Michon v. Ugarte et al

Filing 123

MEMORANDUM Opinion and Order: The Motion for Summary Judgment 102 on behalf of Defendant Officers Campbell, Fuelling, and Oliver is denied as to the Denial of Medical Care Count but is granted as to the State Created Danger Claim. Summary Judgmen t is granted in favor of Defendant Richard Scott on all counts. The Court has also read Plaintiff's Motion to Strike Defendants' Statements of Material Fact and finds that it is moot as to the current summary judgment motion. Accordingly, the Motion to Strike [117, 120] is denied. Status hearing set for 1/16/19 shall stand. Signed by the Honorable Harry D. Leinenweber on 1/10/2019: Mailed notice (maf)

vcIN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID MICHON,
Plaintiff,
v.

Case No. 16 C 6104

OFFICER EMILY CAMPBELL
#15492; OFFICER KEITH
FUELLING #13618; OFFICER
ERIC OLIVER #8377; OFFICER
RICHARD SCOTT #308; and THE
CITY OF CHICAGO,

Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

This case results from an incident of road rage involving the
Plaintiff, David Michon (“Michon”), and a settling Defendant,
Martin Ugarte.

The police were summoned to break up the fight and

the incident resulted in the Plaintiff’s arrest for battery and
criminal damage to property.

The Plaintiff also sustained a

significant twisting injury to his right knee and lacerations to
his head and face.

Plaintiff was transported several miles to the

8th District Police Station on 63rd Street and St. Louis Avenue.
Approximately, four (4) hours elapsed between Plaintiff’s arrest
and his release from custody.

When

the

police

approached

him

at

the

scene,

blood

was

dripping into his eyes from his head laceration. Although he asked
for medical treatment at the scene, he was rebuffed by Defendant
Campbell

who

transported

told
to

the

him

basically

station

shut

Plaintiff

Fuelling to take him to a hospital.
of it.”

to

up.

twice

While

asked

being

Defendant

He responded, “leave me out

At the station Plaintiff had a pronounced limp and was

bleeding from his head.

Fuelling, instead of providing medical

attention, told Plaintiff to clean the blood off his face.

As he

was doing so he again asked Officers Fuelling, Campbell and an
Officer Oliver to provide him with medical attention.

All three

laughed at him and Campbell told him that he would be “lost in the
system,” and remain in custody until after New Year’s Day if he
continued to request medical treatment. He remained in the station
for four to five hours while being processed.

As he was being

released from custody he asked for transport to a doctor one last
time. He was told to “get the fuck out.” He left with his personal
belongings,

which

included

his

wallet

that

contained

some

“twenties.”

He did not have his cell phone because he had left it

in his car which was parked at the scene of the arrest.
He then walked the 2.2 miles to his car, limping badly.

He

attempted to board a bus but the driver, seeing him bloody, dizzy,
and limping, drove off.

He looked for a cab but did not see one.
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He had blood on his clothes and was still bleeding from his head
and was in extreme pain.

Ultimately, he reached his vehicle and

drove himself to the hospital.
At the emergency room, x-rays were taken of his knee and his
head was stitched up.

He was given medication for pain, given a

knee wrap, and recommendation at discharge that he use crutches
and be followed up by an orthopedic physician.

Six days later he

was seen by an orthopedic surgeon, Dr. Thangamani who ordered an
MRI of his right knee.

The MRI disclosed a full thickness anterior

cruciate ligament (“ACL”) tear on his right knee along with tears
in his medial and lateral aspects of his right meniscus.
sustained a lesion to his medial femoral condyle.
Plaintiff had knee surgery.

He also

One month later

Even after surgery he is unable to

resume his preinjury work as a union floor layer.

According to

Dr. Thangamani he is a candidate for total knee replacement.
II.

DISCUSSION

This case is before the Court on Plaintiff’s Second Amended
Complaint which is now only against the City of Chicago and four
police officers.

The case has three counts, two against the

officers, including a new one for deprivation of due process, one
for denial of medical care, and a state law count against the City
under the theory of respondeat superior.

Defendants have moved

for summary judgment on all counts. The deprivation of due process
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count is based on a state created danger theory and the denial of
medical

care

is

based

on

the

Fourth

Amendment’s

objectively

reasonable standard governing pre-trial detainees.
A.
The

Seventh

determining
unreasonable.

Denial of Medical Care

Circuit

whether

the

has

identified

officers

four

conduct

was

factors

in

objectively

The first is whether the officers had notice of the

arrestee’s medical needs, whether by word or observation.

Second,

the seriousness of the medical need, which alone need not be
objectively serious, but is to be balanced on a sliding scale with
the third factor, the scope of the requested treatment.

Finally,

the forth factor is the police interests, i.e., administrative,
penological, or investigatory concerns.
509 F.3d 392, 403 (7th Cir. 2007).

Williams v. Rodriquez,

In addition, the plaintiff

must show that the defendant’s conduct caused the harm complained
of.

Ortez v. Chicago, 656 F.3d 523, 530 (7th Cir.2011).
In analyzing the facts of this case, it appears to the Court

that Plaintiff has produced sufficient evidence that the denial of
medical care was objectively unreasonable.
had notice of his claimed injuries:

First, the officers

He told them over and over

again that he needed medical care, he was bleeding from the head,
and had a noticeable limp.

Think back when watching a football

game, and the star running back limps off the field.
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The first

concern is that he may have suffered a serious knee injury.
second factor, the seriousness of the need, was also there.

The
While

the officers could not reasonably be said to be on notice that he
had suffered a torn ACL, nevertheless the Plaintiff was painfully
limping and was only asking to be taken to a hospital.

He was not

requesting that the police provide him with surgery or a knee
replacement.

Finally, there does not appear to have been a police

interest that would have prevented the transportation to a medical
facility.

The City’s 30(b)(6) witness testified that under the

Department General Orders, an arrestee who requests medical care
is to receive it if not unreasonable.

In addition, the Plaintiff

was being released from custody so there were no safety concerns
to the public.

Finally, there are no claimed administrative

concerns, such as lack of manpower.

So, a trip to the hospital

would not have caused the department undue hardship.
The final issue is whether the Defendants’ denial of medical
care caused injury to the Plaintiff.

The Defendants make much of

the point that Plaintiff suffered the ACL tear during his scuffle
with Ugarte and that the police did not injure him.

However, as

Plaintiff points out, having to walk 2.2 miles on an injured leg
cannot be said as a matter of law that he suffered no injury
traceable to that walk.
Dr.

Chudik,

an

In addition, Plaintiff’s expert witness,

orthopedic

surgeon,
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testified

that

walking

activities accompanied by an ACL tear can lead to meniscus tears,
which the plaintiff did suffer.

Dr. Thangamani, the orthopedist

who performed the knee surgery, testified that while walking 2.2
miles with a torn ACL would not cause the tear but such a walk
“after

a

significant

injury

would

temporarily

exacerbate

swelling and pain that he would experience after the injury.”

the
It

will be up to the jury to determine from the evidence, whether or
to what extent any injury the Plaintiff may have sustained as a
result of the failure to provide the requested medical treatment.
The Motion for Summary Judgment as to the denial of medical care
count with respect to Defendants Campbell, Fuelling, and Oliver is
denied.

However, Defendant Scott is dismissed.

He supplemented

the Motion with his affidavit of non-involvement and the Plaintiff
does not appear to challenge this.
B.

The State Created Danger Count

This is a new count added after the Court ruled on the Motion
to Dismiss.

The state created danger theory is an exception to

the DeShaney v. Winnebago County, 489 U.S. 189, 197 (1989), rule
that there is no affirmative right to governmental protection, and
it is a narrow one.

Doe v. Village of Arlington Heights, 782 F.3d

535, 538 (7th Cir. 2015).

The claim depends on an actual danger

created by the state rather than a potential one and is based on
the due process clause.

Such claims are rare and normally require
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that the state actor turn a potential dangerous situation into an
actual dangerous one.

It appears that the paradigm of a state

created danger is the case where the police pick up an obviously
drunk individual who is in a relatively safe area, and then release
him into a known hazardous area.

Paine v. Cason, 578 F.3d 500,

511 (7th Cir. 2012).
In this case the charge is that the police did not provide
medical care and released him 2.2 miles from his car without
providing transportation, knowing that he needed to recover it.
Plaintiff had the wherewithal to get to his car without having to
walk.

He had money in his pocket.

There were many establishments

along the route where he would have access to a telephone to call
a cab or a friend for a ride.

While the police officers’ actions

appear (at least in Plaintiff’s version which we rely upon in a
summary judgment proceeding) to have been impolite bordering on
boorish, they nevertheless do not rise to the level of a due
process violation.

It should also be recalled that this case

involves the denial of medical care giving rise to a claim under
the Fourth Amendment rather than due process, so that there is
some conflict in providing constitutional protection for the same
conduct

under

separate

constitutional

provisions.

The

court

grants the Motion for Summary Judgment as to the state created
danger claim.
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C.

Qualified Immunity Claim

With regard to the qualified immunity claim, the right to
medical care is clearly established.

Paine at 506.

The Court

need not determine whether the state created danger rule was
clearly established under the facts of this case because the court
found that there was no state created danger.
III.

CONCLUSION

The Motion for Summary Judgment on behalf of Defendants
Campbell, Fuelling, and Oliver is denied as to the Denial of
Medical Care Count but is granted on the State Created Danger
Claim.

Summary Judgment is granted in favor of Defendant Richard

Scott on all counts.
The Plaintiff has lately filed a Motion to Strike some of
Defendants’ Statements of Material Fact.

The Court has read the

Motion and finds that it is moot as to the current summary judgment
motion.

Accordingly, the Motion to Strike is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 1/10/2019
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