Acosta v. City of Chicago et al
Filing
107
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 7/31/2018: Defendants' motion for summary judgment, 81 , is granted in part and denied in part. [For further detail see attached order.] A status hearing is set for 8/14/18 at 9:30 a.m. Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CESAR ACOSTA,
Plaintiff,
No. 15 CV 8333
v.
Judge Manish S. Shah
CITY OF CHICAGO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Cesar Acosta, high on cocaine and marijuana, and with a blood
alcohol content nearly three times the legal limit, caused a car accident. He was
treated for minor injuries at the hospital and discharged under sedation. About an
hour after police officers booked him into the police station lockup, Acosta had a
fractured jaw and lacerations on his face and head. His memory of his time in
custody is limited, but these wounds were self-inflicted. Acosta brings this action
against certain present or former employees of the Chicago Police Department,
defendants Mark Timmel, Michele Wilkoszewski, John Ward, David Widmann, and
Wilson Fantauzzi, as well as the City of Chicago, for their roles in either causing or
exacerbating Acosta’s injuries. Defendants move for summary judgment on Acosta’s
claims. For the following reasons, that motion is granted in part and denied in part.
I.
Legal Standards
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). A genuine dispute as to any material fact exists
if “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
party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A court must view all facts and reasonable inferences in the light most
favorable to the non-moving party. Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th
Cir. 2018).
II.
Facts
Acosta, under the influence of drugs and alcohol, caused an accident
involving two other cars. [91] ¶¶ 5–6.1 He was charged, in relevant part, with
driving under the influence and drug possession. [92-11] at 1. An ambulance took
him from the scene of the accident to the hospital for medical treatment. [91] ¶ 7.
Acosta’s blood alcohol level was almost three times the legal limit and his toxicology
test was positive for cocaine and marijuana; the hospital staff placed him in soft
restraints during his stay. Id. ¶¶ 9, 11–12. After several hours of treatment, the
hospital staff discharged him; at that time, he was sedated and calm. Id. ¶¶ 14, 16.
Bracketed numbers refer to entries on the district court docket. Page numbers are taken
from the CM/ECF header at the top of filings. In addition to the page number from the
CM/ECF header, citations to depositions included in [83-1] also include the page and line
numbers from the deposition transcript. The facts are largely taken from plaintiff’s
response to defendants’ Local Rule 56.1(a) statements, [91], and the defendants’ responses
to plaintiff’s Local Rule 56.1(a) statement, [102], where both the asserted fact and the
opposing party’s response are set forth in one document. When the parties raised
arguments in their statements, included additional facts in their responses or replies, failed
to support their statements by admissible evidence, or failed to cite to supporting material
in the record, I disregarded those portions of those statements, responses, or replies. See LR
56.1(b)(3)(C) (facts are deemed admitted if not properly controverted).
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2
Officer Wilkoszewski watched officers escort him from the hospital into the back of
the police transport van—Acosta was handcuffed and he walked slowly and quietly.
[92-19] at 45:2–46:12. The police transported Acosta from the hospital to the police
station in that van.2 [91] ¶ 17. All Acosta remembers of the transport was being in a
wheelchair and not speaking to the police officers. Id. ¶ 21; [83-1] at 27, 120:14–22.
Acosta does not remember getting out of the transport van or walking into the
police station. [91] ¶ 22; [83-1] at 26, 85:7–21; id. at 27–28, 120:20–121:9.
Acosta’s theory of his case is that he harmed himself during the transport
(and again when he was in a police cell).3 He asserts as a fact that he banged his
head against the metal cage in the transport van, see [102] ¶ 3; to support that
factual assertion, he cites the Case Incident Report, in which Officer White (who is
no longer a party opponent in this case) wrote: “during the transport by CPD to 016
station above began banging his head against the metal cage,” see [92-8] at 2.
Narratives in such reports may contain inadmissible hearsay. See Cairel v.
Alderden, 821 F.3d 823, 830 (7th Cir. 2016). In fact, when White was asked about
Defendants say that Officer Josephine Christopher transported Acosta to the station, but
she does not have an independent recollection of that evening, nor does she ever remember
transporting an arrestee who banged his head against the metal cage inside the van. [91]
¶ 18. Acosta objects to defendants’ assertion that Christopher transported Acosta, because
her inability to recognize a photo of Acosta or to remember that evening means that
defendant’s reliance on Christopher’s deposition testimony violates Local Rule 56.1. See id.
At least one other officer who worked that evening remembers Christopher working as one
of the officers assigned to the transport van that carried Acosta from the hospital to the
station. [92-19] at 45:3–23. Christopher is not a named defendant, and the identity of the
transporting officer is not material to this motion, so the court need not weigh in on this
dispute.
2
But in his deposition, when asked what his response to the police officers’ position that
Acosta injured himself in custody, Acosta said: “I didn’t injure myself. I’m going to break my
jaw, break my ankle, run into the wall with my head, and punch something in my mouth
and knock my teeth. Yeah, I do this every day. No, I didn’t do it.” [83-1] at 27, 118:15–23.
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the source of the information for that sentence, he said that there was “chatter”
going on between the officers while walking into the station and that “That’s just
the way I phrased it for the summary,” but he could not remember which officers
participated in that “chatter,” nor could he remember who transported Acosta in the
van that night. [92-7] at 39:12–41:5. Neither White nor any of the named
defendants have personal knowledge as to whether Acosta banged his head in the
van. It is undisputed that a CPD Evidence Technician took photos of blood stains in
the van as part of her assignment investigating Acosta’s injuries while he was in
police custody. [102] ¶ 4. Other than the evidence that there were blood stains (of
unknown size and placement) in the van, there are no admissible facts that indicate
how Acosta was injured in the van, what part of the body was injured, or how
extensive the injury was. Nevertheless, an inference can be drawn in Acosta’s favor
from the stains alone that he was injured during transport.
Officers Timmel and Wilkoszewski followed the transport van in a separate
vehicle from the hospital to the police station; when they arrived at the station,
Wilkoszewski saw officers take Acosta out of the van and assist him in walking from
the van to the station. Id. ¶ 5; [92-19] at 47:2–48:20. At that time, Wilkoszewski
observed that Acosta was handcuffed and that he walked slowly and quietly, with
the help of the officers. [92-19] at 47:2–48:20. There is nothing in the record about
what Timmel saw when Acosta exited the van; but in his interrogatory responses,
Timmel says that sometime before Acosta was discharged from the hospital, he saw
Acosta limping and stumbling, and he noticed that Acosta had bruising and cuts on
4
his face. [92-14] ¶ 16; see also [92-4]4; [92-12] at 2. Additionally, Timmel said that
“[o]n information and belief, [Acosta] made numerous general threats of violence
during his transport, processing and while in lockup,” [92-14] ¶ 21, but this is not
admissible because it is not based on personal knowledge.
When the officers escorted Acosta into the station, though, Acosta was
twisting, flailing, yelling, and threatening to kill people. [102] ¶ 7. Lockup keeper
Widmann observed that Acosta was limping, not handcuffed, and wearing a
hospital gown.5 Id. ¶ 13; [92-2] at 23:23–24:22. Widmann had never seen someone
who was as “out of his mind” as Acosta was; Widmann believed that Acosta was
highly intoxicated and Widmann was surprised that Acosta was let out of the
hospital in such a state. [102] ¶¶ 8–9. Widmann did not believe Acosta should have
been in the lockup because Widmann was concerned that Acosta might harm
himself. Id. ¶ 9. The officers who transported Acosta to the station did not tell
Widmann that Acosta harmed himself in the van during the transport. [92-2] at
64:2–6.
Lockup keepers are required to conduct an intake questionnaire with each
incoming detainee; the questionnaire asks whether the inmate is suicidal,
depressed, sick, injured, or intoxicated, among other things. [102] ¶ 36. Answers to
Acosta filed his medical records under seal. [92-4]. He is directed to file the records on the
public docket (redacting personal identifying information, see Fed. R. Civ. P. 5.2, and
irrelevant matters), so that the materials relevant to this decision are part of the public
record.
4
When asked about his interrogatory response regarding seeing bruises and cuts on
Acosta’s face upon entering the lockup, Widmann clarified that he only remembers seeing
bruises on the leg, not on the face. [92-2] at 109:16–19
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these questions help the lockup keepers determine the amount of observation an
arrestee needs or if an arrestee needs to be transferred elsewhere. Id. When Acosta
was in lockup, however, the lockup keepers never asked him such questions. Id.
Instead, the officers immediately escorted him into a cell.6 Id. ¶ 12; [92-2] at 30:16–
31:3. After locking the cell door, Widmann watched Acosta walk around the cell,
attempt to stand on a concrete bench, fall off of the bench, and continue walking
around the cell. Id. at 31:1–3, 35:2–36:25. Widmann did not ask anyone to put
handcuffs or leg irons on Acosta while he was in the cell, even though they were
available, nor did he seek medical care for Acosta at that time. [102] ¶¶ 16, 37.
Widmann watched Acosta for a few minutes, and then he returned to the front of
the lockup to process another prisoner. Id. ¶ 16.
When lockup keeper Fantauzzi started his shift, Widmann told him that they
had a combative arrestee in a cell, so they both needed to watch him.7 [91] ¶ 28. At
about 9:30 p.m., Widmann went back to check on Acosta again. [102] ¶ 17. About
fifteen minutes later, Fantauzzi went back to the cell area to check on Acosta and
the other prisoners. Id. ¶ 19. There was nothing that concerned Fantauzzi about his
observation of Acosta in his cell at that time, [91] ¶ 33, but he did notice some
stitches above Acosta’s eyebrow and some dry blood above the stitches. [92-9] at
31:12–23. Soon thereafter, Widmann and Fantauzzi heard noise coming from the
Officer Ward received a call (he does not remember who the caller was) to inform him that
a combative arrestee was en route to the station. [83-1] at 48, 25:2–11. Ward relayed that
message to the lockup. Id. at 48, 25:12–21.
6
Lockup keepers, including Widmann and Fantauzzi, do a visual check every fifteen
minutes on prisoners in the lockup. [91] ¶ 30.
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cell area, and Widmann went to check on Acosta. [91] ¶ 34. When Widmann arrived
at Acosta’s cell, Acosta was banging his head against the door and the wall, causing
his head to bleed; Acosta also pulled off his hospital gown and he smeared his blood
on the wall. Id. ¶ 35. Widmann did not try to stop Acosta from hurting himself
because Acosta was in such a state of rage that Widmann felt it was unsafe to open
the cell door and interact with him. Id. ¶ 36. Widmann also did not ask Fantauzzi to
come back to help. [102] ¶ 24. Instead, Widmann immediately called the front desk
to have Sergeant Ward call an ambulance. [91] ¶ 35, [92-2] at 47:18–19. Within
moments, Sergeant Ward appeared in the lockup with Acosta’s attorney, Nicholas
Kournetas.8 [92-2] at 47:13–22; [83-1] at 85, 41:22–42:11. Then, Widmann,
Fantauzzi, Ward, and Kournetas walked back to Acosta’s cell. [83-1] at 85, 42:11–
16.
Kournetas observed that Acosta was unresponsive, incoherent, and naked; he
also saw blood on the cell wall and floor. [102] ¶ 33. Given that Acosta was not in a
state that warranted release from the cell, Ward only permitted Kournetas to talk
to Acosta through the cell door. Id. ¶ 32. The only memory Acosta has of his time at
the station that night was this brief moment when he was “laying [sic] in a corner,
naked, with a blanket,” and he looked up and saw his attorney’s face. [91] ¶ 22; [831] at 26, 85:7–21; id. at 27–28, 120:20–121:9. Unable to facilitate a productive
attorney-client meeting, Ward escorted Kournetas out of the lockup and he called
As Ward remembers it, at about the same time that Kournetas entered the station, Ward
received a call from the lockup informing him that a prisoner had injured himself. [83-1] at
49, 26:4–30:22.
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for an ambulance. [91] ¶ 40. Kournetas remembers telling an officer that the police
should call the hospital because Acosta needed medical attention. [92-6] at 30:15–
19. He does not remember what the officer said in response.9 Id. at 30:20–31:4.
Fantauzzi did not open the door to try and render aid to Acosta because he was
under the impression that the ambulance was on the way, [91] ¶ 37, and Ward
never directed Fantauzzi or Widmann to administer any sort of aid to Acosta. [102]
¶ 29.
The Chicago Fire Department dispatched an ambulance at 10:28 p.m., [91]
¶ 41; the ambulance arrived at the station at approximately 10:33 p.m. Id. ¶ 43.
White also arrived at the station to escort Acosta to the hospital with the
paramedics. [102] ¶ 38. Acosta was extremely combative with the paramedics,
which limited their ability to assess and care for him. [91] ¶ 43. At approximately
10:41 p.m., the ambulance left the police station with Acosta, and less than ten
minutes later, it arrived at the hospital. Id. ¶¶ 44–45. The hospital staff treated
Acosta for the second time that evening; he was combative with them too, because
he did not want to be there. Id. ¶ 45. During the second visit, Dr. Barrick began
Acosta’s treatment, but at some point during the hospitalization, Dr. Collier took
over Acosta’s treatment. [92-4] at 53:2–55:6. The diagnoses from the second visit
included a closed fracture of an unspecified part of the ramus mandible, a facial
In response to the question “Do you remember any of the lockup keepers or any of the staff
in the lockup looking like frenzied, like they were in a rush to do something, or, you know,
trying to get Mr. Acosta any medical assistance?” Kournetas answered in the negative, and
in response to the follow-up question “Did they all seem pretty calm?” he answered in the
affirmative. [92-6] at 39:12–19.
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laceration, and a scalp laceration. Id. at 53:8–55:11. Dr. Collier did not see any
reference to a facial or scalp laceration in the notes concerning Acosta’s first visit;
but, Dr. Collier explained that the notes from the first visit did not refer to an
observation of any trauma to Acosta’s head, face, or neck—other than some
abrasions around Acosta’s mouth. Id. Once Acosta was released from police custody,
he received treatment at Advocate Illinois Masonic where he received additional
diagnoses of an ankle fracture and cranial facial fractures. [102] ¶ 40. Acosta has no
memory of how these injuries occurred. [91] ¶ 46; [83-1] at 20, 49:10– 12.
Acosta dismissed certain counts and defendants from this action, [81] at 1;
[90] at 25, and the following counts remain: Counts I and II are against defendants
Timmel, Wilkoszewski, Ward, Widmann, and Fantauzzi for endangering Acosta
while he was in custody, in violation of 42 U.S.C. § 1983; Count III is against these
same officers for failing to provide medical attention in violation of § 1983; Count IV
is against the officers for failing to intervene in violation of § 1983; Count V is
against the City of Chicago for willful and wanton negligence (but the parties treat
it as a claim against the individual defendants); Count IX is an indemnification
claim against the City of Chicago; and Count X is a respondeat superior claim
against the City of Chicago for state-law claims against the defendant officers. See
[69].
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III.
Analysis
A.
Counts I and II: Endangerment
Acosta argues that defendants violated his substantive due process rights by
endangering him while he was in their custody. The due process clause does not
provide an affirmative right to governmental aid; it aims to protect the people from
the government, but it does not ensure that the government protects people from
each other. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015)
(quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)).
When state actors increase a person’s risk of harm without justification, they may
violate the Constitution. Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012).
In deciding whether a state actor has created or increased the danger to a
person, courts must preserve the distinction between endangering and failing to
protect—a state actor creates or increases danger when it turns a potential danger
into an actual one; it does not create or increase danger by merely standing by and
doing nothing to prevent private violence. Vill. of Arlington Heights, 782 F.3d at
917. To prevail on this claim, Acosta must show that each officer, by his or her
affirmative acts, created or increased a danger Acosta faced; that each officer’s
failure to protect Acosta from that danger was the proximate cause of Acosta’s
injury; and that each officer’s failure shocked the conscience. Wilson-Trattner v.
Campbell, 863 F.3d 589, 593 (7th Cir. 2017). Only “rare and often egregious”
circumstances warrant liability for a state actor creating or increasing danger for an
individual. Id. (quoting Vill. of Arlington Heights, 782 F.3d at 917).
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Acosta argues that defendants increased the danger when they allowed him
to be brought into the station instead of returning him to the hospital. If defendants
had simply returned him to the hospital, Acosta contends, he would have had access
to medication, which would have prevented him from hurting himself again. The
crux of Acosta’s complaint is that defendants took the wrong affirmative step—they
placed Acosta in the cell instead of taking him to the hospital. But, the inquiry is
not “what dangers [the arrestee] would have faced had the [officers] behaved as he
wanted them to, but what dangers [the arrestee] would have faced absent the
affirmative acts actually taken.” Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir.
1997).
Timmel and Wilkoszewski were not involved in placing Acosta in a cell; they
merely watched officers escort Acosta from the transport van to the station. To the
extent that they allowed other officers to put Acosta in a cell, they cannot be held
liable for such inaction. Wilson-Trattner, 863 F.3d at 595 (the Supreme Court held
that inaction of state officials does not support a claim under the state-created
danger doctrine). And although Ward received notice that the lockup was going to
receive a combative arrestee (which is not synonymous with a self-harming
arrestee), Ward only came into contact with Acosta after he had injured himself in
the cell. Absent an affirmative act, Ward cannot be held liable for placing Acosta in
a cell. Similarly, Fantauzzi began his shift after Acosta was already in the cell, so
he did not affirmatively act to place Acosta in a cell, and cannot be liable on that
basis. Widmann, however, took affirmative steps to place Acosta in a cell. But, as
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Widmann argues, Acosta was already in a dangerous condition by virtue of being
intoxicated, and Widmann did nothing to create or increase that danger. The same
intoxication that placed Acosta in danger of harming himself before he was in the
cell is what placed Acosta in danger of harming himself again once he was in the
cell.
Acosta also argues that defendants created and increased the danger when
they left him unsecured in a cell that was farthest from the lockup keepers, when
they failed to properly monitor him, when they failed to stop him from hurting
himself, when they failed to render aid to him, and when they failed to immediately
summon medical aid for him. In effect, each of the issues is a complaint about
defendants’ indifference or inaction, which is insufficient to confer liability on any of
the defendants. Wilson-Trattner, 863 F.3d at 595. By failing to do the things Acosta
wished, defendants did not take affirmative steps to create or increase the danger
that Acosta’s intoxication and inclination to self-harm presented. Acosta has not
carried his burden and his substantive due process claims in Counts I and II do not
survive summary judgment.
B.
Count III: Failure to Provide Medical Attention
Police officers have a constitutional duty to provide adequate medical care to
people in their custody. Currie v. Chhabra, 728 F.3d 626, 630 (7th Cir. 2013)
(quoting West v. Atkins, 487 U.S. 42, 55–56 (1988). The Fourth Amendment
standard of objective reasonableness governs medical care claims brought by
arrestees, like Acosta, who have not had a probable cause hearing. Id. at 629. (citing
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Ortiz v. City of Chi., 656 F.3d 523 (7th Cir. 2011); Williams v. Rodriguez, 509 F.3d
392 (7th Cir. 2007); Sides v. City of Champaign, 496 F.3d 820 (7th Cir. 2007); Lopez
v. City of Chi., 464 F.3d 711, 719 (7th Cir. 2006)).
The question here is whether defendants’ conduct in denying or delaying
Acosta’s access to medical attention was objectively unreasonable, which in turn,
involves an assessment of four factors: whether each defendant officer had notice of
Acosta’s medical needs; the seriousness of the medical need; the scope of the needed
treatment; and law enforcement interests, including administrative, penological, or
investigative concerns. Ortiz, 656 F.3d at 530. Acosta also must show that
defendants’ conduct caused the harm of which he complains. Id. Since defendants do
not assert that the scope of the needed treatment—a return visit to the hospital—
would have been too onerous, and because they do not assert that fulfilling that
request would have compromised any police interests, the third and fourth factors
are not at issue here. Id. That leaves notice, the seriousness of the medical need,
and causation. Under the Fourth Amendment, the inquiry into seriousness operates
on a sliding scale. Id. at 531. And in cases of delayed medical access, “the length of
delay that is tolerable depends on the seriousness of the condition and the ease of
providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)
(collecting cases analyzing delayed treatment under the Eighth Amendment).
Defendants argue that there is no evidence that they were on notice of
Acosta’s serious need of medical care until he began banging his head on the cell
door and wall, and they promptly summoned medical assistance after that. See
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Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 601 (7th Cir. 2011); Sallenger v. City
of Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010). Defendants also assert that
Acosta caused harm to himself and that he cannot show that defendants caused his
injuries. This is especially true as to Timmel, Wilkoszewski, and Ward, defendants
note, because those officers were not in the lockup when Acosta began banging his
head. Each officer who encountered Acosta while he was in custody was obligated to
reasonably respond to Acosta’s medical complaints. See Ortiz, 656 F.3d at 531.
Although defendants seem to limit their arguments to what officers knew and did
once Acosta was already in the lockup, Acosta complains of injuring himself during
the transport; therefore, the relevant time period begins with the transport and
ends with Acosta’s readmission to the hospital. And, the question is whether each
officer reasonably should have known that Acosta had a serious need for medical
care—that knowledge can be based on the officer’s personal observations or on what
the officer learned from others. Id. Whether each officer knew what was wrong with
Acosta is irrelevant. Id.
Timmel and Wilkoszewski, in a separate police vehicle, followed the transport
van containing Acosta from the hospital to the police station. The record is silent as
to whether they observed any injuries when Acosta emerged from the transport van
and walked to the station. The evidence of blood stains in the back of the van is
evidence that Acosta sustained an injury during transport, but there is insufficient
evidence from which the court can infer that Timmel and Wilkoszewski had notice
of the injury. Even assuming that Acosta did suffer a serious injury during
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transport, the record does not establish where Timmel and Wilkoszewski were in
reference to Acosta when he emerged from the transport van and walked to the
station; absent this evidence or related information, there is no inference to be
drawn that it was obvious to Timmel and Wilkoszewski that Acosta was injured at
all or that they were able to determine that Acosta was in serious need of medical
care. Since Acosta did not establish that Timmel and Wilkoszewski were on notice
that Acosta had a serious medical need after the transport, they cannot be held
liable under the Fourth Amendment for allowing (watching) other officers escort
him into the lockup. Timmel and Wilkoszewski are entitled to summary judgment
on this claim.
Ward received a phone call warning him that a combative arrestee was due to
arrive at the lockup, but the record does not show that Ward had any involvement
with Acosta or with the officers who interacted with Acosta until after Acosta had
injured himself in the cell. As such, there is nothing to support a finding that Ward
knew Acosta was in serious need of medical care after the transport. Ward’s
involvement began when he learned that someone from the lockup called the front
desk to call an ambulance for an arrestee. Ward cannot remember the precise
timing of when he learned about the ambulance request in reference to when he
began escorting Kournetas to see Acosta. Nevertheless, the first time Ward was on
notice that Acosta was injured was after he escorted Kournetas to Acosta’s cell and
he saw Acosta lying on the cell floor, naked and bleeding. After it became clear that
Kournetas could not have a meaningful attorney-client meeting with Acosta, Ward
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escorted Kournetas out of the lockup and called an ambulance for Acosta. Though
Acosta makes much of the fact that defendants stood at his cell and observed him
for several minutes, causing a delay between the time he injured himself in his cell
and when defendants called the ambulance, Acosta does not cite any authority for
the proposition that such a delay was constitutionally deficient. And as defendants
note, courts typically find an officer’s conduct reasonable if he promptly summons
medical assistance. Florek, 649 F.3d at 600–01. Since it is undisputed that Ward
called the paramedics within minutes of learning that Acosta injured himself in the
cell, he is not liable under the Fourth Amendment. This conclusion does not change
even if Kournetas’s request for an ambulance was the impetus behind the call—
what matters is that Ward promptly summoned medical assistance. Ward is
entitled to summary judgment on this claim.
Widmann entered the lockup with the officers who were escorting Acosta, and
he helped those officers place Acosta in a cell. During this process, Widmann
observed that Acosta needed the officers’ help to walk and that he was limping
badly. Widmann also noticed that Acosta was “out of his mind”—Acosta was
screaming and yelling threats. Once in the cell, Widmann watched Acosta walk
around the cell, continue to scream and yell threats, climb up on a concrete bench
and fall off of it, and then continue walking around. Widmann’s deposition
testimony shows that he was concerned for Acosta’s safety, but that he did not put
handcuffs or leg irons on Acosta while he was in the cell (a potential safety
precaution), and that he did not summon medical attention after he witnessed this
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behavior. Once Widmann left Acosta in the cell, Widmann made sure that he or
Fantauzzi checked on Acosta every fifteen minutes. At approximately the same time
Widmann was on his way to check on Acosta, Widmann heard banging and he soon
realized that Acosta was banging his head on the cell door and wall, causing it to
bleed. Widmann immediately called the front desk to request an ambulance.
Widmann never opened the cell door to stop Acosta from harming himself or to
render aid to Acosta.
Acosta faults Widmann for repeatedly failing to summon medical assistance:
Acosta asserts that Widmann should have called the paramedics before Acosta was
put in a cell, when Widmann observed Acosta’s limp and enraged behavior; then
again when Widmann watched Acosta fall off of the concrete bench; and that
Widmann should have called the paramedics directly and immediately after seeing
Acosta hit his head in the cell. At summary judgment, a court cannot weigh
evidence of Widmann’s surprise that Acosta was discharged from the hospital and
Widmann’s concern for Acosta’s safety, against evidence of Widmann’s decision to
rely on the reasoning of the hospital staff to release Acosta and Widmann’s decision
to leave Acosta unsecured in a cell, in order to make a conclusion about the
reasonableness of Widmann’s conduct. A jury could credit the first part of
Widmann’s testimony and could conclude that Widmann was aware that Acosta had
a serious medical need for further hospitalization. But, a jury could also credit the
latter part of Widmann’s testimony and reason that Widmann might be aware of an
injury and odd behavior, but that those things did not rise to the level of a serious
17
medical need. The question of whether it was unreasonable for Widmann to leave
Acosta in the cell, under these circumstances, even with the intention of monitoring
him frequently, is for a jury.
It is a “rare instance that a plaintiff can proffer no evidence that a delay in
medical treatment exacerbated an injury.” See Ortiz, 656 F.3d at 534–35. A jury
could infer from the evidence that Acosta would not have sustained such severe
injuries had Widmann acted to return Acosta to the hospital instead of leaving him
in the cell. Consequently, Acosta has created a sufficient record to support an
inference of causation here.
Widmann asserts that the doctrine of qualified immunity shields him from
liability. But, qualified immunity does not protect state actors when their conduct
violates clearly established constitutional rights. Estate of Clark v. Walker, 865 F.3d
544, 549–50 (7th Cir. 2017). “A right is clearly established when it is defined clearly
enough to put officers on notice of their duties under the circumstances they
confront.” Id. at 551. Courts must define the right in question at the correct level of
specificity. Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012). But, that does not
require a citation to a prior case that is directly on point; rather, qualified immunity
does not apply when precedent places the constitutional question beyond debate.
Estate of Clark, 865 F.3d at 551.
Here, the right is prompt access to medical care, and whether officers can
deny or delay an arrestee’s access to a hospital when faced with a serious need is
beyond debate. See Estate of Perry, 872 F.3d 439, 459 (7th Cir. 2017) (“[Here,] the
18
jury could infer that although Perry ultimately died of a heart condition, it was the
delay in providing any treatment that caused the harm.”); Ortiz, 656 F.3d at 535
(“Here, a jury could infer, based on medical records and witness testimony, that the
defendants caused Molina harm when they failed to take her to the hospital after
they knew she suffered from a serious medical condition.”). Specifically, it was
clearly established in 2010 that the failure to take any action in light of a serious
medical need would violate the objectively reasonable standard of the Fourth
Amendment. Estate of Perry, 872 F.3d at 460. As such, Widmann was on notice that
when an arrestee is in serious need of medical care, he must promptly summon
medical support. Qualified immunity does not shield Widmann from liability here.
Summary judgment is denied as to this aspect of Acosta’s failure to provide medical
care claim against Widmann.10
Fantauzzi, at the start of his shift, learned from Widmann that they had a
combative arrestee in the lockup and that they would need to monitor that arrestee
closely. Fifteen minutes after learning this, Fantauzzi checked on Acosta in his cell
and did not observe any injuries or concerning behavior—he only saw dry blood
above Acosta’s stitches. It was only after Acosta injured himself in the cell and after
he heard Widmann ask the front desk to call an ambulance that Fantauzzi saw
It is worth noting, though, that the Constitution does not require officers to wrestle with
violent arrestees or to administer aid to injured arrestees, see Jackson v. Kotter, 541 F.3d
688, 697 (7th Cir. 2008); so Widmann is not liable for failing to stop Acosta from injuring
himself or failing to administer aid to Acosta in the cell. And Acosta has pointed to no
evidence that the several minutes that elapsed between when Widmann called the front
desk to request an ambulance exacerbated Acosta’s injuries or caused him additional harm.
The claim that survives summary judgment is one based on the delay from Widmann’s
initial notice of Acosta’s condition—a triable, albeit close, case when drawing inferences in
Acosta’s favor.
10
19
Acosta lying on the cell floor, naked and bleeding, at which point Fantauzzi realized
Acosta was in need of serious medical attention. Fantauzzi said he did not call for
an ambulance at that time because he was under the impression that one was
already on its way. The record shows that within minutes of Fantauzzi’s
observation, an ambulance did arrive to the station. Whatever delay was caused by
Fantauzzi’s failure to call an ambulance immediately after seeing Acosta was in
serious medical need did not cause the injuries of which Acosta complains.
Summary judgment is granted as to this claim against Fantauzzi.
C.
Count IV: Failure to Intervene
Defendants argue that they are not liable for failing to intervene because
Acosta has not established the requisite underlying constitutional violation. See
Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). In response, Acosta argues
that because he established that defendants violated his constitutional rights, his
failure to intervene claim should survive summary judgment. This is a superficial
analysis by both sides. In any event, given my conclusion that Acosta has created a
triable issue of fact only as to Widmann’s conduct, and the absence of any evidence
that any other named defendant had notice of or an opportunity to prevent
Widmann’s conduct, see Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017),
summary judgment is granted on the failure to intervene claim.
D.
Count V: Willful and Wanton Negligence
A claim for willful and wanton negligence is a hybrid tort that exists between
negligent and intentional torts, Krivitskie v. Cramlett, 301 Ill.App.3d 705, 707 (2d
20
Dist. 1998); it requires proof of a duty, a breach of that duty, and an injury
proximately caused by that breach, Kirwan v. Lincolnshire-Riverwoods Fire Prot.
Dist., 349 Ill.App.3d 150, 155 (2d Dist. 2004). To establish that defendants engaged
in intentionally willful and wanton conduct, Illinois law requires that Acosta show
that defendants acted with actual or deliberate intent to harm. Id. Illinois law
defines reckless willful and wanton conduct as conduct committed with “utter
indifference” to or “conscious disregard” for the safety of others. Id.11
Acosta has not established that defendants owed him any duties beyond
respecting his constitutional rights, and as to those duties, Acosta only successfully
raised a triable issue of fact as to whether Widmann breached his duty to provide
Acosta prompt medical care. Absent a finding that Timmel, Wilkoszewski,
Fantauzzi, or Ward breached a duty they owed to Acosta, they cannot be held liable
for willful and wanton negligence. Summary judgment is granted as to those
defendants on this claim.
As for Widmann, Acosta has no evidence that Widmann acted with the intent
to harm Acosta or with utter indifference to Acosta’s safety. According to Acosta,
Widmann was utterly indifferent to his safety because Widmann knew he injured
himself in the van, but did nothing; and Widmann watched him bang his head in
the cell and watched him lie on the floor of his cell injured and naked, but did
nothing. Acosta also notes that defendants, including Widmann, failed to get
Acosta’s answers to a questionnaire that would have helped to determine Acosta’s
This claim is alleged only against the City of Chicago. [69] at 10. But the parties briefed it
as if it was against the individual defendants, and the record is complete as to those issues.
11
21
security needs before putting him in a cell, and “if Acosta was unable to answer
their questions due to his level of intoxication as they claim,” they should have
“transfer[red] him to a hospital or at the very least, check[ed] on him more often
than every 15 minutes and put him in a cell closer to the lockup keeper desk so he
could be more closely monitored.” [90] at 22.
But the inference that Widmann knew Acosta was injured during the
transport does not warrant an additional inference that he knew that Acosta was at
risk of harming himself in the cell. Without more, Widmann’s involvement in
putting Acosta in a cell instead of returning him to the hospital does not show that
he was utterly indifferent to Acosta’s safety. The record shows that Widmann knew
Acosta was limping and acting “out of his mind,” but that Widmann intended to
check on Acosta frequently. In other words, Widmann believed the situation could
be managed. Widmann’s failure to appreciate the risk of harm was possibly
negligent (or in Fourth Amendment terms, objectively unreasonable), not something
just short of an intentional tort.
Acosta’s argument that Widmann did nothing when he saw Acosta banging
his head in the cell ignores the undisputed fact that Widmann immediately called
the front desk to request an ambulance. That Widmann did not call an ambulance
himself, or that it took several minutes for the paramedics to arrive is not evidence
of Widmann’s utter indifference to Acosta’s safety. Similarly, Widmann’s inability to
obtain Acosta’s answers to the questionnaire and his subsequent decision to place
22
Acosta in a cell is not evidence of Widmann’s utter indifference to Acosta’s safety
when placed in the undisputed context that Acosta was uncooperative.
Widmann is entitled to summary judgment on the willful and wanton
conduct claim.
E.
Counts IX and X: Indemnification and Respondeat Superior
Acosta’s derivative claims for indemnification and respondeat superior
against the City of Chicago rise and fall on his ability to establish that one of the
officers was liable. See 745 ILCS 10/2-109 (a local public entity is not liable unless
the act or omission of its employee caused the injury). The City may be required to
indemnify Widmann if he is found liable for failing to provide medical access; but
the respondeat superior claim is not viable because no state-law claim survived
against
an
individual
defendant.
Summary
judgment
is
denied
as
to
indemnification, but granted on respondeat superior claim.
IV.
Conclusion
Defendants’ motion for summary judgment, [81], is granted in part and
denied in part.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: July 31, 2018
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