continue her psychotherapy treatment for long duration and where
therapist’s testimony described employee as being “scared, angry, and unable to cope with her child,
her work and her relationship with men generally”).
(Ill. App. Ct. 1990)). These cases acknowledge that, “even when significant evidence
[is] not presented as to the severity of distress, the very nature of the conduct
involved may be evidence of its impact on the victim.” Id. As a result, Illinois
courts have tended “to merge the issue of the outrageousness of the defendant’s
conduct with the issue of the severity of the plaintiff’s emotional distress, in effect
requiring more evidence of outrageousness the weaker the evidence of distress.” Id.
(quoting Bristow v. Drake St. Inc., 41 F.3d 345, 350 (7th Cir. 1994)).
Defendants John Combs and Anthony Egan (Count I)
At trial, Plaintiff testified that on February 4, 2013, the Stateville
Correctional Center tactical team “positioned [him] in a corner within [his] cell”
while Defendants Combs and Egan “began going through the property that
[Plaintiff] had in the cell.”
Tr.  51:19-21, 54:6-7.
possessed two bags of personal property that he kept under his bed. Id. at 52:2553:1, 53:22-23. One bag contained cosmetics such as a comb, soap, hair grease, and
Id. at 53:2-3.
The other bag contained Plaintiff’s personal writings,
screenplays he had written, obituaries, family pictures and letters, and legal mail.
Id. at 53:3-6. Defendants took Plaintiff’s property and informed him that his items
were going into the trash. Id. at 55:2-11, 56:5-13. In the end, Plaintiff was left with
“maybe a couple of bars of soap” and “a few pieces of legal mail.” Id. at 56:11-12.
Plaintiff never saw his personal property again. Id. at 56:12-13, 57:11-12.
Plaintiff further testified that
Defendants Combs and Egan made
disrespectful comments as they rummaged through his belongings. Id at 54:14.
They asked, for example, whether Plaintiff’s recently deceased cousin “was killed in
a drive-by,” and told Plaintiff that his deceased mother was ugly. Id. at 54:14-21,
55:12-14. Plaintiff characterized Defendants Combs and Egan as “taunting” him
and attempting to provoke him. Id. at 54:21-22.
On these facts, a reasonable fact finder could not, as a matter of law, deem
the conduct of Defendants Combs and Egan extreme and outrageous. Although
Defendants Combs and Egan purportedly directed contemptuous comments towards
Plaintiff, extreme and outrageous conduct does not extend to “mere insults” or
“indignities.” Cook v. Winfrey, 141 F.3d 322, 331 (7th Cir. 1998). Likewise, the
disposal of Plaintiff’s toiletries and cosmetics constitutes, at most, the very
“annoyances” or “petty oppression” that Illinois law has deemed not actionable. Id.
The seizure of Plaintiff’s personal writings, screenplays, obituaries, family
pictures and letters, and legal mail is closer to the mark, particularly given
Defendants’ total “power and authority” over Plaintiff in a prison setting.
McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). Nevertheless, without more (and
there is no more here), the Court cannot say that a reasonable jury could find such
misconduct to be “so outrageous in character” or “extreme in degree” as to “go
beyond all possible bounds of decency,” and be regarded as “atrocious” and “utterly
intolerable in a civilized community,” in light of the relevant case law. Bergstrom v.
McSweeney, 294 F. Supp. 2d 961, 969 (N.D. Ill. 2003).
Moreover, even assuming, arguendo, that the conduct of Defendants Combs
and Egan was extreme and outrageous, Plaintiff also failed to introduce evidence of
severe emotional distress. Plaintiff merely testified that the actions of Defendants
Combs and Egan “hurt” and put Plaintiff “in distress” because there “was nothing
[he] could do about it.” Tr.  55:16-20, 124:3. Ordinary annoyance, frustration,
stress, embarrassment, humiliation, and nervousness, however, are not enough.
Honaker v. Smith, 256 F.3d 477, 496 (7th Cir. 2001). Furthermore, while bodily
injury and medical treatment are not per se requirements, Plaintiff did not testify
regarding any physical manifestations of his distress, and acknowledged that he
never sought mental health treatment or intervention as a result of the incident.
See id.; Tr.  122:23-123:25.
To the contrary, Plaintiff continued to invite
additional interactions with the Stateville tactical team by refusing to be force fed
by Stateville medical staff. See e.g. id. at 127:2-12. In sum, given the dearth of
evidence on the subject, a reasonable fact finder could not find Plaintiff’s distress so
severe “that no reasonable man could be expected to endure it.”
(Second) of Torts § 46 cmt. j (1965).
Defendants Jenny McGarvey, Catherine Larry, and Susan
Wilson (Count VIII)
Plaintiff’s IEED claims against Defendants McGarvey, Larry, and Wilson in
suffer from similar deficiencies. First, evidence of Defendant McGarvey’s “conduct”
was practically nonexistent. Throughout his case-in-chief, Plaintiff only presented
evidence that, immediately prior to Plaintiff’s placement on suicide watch,
Defendant McGarvey told Defendant Wilson, “We’re tired of this shit. Aren’t you
tired of this shit?” or words to that effect. Tr.  at 85:22-86:3, 133:16-134:8.
Plaintiff, however, introduced no evidence establishing Defendant McGarvey’s
relationship with Defendant Wilson, the individual who ultimately instituted crisis
Rather, Plaintiff only testified that Defendant McGarvey “was in
charge of the tactical team”—of which Defendant Wilson was not a member. Id. at
Without more, therefore, Defendant McGarvey’s singular
statement does not establish that: (1) she desired to inflict severe emotional distress
on Plaintiff; (2) she knew that such distress was substantially certain to result; or
(3) she acted in deliberate disregard of a high degree of probability that emotional
distress would follow. See Restatement (Second) of Torts § 46 cmt. i (1965)
Plaintiff’s evidence regarding Defendants Larry and Wilson, of course, was
more direct. Plaintiff testified that just before Defendant Wilson formally placed
him on suicide watch, he overheard Defendant Larry state, “No. Put his ass on
suicide watch. That’s how you get him off this hunger strike.” Tr.  85:24-86:1,
157:15-17, 162:6-7. Plaintiff further testified that, as a result of the assignment, he
was ordered to remove all of his clothes and undergo a strip search. Id. at 88:5-6,
88:22-89:1. The search required Plaintiff, among other things, to lift his testicles
and penis and spread his buttocks. Id. at 89:24-90:6. Afterwards, Plaintiff was
placed in handcuffs and leg shackles and ordered to walk down the hall, still naked,
approximately twenty feet to his observation cell.
process was videotaped by a female prison guard.
Id. at 90:10-21.
Id. at 88:19-20, 89:15-17.
Plaintiff’s observation cell contained no amenities other than a toilet and steel cot,
and Plaintiff was provided only a “security blanket” for cover. Id. at 91:3-5, 8-14.
The cell was “cold” and “filthy” and contained food, feces, and urine stains. Id. at
95:17-21. Aside from a brief court visit on March 8, 2013, Plaintiff remained naked
in his observation cell until March 11, 2013, when he was transferred to Pontiac
Correctional Center. Id. at 100:21-23, 101:12-18, 102:12-20, 160:2-161:11.
Certainly, improperly placing a prisoner on suicide watch in retaliation for
the exercise of his First Amendment rights treads closer to extreme and outrageous.
In evaluating Defendants conduct, however, the Court must remain cognizant of
Plaintiff’s prisoner status. See Cobige v. City of Chicago, No. 06-cv-3807, 2009 WL
2413798, at *13 (N.D. Ill. Aug. 6, 2009) (“In determining whether conduct is
extreme and outrageous under the first IIED element, courts use an objective
standard based on all the facts and circumstances of a particular case.”); Carr v.
Vill. of Richmond, No. 96-cv-50203, 1996 WL 663921, at *8 (N.D. Ill. Nov. 15, 1996)
(“The tort of intentional infliction of emotional distress does not exist in a vacuum
and must be viewed in its pertinent context.”).
Conduct deemed extreme and
outrageous in one context is not necessarily extreme and outrageous in the next.
Here, the conditions described by Plaintiff—strip searches, physical restraints, and
videotaping of otherwise intimate moments—may be considered shocking when
viewed through the lens of general society, but are nonetheless common and
necessary in prison settings. At the same time, the Court recognizes that while
prisoners “do give up many rights of citizenship,” they do not surrender their
humanity “at the prison gate.” See Wilson v. Schomig, 863 F. Supp. 789, 793 (N.D.
Ill. 1994) (confirming rights of prisoners to equal protection).
Ultimately, due to the interplay between the first and third elements of
Plaintiff’s IEED claim, the Court need not delineate the precise placement of
Defendants’ conduct on the extreme and outrageous spectrum. As outlined above,
Illinois law demands “more evidence of outrageousness the weaker the evidence of
distress.” Honaker v. Smith, 256 F.3d 477, 496 (7th Cir. 2001). Here, Plaintiff
introduced no evidence of severe emotional distress. Plaintiff only testified that his
placement on suicide watch was “humiliating” and that he was “emotional,” “upset,”
“hurt,” “embarrassed,” and “confused” because he “had never been subjected to
anything like that before.”
Tr.  at 90:22-25, 93:2-3, 156:15-16. As discussed
above, this is insufficient.
Moreover, Plaintiff’s failure to establish severe distress via his testimony
remained consistent with the other evidence in the case, including the testimony of
Dr. John Garlick, the clinical psychologist who treated Plaintiff at Pontiac
Correctional Center. Tr.  7:19-21. Dr. Garlick testified that during his mental
health assessment of Plaintiff on March 11, 2013—the day he was removed from
suicide watch—Plaintiff told Dr. Garlick that “life [was] beautiful.” Id. at 7:22-8:2,
8:19-21. Dr. Garlick also testified that he did not observe “any immediate evidence”
of harm as a result of Plaintiff’s time at Stateville. Id. at 8:22-25. To the contrary,
during the assessment, Plaintiff was not “emotional” or “upset” about what
happened to him. Id. at 16:25-17:3. Plaintiff was not “anxious,” “afraid,” or “angry,”
and did not state that he was fearful of anyone. Id. at 6:24-7:5, 17:4-6. In fact, Dr.
Garlick testified that the two “had a pleasant conversation.” Id. at 6:20-23, 8:17-18.
As a matter of law, such evidence does not establish severe emotional distress for
the purposes of Plaintiff’s IEED claim.
In sum, the stark shortcomings in Plaintiff’s distress evidence required
sizable compensation by the nature of Defendants’ conduct. For the purposes of the
Court’s ruling, it is enough to say that the evidence introduced, even when viewed
in the light most favorable to Plaintiff, did not meet this high bar.
Defendants’ motions for judgment as a matter law on Plaintiff’s IEED claims
(Counts I and VIII) were properly granted for the reasons stated above.
Dated: April 3, 2017
John Robert Blakey
United States District Judge
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