Barrows v. Larry et al
Filing
134
MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 3/12/2020. Defendant Sgt. Sawyer's Motion for Summary Judgment 119 is denied. Genuine disputes of material fact remain as to whether Sgt. Sawyer was deliberately indif ferent to Barrows' serious medical needs and whether he took this into account when he moved Barrows into a potentially unsafe cell. Sgt. Sawyer has also not shown he is entitled to qualified immunity. Defendants Dr. Larry, Wexford Health Source s, Inc, Baldwin, Lt. Givens, Sgt. Mayes and Egbe's Motions for Summary Judgement 116 and 119 are granted. Barrows has failed to show they were deliberately indifferent to his risk of suicide. The case against Sgt. Sawyer may proceed to trial. Mailed notice(lk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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HENRY BARROWS,
Plaintiff,
v.
DR. CATHERINE LARRY, et al.,
Defendants.
Case No. 16 C 7882
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Henry Barrows, an inmate within the Illinois Department of
Corrections, has been diagnosed with schizoaffective disorder and has a history of
suicide attempts involving cutting. On August 4, 2015, Barrows informed the prison’s
crisis team that he was hallucinating, had suicidal thoughts, and stated that he “may
assault” correctional officers. He was initially placed in the Health Care Unit, but
then was moved to a suicide cell in X House. While in X House, he was under suicide
watch, but still managed to cut himself several times, causing injury. Barrows now
brings this suit under Section 1983, claiming deliberate indifference.
The defendants have moved for summary judgment, arguing that Barrows has
failed to show that the defendants were subjectively aware of a specific, serious
medical need or risk nor that defendants have demonstrated a culpable mental state
by deliberately ignoring Barrows’ alleged need or risk. (Dkt. 118; Dkt. 119-1). In the
alternative, defendants John Baldwin, Sergeant Jeffrey Sawyer, Lieutenant Eselina
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Givens, Sargent Troy Mayes, and Emmanuel Egbe move for summary judgment on
qualified immunity grounds. (Dkt. 119-1). Because a genuine dispute of material fact
remains in this case and Sgt. Sawyer has failed to show that he was not deliberately
indifferent to Barrows’ threat of suicide, the Court denies Sgt. Sawyer’s Motion for
Summary Judgment. Because there are no genuine disputes of material fact for the
remaining defendants, the Court grants Dr. Catherine Larry, Wexford Health
Sources, Inc., John Baldwin, Lt. Eselina Givens, Sgt. Troy Mayes, and Emmanuel
Egbe’s Motion for Summary Judgment.
BACKGROUND
The Plaintiff, Henry Barrows, is an inmate within the Illinois Department of
Corrections, and in August 2015 was incarcerated at Stateville Correctional Center.
(Dkt. 130 ¶ 1). Prior to August 4, 2015, Barrows was diagnosed with schizoaffective
disorder, and had made several suicide attempts that involved cutting. (Dkt. 132 ¶¶
1-2). Barrows has also experienced hallucinations, suicidal thoughts, and blackouts
throughout his incarceration within IDOC. (Dkt. 130 ¶ 9).
Plaintiff has a long history before this Court having filed three previous Section
1983 cases all alleging deliberate indifference for various medical and facility
defendants’ failure to protect him from committing suicide attempts. See Barrow v.
Gyimah et al, 12-6063 (alleging defendants failed to stop him from cutting himself settled with assistance of court-recruited counsel); Barros v. Olsen-Foxen et al. 127862 (alleging defendants failed to stop him from setting fire to his ankle – dismissed
for failure to follow court orders regarding in forma pauperis standard); Barrows v.
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Olsen-Foxen et al, 13-1889 ( alleging defendants failed to care for his burn – settled
with the assistance of counsel) as well as three cases filed in the Central District of
Illinois and one filed in the Southern District of Illinois. The Court has always
recruited attorneys to represent Mr. Barrows due to his mental health condition; ye
Mr. Barrows has not always chosen to have the representation. He is represented on
this case and was represented when responding to the Motion for Summary
Judgment. In spite of that, he has failed to demonstrate any disputed fact that would
require this Court deny Defendants’ Motion.
On August 4, 2015, at approximately 1:15 p.m., Barrows informed the
Stateville crisis team that he was hallucinating, had suicidal thoughts, and stated he
“may assault” one of the correctional officers. (Id. ¶ 8; Dkt. 119-4 at 3). As a result
of Barrow’s suicidal thoughts, the crisis team placed him in the health care unit
(“HCU”) and on a 15-minute close supervision. (Dkt. 130 ¶ 10). Defendant Dr.
Catherine Larry, who at the time was the mental health site services director for
Wexford Health Sources, Inc., stated that there is a progression of crisis supervisions
that includes “a 30-minute to a 15- to 10-minute suicide watch, continuous watch,
and if that doesn't allow the behaviors to stop or subside, we'll move to therapeutic
restraints or restraints for mental health purposes.” (Id. ¶ 11; Dkt. 117-1 at 141:712; Dkt. 129 ¶¶ 1, 2). Crisis supervisions include a restriction of property and a
controlled environment, and inmates are placed on crisis supervision if they are at an
immediate risk of harm or suicide.
(Dkt. 129 ¶ 2).
The mental health team
determines when to place an inmate on crisis supervision, and the correctional
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officers are in charge of monitoring the inmates on crisis supervision. (Id. ¶ 3; Dkt.
130 ¶ 12).
At 3:10 p.m. the same day, while in the HCU, Barrows cut his left arm with
something from his bed. (Dkt. 130 ¶ 13). Nurse Virginia Garcia treated his “4 cm
superficial laceration” and placed him on 10-minute suicide watch. (Id.; Dkt. 119-6
at BARROWS000071). At 3:40 p.m., due to undisclosed “security reasons,” Barrows
was transferred from HCU to a suicide cell in X House, while remaining on a 10minute suicide watch. (Dkt. 130 ¶ 14; Dkt. 119-6 at BARROWS000071). The parties
dispute whether security reasons actually existed. (Dkt. 130 ¶ 14). Prior to and
during his transfer, Barrows told prison staff that he wanted to remain in HCU. (Dkt.
132 ¶¶ 7, 13). Additionally, Barrows stated that he heard Ms. Sawyer, who worked
in the HCU, tell correctional officers that she wanted him moved from HCU to X
House. (Id. ¶ 5; Dkt. 119-5 at 36:17-24; 38:1-11). The parties dispute whether Ms.
Sawyer made these statements. (Dkt. 132 ¶ 5). The parties also dispute who made
the decision to transfer Barrows to X House. (Dkt. 130 ¶¶ 14, 15). Dr. Larry stated
that correctional officers determine where an inmate gets located within the prison.
(Dkt. 129 ¶ 4).
X House is a unit in the prison that includes inmates in protective custody, cell
house workers, and inmates on crisis watch. (Dkt. 130 ¶ 16). On August 4, 2015, X
House was recently under construction, and Sgt. Troy Mayes, a correctional sergeant
at Stateville, stated that X House is a “pretty old house” with plaster walls and bars
on the cells. (Id.; Dkt. 119-7 at 54:10-13). Prior to Barrows entering his cell in X
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House, Officer Palma conducted a shakedown of his cell to remove any contraband or
hidden objects that Barrows could potentially use to harm himself. (Dkt. 130 ¶ 17).
However, Barrows stated that despite the shakedown of the cell by Officer Palma,
there was still “a bunch of welding pieces inside the cell.” (Id.; Dkt. 119-5 at 46:9-10).
The parties dispute whether any contraband or metal objects remained in the cell
after the shakedown. (Dkt. 130 ¶ 17; Dkt. 119-5, 45: 8-11; 46: 5-13).
Defendant Sgt. Jeffrey Sawyer, a correctional major at Stateville and husband
of the previously mentioned Ms. Sawyer, assigned Officer Palma to monitor Barrows
while he was on 10-minute suicide watch in X House. (Id. ¶¶ 4, 17; Dkt. 132 ¶ 6). At
3:55 p.m., Officer Palma observed Barrows scratching at his left arm and bleeding.
(Dkt. 130 ¶ 18; Dkt. 119-8 BARROWS000008). Officer Palma gave Barrows a direct
order to stop, notified Sgt. Mayes, and then observed Barrows flush the toilet. (Id.).
Emmanuel Egbe, a correctional medical technician at Stateville, was summoned to X
House to provide medical care to Barrows. (Id. ¶¶ 7, 19). Barrows had two superficial
cuts on his left arm with a small amount of bleeding. (Id. ¶ 19; Dkt. 119-6 at
BARROWS00072). At that time, Barrows told Egbe, “I will continue cutting.” (Dkt.
119-6 at BARROWS00072; Dkt. 130 ¶ 19).
At 4:30 p.m., Sgt. Sawyer sent crisis team member, Dorcey Douglas, to X House
to speak with Barrows about his crisis. (Dkt. 130 ¶ 20). Barrows told Officer Douglas
that as long as he was in X House he would continue to cut himself, and that the first
chance he got he was going to hit Sgt. Sawyer and Sgt. Mayes. (Id.). At this time,
Officer Douglas called Dr. Larry, and Dr. Larry gave permission to place Barrows on
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continuous watch. (Id.). Throughout Barrow’s crisis on August 4, Dr. Larry was not
on site, nor did she see him in-person. (Dkt. 129 ¶ 5). After the 4:30 p.m. incident,
Barrows remained in X House. (Dkt. 130 ¶ 21).
At 5:30 p.m., Egbe was again summoned to X House to administer care after
Barrows was observed allegedly cutting himself. (Dkt. 130 ¶ 21; Dkt. 119-8 at
BARROWS000003). Egbe attempted to administer care three times, but Barrows
refused, however, Egbe observed neither bleeding nor blood on Barrows. (Dkt. 130 ¶
21). Barrows stated that correctional officers had to wait until he cuffed up before
they could enter the cell. (Dkt. 129 ¶ 35). Egbe’s report again details that Barrows
told Egbe that he would “continue cutting himself.” (Dkt. 130 ¶ 21, Dkt 119-8
BARROWS000003).
At 6:30 p.m., Officer Palma again observed Barrows cutting his left arm with
an unknown small object. (Dkt. 130 ¶ 22). Officer Palma gave Barrows direct orders
to stop and notified Sgt. Mayes. Barrows did not comply with the direct order and
told Sgt. Mayes that the object was a piece of metal he scraped off the bed. (Id.). Sgt.
Mayes then notified Egbe and Sgt. Sawyer, who then notified Officer Douglas. (Id.).
At 6:33 p.m., Barrows passed out. (Id. ¶ 23). As a result, Sgt. Mayes called a
Code 3, which is a medical emergency. (Id. ¶ 23). The parties dispute whether
Barrows passed out or if he was pretending. (Dkt. 132 ¶ 20). Egbe and Nurse Lorna
Anders responded to the Code 3 and administered medical care to Barrows, who was
alert and had two superficial cuts, one that was 2 ½ inches in length. (Dkt. 130 ¶ 24;
Dkt. 119-6 at BARROWS00076).
Egbe’s report states that the cut was
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“approximately 4 cm” in length and that Barrow’s left forearm was not bleeding when
he arrived. (Dkt. 130 ¶ 24; Dkt. 119-8 BARROWS000004). Sgt. Mayes stated that
he observed a “substantial amount” of blood when he entered Barrow’s cell. (Dkt. 130
¶ 24; Dkt. 119-7 at 49: 13-24, 50:1). Officer Douglas and Lt. Eselina Givens, a
correctional lieutenant at Stateville, also responded to the Code 3, and by the time
they arrived, medical staff was administering medical care to Barrows. (Dkt. 130 ¶¶
3, 26). At this time, Officer Douglas called Dr. Larry for the second time, who gave
permission to place Barrows in four-point restraints. (Id. ¶ 26).
After Egbe and Nurse Anders provided medical care, Barrows was escorted to
the HCU. (Dkt. 130 ¶ 27). After Barrows left the cell, Defendant Mayes and other
correctional officers searched the cell for any objects Barrows may have used to cut
himself. (Id. ¶ 28). No objects were found. (Id.).
At approximately 7:00 p.m., Barrows was placed in four-point restraints and
on a 10-minute suicide watch in the HCU. (Id. ¶ 30). At 11:40 p.m., a tactical team
removed the restraints from Barrows. (Dkt. 129 ¶ 15). At that time, Barrows stated
that he would not continue to harm himself. (Id.).
The next day, Barrows again cut himself on his left arm, resulting in a
moderate amount of blood. (Dkt. 130 ¶ 33). Medical staff treated him for his injury.
(Id.). On August 6, 2015, medical staff removed Barrows from 10-minute suicide
watch and placed on him 15-minute close-supervision. (Id. ¶ 34). On August 7, 2015,
medical staff again observed Barrows cutting his left arm, resulting in superficial
cuts. (Id. ¶ 35). On August 14, 2015, medical staff removed Barrows from 15-minute
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close supervision and placed him on 30-minute periodic check. (Id. ¶ 36). On August
17, 2015, Barrows was discharged from the HCU. (Id. ¶ 37).
LEGAL STANDARD
Summary judgment is proper when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see, e.g., Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473,
485 (7th Cir. 2019). The parties genuinely dispute a material fact when “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Daugherty v. Page, 906 F.3d 606, 609–10 (7th Cir. 2018) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether a genuine issue of
fact exists, the Court must take the evidence and draw all reasonable inferences in
favor of the party opposing the motion. Anderson, 477 U.S. at 255; see also Zander v.
Orlich, 907 F.3d 956, 959 (7th Cir. 2018). However, the party opposing the motion
for summary judgment may not rest on the allegations in his pleadings; he must come
forward with evidence of a genuine factual dispute. Anderson, 477 U.S 256.
DISCUSSION
Barrows claims that defendants were deliberately indifferent to his serious
medical condition, namely, his risk of suicide. (Dkt. 128 at 4). Defendants argue that
Barrows cannot show that they deliberately ignored Barrows’ medical condition. In
the alternative, defendants Baldwin, Sgt. Sawyer, Lt. Givens, Sgt. Mayes and Egbe
argue that they are exempt from prosecution due to qualified immunity. For the
reasons listed below, all but defendant Sgt. Sawyer have prevailed in showing they
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were not deliberately indifferent. Sgt. Sawyer has also not shown that he is entitled
to qualified immunity.
I.
Deliberate Indifference
In order to prevail on a Section 1983 claim for deliberate indifference, Barrows
must prove (1) the existence of an objective, serious medical need; (2) that the
defendant was subjectively aware of a specific, serious medical need or risk; and (3)
that the defendant demonstrated a culpable mental state by deliberately ignoring the
plaintiff’s alleged need or risk. Collins v. Seeman, 462 F.3d 757,760 (7th Cir. 2006).
The burden of proving deliberate indifference rests on the plaintiff. Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011).
Where, as here, the harm at issue is attempted suicide, the second, subjective
component of an Eighth Amendment claim requires a dual showing that the
defendant: (1) subjectively knew the prisoner was at substantial risk of committing
suicide and (2) intentionally disregarded the risk. Collins, 462 F.3d at 761; Matos ex.
rel. Matos v. O'Sullivan, 335 F.3d 553, 556 (7th Cir.2003); see also Estate of Novack
ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th Cir. 2000). In other words,
“the defendant must be cognizant of the significant likelihood that an inmate may
imminently seek to take his own life.” Collins, 462 F.3d at 761. However, liability
cannot attach where “the defendants simply were not alerted to the likelihood that
[the prisoner] was a genuine suicide risk.” Boncher ex rel. Boncher v. Brown
County, 272 F.3d 484, 488 (7th Cir.2001).
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Deliberate indifference requires “more than mere or gross negligence, but less
than the purposeful or knowing infliction of harm.” Matos, 335 F.3d at 557; Estate of
Novack, 226 F.3d at 529.
Courts have characterized the required showing as
“something approaching a total unconcern for [the prisoner's] welfare in the face of
serious risks.” Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992). Although this is a
“high hurdle for a plaintiff,” Peate v. McCann, 294 F.3d 879, 882 (7th Cir.2002), he
“need not show that a prison official acted or failed to act believing that harm actually
would befall an inmate; it is enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.” Woodward v. Correctional Medical
Services of Illinois, Inc, 368 F.3d 917, 927 (7th Cir. 2004); Farmer v. Brennan, 511
U.S. 825, 842 (1994). A defendant with knowledge of a risk need not “take perfect
action or even reasonable action[,] ... his action must be reckless before §
1983 liability can be found.” Collins, 462 F.3d at 762 (citing Cavalieri v. Shepard, 321
F.3d 616, 622 (7th Cir.2003))
Whether a prison official had requisite knowledge of substantial risk, so as to
have duty to protect prisoner from harm, is question of fact subject to demonstration
in usual ways, including inference from circumstantial evidence, and fact finder may
conclude that prison official knew of substantial risk from very fact that risk was
obvious. Farmer, 511 U.S. at 842-43.
In order for to be liable in this case, Barrows must also show that the
defendants had personal involvement in the deliberate indifference to his medical
condition. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996). The Seventh Circuit has
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upheld personal involvement as a necessary part of a deliberate indifference claim
against a medical provider. Vance, 97 F.3d at 992 (7th Cir. 1996); Payne v. Chuchich,
161 F.3d 1030, 1039 (7th Cir. 1998). In order to hold supervisors liable for the conduct
of their employees, “supervisors must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they might see. They must
in other words act either knowingly or with deliberate, reckless indifference.”
Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997) (citing Jones
v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). Supervisory liability will be
found if the supervisor has knowledge of the subordinate’s conduct and approves of
the conduct and the basis for it. Id.
In this case, defendants do not dispute the seriousness of Barrows’ medical
condition, 1 and that his schizophrenic affective disorder, combined with his auditory
hallucinations and self-injurious behavior, placed him at a significant risk of harm.
See Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (citing Collins, 462 F.3d at
760 (“[I]t goes without saying that suicide is a serious harm”); Sanville v.
McCaughtry, 266 F.3d 724, 734 (7th Cir. 2000) (“The need for a mental illness to be
treated could certainly be considered a serious medical need.”) (citation omitted).
Instead, all defendants dispute the second and third prongs of the Deliberate
Indifference test: that the defendant was subjectively aware of a specific, serious
medical need or risk; and that the defendant demonstrated a culpable mental state
Although at Dkt 132 ¶ 1, Plaintiffs Larry and Wexford state that plaintiff cannot label his illnesses as “serious,”
they do not dispute this prong in their briefs.
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by deliberately ignoring the plaintiff’s alleged need or risk. Collins v. 462 F.3d at 760.
Each of their claims will be analyzed in turn.
a.
Defendant Dr. Catherine Larry
Barrows must show that Dr. Larry acted with deliberate indifference to his
serious medical needs or condition. Id. Because Dr. Larry does not dispute whether
Barrow’s injury was sufficiently serious, the main issue to review is whether Dr.
Larry was subjectively aware that the Barrows needed treatment and was at risk for
a suicide attempt but nevertheless purposely and deliberately withheld such
treatment. “Prison physicians will be liable under the Eighth Amendment if they
intentionally disregard a known, objectively serious medical condition that poses an
excessive risk to an inmate's health.” Gonzalez v. Feinerman, 663 F.3d 311, 313 (7th
Cir.2011).
Here, Barrows has failed to show that Dr. Larry was subjectively aware that
Barrows was at risk for a suicide attempt but purposely withheld treatment from
him.
Dr. Larry states that she not present at the site when the Barrows was
threatening to harm himself and had no in-person interaction with him. (Dkt. 117 ¶
5). When Dr. Larry was called by Sgt. Mayes at 4:30 p.m. regarding Barrow’s mental
health crisis, Dr. Larry gave an order to have him placed on continuous watch when
he was already in the X House. (Id. at ¶ 6). Dr. Larry was not called again until 6:45
p.m. when the IDOC report indicates that Barrows had cut his arm and Dr. Larry
then ordered Barrows to be placed in restraints in the HCU. (Id. at ¶ 10). Barrows
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stayed in the HCU, in four-point restraints, until later in the evening when he stated
he would no longer harm himself. (Id. at ¶ 15).
The record does not show that Dr. Larry purposefully withheld treatment for
Barrows. Dr. Larry was made aware by prison staff that Barrows was undergoing a
mental health crisis and was at-risk for suicidal behavior, but there is nothing to
indicate that her behavior was “approaching a total unconcern” for Barrow’s welfare
in the face of his behavior. Duane, 959 F.2d at 677. Dr. Larry twice escalated
Barrows level of care, and the record does not show that she was a participant in the
decision to move Barrows from HCU to a suicide cell in X House. Thus, to the extent
that Barrows’ claim rests on the decision to place him in X House, Dr. Larry cannot
be held to be deliberately indifferent as she was not personally involved in the
decision and was only updated after the fact. Vance v. Peters, 97 F. 3d at 991.
Barrows cites to Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) to state
that summary judgment is inappropriate “if a jury could reasonably conclude that a
doctor knowingly adhered to a method to treat an inmate’s objectively serious medical
condition that she knew was not effective.” (citations omitted). However, Barrows
fails to show that Dr. Larry knew this was an ineffective treatment, or even that a
reasonable physician in Dr. Larry’s position would have known this was an ineffective
treatment. In other words, Barrows has not shown that Dr. Larry failed to exercise
professional judgment that could constitute deliberate indifference. Additionally,
Barrows has failed to point to anything in the record to show there was an
inexplicable delay. Between where Dr. Larry was alerted to the suicide threat to
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where Barrows was placed in restraint, only approximately two hours elapsed, and
there is nothing to indicate that this was inexplicable as Barrows was under nearconstant surveillance at the time. See Petties v. Carter, 836 F.3d 722, 730 (7th Cir.
2016) (collecting cases with an inexplicable delay with no penological interest).
Because Barrows has not shown that Dr. Larry acted with deliberate
indifference to his threat of suicide, Dr. Larry’s Motion for Summary Judgment is
granted.
b.
Defendant Wexford Health Sources, Inc.
With regard to Barrows’ claim against Wexford Health Sources, Inc.
(“Wexford”), private corporations acting under color of state law, like municipalities,
may only be held liable for injuries resulting from unconstitutional policies or
practices. Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658, 690-91
(1978). Under Monell, a municipality may be liable for money damages under Section
1983 “if the unconstitutional act complained of is caused by: (1) an official policy
adopted and promulgated by its officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well settled; or (3) an official
with final policy-making authority.” Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d
293, 303 (7th Cir. 2009) (citing Monell, 436 U.S. at 690). An unconstitutional policy
can include both implicit policies as well as a gap in expressed policies. Daniel v.
Cook County, 833 F.3d 728,734 (7th Cir. 2016) (quoting Thomas v. Cook County
Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2009)). An inmate can meet this burden
by offering “competent evidence tending to show a general pattern of repeated
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behavior (i.e., something greater than a mere isolated event).” Daniel, 833 F.3d at
734 (quoting Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006)). To prove an official
policy, custom, or practice within the meaning of Monell, Barrows “must show more
than the deficiencies specific to his own experience.” Id. If relying upon indirect
proof, Barrows must show evidence to allow a reasonable trier of fact to find “systemic
and gross deficiencies in staffing, facilities, equipment, or procedures in a detention
center’s medical care system.” Id. (quoting Dixon v. County of Cook, 819 F. 3d 343,
348 (7th Cir. 2016) (quotation omitted). If Barrows accomplishes this, he must then
show that a policymaker or official knew about these deficiencies and failed to correct
them. Dixon, 819 F.3d at 348 (citing Wellman v. Faulkner, 715 F.2d 269, 272 (7th
Cir. 1983)).
Here, Barrows has not shown any sort of policy or custom to indicate that this
was more than an isolated event. Additionally, he has failed to produce evidence as
to any other inmates at Stateville or Menard. In Barrows’ response brief (Dkt. 128),
he fails to even mention Wexford besides to say its Motion for Summary Judgment
should be denied. (Id. at 11). Due to this, Barrows has failed to meet his burden at
this stage. Wexford’s Motion for Summary Judgment is granted.
c.
Defendant John Baldwin
Barrows must show that Defendant John Baldwin, the Acting Director of
IDOC, acted with deliberate indifference. To do this, Barrows needs to show that
Baldwin subjectively knew the prisoner was at substantial risk of committing suicide
and intentionally disregarded the risk. Collins, 462 F.3d at 761. Barrows does not
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show any facts that Baldwin was involved personally in this crisis. To be liable “for
the conduct of subordinates, a supervisor must be personally involved in that
conduct” in Section 1983 cases. Lanigan, 110 F.3d at 477. Barrows has not shown
that Baldwin was cognizant of “the significant likelihood that an inmate may
imminently seek to take his own life.” Collins, 462 F.3d at 761. As liability cannot
attach where “the defendants simply were not alerted to the likelihood that [the
prisoner] was a genuine suicide risk,” and Barrows has made no showing that
Baldwin was aware of or involved in his health crisis, the Court grants Baldwin’s
Motion for Summary Judgment. Boncher, 272 F.3d at 488.
d.
Defendant Sergeant Jeffrey Sawyers
Defendant Sgt. Jeffrey Sawyer was a correctional major of IDOC at Stateville.
(Dkt. 119, ¶ 3). In his complaint, Barrows alleges that Sgt. Sawyer moved him out of
the HCU because Sgt. Sawyer’s wife, who was in charge of the HCU, did not want
Barrows there because he had been previously uncooperative and unpleasant. (Dkt.
65, ¶ 19) but the parties dispute this, as defendants indicate Barrows was moved for
unnamed “security reasons.” (Dkt. 130, ¶ 14; Dkt. 119-6 at BARROWS000071). The
facts show that Sgt. Sawyer’s main involvement entail the following: transferring
Barrows from the HCU to X House, although a dispute remains whether Barrows
was placed into a proper cell or if there was a proper rationale. (Dkt. 130 at ¶ 14, 16;
Dkt. 119-6 at BARROWS000071; Dkt. 119-7, 16: 9-16; 80: 20-23; 92: 9-24; 93: 1-10);
assigning Correctional Officer Palma to conduct Barrows’ 10-minute suicide watch,
although a dispute remains how thorough Correctional Officer Palma’s shakedown of
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the cell was (Dkt. 130 at ¶ 17; Dkt. 119-7, 22: 11-16; 93: 11-24; 94: 1-12); sending
correctional officer and crisis team member Douglas to X House to speak with
Barrows, who then called Dr. Larry before placing Barrows on continuous watch.
(Dkt. 130 at ¶ 20; Dkt. 119-8, BARROWS000006). Sgt. Sawyer, along with the other
defendants, does not dispute the existence of a serious medical need, and he was
undoubtedly aware of the risk as he ordered Barrows to be placed in X House in a
crisis cell. (Dkt. 130 at ¶¶ 14, 16).
A question of material fact remains whether Sgt. Sawyer knew and was aware
that the cell in X House contained construction materials such that a suicidal prisoner
with a history of cutting could find material, and whether he took this risk such to
avoid placing Barrows in his wife’s care. These material facts could give rise to an
inference that Sgt. Sawyer had a culpable mental state by deliberately ignoring
Barrow’s serious medical issue, i.e. his suicidal behavior. Collins v. Seeman, 462 F.3d
757. While it is undisputed that Correctional Officer Palma performed a shakedown
of Barrow’s cell in X House, (Dkt. 130 at ¶ 20; Dkt. 119-8, BARROWS000006), this
does not answer what “security reasons” existed for placing Barrows in a potentially
unsafe cell in the first place. Sgt. Sawyer knew of Barrows’ crisis and the facts do not
show that took care to ensure Barrows’ safety if, in fact, he placed him in a cell under
construction instead of keeping him at HCU, despite his knowledge that Barrows was
a cutter experiencing suicidal ideation. Barrows need not show that Sgt. Sawyer
“acted or failed to act believing that harm actually would befall an inmate,” it is
enough that Sgt. Sawyer “acted or failed to act despite his knowledge of a substantial
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risk of serious harm.” Woodward, 368 F.3d at 927. The facts do not show that Sgt.
Sawyer’s actions were reasonable in light of the risk of self-harm.
Sgt. Sawyer argues that “a prison official, who is a non-medical administrator,
does not act with deliberate indifference for ‘failure to take further action once he had
referred the matter to the medical providers.’” (Dkt. 119-1 at 5 (citing Greeno v. Daley,
414 F.3d 645,656 (7th Cir. 2005). However, at issue here is the conduct before Sgt.
Sawyer referred the matter to a medical provider, namely his decision to place
Barrows in a potentially unsafe cell and not remove him, although he is one of the
defendants who had authority to send him back to HCU. Thus, Sgt. Sawyer could
still be deemed to be deliberately indifferent to Barrows’ medical emergency.
e.
Defendant Lieutenant Eselina Givens
Defendant Lt. Eselina Givens was a correctional lieutenant of IDOC at
Stateville. (Dkt. 119, ¶ 4). It is undisputed that Lt. Givens did not have the authority
to move Barrows from Health Care to X-House. (Dkt. 130 at ¶ 15; Dkt. 119-5 at 42:
3-5). Barrows must show that Lt. Givens subjectively knew he was at substantial
risk of committing suicide and intentionally disregarded the risk. Collins, 462 F.3d
at 761.
Barrows cannot show sufficient facts that Lt. Givens intentionally
disregarded the risk of Barrows’ self-harming. Barrows alleges, but does not point to
any cite in the record, that “Defendant Mayes and defendant Givens were both aware
that Barrows was continuing to cut himself and neither of them asked a superior
officer if Barrows should be moved back to the HCU.” (Dkt. 128 at 6). Defendants
state that Sgt. Mayes twice contacted medical and his immediate supervisors, Lt.
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Givens and Sgt. Sawyer, regarding Barrows’ attempts to cut his left arm. (Dkt. 1191 at 6). Presumably, this put Lt. Givens on notice that Barrows was attempting to
cut himself, although there are no facts to indicate she knew how serious this was
nor that Lt. Givens deliberately ignored the threat of Barrows suicide, given that he
was in a suicide cell on suicide watch and there are no facts that show she knew the
alleged condition of the cell. In order to find Lt. Givens liable, “supervisors must
know about the conduct and facilitate it, approve it, condone it, or turn a blind eye
for fear of what they might see,” that is to say, they must “act either knowingly or
with deliberate, reckless indifference.” Lanigan, 110 F.3d at 477 (citing Jones v. City
of Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
Lt. Givens was not immediately involved until she responded to the Code 3
after Barrows fainted. (Id.; Dkt. 130, ¶ 25; Dkt. 119-10, 43: 22-24; 44: 1-17). The
facts at this stage simply do not show that Lt. Givens intentionally disregarded any
risk that Barrows would self-harm nor that she demonstrated “something
approaching a total unconcern for [the prisoner's] welfare in the face of serious
risks.” Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992). As such, the Motion for
Summary Judgment for Lt. Givens is granted.
f.
Defendant Sergeant Troy Mayes
Defendant Sergeant Troy Mayes was a correctional sergeant of IDOC at
Stateville. (Dkt. 130, ¶ 5). Mayes did not have authority to move Barrows from the
HCU to X House. (Dkt. 130, ¶ 15; Dkt. 119-5, 42: 3-5). The facts show that Sgt.
Mayes was involved at the following moments: at 3:55 p.m., while conducting his 10-
19
minute suicide watch, Correctional Officer Palma observed Barrows scratching at his
left arm and bleeding, told him to stop, and then notified Sgt. Mayes (Dkt. 130 ¶ 18;
Dkt. 119-8 BARROWS000008); at approximately 6:30 p.m., Officer Palma saw
Barrows cutting his left forearm with a small object and notified Sgt. Mayes, who
then went to Barrows cell and told him stop, before notifying Egbe and Sg. Sawyer,
who notified crisis team member Officer Douglas, (Dkt. 130, ¶ 22; Dkt. 119-8
BARROWS000005); at approximately 6:33 p.m., while waiting for crisis team
member Officer Douglas, Barrows passed out and Sgt. Mayes immediately called a
Code 3 medical emergency. (Dkt. 130, ¶ 23; Dkt. 119-9).
Barrows must show Sgt. Mayes was subjectively aware of Barrows’ specific,
serious medical need or risk; and that Sgt. Mayes demonstrated a culpable mental
state by deliberately ignoring this risk. Collins, 462 F.3d at 760. The facts do not
show that Sgt. Mayes deliberately ignored Barrow’s risk of self-harm or attempted
suicide. When alerted to Barrows behavior, Sgt. Mayes sent Egbe to check on him
and provide care, as well as alerting his supervisors. (Dkt. 119-2, ¶ 18). Additionally,
when Barrows’ behavior became more serious, Sgt. Mayes went directly to Barrows
cell, and in the course of a few minutes, called a medical emergency. (Dkt. 119-2 at
22, Dkt. 119-8 BARROWS000005). The facts do not show that Sgt. Mayes engaged
in reckless behavior, nor that he ignored the serious risk that Barrows’ behavior
posed. Where Sgt. Mayes did not go to check on Barrows personally, he sent a medical
technician to provide care. The facts demonstrate that Sgt. Mayes was aware of the
risk of Barrows’ behavior and that he did not ignore Barrows’ risk of self-harm.
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While Barrows states that Sgt. Mayes was aware of the condition of the cell in
X House when Barrows was placed inside (Dkt. 128 at 6), nowhere does Barrows show
that Sgt. Mayes was behind this decision to place him there, nor that Sgt. Mayes had
authority to move Barrows. Additionally, Barrows states, without citing to anything
in the record, that “Defendant Mayes and defendant Givens were both aware that
Barrows was continuing to cut himself and neither of them asked a superior officer if
Barrows should be moved back to the HCU.”
(Dkt. 128 at 6). Merely alleging
something without pointing to a fact in the record does not suffice at this stage, as
“the party opposing the motion for summary judgment may not rest on the allegations
in his pleadings; he must come forward with evidence of a genuine factual dispute.”
Anderson, 477 U.S 256.
As the record shows that Sgt. Mayes was aware of Barrows’ risk of self-harm
and did not ignore the serious risk, the Motion for Summary Judgment is granted as
to Mayes.
g.
Defendant Egbe
Defendant Emmanuel Egbe is a correctional medical technician of IDOC at
Stateville. (Dkt. 119-1 at 6). The facts do not demonstrate that Egbe was subjectively
aware that Barrows needed treatment and was at risk for a suicide attempt but
nevertheless purposely and deliberately withheld such treatment. Collins, 462 F.3d
at 761. Egbe treated Barrows several times throughout the course of August 4, 2015.
At approximately 4:00 p.m., Egbe was summoned to X-House to provide medical care
to Barrows after Barrows scratched his arm, causing it to bleed. (Dkt. 130, ¶ 19; see
21
also Dkt. 119-6, BARROWS000072; Dkt. 119-8 BARROWS000009). Egbe stopped the
bleeding and noticed Barrows had two superficial cuts. (Id.). Egbe’s report also quotes
Barrows as stating, “I will continue cutting.”
(Dkt. 130, ¶ 19, Dkt. 119-6,
BARROWS000072). While it is extremely disconcerting that Egbe noted Barrows
statement and did not raise a greater alarm, his behavior does not “approach a total
unconcern” for Barrows welfare. Duane, 959 F.2d at 677. Nor was his behavior the
“functional equivalent of wanting harm to come to the prisoner.”
McGill v.
Duckworth, 944 F.2d 344,347 (7th Cir. 1991). Egbe again went to treat Barrows at
5:30 p.m. and attempted to provide care three times, but Barrows refused. (Dkt. 130,
¶ 21; Dkt. 119-6 BARROWS000073-74; Dkt. 119-8 BARROWS00003). Egbe noted in
his contemporaneous report that Barrows was not bleeding and there was no blood.
(Id.). Again, Barrows told Egbe that he would continue cutting himself. (Dkt. 130, ¶
21; Dkt 119-8 BARROWS000003). At approximately 6:30 p.m., Officer Palma saw
Barrows cutting his left forearm with a small object and then notified Sgt. Mayes,
who went to Barrows cell and told Barrows to stop. (Dkt. 130 at 22). Sgt. Mayes then
notified Egbe and Sgt. Sawyer, who subsequently notified crisis team member Officer
Douglas. (Id.; Dkt. 119-8 BARROWS000005). While waiting for Officer Douglas,
Barrows passed out and Mayes called a Code 3 medical emergency, to which Egbe
and nurse Lorna Adams responded and provided care. (Dkt. 130 at 24; Dkt 119-6
BARROWS00074-75; Dkt. 119-8 BARROWS000004).
While it is a much closer analysis here, the facts in the record do not indicate
that Barrows has met his burden of showing that Egbe acted with deliberate
22
indifference. Egbe continuously responded to calls to Barrows’ cell and treated or
attempted to treat Barrows. He did not ignore Barrows pain so as to give rise to an
inference that Egbe acted in a manner “so plainly inappropriate as to permit the
inference that the defendants intentionally or recklessly disregarded his needs.”
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (citing Farmer v. Brennan, 511
U.S. 825, 837 (1970). While Egbe’s reports state that Barrows told him plainly that
he would continue cutting, Barrows does not show that Egbe ignored Barrows in light
of these warnings.
Additionally, Egbe did not have authority to move Barrows
himself, and while perhaps he could have done more to ensure Barrows was moved
to the HCU earlier in light of his statement that he would continue cutting, a
defendant with knowledge of a risk need not “take perfect action or even reasonable
action[,] ... his action must be reckless before § 1983 liability can be found.” Collins,
462 F.3d at 762. In light of the facts in the record, Egbe’s actions could not be deemed
reckless, although imperfect.
For these reasons, Egbe’s Motion for Summary
Judgment is granted.
II.
Qualified Immunity
Defendants argue in the alternative that they are entitled to summary
judgment on qualified immunity grounds. (Dkt. 119-1, at 9-10). The Court has
granted summary judgment to all defendants but Sgt. Sawyer. Defendants argue
that they are entitled to qualified immunity because Barrows cannot show that he
was subjected to a constitutional violation.
(Id.).
Defendants posit that the
constitutional violation is premised on his conditions of confinement, as opposed to
23
the deliberate indifference of his serious medical condition. While that may be the
case for the remaining defendants, Barrows was able to show sufficient facts of a
constitutional violation by Sgt. Sawyer so as to survive a motion for summary
judgment for deliberate indifference for his serious medical condition, i.e. the risk of
his suicide.
It is well-established that “government officials violate inmates'
constitutional rights when they deliberately disregard an inmate's serious medical
condition, and only a trial can resolve the facts that are in dispute.” Hayes v. Snyder,
546 F.3d 516, 528 (7th Cir. 2008); see also Estate of Clark v. Walker, 865 F.3d 544,
551-552 (7th Cir. 2017) (stating that the Supreme Court has long held that prisoners
have an Eighth Amendment right to treatment for their “serious medical needs” such
as to give rise to a clearly established right that overcomes qualified immunity);
Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003); Estate of Miller, ex rel.
Bertram v. Tobiasz, 680 F.3d 984, 988-989 (7th Cir. 2012). Therefore, as to Sgt.
Sawyer, the Motion for Summary Judgment on qualified immunity grounds is denied.
CONCLUSION
Defendant Sgt. Sawyer’s Motion for Summary Judgment is denied. Genuine
disputes of material fact remain as to whether Sgt. Sawyer was deliberately
indifferent to Barrows’ serious medical needs and whether he took this into account
when he moved Barrows into a potentially unsafe cell. Sgt. Sawyer has also not
shown he is entitled to qualified immunity. Defendants Dr. Larry, Wexford Health
Sources, Inc, Baldwin, Lt. Givens, Sgt. Mayes and Egbe’s Motions for Summary
24
Judgement are granted.
Barrows has failed to show they were deliberately
indifferent to his risk of suicide. The case against Sgt. Sawyer may proceed to trial.
____________________________________
Virginia M. Kendall
United States District Judge
Date: March 12, 2020
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