Turner v. Dr. Reena D. Paul et al

Filing 112

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 6/4/2019: For the foregoing reasons, the Court grants the defendants' motion for summary judgment [dkt. no. 74] and directs the Clerk to enter judgment in favor of defendants and against plaintiff. Mailed notice.(pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARRYL TURNER,
Plaintiff,
vs.
DR. REENA D. PAUL, DR. STAMATIA
Z. RICHARDSON, GINA J. CHUNG,
DR. ELIZABETH FELDMAN,
DR. CONNIE MENNELLA, DR. KENYA
KEY, DR. DAVID KELNER, DR. NNEKA
JONES TAPIA, SANDRA NAVARRO,
and COOK COUNTY,
Defendants.

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Case No. 17 C 2434

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Darryl Turner, a former inmate at the Cook County Jail, has sued a number of
medical professionals and administrators at Cermak Health Services of Cook County
and the Cook County Health and Hospitals System, alleging that they violated the
Eighth and Fourteenth Amendments by failing to ensure that he promptly received
surgery to treat a facial fracture. He has also sued Cook County under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978), alleging
that its policies and customs unconstitutionally delayed his treatment. The defendants
have moved for summary judgment.
Background
On October 24, 2015, Turner suffered a broken nose in an altercation with

another inmate at the jail. He was taken to the urgent care clinic at Cermak Health
Services, the jail's medical center, where he was evaluated by Dr. Reena Paul. Dr. Paul
diagnosed Turner with nasal trauma and sent him to receive a CT scan at Stroger
Hospital, which is operated by Cook County. The CT scan showed minimally displaced
fractures in Turner's nasal bones and septum, a small septum hematoma, and an sshaped configuration of the septum. Several days later, Turner saw an ear, nose, and
throat (ENT) specialist at Stroger. The ENT recommended that Turner follow up at
Stroger's plastic surgery clinic for a nasal fracture evaluation.
On November 9, 2015, while appearing in Cook County criminal court, Turner
told the judge that his broken nose had not been attended to and that he had an
appointment with a plastic surgeon scheduled for the following day. The judge issued
an order requiring that Turner "be seen by a doctor as soon as possible for his broken
nose and any additional injuries he suffered." Mennella Dep., dkt. no. 83–4, at 55:19–
56:13.
The next day, Turner was transported to the plastic surgery clinic at Stroger,
where he was evaluated by Dr. Stefan Szczerba, an assistant clinical professor of
surgery. Dr. Szczerba found that Turner had a broken deviated septum, a turbinate
obstruction, and a mild deformity of the nasal bones. He determined that Turner should
undergo a septorhinoplasty and turbinate reduction—surgical procedures intended to
improve nasal breathing. Dr. Szczerba later testified that these surgeries could not
occur until the swelling from the initial trauma subsided. He further testified that he
believed that he expected Turner would have the surgery between six months and one
year after he first evaluated Turner.

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Turner had a follow-up appointment with Dr. Paul at Cermak on November 19,
2015. She determined that Turner had missed his pre-operation clearance that was
scheduled for that same day. The pre-operation clearance is administered at Stroger's
anesthesiology clinic and is intended to ensure that the patient is medically cleared for
surgery. Dr. Paul contacted the scheduling department at Stroger to ensure that Turner
received the clearance. Turner was taken to Stroger for the pre-operation clearance the
next day.
Turner appeared in criminal court again on December 14, 2015. He told the
judge—apparently incorrectly—that his surgery had been scheduled for November 9th
or 10th but had not occurred. He also told the judge that the jail had ignored the
previous court order. Based on Turner's statements, the judge issued a second order
requiring the jail to give Turner any required surgery as soon as possible.
On December 22, Turner's criminal defense attorney Mark Parts sent a letter to
the executive director of the Cook County Department of Corrections, Dr. Nneka Jones
Tapia, explaining that Turner had not yet received surgery despite the judge's order. Dr.
Jones Tapia forwarded Parts' letter to two Cermak administrators: Dr. Elizabeth
Feldman, the divisional chair for clinical operations, and Dr. Connie Mennella, chair of
the department of correctional health.
On December 30, 2015, Turner had another follow-up appointment at Cermak,
this time with Dr. Stamatia Richardson. Dr. Richardson noted that Turner did not have
another appointment scheduled at the plastic surgery clinic and indicated that an
appointment should be scheduled. He was given an appointment on a date about two
weeks later.

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At that appointment, which took place on January 12, 2016, Dr. Szczerba
evaluated Turner again. He noted that Turner complained of extreme tenderness over
his nasal bone and recommended that Turner return to the clinic in one to two weeks to
evaluate the timing of his surgery. The next day, Turner had another appointment with
Dr. Paul regarding an unrelated medical complaint. Dr. Paul noted that Turner had his
surgery scheduled for the following week.
Turner returned to the plastic surgery clinic again on January 19, 2016. He was
evaluated by Dr. Michael Gart, a medical resident. Dr. Gart scheduled him for surgery
on January 21. That surgery did not take place, however. Dr. Gart and Dr. Szczerba
testified that they did not recall why the surgery was canceled, although they stated that
Turner's surgery was "elective" and that it was commonplace for elective surgeries that
were not emergencies to be rescheduled to make time for urgent surgeries.
On February 2, 2016, Sandra Navarro, the deputy director of risk management at
the Cook County Health and Hospitals system, received a call from attorney Parts, who
informed Navarro that Turner had not yet undergone surgery. Navarro discussed the
issue with the scheduling department at Cermak and determined that he had an
upcoming follow-up appointment at Cermak. She shared that information with Dr.
Feldman and Dr. Mennella. Dr. Feldman then contacted Dr. Sumanas Jordan, a
medical resident at the plastic surgery clinic. Dr. Jordan said that the clinic would
attempt to schedule Turner's surgery at his next appointment on February 9.
A note from a follow-up visit at Cermak on February 9 indicated that Turner had
been scheduled for surgery later that month, on February 25. That surgery did not take
place. Again, there is no testimony explaining why that particular surgery was canceled.

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The next day, however, Dr. Jordan scheduled Turner for surgery on March 31.
On March 22, 2016, Turner had a follow-up appointment at Cermak with
physician assistant Gina Chung. Chung noted that Turner had been scheduled for
surgery on February 2016 but that the operation had not taken place. She testified that
she was unable to determine why the surgery did not proceed as scheduled. Chung
stated, however, that when an inmate failed to undergo a scheduled surgery it was
usually because the surgeon rescheduled it or because the department of corrections
failed to transport the inmate.
Once again, Turner's surgery did not occur as scheduled on March 31, 2016. At
a follow-up appointment at Cermak on April 25, the physician noted that his surgery had
apparently been canceled. There is no evidence regarding the reason for this
cancellation.
In June 2016, Turner left the Cook County Jail. He was briefly sent to Stateville
Correctional Center and was then transferred to Robinson Correctional Center. He was
released from Robinson on August 8, 2016. In November 2016, he returned to Stroger
Hospital to undergo a septoplasty and turbinate reduction. Turner testified that he
remained in substantial pain after the surgery, although he stated that the operation
improved his breathing and lessened his pain a little.
Turner filed this suit in March 2017, alleging that Cook County and several of his
physicians were deliberately indifferent to his serious medical need in violation of the
Eighth and Fourteenth Amendments. He later amended his complaint to name
additional individual defendants, though he voluntarily dismissed his claims against Dr.
Kenya Key, Dr. David Kelner, and Dr. Nneka Jones Tapia in October 2018. The

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remaining defendants have moved for summary judgment.
Discussion
Summary judgment is appropriate if there is no genuine dispute of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Martinsville Corral, Inc. v. Soc'y Ins., 910 F.3d 996, 998 (7th Cir. 2018). The Court
views the evidence and draws all reasonable inferences in Turner's favor. See
Cervantes v. Ardagh Grp., 914 F.3d 560, 564 (7th Cir. 2019). To survive summary
judgment, Turner must "present specific facts establishing a material issue for trial, and
any inferences must rely on more than mere speculation or conjecture." Giles v.
Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019).
In their briefs, both parties analyzed Turner's claims under the Eighth
Amendment, which requires a plaintiff to show that prison officials were deliberately
indifferent to a serious medical need. Id. at 1048–49 (citing Estelle v. Gamble, 429 U.S.
97, 104 (1976)). But because Turner was a pretrial detainee at all relevant times, the
less stringent standard of the Fourteenth Amendment applies to his claims. See
Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018). In Miranda, the Seventh
Circuit held that "medical-care claims brought by pretrial detainees under the Fourteenth
Amendment are subject only to [an] objective unreasonableness inquiry." Id. After
briefing on the motion for summary judgment was complete, the Court afforded both
parties the opportunity to submit supplemental briefs that applied the appropriate
standard, though only Turner did so.
Under Miranda, Turner's due process challenge to his medical care has two
elements. First, he must show that the defendants acted purposefully, knowingly, or

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recklessly. See id. at 353. Second, he must show that the defendants' conduct was
objectively unreasonable. See id.; see also McCann v. Ogle County, 909 F.3d 881, 886
(7th Cir. 2018). This standard "requires courts to focus on the totality of facts and
circumstances faced by the individual alleged to have provided inadequate medical care
and to gauge objectively—without regard to any subjective belief held by the
individual—whether the response was reasonable." McCann, 909 F.3d at 886.
A.

Injury caused by the delay

Both Cook County and the individual defendants argue that no reasonable jury
could find that the delay in performing surgery caused Turner an injury. To withstand
summary judgment, Turner must "present verifying medical evidence that the delay in
medical care caused some degree of harm." Miranda, 900 F.3d at 347 (internal
quotation marks omitted). It is undisputed that Turner suffered a facial fracture in
October 2015 but did not undergo a rhinoplasty until November 2016, more than one
year after the fracture and about five months after he was released from custody.
Turner argues that the failure to perform surgery sooner caused him unnecessary pain.
The defendants contend that there is no evidence that this delay caused Turner
any additional harm. They point to Dr. Szczerba's testimony that it was appropriate to
perform the surgery between six months to a year after the initial injury and that the
purpose of the operation was not to reduce pain but to improve breathing. They also
cite testimony by Turner's expert, Dr. John McMahan, who stated that he did not believe
that any physician at Stroger deviated from the standard of care in scheduling Turner's
surgery.
The defendants are not entitled to summary judgment on this point. In the Eighth

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Amendment context, "[a] delay in treatment may show deliberate indifference if it
exacerbated the inmate's injury or unnecessarily prolonged his pain." Perez v.
Fenoglio, 792 F.3d 768, 777–78 (7th Cir. 2015). Because "pretrial detainees are
entitled to at least [as] much protection" as convicted prisoners, Miranda, 900 F.3d at
350, an unnecessary delay in treatment also constitutes an injury under the Fourteenth
Amendment. In this case, the medical records reflect that Turner continued to
experience serious pain for months after the initial injury. And during his deposition,
Turner testified that after his rhinoplasty in November 2016, the pain in his nose
improved "a little." Turner Dep., dkt. no. 76–13, at 26:1–2. Construing this testimony in
Turner's favor, a reasonable jury could find that delay in Turner's surgery unnecessarily
prolonged his pain. See Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007) (holding
that a combination of the plaintiff's testimony and his medical records amounted to
verifying medical evidence that a delay in treatment caused his injury). The fact that
Turner testified that he continued to experience substantial pain even after the surgery
does not undermine that conclusion; the jury could reasonably infer that his pain
remained unnecessarily severe in the interim.
B.

Individual defendants
The individual defendants argue that a jury could not reasonably find that they

were deliberately indifferent to Turner's serious medical need. As the Court mentioned
above, however, Turner need show only that the defendants' conduct was purposeful,
knowing, or reckless, rather than deliberately indifferent to a serious medical need. See
Miranda, 900 F.3d at 353. Although the defendants declined to submit additional
briefing applying the Fourteenth Amendment standard, the Court will apply the

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appropriate standard in the following discussion.
The individual defendants broadly comprise two categories: medical
professionals who personally treated Turner and county employees who acted in
administrative capacities. The administrative defendants are Dr. Elizabeth Feldman, the
divisional chair for clinic operations at Cermak; Dr. Connie Mennella, the chair of
correctional health department at Cermak; and Sandra Navarro, the deputy director of
risk management at the Cook County Health and Hospitals system. The medical
defendants are the individuals who personally treated Turner at Cermak: Dr. Reena
Paul, Dr. Stamatia Richardson, and Gina J. Chung, a physician assistant.
Turner contends that the individual defendants acted unreasonably because they
failed to ensure that he received a timely surgery. He alleges that both the medical and
administrative defendants were responsible for following up with Stroger Hospital
regarding the scheduling of his surgery. He also points out that the administrative
defendants became aware of the delay upon receiving the court orders and the
communications from attorney Parts, and the medical defendants similarly knew from
his treatment notes that he had not received his ordered surgery. He argues that a
reasonable jury could find, based on this evidence, that the individual defendants
knowingly or recklessly prolonged his pain by unreasonably failing to follow up
regarding his surgery.
Turner has not introduced sufficient evidence to allow a reasonable jury to
conclude that any individual defendant's unreasonable conduct caused his surgery to be
delayed. It is undisputed that Turner was repeatedly scheduled for surgery and that
each time, the surgery was canceled or rescheduled. But Turner has pointed to no

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evidence that would permit a reasonable jury to find that any of the individual
defendants had any ability to influence the scheduling of surgeries. See Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) ("[T]o be held individually liable [under
section 1983], a defendant must be personally responsible for the deprivation of a
constitutional right." (internal quotation marks omitted)). For their part, the defendants
point to unrebutted testimony that the responsibility for scheduling surgeries at the
plastic surgery clinic fell to the medical residents at Stroger Hospital. Although there is
no evidence in the record that explains why Turner's surgeries in particular were
canceled or rescheduled, multiple witnesses testified that medical residents made those
decisions in consultation with Stroger doctors. One such resident, Dr. Michael Gart,
testified that the residents maintained a list of patients who required surgery and
scheduled those patients based on the urgency of the procedure and the availability of
operating rooms and necessary staff. He further testified that although physicians at
Cermak occasionally called to ensure that patients receive prompt appointments, they
had no influence in scheduling surgeries.
Turner contends that the individual defendants had the power to influence the
timing of his surgery, but the evidence he cites does not support that proposition. He
relies on deposition testimony from witnesses who stated that doctors at Cermak could
directly schedule appointments at Stroger's specialty clinics, including the plastic
surgery clinic. But none of this testimony pertains to the scheduling of surgeries, for
which Stroger's medical residents were responsible.
The Court concludes that, without evidence that the individual defendants had
any power to influence the timing of his surgery, no reasonable jury could conclude that

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any of the individual defendants acted unreasonably and caused his treatment to be
delayed. Summary judgment for the individual defendants is therefore appropriate.
C.

Cook County
There are three possible bases for municipal liability under section 1983: “(1) an

express policy that causes a constitutional deprivation when enforced; (2) a widespread
practice that is so permanent and well-settled that it constitutes a custom or practice; or
(3) an allegation that the constitutional injury was caused by a person with final
policymaking authority.” Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019). Turner
argues that the county had a widespread practice in which primary care physicians
failed to follow up to ensure that their patients received timely treatment from outside
providers. He also contends that gaps in the county's policies concerning the
processing of court orders and multiple grievance forms caused his injury. Finally, he
argues in the alternative that Dr. Mennella and Dr. Feldman were final policymakers and
were deliberately indifferent to his injuries.
The county first argues that it cannot be liable under Monell if summary judgment
is granted in favor of the individual defendants. This argument misstates the law. "[A]n
organization might be liable even if its individual agents are not. . . . [I]f institutional
policies are themselves deliberately indifferent to the quality of care provided,
institutional liability is possible." Glisson v. Ind. Dep't of Corr., 849 F.3d 372, 378 (7th
Cir. 2017). "The central question is always whether an official policy, however
expressed[,] . . . caused the constitutional deprivation." Id. at 379. Resolving the
county's motion therefore requires determining whether Turner has presented evidence
from which a reasonable jury could find that the county's policies were "the 'moving

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force' behind the injury alleged." Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S.
397, 404 (1997). Turner must also show that the county acted with the "requisite
degree of culpability"—that is, deliberate indifference to the known or obvious
consequences of its actions. Lapre v. City of Chicago, 911 F.3d 424, 430 (7th Cir.
2018); see also Brown, 520 U.S. at 409 (explaining that a municipality is liable for a
violation of federal rights that is the "highly predictable consequence" of its policies).
Similarly, to the extent Turner alleges that the county is liable for gaps in its policies, he
must point to evidence that the municipality did not "have procedures in place for
addressing a known risk of serious harm." Lapre, 911 F.3d at 430.
1.

Failure to follow through on scheduling

Turner argues that the county had a widespread practice of failing to follow up to
ensure that medical providers outside the jail provided timely treatment. First, he
appears to contend that the county may be liable solely because its employees
(including those at Stroger) unreasonably delayed his medical care. But municipal
liability under Monell is not a form of vicarious liability—rather, Turner must point to
evidence that the county's policy or custom caused his injury. See, e.g., Shields v. Ill.
Dep't of Corr., 746 F.3d 782, 790 (7th Cir. 2014).
Elsewhere in his brief, Turner does point to a policy or practice that might
arguably support his Monell claim against the county. Specifically, he argues that the
county had a custom of failing to follow up on the scheduling of off-site medical
procedures. He contends that despite the county's written policy requiring medical
providers at Cermak to follow up regarding detainees' treatment by off-site medical
providers, there was a widespread failure to conduct necessary follow-up. He relies on

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a report prepared by a court-appointed monitor, who found in April 2016 that the
process of entering orders from specialty clinics into Cermak's records system "is not
consistently followed." Esmaeil Report, Turner's Ex. 24, dkt. no. 103–25, at 52–53.
But Turner has not pointed to evidence from which a jury could reasonably infer
that the county's alleged practice of failing to enter off-site orders into its system caused
his delay in treatment. First, the monitor found that patients were "referred timely by the
provider to the specialty clinic and received an appointment as needed" and that
Cermak was therefore in substantial compliance with its obligations. Id. at 65. And the
practice that the monitor found was "not consistently followed" related to the entry of
orders from specialty clinics that required follow-up care from the doctors at Cermak,
not additional procedures at the specialty clinic. Id. at 52–53. The monitor's report
therefore does not support a reasonable inference that the county had a widespread
practice or custom that caused Turner's surgery to be delayed.
In addition, Turner has not introduced evidence from which a reasonable jury
could find that the alleged practice of failing to follow up in scheduling surgeries caused
his surgery to be delayed. As discussed above, there is no evidence that physicians at
Cermak had any role in scheduling surgeries, which was handled by medical residents
at Stroger. The evidence therefore does not support a reasonable inference that the
medical professionals at Cermak could have influenced the timing of Turner's surgery
even if they had followed up with the residents at Stroger. And Turner does not
allege—let alone point to evidence—that any of the county's policies or practices
governing the scheduling of surgeries within Stroger's plastic surgery clinic caused his
surgery to be delayed. Thus, although a reasonable jury could conclude that some

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county employee (namely one or more Stroger physicians) caused the delay, the
evidence does not support a reasonable inference that the county is liable for that delay
through its policies. See Brown, 520 U.S. at 406–07 ("That a plaintiff has suffered a
deprivation of federal rights at the hands of a municipal employee will not alone permit
an inference of municipal culpability and causation; the plaintiff will simply have shown
that the employee acted culpably.").
2.

Gaps in policies

Turner next argues that there were gaps in the county's policies concerning the
scheduling of medical treatment that caused his surgery to be delayed. "[I]n situations
that call for procedures, rules or regulations, the failure to make policy itself may be
actionable." Glisson, 849 F.3d at 381. Turner contends that the county failed to
implement appropriate policies for responding to court orders regarding medical care.
He also alleges that the county had a gap in its policies regarding the handling of
multiple grievances and health service request forms that relate to a single medical
complaint.
As with the county's alleged custom of failing to follow up on the scheduling of
surgeries, Turner has not introduced evidence from which a reasonable jury could infer
that these alleged gaps in the county's policies caused his delayed treatment. As the
Court previously discussed, the responsibility for scheduling surgeries at the plastic
surgery clinic fell to the medical residents at Stroger. There is no evidence to support
the inference that different policies regarding court orders or grievances would have
influenced those treatment decisions. To the contrary, Dr. Szczerba testified that a
court order would not have influenced his decision about the appropriate time to perform

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the surgery because he based that judgment on his medical evaluation of Turner. See,
e.g., Miranda, 900 F.3d at 344 (upholding summary judgment for the defendant county
because "there was no reason to think that additional guidance" in the county's policies
"would have made a difference" to the plaintiff's health).
In addition, no reasonable jury could conclude that the failure to enact the
relevant policies constituted deliberate indifference. Turner does not explain what he
believes the county should have done differently upon receiving the court orders and
grievances, let alone point to evidence that its failure to enact a particular policy
amounted to disregard for a "known or obvious consequence of [its] action." Connick v.
Thompson, 563 U.S. 51, 61 (2011); see also Lapre, 911 F.3d at 430. At the summary
judgment stage, Turner is required to identify specific facts establishing a material issue
for trial. Giles, 914 F.3d at 1048. He has not met his burden to show that there is a
genuine dispute that the county was deliberately indifferent.
3.

Final policymakers

Finally, Turner argues that Dr. Mennella and Dr. Feldman were final
policymakers and that a reasonable jury could find the county liable under section 1983
based on their deliberate indifference to Turner's serious medical need. Under this
theory, the county may be liable under Monell in this case only if the policymaker acted
"with deliberate indifference as to [the] known or obvious consequences" of his conduct.
Brown, 520 U.S. at 407 (internal quotation marks omitted); see also Doe v. Vigo County,
905 F.3d 1038, 1045 (7th Cir. 2018) ("[T]he plaintiff must show that the local
policymakers were, at a minimum, deliberately indifferent as to the known or obvious
consequences of their inaction with respect to the custom." (internal quotation marks

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omitted)). Even assuming that Dr. Mennella and/or Dr. Feldman were final
policymakers, therefore, Turner can withstand summary judgment only by pointing to
evidence from which a reasonable jury could find that they were deliberately indifferent.
In this context, Turner's "theory of Monell liability rests entirely on individual liability."
Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016). The Court
has already concluded that a reasonable jury could not find that Dr. Mennella and Dr.
Feldman acted unreasonably, let alone that they were deliberately indifferent. See
Walgren v. Heun, No. 17–cv–04036, 2019 WL 265094, at *10 n.5 (N.D. Ill. Jan. 17,
2019) ("[I]t necessarily follows that conduct that is not objectively unreasonable falls
short of deliberate indifference."). The county is therefore entitled to summary judgment
on Turner's claim that the county is liable through the deliberate indifference of its
policymakers.
Conclusion
For the foregoing reasons, the Court grants the defendants' motion for summary
judgment [dkt. no. 74] and directs the Clerk to enter judgment in favor of defendants and
against plaintiff.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: June 4, 2019

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