Holman v. Triplet et al
Filing
139
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 9/17/2020. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRANDON HOLMAN,
Plaintiff,
Case No. 1:17-cv-4710
v.
Judge John Robert Blakey
NURSE TRIPLETT, BARBARA DAVIS,
AND COUNTY OF COOK
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Brandon Holman sues Defendants Cook County, Nurse Triplett, and
Barbara Davis under the Civil Rights Act, 42 U.S.C. Section 1983, the Fourteenth
Amendment, the Rehabilitation Act of 1973, and the Americans with Disabilities Act
(ADA) after he tore his Achilles tendon while detained at Cook County Jail. The
parties cross-move for summary judgment. [99]; [103]. For the reasons explained
below, this Court denies Plaintiff’s motion [99], and grants in part and denies in part
Defendants’ motion [103].
I.
Background
A.
The Parties
At all relevant times, Plaintiff was a pretrial detainee at Cook County Jail.
[101] at ¶ 1. Defendants Dolores Triplett and Barbara Davis both work in Division
10 of Cook County Jail, where Triplett serves as a licensed practical nurse (LPN) and
Davis serves as a physician’s assistant (PA). Id. at ¶¶ 2, 3.
1
B.
Cook County’s Nursing Guidelines
At all relevant times, Cook County Health and Hospital Systems maintained
a copy of its second edition of “Nursing Guidelines,” which includes a section on
“Strains, Sprains, and Minor Trauma.” [105] at ¶ 8. The parties agree that the
Nursing Guidelines supply the appropriate course of treatment that LPNs like
Triplett should provide to pretrial detainees. Id. at ¶ 4; [129] at ¶ 1.
The “Strains, Sprains, and Minor Trauma” section of the Nursing Guidelines
divides into further subsections.
[105-7] at 1–2.
The first subsection, labeled
“Subjective/Patient Overview (S),” states that the medical treater should: “Inquire
regarding turning or twisting injury of joint, pain difficulty-bearing weight and if
snap or pop heard.” Id. at 1. Another subsection, labeled “Objective (O),” provides
that a treater should: (1) check vital signs; (2) perform a “Musculo/skeletal
assessment and documentation i.e. tenderness, pain with movement, spasms,
symmetry, range of motion, weakness, swelling discoloration and gait”; and (3)
perform a “Neuro/vascular assessment & documentation i.e. palpable distal and
proximal pulses, sensation intact, no numbness, no tingling, warm to touch and
reflexes intact.” Id.
Another subsection, labeled “Assessment (A),” further directs a medical treater
to consider treating a detainee by: (1) immobilizing the injury; (2) considering
crutches, compressions; (3) providing activity restrictions; and (4) providing over the
counter medications. Id. Finally, the Nursing Guidelines direct a medical treater—
under the “Plan of Care (P)” subsection—to “[c]onfer with a medical provider” if: (1)
2
the pretrial detainee’s condition “is not responding to the nursing guideline”; (2) the
detainee exhibits impaired “muscular/skeletal changes i.e. unstable joint, suspected
fracture, crepitus sounds, gross swelling, severe pain, severe ecchymosis, focal or
severe tenderness”; (3) the detainee exhibits impaired neuro/vascular changes “i.e.
altered distal circulation or sensation”; or (4) the mechanism of injury suggests
additional trauma. Id. at 2. A “provider,” as contemplated by the Nursing Guidelines,
is a physician’s assistant or a doctor. [105] at ¶ 13.
C.
Plaintiff’s Injury and Defendant Triplett
Sometime in early August 2016, Plaintiff was transported to the dispensary of
Division 10; there, he complained of left calf pain and said he heard a “pop” while
playing basketball in the recreational area of Cook County Jail. [105] at ¶ 14; [101]
at ¶ 7. The dispensary functions as a clinic where pretrial detainees receive basic
treatment. [105] at ¶ 15.
Plaintiff asserts that this basketball injury occurred on August 1, 2016 and
that Triplett examined him at the dispensary that day. [101] at ¶ 8. According to
Plaintiff, he told Triplett he heard a “pop” and felt sharp pain in his left ankle, after
which Triplett examined Plaintiff’s left leg and informed him: “It’s only a pulled calf
muscle.” Id. at ¶¶ 8, 9. Plaintiff also maintains that he asked Triplett to have his leg
x-rayed, explaining that his left foot turned to the side when he walked and that he
was “in excruciating pain and suspected he had a torn Achilles tendon.” Id. at ¶ 10.
According to Plaintiff, Triplett informed Plaintiff he could not obtain an x-ray because
no x-ray technician was then available. Id. Defendants dispute that this interaction
3
occurred and assert that no medical record corroborates Plaintiff’s account that
Triplett examined or otherwise treated him on August 1, 2016. [111] at ¶¶ 7–10;
[105] at ¶ 14 n.1. 1
Regardless of their dispute over the events that Plaintiff alleges occurred on
August 1, the parties do agree that Plaintiff appeared at the dispensary on August 8,
2016, complaining of left calf pain. [101] at ¶¶ 11–12; [105] at ¶ 14. On that date,
non-party paramedic Kirsten Bain-Norris performed the subjective, objective, and
assessment (SOA) portions of the Nursing Guidelines’ section on “Strains, Sprains,
and Minor Trauma.” [105] at ¶¶ 18–19. Bain-Norris took Plaintiff’s vitals and
assessed his calf, ankle, and foot, noting in a Nursing Progress Note that she observed
no “swelling or deformity to calf, ankle, or foot,” that Plaintiff could “speak full,
complete sentences without difficulty, and that she saw “no other visible DCAP-BTLS
(deformity, discoloration, contusions, abrasions, punctures, penetrations, burns,
tenderness, lacerations, swelling).” Id. at ¶ 19.
Defendant Triplett was “notified and present for triage” at the time, and after
Bain-Norris performed the SOA portions of the Nursing Guidelines, Triplett
Defendants ask this Court to disregard Plaintiff’s account of events that allegedly occurred on August
1, 2016—specifically, that he asked Triplett for an x-ray, and Triplett informed him no x-ray
technicians were available—which Plaintiff sets forth in a declaration accompanying his motion for
summary judgment. [113] at 7–9. Defendants argue that Plaintiff testified in his deposition that he
did not ask for an x-ray, and thus, that his declaration statement constitutes a contradiction that
should be disregarded under the sham affidavit doctrine. Id. But under that doctrine, district courts
only disregard statements in a declaration where the declarant’s deposition contains “contradictions
so clear that the only reasonable inference was that the affidavit was a sham designed to thwart the
purposes of summary judgment.” Castro v. DeVry Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015). Here,
Plaintiff explains that he misspoke or was confused in his deposition because defense counsel was
jumping from questioning about different dates that he saw different medical treaters. [118] at 4.
This Court finds this a plausible explanation and thus declines to disregard Plaintiff’s declaration
account. Castro, 786 F.3d at 571 (a plausible explanation can overcome the finding of a sham affidavit).
1
4
performed the plan of care (P) portion. Id. at ¶ 20. Triplett did not possess the ability
to provide crutches to detainees. Id. at ¶ 25. But Triplett did provide Plaintiff with
ibuprofen and an ice bag and instructed Plaintiff to elevate and rest his left leg; she
also educated Plaintiff on using the ice bag and directed Plaintiff to fill out a Health
Service Request Form (HSRF). Id. at ¶ 20. Plaintiff then returned to his tier. Id.
The same day, Plaintiff filled out and submitted an HSRF, stating:
I injured my leg when I was playing basketball something popped and
now my leg from ankle to calf is severely in pain seeking an elastic
bandage to wrap it and a heat pack if possible ice only made it more
painful looking for some form of relief please! Thank you
Id. at ¶ 21; [101] at ¶ 11. A nurse collected and reviewed Plaintiff’s HSRF the next
day—August 9, 2016. [105] at ¶ 21. Triplett did not treat Plaintiff again after August
8, 2016. Id. at ¶ 23.
D.
Other HSRFs
Two days after his assessment at the dispensary, on August 10, 2016, nonparty nurse Kim Anderson saw Plaintiff, and noted Plaintiff’s complaints about his
left leg injury had been resolved and he had no further complaints. [105] at ¶ 36. But
the next day, August 11, 2016, Plaintiff submitted another HSRF stating: “ankle is
still bothering me. I’m still in pain and it is swollen.” [101] at ¶ 15; [105] at ¶ 37. On
August 12, 2016, Nurse Anderson examined Plaintiff again in response to his HSRF,
observing normal alignment and symmetry of the left ankle. [101] at ¶ 16; [105] at ¶
38.
About a month later, on September 22, 2016, Plaintiff submitted another
HSRF stating: “I would like to have an x-ray or MRI on my leg. Still in a lot of pain
5
when walking. It feels as if my ankle is on fire. I’ve tried icing it, pain killer, and
nothing is working.” [101] at ¶ 17; [105] at ¶ 39. The next day, Nurse Anderson
examined Plaintiff in response to his September HSRF. [101] at ¶ 18; [105] at ¶ 40.
During this examination, Plaintiff indicated he had injured his leg when he “slipped
on water Tuesday.” [105] at ¶ 40. She further observed that Plaintiff exhibited
normal alignment and symmetry of his left leg, ambulated with a steady, stable gait,
and showed no swelling. Id. at ¶ 40. Nurse Anderson gave Plaintiff 24 tablets of
ibuprofen. Id.
On October 9, 2016, Plaintiff submitted a fourth HSRF stating: “It has been
over 2 months since I injured my foot/ankle and it is not improving. I was told that
someone would get me down to Cermak but have not been called yet. Do not want a
permanent limp. Please and Thank you!” [101] at ¶ 19; [105] at ¶ 41. Three days
later, non-party Registered Nurse Gresham-Trotter examined Plaintiff in response to
his October HSRF. [101] at ¶ 20. Nurse Gresham performed a musculoskeletal exam
and noted that Plaintiff told her he had been experiencing pain and swelling for “over
2 months now,” that he had been injured from playing basketball, and that she
observed swelling at or near Plaintiff’s Achilles. [105] at ¶ 42. Nurse Gresham also
noted that Plaintiff reported pain with movement and impaired physical mobility. Id.
After performing a pain assessment, Nurse Gresham provided Plaintiff with
ibuprofen and referred Plaintiff to the primary care clinic. Id.
6
E.
Defendant Davis
On October 19, 2016, Defendant Davis examined Plaintiff and suspected a left
Achilles tendon rupture. Id. at ¶ 26. Davis gave Plaintiff crutches and ibuprofen,
issued him a lower bunk alert, made an “urgent” referral to the orthopedic clinic at
John Stroger Hospital (Stroger), and scheduled an MRI to better understand the
injury. Id. at ¶ 27. Although she made the “urgent” referral, Davis has no control
over scheduling at Stroger, as Stroger maintains its own scheduling system. Id. at ¶
28. Pursuant to Davis’ referral, the Stroger orthopedic clinic evaluated Plaintiff on
October 26, 2016 and confirmed that Plaintiff ruptured his left Achilles tendon; the
clinic then referred Plaintiff to an orthopedist for further work up. Id. at ¶ 30.
Plaintiff asserts that, despite Davis’ orders, Plaintiff “was not allowed to use
the crutches [prescribed by Davis] on the tier where [his] cell is located.” [102-2] at
4. He additionally asserts that he “was never given a lower bunk in my cell while at
Cook County Jail.” Id.
Davis examined Plaintiff again on December 2, 2016, at which time she
reordered his crutches, ordered a follow-up with the orthopedic clinic, and
recommended he receive physical therapy. Id. at ¶ 35.
F.
Plaintiff’s Mobility After His Injury
After his injury, between August 2016 and October 19, 2016, Plaintiff could
bear weight on his injured ankle, perform pushups, walk up and down stairs, and
climb up and down from his bunk, though sometimes with pain and difficulty. [105]
7
at ¶¶ 54–55; [105-1] at 10, 13–14, 29. By January 19, 2018, Plaintiff no longer needed
any physical therapy. Id. at ¶ 53.
G.
Plaintiff’s Claims
In his third amended complaint, Plaintiff alleges: a claim under 42 U.S.C. §
1983 against Triplett and Davis for violating his Fourteenth Amendment Rights
(Count I); municipal liability under Monell v. Department of Social Services of New
York, 436 U.S. 658 (1978) against Cook County (Count II); and violations of the
Rehabilitation Act and the ADA against Cook County (Counts III and IV). [47].
II.
Legal Standard
Summary judgment is proper where there is “no 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).
In determining whether a genuine issue of material fact exists, this Court must
construe all facts and reasonable inferences in the light most favorable to the nonmoving party. King v. Hendricks Cty. Commissioners, 954 F.3d 981, 984 (7th Cir.
2020). The non-moving party bears the burden of identifying the evidence creating
an issue of fact. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021–22 (7th
Cir. 2018). To satisfy that burden, the non-moving party “must do more than simply
8
show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Barnes v. City
of Centralia, Illinois, 943 F.3d 826, 832 (7th Cir. 2019). Thus, a mere “scintilla of
evidence” supporting the non-movant’s position does not suffice; “there must be
evidence on which the jury could reasonably find” for the non-moving party.
Anderson, 477 U.S. at 252.
III.
Analysis
Defendants move for summary judgment on all counts, [104], and Plaintiff
moves for summary judgment as to liability only on Counts I, II, and IV, [100] at 1.
This Court considers each count in order below.
A.
Count I: Fourteenth Amendment Claim
In Count I, Plaintiff asserts that Triplett and Davis acted with “deliberate
indifference” to his Achilles injury, violating the Fourteenth Amendment. [47] at ¶
79. As a threshold matter, “objective reasonableness,” not “deliberate indifference,”
governs claims under the Fourteenth Amendment for inadequate medical care
provided to pretrial detainees. Pulera v. Sarzant, 966 F.3d 540 (7th Cir. 2020);
McCann v. Ogle Cty., Illinois, 909 F.3d 881, 886 (7th Cir. 2018); Miranda v. Cty. of
Lake, 900 F.3d 335, 351 (7th Cir. 2018). This “objective reasonableness” standard “is
easier for a plaintiff to meet than the subjective deliberate-indifference standard”
applied to claims brought by convicted detainees. Pulera, 966 F.3d at 540.
Plaintiff must prove two elements to show that a Defendant demonstrated
objectively unreasonable conduct. Williams v. Ortiz, 937 F.3d 936, 942 (7th Cir.
9
2019). First, Plaintiff must show that Defendants acted “purposefully, knowingly, or
perhaps even recklessly when they considered the consequences of their handling of
[plaintiff]’s case.” McCann, 909 F.3d at 886 (quoting Miranda, 90 F.3d at 353). A
showing of negligence or even gross negligence will not suffice under this first prong.
Id.; Williams, 937 F.3d at 942. Second, Plaintiff must prove that the “challenged
conduct was objectively unreasonable in light of the totality of the relevant facts and
circumstances.” James v. Hale, 959 F.3d 307, 318 (7th Cir. 2020). In other words,
courts must view the evidence and gauge objectively, without regard to any subjective
belief held by an individual defendant, whether the response “was reasonable.”
McCann, 909 F.3d at 886. With these standards in mind, this Court considers
Triplett’s and Davis’ actions.
1.
Triplett
Plaintiff first contends that Triplett violated the Fourteenth Amendment when
she failed to refer him to a provider (a doctor or a physician’s assistant) when she saw
him on August 8, 2016.
[110] at 4–5. Plaintiff bases this contention upon his
recollection that he complained to Triplett of hearing a “pop” when he injured himself,
and under those circumstances, the Nursing Guidelines direct Triplett to consult a
provider. Id. at 5. Plaintiff’s contention is, however, belied by the plain language of
the Nursing Guidelines.
The Nursing Guidelines only direct a treater like Triplett to consult with a
provider if: (1) the pretrial detainee’s condition “is not responding to the nursing
guideline”; (2) the detainee exhibits impaired “muscular/skeletal changes i.e.
10
unstable joint, suspected fracture, crepitus sounds, gross swelling, severe pain, severe
ecchymosis, focal or severe tenderness”; (3) the detainee exhibits impaired
neuro/vascular changes “i.e. altered distal circulation or sensation”; or (4) the
mechanism of injury suggests additional trauma. [105-7] at 2. The record contains
no indication that Triplett or Paramedic Bain-Norris—who examined Plaintiff—
observed any of these conditions on August 8, 2016. To the contrary, Bain-Norris
noted that she observed no “swelling or deformity to calf, ankle, or foot,” that Plaintiff
could “speak full, complete sentences without difficulty, and that she saw “no other
visible DCAP-BTLS (deformity, discoloration, contusions, abrasions, punctures,
penetrations, burns, tenderness, lacerations, swelling).” [105] at ¶ 19. This Court
thus finds that Triplett’s failure to consult a provider on August 8, 2016 was not
objectively unreasonable.
Plaintiff also posits that Triplett violated his Fourteenth Amendment Rights
by failing to take actions seven days earlier, on August 1, 2016, when he complained
to her of “excruciating pain.”
[110] at 2–3; [101] at ¶ 10.
Under the Nursing
Guidelines, a detainee’s complaints of “severe pain” warrants a consultation with a
provider, [105-7] at 2, and the parties agree that Triplett did not consult a provider.
Defendants counter that this August 1 interaction never occurred, citing the
nonexistence of medical records corroborating Plaintiff’s account. [113] at 9. But
Plaintiff has offered evidence—in the form of his declaration and his deposition
testimony—to show that the encounter did take place on August 1. [102-2] at 3; [1051] at 9. And this Court cannot resolve any conflicting evidence on summary judgment;
11
rather, these conflicts only create genuine issues of material fact suitable for trial.
Williams v. City of Chicago, 733 F.3d 749, 761 (7th Cir. 2013). Thus, to the extent
that Nursing Guidelines supply the appropriate standard of care, Triplett’s failure to
escalate Plaintiff’s complaints of pain raises a triable issue about whether she acted
objectively unreasonably on August 1 and whether her decision to not consult a
provider on that date was reckless. E.g., Petties v. Carter, 836 F.3d 722, 729 (7th Cir.
2016) (noting that deliberate indifference can be proven by a medical professional’s
failure to follow an existing protocol).
And even if the Nursing Guidelines did not supply the appropriate standard of
care, this Court finds that Plaintiff has raised a triable issue as to whether his
complaints of “excruciating pain” warranted Triplett to take further—or more
immediate—action.
An “unnecessary delay in treatment” can constitute a
Fourteenth Amendment injury if it unnecessarily prolonged a detainee’s pain.
Turner v. Reena, No. 17 C 2434, 2019 WL 2357031, at *4 (N.D. Ill. June 4, 2019), aff’d
sub nom. Turner v. Paul, 953 F.3d 1011 (7th Cir. 2020); Grieveson v. Anderson, 538
F.3d 763, 779 (7th Cir. 2008) (a “delay in the provision of medical treatment for
painful conditions—even non-life-threatening conditions—can support a deliberateindifference claim”); see also, e.g., Rayne v. Gannon, No. 118CV00076JPHDML, 2020
WL 2840029, at *8 (S.D. Ind. June 1, 2020) (denying nurses’ motion for summary
judgment because they failed to escalate the situation for further diagnosis and
treatment when they examined a pretrial detainee complaining of severe pain).
12
Defendants also suggest that qualified immunity insulates Triplett from
liability because Plaintiff “cannot provide any evidence or prior precedent to
establish” that Triplett’s conduct “violated his constitutional rights.” [113] at 16.
Defendants fail to fully develop, and therefore waive, this argument. M.G. Skinner
& Assocs. Ins. Agency v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir.
2017) (“Perfunctory and undeveloped arguments are waived, as are arguments
unsupported by legal authority.”). Regardless, by 2016, the law clearly established
that a pretrial detainee “was entitled to objectively reasonable medical care and
failing to provide any medical care in light of a serious medical need was objectively
unreasonable.” Estate of Perry v. Wenzel, 872 F.3d 439, 445 (7th Cir. 2017). This
Court thus rejects Defendants’ qualified immunity argument.
For these reasons, this Court denies the parties’ cross motions as to Nurse
Triplett.
2.
Davis
Turning next to Davis, the record demonstrates that she examined Plaintiff on
October 19, 2016, at which time she suspected an Achilles tendon rupture; she then
gave Plaintiff crutches, ibuprofen, issued him a lower bunk alert, made an “urgent”
referral to the orthopedic clinic at Stroger, and scheduled an MRI. [105] at ¶¶ 26, 27.
Plaintiff first argues that Davis violated the Fourteenth Amendment by doing
“nothing to ensure her patient received an urgent consult for another 7 days” after
she saw him on October 19, 2016. [100] at 7. Not so. Where a medical defendant
possesses “no control over the scheduling” of appointments, then neither that
13
defendant’s failure to schedule the plaintiff for an appointment nor her “failure to
nag” the appropriate schedulers constitutes objectively unreasonable conduct.
Turner v. Paul, 953 F.3d 1011, 1016 (7th Cir. 2020). And the undisputed evidence
shows that Davis maintained no control over scheduling at Stroger. [105] at ¶ 28.
Plaintiff also claims that he was denied the use of his crutches on his tier and
never received a lower bunk assignment, pinning these deficiencies on Davis’ failure
to ensure that her orders “were followed.” [100] at 7. This argument fares no better,
because Plaintiff fails to produce any evidence showing that Davis knew her orders
were not being followed, or that Davis had any reason to believe her orders would not
be followed.
No jury could find that Davis acted “purposefully, knowingly, or
recklessly” on this record. Swisher v. Porter Cty. Sheriff's Dep’t, 761 F. App’x 616,
620 (7th Cir. 2019). Nor does the record indicate that Davis possessed any control
over whether Plaintiff would ultimately be allowed to use his crutches on his tier or
be assigned a lower bunk. The parties do not explain whether these decisions rested
with correctional officers or with other medical personnel, but in any case, Plaintiff
fails to point to any evidence suggesting that Davis had any role greater than putting
in the orders.
On this record, no reasonable jury could find that Davis acted
objectively unreasonable in not following up further to ensure that others carried out
her orders. See Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002) (evidence of
delays in treatment insufficient to demonstrate a doctor’s deliberate indifference
where those delays remained outside of the doctor’s control).
14
Because Plaintiff fails to raise a triable issue as to Davis, this Court grants
summary judgment in her favor.
B.
Count II: Monell Claim
Turning to Plaintiff’s Monell claim, Cook County faces liability under Section
1983 for constitutional injuries caused by a “policy, custom, or practice of deliberate
indifference to medical needs, or a series of bad acts that together raise the inference
of such a policy.” Shields v. Ill. Dep’t. of Corr., 746 F.3d 782, 796 (7th Cir. 2014);
Miranda, 900 F.3d at 344 (applying the “deliberate indifference” standard to Monell
claim brought by pretrial detainee). To succeed on his Monell claim, Plaintiff must
prove: (1) the deprivation of an underlying substantive constitutional right; (2) the
existence of an official policy or other custom; and (3) that this policy or custom was
the “moving force” behind the deprivation of his substantive constitutional rights.
See Pulera, 966 F.3d at 540; Teesdale v. City of Chi., 690 F.3d 829, 833 (7th Cir. 2012).
To prevail, Plaintiff must provide evidence of more than “one or two missteps,” and
instead, must demonstrate the existence of “systemic and gross deficiencies.”
Hildreth v. Butler, 960 F.3d 420, 426 (7th Cir. 2020) (internal quotation marks
omitted).
Plaintiff first claims that Cook County faces Monell liability for maintaining a
deficient HSRF process, asserting that despite the existence of this process and his
submission of multiple HSRFs, Cook County ignored Plaintiff’s “severe pain . . . for
2.5 months,” “failed to obtain the urgent orthopedic consultation” Davis ordered on
15
October 19, 2016, and “failed to ensure” the implementation of Davis’ orders
regarding the crutches and lower bunk assignment. [100] at 8. This argument fails.
Though “not impossible for a plaintiff to demonstrate the existence of an official
policy or custom by presenting evidence limited to his experience,” it is “necessarily
more difficult” because the law requires evidence of a “true municipal policy at issue,
not a random event.” Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008)
(quoting Phelan v. Cook Cty., 463 F.3d 773, 790 (7th Cir. 2006)); see also Hildreth,
960 F.3d at 426–27. In Grieveson, the Seventh Circuit ruled that “evidence of four
incidents that [the plaintiff] alone experienced” failed to establish a widespread policy
or custom. 538 F.3d at 775. The court recently reaffirmed this principle in Hildreth,
holding that a plaintiff attempting to establish a Monell claim based solely upon his
personal experiences must point to “numerous” incidents of misconduct, and that
“four or more incidents over varying periods . . . are insufficient to qualify as a
widespread practice or custom.” 960 F.3d at 428.
As in Grieveson and Hildreth, Plaintiff’s evidence supporting his Monell claim
relates only to his personal experiences at Cook County Jail, and specifically to less
than a handful of HSRFs he submitted about his injury. [101] at ¶ 19; [105] at ¶ 41.
Under those precedents, Plaintiff falls short of establishing the requisite “widespread
practice or custom” for a finding of Monell liability.
Plaintiff next argues that Cook County maintained a “system” that “wrongfully
allowed LPNs” like Triplett “to make diagnostic decisions” when they possessed no
such authority. [100] at 9. Plaintiff bases this argument upon his purported August
16
1, 2016 interaction with Triplett, when Triplett allegedly misdiagnosed him by saying
he had merely pulled a calf muscle. Id. But just like his complaints about the HSRF
process, Plaintiff fails to offer any evidence demonstrating that Triplett’s alleged
wrongful diagnosis “was undertaken pursuant to an official jail policy or widespread
custom.” Grieveson, 538 F.3d at 773. Instead, Plaintiff relies only upon his lone
interaction with Triplett. Because the law does not recognize Monell liability on a
record of personal, isolated experiences, this Court grants summary judgment to
Defendants on Count II.
C.
Counts III and IV: ADA and Rehabilitation Act
Finally, Plaintiff claims that Cook County discriminated against him in
violation of the ADA and Rehabilitation Act by failing to accommodate his need for
crutches and a lower bed bunk. [100] at 9–10.
Because the analysis governing each statute “is functionally identical,” courts
consider claims brought under both Acts together. King, 954 F.3d at 988 (quoting
Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015)). Under both Acts, Plaintiff
must demonstrate that: (1) he is a qualified individual with a disability; (2) Cook
County denied him the benefits of services, programs, or activities, or otherwise
discriminated against him; and (3) the denial or discrimination “was by reason of his
disability.” Lacy v. Cook Cty., Illinois, 897 F.3d 847, 853 (7th Cir. 2018) (internal
quotation marks omitted); Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir.
2012). In addition, because Plaintiff seeks compensatory damages (as opposed to
17
injunctive relief), see [47], he must also show that Cook County intentionally
discriminated against him. Lacy, 897 F.3d at 862; Hildreth, 960 F.3d at 431.
Defendant argues that Plaintiff’s claims fail because he cannot demonstrate he
had a “disability” within the meaning of the Acts. [113] at 23. As pertinent to this
case, the ADA defines a disability as “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(1); see
also 29 U.S.C. § 705(9)(b) (Rehabilitation Act’s definition of disability refers to
the ADA). Courts assess whether an impairment substantially limits a major life
activity without regard to the “ameliorative effects of mitigating measures, except
ordinary eyeglasses or contact lenses.” 28 C.F.R § 35.108(d)(1)(viii).
Plaintiff argues that his injured Achilles tendon impaired his ability to engage
in the major life activity of walking. [118] at 10. Walking undoubtedly constitutes a
major life activity, Jaros, 684 F.3d at 672, though “walking with difficulty is not a
significant restriction on walking,” Turner v. The Saloon, Ltd., 595 F.3d 679, 689 (7th
Cir. 2010); see also, e.g., Jenkins v. Chicago Transit Auth., No. 15 C 08415, 2020 WL
868535, at *4 (N.D. Ill. Feb. 20, 2020) (evidence that the plaintiff’s fractured toe
resulted in “swelling” and a “limp” insufficient to establish an ADA disability where
the plaintiff “was still able to walk”). Nor does experiencing some pain while walking
“very far distances . . . rise to the level required for a finding of disability.” Pashnick
v. United Parcel Serv., No. 09 C 565, 2010 WL 4628523, at *3 (N.D. Ill. Nov. 8, 2010)
(citing Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 521–22 (7th Cir. 2009)).
18
Instead, courts only find that an injury has substantially limited a plaintiff’s ability
to walk under more severe circumstances. For example, the Fourth Circuit held that
a plaintiff sufficiently pled an ADA “disability” where he alleged his broken legs and
tendons rendered him “completely immobile” for more than seven months. Summers
v. Altarum Inst., Corp., 740 F.3d 325, 330 (4th Cir. 2014). In a different case, the
Seventh Circuit found that genuine issues of material fact existed over whether the
plaintiff’s neuropathy substantially limited her ability to walk, because the record
contained evidence she: (1) could not walk one city block without losing sensation in
her right leg and both feet; (2) walked with a cane and had to balance against a wall
to avoid falling; and (2) was under a doctor’s recommendation to avoid excessive
walking. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005).
In light of the above case law, the evidence fails to demonstrate that Plaintiff’s
injury substantially limited his ability to walk. To the contrary, Plaintiff’s deposition
testimony reflects that after his injury, he maintained the ability to walk up and down
stairs, as well to climb up and down from his bunk, even while he experienced pain
and some difficulty. See, e.g., [105-1] at 10 (describing ability to climb four flights of
stairs and up and down his bunk between August 1 and October 26, 2016), 13–14
(testifying that he “was still walking” on his ankle in pain between October 26 and
November 3, 2016), 29 (describing how he walked “up and down stairs” and climbed
“up and down” from his bunk during the “whole time” he was detained at Cook County
Jail, notwithstanding the difficulties imposed by his injury). In sum, Plaintiff’s
19
testimony of some pain and modest difficulty walking on his left ankle fails to show
substantial limitation.
Plaintiff also claims that his injury substantially limited his ability to get “in
and out of bed.” [118] at 10. Even assuming getting “in and out of bed” constituted a
major life activity under the ADA and Rehabilitation Act, Plaintiff still fails to point
to sufficient, non-conclusory evidence demonstrating to what extent his Achilles
injury impacted his ability to get in and out of bed and how long these issues
persisted.
Without further proffer, the evidence indicates merely that Plaintiff
experienced some pain while getting in and out of bed, not that he was substantially
limited in his ability to do so. No reasonable jury could find that Plaintiff had a
qualifying disability on this record. See, e.g., 42 U.S.C. § 12102(2)(A) (major life
activities include, but are not limited to, “caring for oneself, performing manual tasks,
seeing,
hearing,
eating,
sleeping, walking,
standing,
lifting,
bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.”)
Because Plaintiff fails to demonstrate a qualifying “disability” under the ADA
and Rehabilitation Act, this Court grants summary judgment to Defendants on
Counts III and IV.
IV. Conclusion
For the reasons stated above, this Court denies Plaintiff’s motion for summary
judgment [99], and grants in part and denies in part Defendants’ motion for summary
judgment [103]. Plaintiff’s third amended complaint [47] stands only as to his claim
20
against Triplett in Count I; the Court grants judgment in Defendants’ favor on Counts
II, III, and IV. In addition, Defendants’ motion to exclude the expert opinions of Dr.
Ghoubrial [95] is denied without prejudice because this Court did not need to
consider—and indeed, did not consider—Dr. Ghoubrial’s opinions in deciding the
parties’ motions for summary judgment. If appropriate, Defendants may renew their
motion within the context of pretrial motions.
Dated: September 17, 2020
Entered:
John Robert Blakey
United States District Judge
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?