Johnson v. United States

Filing 195

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 10/24/2018: For the foregoing reasons, the Court grants the defendants' motion for summary judgment [dkt. no. 189]. The trial date of January 14, 2019 and the final pretrial conference date of January 10, 2019 are vacated. The Clerk is directed to enter judgment in favor of defendants and against plaintiff. Mailed notice.(pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAVON E. JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
WARDEN S.M. KUTA, LT. CARL WILLIAMS, )
LT. GARY CROWE, OFFICER AHMAD
)
HENDERSON, OFFICER ERROL
)
MATTHEWS, OFFICER ANTHONY
)
DEPAOLA, and DR. BRIJ MOHAN,
)
)
Defendants.
)

Case No. 14 C 10461

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiff Javon E. Johnson has sued the United States of America and several
government employees under the Federal Tort Claims Act and Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He alleges that
while he was incarcerated at the Chicago Metropolitan Correctional Center (MCC), he
was badly injured during an attack that correctional officers should have anticipated and
failed to prevent. He also alleges that correctional officers and medical staff were
deliberately indifferent to his medical needs arising from the injuries he suffered in the
attack and that four correctional officers retaliated against him for attempting to seek
administrative redress. 1

1

The Court thanks recruited counsel Thomas P. McGarry, Michael G. Ruff, Jessica L.
Watkins, and Lauren N. Kus for their diligent service on Johnson's behalf.

The defendants have moved for summary judgment. For the reasons stated
below, the Court grants the motion.
Background
The following facts are undisputed except where otherwise noted. 2 In April 2014,
while Johnson was an inmate at the MCC, he and another inmate named Juan Frias
were involved in a verbal altercation as they were returning from the MCC's visitation
room. According to Johnson, the altercation escalated into a "tussling match" that
included other inmates and drew the attention of correctional officer Anthony DePaola,
although DePaola denies seeing any physical contact between Johnson and Frias.
After the altercation, DePaola ordered the other inmates to lock down and sent
Johnson and Frias to see Lieutenant Carl Williams. Johnson and Frias told Williams
that they had been arguing, not fighting. When asked if they would continue to have
problems, Johnson and Frias responded that they were "cool." Williams told Johnson
and Frias that if problems arose, he would put them both in the Special Housing Unit
(SHU). At that time, MCC officials did not relocate Johnson or take any other special
protective measures to ensure his safety.
About ten days later, while Johnson was sitting in the kitchen, Frias approached
him from behind and hit him in the face with part of a wooden push broom. Correctional
officers stopped the fight and sent Johnson to meet with the lieutenant on duty.

2

Johnson did not file a response to the defendants’ statement of undisputed material
facts as required by Local Rule 56.1(b)(3). The Court deems the facts included in the
defendants’ Rule 56.1 submission admitted except to the extent that Johnson has
disputed them in his response brief. See Friend v. Valley View Cmty. Unit Sch. Dist.
365U, 789 F.3d 707, 710-11 (7th Cir. 2015) (upholding the district court's decision to
deem certain facts admitted because the non-moving party did not comply with Rule
56.1).
2

Johnson informed the lieutenant that he thought his jaw was broken and requested
medical attention, and the lieutenant sent him to be evaluated by nurse Alex Folami.
Folami prescribed Johnson an antibiotic ointment and ibuprofen to treat his pain.
After Frias's attack, prison officials moved Johnson to the SHU. Johnson testified
during his deposition that while in the SHU he submitted numerous sick call requests.
He also testified that he complained to Lieutenant Gary Crowe and correctional officers
Errol Matthews and Ahmad Henderson about his ongoing pain. And on May 8, he
informed Dr. Brij Mohan, who was performing rounds in the SHU, that his requests for
medical attention were being ignored.
Johnson was not evaluated for any of his complaints related to Frias's attack until
May 15, about twelve days after he was placed in the SHU. The nurse who evaluated
him noted his unexpectedly slow recovery, reports of severe pain, loose teeth, and
sensitivity to palpation, and she ordered an x-ray. The x-ray was performed four days
later on May 19, at which time Dr. Mohan examined Johnson and sent him to Thorek
Hospital for additional evaluation and treatment.
At Thorek Hospital, Johnson underwent CT scans of his head and facial bones,
which revealed one minimally displaced fracture and two nondisplaced factures in his
face. Johnson testified that his treating physician at Thorek Hospital, Dr. Ahmed
Raziuddin, told him that it was too late to do anything about the fractures because he
had sustained the injuries two weeks earlier. Johnson contends that he continues to
suffer headaches, vision problems, and other lasting injuries as a result of the attack
and the delay in treatment.
Johnson brought this suit against Dr. Mohan, Williams, DePaola, Matthews,

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Henderson, and Crowe, alleging that they violated the Eighth Amendment by failing to
protect him from Frias's attack and deliberately ignoring his serious medical needs.
Johnson also alleges that prison officials unconstitutionally retaliated against him for
seeking administrative redress, naming Henderson and Crowe, as well as two additional
employees—warden S.M. Kuta and Lieutenant Burning—as defendants. Finally,
Johnson named the United States as a defendant on two claims under the Federal Tort
Claims Act. The defendants have moved for summary judgment on all claims.
Discussion
Summary judgment is appropriate only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed R.
Civ. P. 56(a); Simpkins v. DuPage Hous. Auth., 893 F.3d 962, 964 (7th Cir. 2018). A
genuine dispute of material fact exists if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Dunn v. Menard, Inc., 880 F.3d 899,
905 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The Court must consider the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor. Id.
A.

Bivens claim for failure to protect
Johnson alleges in count 1 of the third amended complaint that Williams and

DePaola violated his Eighth Amendment rights by failing to take remedial steps to
prevent Frias's attack. The defendants argue that this claim presents a new context for
Bivens actions and that the Supreme Court's decision in Ziglar v. Abbasi, 137 S. Ct.
1843 (2017), precludes extending the constitutional remedy in this case. The Court
need not decide this question, however, because even if Johnson's claim does not

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constitute a new Bivens context, he has not pointed to evidence from which a
reasonable jury could conclude that Williams and DePaola acted with a sufficiently
culpable mental state.
An official may be liable for failing to protect an inmate in violation of the Eighth
Amendment "only if the official 'knows of and disregards an excessive risk to inmate
health or safety[.]'" Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (alteration
in original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Liability for failure to
protect an inmate has both an objective and a subjective element: the threatened harm
must be objectively serious, and the official must have actual, rather than merely
constructive, knowledge of the risk. Id. A prisoner typically establishes the requisite
knowledge by showing that he complained to officials about a specific threat to his
safety. Id.; see also Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (holding that the
plaintiff's "vague statements" that failed "to alert the officers to the fact that there was a
true threat at play" were insufficient to show the requisite knowledge).
The record does not contain evidence from which a jury could conclude that
Williams and DePaola knew about a specific and imminent risk of harm to Johnson.
Unlike the plaintiff in Gevas, Johnson did not tell either Williams or DePaola that he felt
threatened by Frias. To the contrary, both he and Frias made precisely the opposite
representation by insisting to Williams that they were "cool." Johnson does not contend
that he asked to be separated from Frias, nor does the record suggest that he sought
any other special protective measures.
Johnson argues only that Williams and DePaola knew that Frias posed a
substantial threat because they were aware that the two inmates "were involved in a

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verbal altercation, which was serious enough for a crowd to gather and watch." Pl.'s
Resp. to Defs.' Mot. for Summ. J., dkt. no. 193, at 6. But in this case, the fact that
Williams and DePaola were aware of that altercation is not sufficient to permit a jury to
conclude that they had the knowledge required for liability. In Fisher v. Lovejoy, 414
F.3d 659 (7th Cir. 2005), the Seventh Circuit held that there was insufficient evidence of
the subjective element of the plaintiff's failure-to-protect claim at summary judgment
even though, at the time of the attack, the officer had just broken up a fight in which one
inmate repeatedly stabbed another. Id. at 663. The mere verbal altercation in the
present case—which occurred days, not minutes, before Frias attacked Johnson with
the broom—provides a far weaker basis on which Williams and DePaola might have
inferred that Johnson's safety was at risk.
Even if defendants' awareness of Johnson and Frias's verbal altercation
supported the inference that they knew Frias posed an imminent threat to Johnson, the
inmates assuaged that concern when they told Williams that they were "cool" and would
not have further problems. Awareness of the background facts "from which the
inference could be drawn that a substantial risk of serious harm exists" is not sufficient
for liability unless the official actually "draw[s] the inference." Farmer, 511 U.S. at 837.
Here, the undisputed fact that both Johnson and Frias downplayed the possibility of
future conflict before they were sent back to their cells suggests that Williams and
DePaola did not in fact draw any such inference. Cf. Fisher, 414 F.3d at 663 (noting
that the plaintiff's testimony that he was "shocked" to see another inmate draw a knife
supported the conclusion that the defendant officer was likewise unaware of the risk).
There is nothing in the evidence to suggest that Williams or DePaola believed, or even

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that they should have believed, that Johnson was deliberately downplaying what had
taken place or actual concern about future incidents.
Because Johnson has not introduced evidence from which a jury could conclude
that Williams or DePaola had actual knowledge of a substantial threat to his safety, the
Court grants summary judgment in favor of Williams and DePaola on count 1.
B.

Bivens claim for deliberate indifference to medical needs
In count 2 of the third amended complaint, Johnson alleges that five

defendants—Dr. Mohan, officers Henderson and Matthews, and Lieutenants Williams
and Crowe—were deliberately indifferent to his serious medical needs in violation of the
Eighth Amendment. To prevail on an Eighth Amendment claim of deliberate
indifference, the plaintiff must show that he suffered from an objectively serious medical
condition, the defendants were deliberately indifferent to that condition, and their
indifference caused some injury. Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir.
2016); Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
1.

Objective seriousness

"An objectively serious medical condition is one that has been 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." Gayton, 593 F.3d at 620 (internal
quotation marks omitted). Serious medical conditions include conditions that result in
"unnecessary and wanton infliction of pain if not treated." Id.
A reasonable jury could conclude based on the evidence in the record that
Johnson's injury was objectively serious. Johnson was attacked by another inmate who
struck him in the face with part of a wooden broom. Photographs taken immediately

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after the attack show a large gash on his face. He testified about severe pain,
dizziness, loose teeth, headaches, and vision problems that persisted long after the
incident, and CT scans later revealed that he had multiple facial fractures. This
evidence is sufficient to permit a reasonable jury to conclude that Johnson's injuries
mandated treatment or that if left untreated they could cause unnecessary and wanton
infliction of pain.
The defendants argue that Johnson cannot establish that his fractures were
objectively serious because they had not been diagnosed by a doctor during the period
of the alleged delay. This argument carries the untenable implication that the delay of
medical care, which is a central issue in this lawsuit and which Johnson says prevented
an appropriate and timely diagnosis of his injuries—permits the defendants to escape
liability. Defendants' reasoning is effectively circular. Moreover, their contention is
contrary to the law: the lack of a diagnosis does not eliminate the duty to treat a serious
medical condition. See Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015) ("[The
plaintiff's] fracture need not yet have been diagnosed as such to have demanded action
on the part of [the defendant]."); see also Farmer, 511 U.S. at 843 n.8 ("[A prison
official] would not escape liability if the evidence showed that he merely refused to verify
underlying facts that he strongly suspected to be true.").
2.

Deliberate indifference

"[A] prison official's decision to ignore a request for medical assistance" can
suffice "to show deliberate indifference." Petties, 836 F.3d at 729. A plaintiff may also
show deliberate indifference by pointing to evidence that a physician's treatment
decision "[is] so far afield of accepted professional standards as to raise the inference

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that it was not actually based on a medical judgment." Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008) (alteration in original).
Johnson has introduced evidence that would permit a jury to reasonably
conclude that the defendants were deliberately indifferent to his serious medical needs.
Johnson testified that he filled out several medical request slips and repeatedly
complained of his severe pain to Dr. Mohan, Lieutenant Crowe, and correctional officers
Matthews and Henderson, but did not receive medical treatment until more than a week
later. Dr. Raziuddin further testified that Dr. Mohan's failure to examine Johnson in the
SHU breached the standard of care. Drawing all reasonable inferences in Johnson's
favor, this evidence would permit a reasonable jury to find that the defendants ignored a
request to treat a serious medical condition and knowingly delayed treatment—a
paradigmatic form of deliberate indifference. See Cooper v. Casey, 97 F.3d 914, 916
(7th Cir. 1996) ("Deliberately to ignore a request for medical assistance has long been
held to be a form of cruel and unusual punishment.") (citing Estelle v. Gamble, 429 U.S.
97, 104-05 (1976)).
The defendants argue that the "non-medical defendants" (meaning Henderson,
Matthews, and Crowe) cannot be liable because they were not responsible for providing
medical care to Johnson. It is true that defendants who lack medical expertise may
reasonably "rely on the expertise of medical personnel." Arnett v. Webster, 658 F.3d
742, 755 (7th Cir. 2011). They may not escape liability for deliberate indifference,
however, if they "have a reason to believe (or actual knowledge) that prison doctors or
their assistants are mistreating (or not treating) a prisoner." Id. In this case, Johnson's
testimony that he repeatedly complained to the non-medical defendants that he was not

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receiving medical treatment is sufficient to permit a jury to infer that the officers knew
that his medical care was deficient and yet did nothing to resolve the problem.
The defendants also argue that Johnson lacks evidence of deliberate
indifference on the part of Lieutenant Williams. Johnson acknowledged in his
deposition testimony that he had misidentified Williams as a defendant in the claim of
deliberate indifference in his second amended complaint, as Williams was not the
lieutenant on duty that evening. Johnson has not accounted for this discrepancy, nor
has he pointed to evidence that he ever complained of his injuries to Williams after
being attacked by Frias with the broom. There is therefore no evidence in the record
from which a reasonable jury could conclude that Williams was deliberately indifferent to
Johnson's medical needs.
3.

Causation

Johnson alleges that the delay in providing adequate medical treatment caused
him to suffer "headaches, blurred vision, flashes and floaters, and chronic pain on the
left side of his face where the trauma occurred, in addition to noticeable deformities to
his facial cavity." Third Am. Compl. ¶ 39. The Seventh Circuit has held that "[i]n cases
where prison officials delayed rather than denied medical assistance to an inmate, the
plaintiff must offer verifying medical evidence that the delay (rather than the inmate's
underlying condition) caused some degree of harm." Conley, 796 F.3d at 749
(alteration in original) (internal quotation marks omitted).
a.

Long-term injuries

Johnson cannot point to admissible evidence that the delay in treatment caused
or exacerbated his long-term injuries. His evidence of causation consists of two alleged

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statements by Dr. Raziuddin. First, Johnson says that Dr. Raziuddin said during his first
evaluation that he could not help Johnson because it was "too late" to treat the injury,
which had occurred two weeks earlier. But this statement—evidenced only by
Johnson's deposition testimony recounting the evaluation—is inadmissible hearsay that
cannot support Johnson's opposition to summary judgment. See MMG Fin. Corp. v.
Midwest Amusements Park, LLC, 630 F.3d 651, 656 (7th Cir. 2011) ("A party may not
rely on inadmissible hearsay to avoid summary judgment."). 3
Second, Johnson points to Dr. Raziuddin's deposition testimony that the delay in
treating a facial facture can cause a "malunion" of the bones, which means that the
fracture heals improperly such that the bones are out of alignment. But Dr. Raziuddin
also testified that he had no memory of evaluating Johnson and could offer no opinion
about whether Johnson's fractures had already begun to heal by the time his fractures
were diagnosed on May 19. Moreover, Dr. Raziuddin testified that only a specialist—
specifically, a radiologist—could reliably offer that opinion.
The undisputed testimony of the defendants' expert undercuts any inference that
Johnson could have benefitted from an earlier surgical intervention. Dr. Jayant Pinto, a
board-certified otolaryngologist (that is, a specialist in head-and-neck surgery), has
opined that Johnson was not a candidate for facial bone surgery because his fractures
were so minimally displaced and the risks associated with such a surgery would be
substantial. Johnson has not introduced contrary "verifying medical evidence" that he
could have benefitted from earlier surgical intervention or other treatment, as required to
3

The Court notes that when asked directly, Dr. Raziuddin testified that he didn't think he
had told Johnson that his injuries had become permanent and said that it wasn't his
opinion that it was too late as of May 19 to do anything for Johnson. See Defs.' L.R.
56.1 Stmt., Ex. 20 (Raziuddin Dep.) at 26:8-22.
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withstand summary judgment. Conley, 796 F.3d at 749.
Without any evidence that Johnson actually suffered from a malunion of his
bones or that he was a viable candidate for facial bone surgery, no reasonable jury
could conclude that the delay in treatment caused the long-term injuries he alleges in
his complaint.
c.

Prolonged pain

Alternatively, even if Johnson has not provided evidence that his delay in
treatment caused or exacerbated any injury, he can nonetheless survive summary
judgment on the issue of causation by showing that the delay unnecessarily prolonged
his pain. See, e.g., Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008). But
Johnson has not introduced any evidence from which a reasonable jury could find that
the pain treatment he received while in the SHU was deficient. After he was attacked
by Frias, nurse Folami prescribed him 800 milligrams of ibuprofen to be taken twice
daily. When Johnson was eventually referred to Thorek Hospital, his pain management
regimen did not change appreciably; in fact, Dr. Raziuddin lowered the dosage of
ibuprofen, though he instructed Johnson to take it as needed. The defendants' expert,
Dr. Ward, concluded that the treatment of Johnson's pain at the MCC met or exceeded
the standard of care. Without any contrary evidence, no reasonable jury could infer that
the delay in treatment prolonged or worsened Johnson's pain.
Because Johnson has failed to introduce any evidence that the defendants'
deliberate indifference either worsened his pain or caused him long-term harm, the
defendants are entitled to summary judgment on count 2.

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C.

Bivens claim for retaliation
In the third amended complaint, Johnson restates his claim that various

defendants retaliated against him for seeking administrative redress. The Court has
already granted summary judgment for the defendants on this claim because Johnson
failed to exhaust administrative remedies regarding his claim of retaliation. Johnson v.
United States, No. 14 C 10461, 2016 WL 3387156, at *8 (N.D. Ill. June 20, 2016). It
appears that Johnson has kept this claim in his current complaint to preserve it for
appellate review. As the Court has previously ruled, the defendants are entitled to
summary judgment on count 3.
D.

FTCA claim for negligent failure to protect
Johnson also alleges that Williams and DePaola's negligent failure to take

protective measures after his initial altercation with Frias entitles him to recover against
the United States under the Federal Tort Claims Act (FTCA). The defendants argue
that the decision not to separately house the inmates is covered by the FTCA's
exception for any claim arising from acts or omissions by government employees
"based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty." 28 U.S.C. § 2680(a).
The discretionary function exception shields the United States from liability for
the decision of government employee only if two criteria are met: first, the decision
must have been discretionary in the sense that it involved an element of judgment or
choice, and second, the decision must have been based on considerations of public
policy. Keller v. United States, 771 F.3d 1021, 1023 (7th Cir. 2014). To obtain
summary judgment based on the discretionary function exception, the government

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"must offer evidence that shows beyond reasonable dispute that its conduct was
shielded by the exception." Id.
1.

Discretion

The Seventh Circuit has held that the "determination as to where to house a
federal prisoner is precisely the sort of discretionary act that falls within the discretionary
function exception." Lipsey v. United States, 879 F.3d 249, 255 (7th Cir. 2018). In
particular, decisions about whether to separate inmates for protective purposes involve
require exercising discretionary judgment within the meaning of the FTCA exception.
See Calderon v. United States, 123 F.3d 947, 949-50 (7th Cir. 1997). A decision is not
discretionary, however, if the decisionmaker violated a mandatory policy; in that case,
the employee "would not have made the kind of discretionary judgment the exception is
designed to protect." Keller, 771 F.3d at 1024.
The government has provided uncontested evidence that shows beyond a
reasonable dispute that the decision not to separately house Johnson and Frias was a
discretionary decision protected by 28 U.S.C. § 2680(a). Unlike in Keller, there is no
evidence which suggests that Williams or DePaola violated any statutes or regulations.
Here, as in Calderon, the relevant Bureau of Prisons regulations do not impose any
mandatory obligation to separate inmates, and instead commit that decision to the
discretion of the prison officials. See Calderon, 123 F.3d at 949-50 (analyzing BOP
regulations governing inmate discipline). For example, applicable Bureau of Prisons
regulations state that an inmate "may be placed in administrative detention status" for
several enumerated reasons, including a threat to his safety. 28 C.F.R. § 541.23
(emphasis added). Other regulations use similarly permissive language: 28 C.F.R. §

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541.27 says that an inmate "may be placed in administrative detention status as a
protection case" as a result of threats by other inmates.
The government also cites the affidavit of Raul Maldonado, who served as a
captain at the MCC during the relevant time period. Maldonado asserts that MCC policy
required corrections officers to determine whether there was a risk that warranted
separating inmates before transferring one or both to the SHU. Maldonado's
undisputed characterization of the MCC policy on inmate separation, together with the
absence of mandatory BOP regulations, establishes beyond a reasonable dispute that
the decision not to separate Johnson and Frias was committed to the correctional
officer's discretion.
Johnson argues that the decision not to separate him from Frias is not protected
by the discretionary function exception because there is insufficient evidence that
Williams or DePaola "took note of the threats and weighed the relevant considerations."
Pl.'s Resp. to Mot. for Summ. J., dkt. no. 193, at 9. But Johnson and Frias's testimony
about their meeting with Williams establishes that he did inquire about the risk before
deciding not to separate them. Johnson also cites Keller for the proposition that the
discretionary function exception cannot apply because Williams and DePaola were
negligent in their decision not to separate the two men. But the holding in Keller was
much narrower: an official's negligence is relevant only to establish that the official
failed to adhere to a mandatory policy that limited his discretion. See Keller, 771 F.3d at
1024. Indeed, Johnson's argument implies that the discretionary function exception
does not apply to any negligence claims under the FTCA—a result that is impossible to
square with cases like Calderon and Lipsey, where the Seventh Circuit applied the

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discretionary function exception in FTCA negligence actions.
2.

Public policy

Though the public-policy element is formally distinct from the discretion element,
"we presume that the actions are grounded in public policy in cases where the statute or
regulations allow the government agent to exercise discretion." Calderon, 123 F.3d at
950 (citing United States v. Gaubert, 499 U.S. 315, 324-25 (1991)). Even without the
benefit of that presumption, however, the government has provided evidence
establishing beyond reasonable dispute that the decision not to separately house
inmates is rooted in public policy. Maldonado explains in his affidavit that decisions
regarding inmate separation require correctional officers to assess the magnitude of the
risk. The Supreme Court has held that this type of judgment regarding risk is a core
issue of public policy in the operation of prisons. Id. at 951 (citing Bell v. Wolfish, 441
U.S. 520, 546-47 (1979)). And the Seventh Circuit noted in Lipsey that security is
among the relevant public policy concerns for the purposes of the discretionary function
exception. See Lipsey, 879 F.3d at 255.
Because the decision not to separately house Johnson and Frias was committed
to the discretion of the correctional officer and was based in public policy
considerations, the United States is entitled to summary judgment on count 4 under the
discretionary function exception.
E.

FTCA claim for professional negligence
Finally, Johnson asserts a claim of professional negligence against the United

States under the FTCA. Specifically, he contends that Dr. Mohan and nurse Folami
committed medical malpractice by improperly diagnosing him and delaying his

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treatment. This claim requires Johnson to establish the elements of malpractice under
Illinois tort law. See Augutis v. United States, 732 F.3d 749, 752 (7th Cir. 2013) ("[T]he
FTCA incorporates the substantive law of the state where the tortious act or omission
occurred.") (internal quotation marks omitted). Illinois law in turn requires a plaintiff
alleging a negligent delay in medical treatment to show a causal connection between
the delay and the claimed injury. Walton v. Dirkes, 388 Ill. App. 3d 58, 60, 903 N.E.2d
18, 20 (2009). For the reasons explained earlier, Johnson has not introduced sufficient
evidence to permit a jury to conclude that the delay in treatment caused his injuries.
The United States is therefore entitled to summary judgment on count 5.
Conclusion
For the foregoing reasons, the Court grants the defendants' motion for summary
judgment [dkt. no. 189]. The trial date of January 14, 2019 and the final pretrial
conference date of January 10, 2019 are vacated. The Clerk is directed to enter
judgment in favor of defendants and against plaintiff.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: October 24, 2018

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