Levingston v. Myles, et al
Filing
152
MEMORANDUM Opinion and Order: For the reasons stated herein, Myles' Motion for Summary Judgment (Dkt. No. 117) is denied. Signed by the Honorable Harry D. Leinenweber on 3/30/2022: Mailed notice(maf)
Case: 1:17-cv-05947 Document #: 152 Filed: 03/30/22 Page 1 of 12 PageID #:1487
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUWAN LEVINGSTON,
Plaintiff,
Case No. 17 C 5947
v.
Judge Harry D. Leinenweber
WILLIAM MYLES,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Juwan Levingston (“Levingston”) brings this action
under 42 U.S.C. § 1983, alleging Illinois state trooper William Myles
(“Myles”)
violated
Levingston’s
Fourth
and
Fourteenth
Amendment
rights through the use of excessive force. Levingston also brings a
state law claim of battery. Myles has moved for partial summary
judgment. (Dkt. No. 117.) For the reasons stated herein, Myles’
Motion for Partial Summary Judgment is denied.
I.
BACKGROUND
The following facts are taken from the parties’ Local Rule 56
statements and the underlying exhibits.
On August 3, 2016, Levingston’s medical records reflect he was
in good health. (Mt. Sinai Medical Records at 2—6, Resp., Ex. 1,
Dkt. No. 126-1.) On that day, he went to the Mt. Sinai Medical Center
on the west side of Chicago for a routine checkup. (Id. at 2.)
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Levingston’s medical records show that he was completely normal and
had no complaints. (Id. at 2—5).
On August 19, 2016, Myles, was on patrol when he observed a car
speeding and driving erratically. (Pl.’s Resp. to Def.’s Stmt. of
Facts (“PSOF”) ¶¶ 1—2, Dkt. No. 133.) Myles pulled the car over and
identified Levingston as the driver. (Id. ¶ 4). Myles observed that
Levingston had bloodshot eyes and smelled of alcohol. (Id.) Myles
asked Levingston to step out of his vehicle and performed a field
sobriety test. (Id. ¶ 6.) Levingston was then arrested for driving
under the influence. (Id. ¶ 9.) Myles and Levingston arrived at a
Chicago Police Station at around 12:13 A.M. (Id. ¶ 10). Upon arrival,
Myles
escorted
Levingston
into
a
windowless,
camera-less,
room
containing a breathalyzer machine. (Id. ¶ 11.) Levingston refused to
submit to a breathalyzer test. (Id. ¶ 14.)
At
this
point,
the
parties’
statements
of
facts
diverge.
Levingston alleges that, shortly after he entered the room, Myles
beat him. (Id. ¶ 15.) Specifically, Levingston alleges that Myles
punched him in the face, slammed his head on the desk, then kneed
him in the back with great force. (Id.) Myles alleges that he never
struck Plaintiff in any way. (Id. ¶ 16.) The parties also dispute if
and when Levingston was taken to lockup after his interaction with
Myles in the station. (Id. ¶ 17; Def.’s Resp. to Pl. Stmt. of Facts
(“DSOF”) ¶2, Dkt. No. 145.) After Levingston was transferred to the
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custody of the Chicago Police Department, Levingston and Myles had
no further interaction. (PSOF ¶ 18.)
Shortly after Levingston’s encounter with Myles, Levingston was
found lying on the floor of his cell and taken to the Roseland
Community Hospital emergency room. (Id. ¶¶ 19—22.) At the hospital
Levingston was treated by Dr. Ahmad Shaher. (Id. ¶¶ 24—26, 32—36.)
Dr. Shaher treated him for alcohol intoxication. (Id. at ¶¶ 24—26.)
At Dr. Shaher’s deposition, he testified that Levingston was also
exhibiting signs of neurological weakness that could have been caused
by a concussion. (DSOF ¶ 5.) Dr. Shaher never diagnosed Levingston
with a concussion. (Dr. Shaher Dep. 93:4—97:12, Def.’s Stmt. of
Facts, Ex. 4, Dkt. No. 119-4). Further, Dr. Shaher did not order a
CT scan or MRI because he did not believe Levingston had an injury
that would warrant such a test. (PSOF ¶ 29.)
Once Levingston was discharged from Roseland, he was returned
to lockup in the Chicago Police Department. (Id. ¶ 41.) Levingston
was discharged from the police station on the morning of August 20,
2016, less than twelve hours after being detained. (Id. ¶ 45). That
same day, Levingston checked himself into the emergency room at the
Rush Hospital in Oak Park. (Id. ¶ 46). While at Rush, Levingston
informed medical personnel that he was arrested for a DUI the
previous day and was assaulted by a police officer at the police
station. (DSOF ¶ 18.) Levingston explained that he was experiencing
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a headache, low back pain, and abdominal/penile pain. (Rush Medical
Records at 7, Resp., Ex. 2, Dkt. No. 126-2.) He was ultimately
diagnosed with a headache, concussion with loss of consciousness,
lip contusion, and a traumatic hematuria after a foley catheter.
(Id. at 10, 14.)
Levingston went back to Rush five days later, on August 25,
2016. (Id. at 25.) During that visit, Levingston was diagnosed with
dysuria and erectile disorder. (Id.) On September 4, 2016, Levingston
was diagnosed with right flank pain and erectile dysfunction. (Id.
at 34.) On September 13, 2016, Rush doctors ordered a CT scan to
further diagnose Levingston’s complaint of right flank plain. (Id.
at 45.) On September 15, 2016, Levingston returned to Rush, was
diagnosed with generalized abdominal pain, and scheduled an MRI.
(Id. at 46-47.)
On September 21, 2016, Levingston went to Mt. Sinai hospital
and reported that he was experiencing back pain that started on or
about September 7, 2016. (DSOF ¶ 25.) The medical records state that
Levingston had acute low back pain with right-sided sciatica as well
as erectile dysfunction. (Mt. Sinai Medical Records at 9, Resp.,
Ex. 1, Dkt. No. 126-1.) As a result, Levingston was referred to a
physical therapist. (Id. at 16.) During the September 21st visit,
Levingston told the doctor that the pain started after an “assault
while in the street.” (Id. at 13). In Levingston’s deposition,
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Levingston stated that all times he was “speaking about Officer
Myles.” (Levingston Dep. 100:16—17, Resp., Ex. 5, Dkt. No. 124-5.).
On October 5, 2016, a physical therapist evaluated Levingston.
(Physical Therapist Medical Records at 1, Resp., Ex. 3, Dkt. No.
126-3.) Levingston told the physical therapist that he was pulled
over, handcuffed, hit, and taken to jail. (Id.)
On November 1, 2016, Levingston underwent an MRI which found
“lower lumbar spondylosis,” “borderline/mild spinal stenosis,” and
“minimal grade 1 retrolisthesis.” (Mt. Sinai Medical Records at 20,
Resp., Ex. 1, Dkt. No. 126-1.) On November 30, 2016, Levingston went
in for a further evaluation. (Id. at 34.) Levingston was diagnosed
with having a herniated disc and he was recommended for surgery the
following day. (Id. at 39—40.) At his November 30 appointment,
Levingston told the doctor that he “got in an altercation with an
officer in August 2016 and since that time he has had back pain.”
(Id. at 41.) Levingston underwent surgery the next day. (PSOF ¶ 64.).
On April 21, 2017, Levingston returned to Mt. Sinai’s emergency
room after a fall in the bathtub. (Id. ¶ 66.) On April 24, 2017,
Levingston underwent two surgeries for his injuries. (Id. ¶ 67.)
Levingston claims that these surgeries were necessitated by his
interactions with Myles. (Id. ¶ 68.)
After these surgeries took place, Levingston filed suit against
Myles, four other police officers, and the City of Chicago. (Dkt.
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No. 1.)
The four individual officers and the City of Chicago have
been voluntarily dismissed as defendants. (Dkt. Nos. 53, 77.)
II.
LEGAL STANDARD
Summary judgment is appropriate if there is “no genuine dispute
of material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). A dispute is genuine if a reasonable
jury could return a verdict for the nonmoving party. Carroll v.
Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The relevant substantive
law governs whether a fact is material. Id. When reviewing the record
on a summary judgment motion, the Court must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). If, however, the
factual record cannot support a rational trier of fact to find for
the nonmoving party, summary judgment is appropriate. Id. at 380.
III.
DISCUSSION
Myles admits that “[w]hat happened in the breathalyzer room, a
windowless, camera-less room with no witnesses, is a disputed issue
for the jury to decide.” (Mem. at 2, Dkt. No. 118.) Instead, Myles
alleges that Levingston cannot show that his back injuries and
erectile dysfunction were due to the alleged beating. Myles’ argument
is based on two grounds. First, that Levingston offered insufficient
evidence that Myles caused the injuries in question. Second that
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Levingston is unable to prove causation without testimony from a
medical expert.
A.
Evidence of Causation
Civil rights claims, like the one Levingston brings before the
court, apply common law rules of tort causation. Cyrus v. Town of
Mukwonago, 624 F.3d 856, 864–65 (7th Cir. 2010) (citing Herzog v.
Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir.2002)). Causation is
typically
a
question
for
the
jury.
Summary
judgment
is
only
appropriate when there is “insufficient evidence for the jury to
reach a factual conclusion without undue speculation.” Lindsey v.
Orlando, No. 16 C 1967, 2019 WL 1354430, at *4 (N.D. Ill. Mar. 26,
2019) (citing Shepard v. State Auto Mut. Ins. Co., 463 F.3d 742, 748
(7th Cir. 2006)).
Myles’ argument on summary judgment is that Levingston cannot
sufficiently
prove
that
his
injuries
were
caused
by
Myles.
To
properly assess Myles’ argument, the Court assumes for the purposes
of this section that the alleged beating occurred and will analyze
whether any injured caused that night could have been sufficiently
related to Levingston’s subsequent medical issues.
On August 3, 2016, Levingston went to his doctor for a yearly
checkup.
He
was
given
a
clean
bill
of
health.
Levingston’s
interaction with Myles took place on the night of August 19 and the
morning of August 20, 2016. The undisputed facts show that in the
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morning
of
August
20,
2016,
Levingston
was
transported
to
the
emergency room. His treating physician, Dr. Shaher, testified at his
deposition
that
Levingston
exhibited
symptoms
consistent
with
neurological weakness, including with concussion. Later that same
day, Levingston checked himself into a different emergency room.
There he was diagnosed with, among other things, a concussion and
traumatic hematuria after insertion of a foley catheter. Five days
later, Levingston returned to the hospital, where he was diagnosed
with dysuria and erectile disorder. Then, on September 4, 2016,
Levingston
was
diagnosed
with
right
flank
pain
and
erectile
dysfunction.
A reasonable jury could find that Levingston was healthy in the
days and weeks before he met Myles. After his encounter with Myles,
he was diagnosed with a litany of health conditions, including back
injuries
and
erectile
dysfunction.
Myles
argues
that
summary
judgment is appropriate because of the significant length of time
between
the
beating
and
the
diagnoses.
In
support
of
this
proposition, Myles cites Levingston’s September 21, 2016, statement
to his doctor. There, Levingston said that he started experiencing
back pain in early September and that it started after a hard fall.
However, in Levingston’s deposition, he testified that his fall was
a reference to his experience with Myles. Further, on October 5,
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2016, Levingston told his physical therapist that he was arrested
and beaten.
Myles’ argument that the gap in time between the beating and
the diagnoses assumes that there is some other cause for Levingston’s
injuries. An alleged alternate cause would be a genuine dispute of
material fact. Viewing the facts in the light most favorable to
Levingston, the Court finds that a jury would not have to engage in
“undue speculation” to find that Levingston’s injuries were caused
by Myles’ beating. See Taylor v. City of Milford, 10 F.4th 800, 812
(7th Cir. 2021); Godinez v. City of Chicago, No. 16-CV-07344, 2019
WL 5597190, at *2 (N.D. Ill. Oct. 30, 2019); McCloughan v. City of
Springfield, 172 F.Supp. 2d 1009, 1013 (C.D. Ill. 2001) (holding
that summary judgment was inappropriate when an officer alleged that
plaintiff’s injury came from another incident, not from the officer’s
conduct)).
In support of Myles’ argument, he cites Lindsey v. Orlando,
No 16 C 1967, 2019 WL 1354430, (N.D. Ill. Mar. 26, 2019). Lindsey is
inapplicable to this case. There, Lindsey filed a § 1983 claim for
damages based on an alleged false arrest. Id. at *4. Specifically,
Lindsey argued that due to his arrest, one of his businesses was
unable to set up operations, causing him “personal losses in the
form of a reduced bonus and lowered stock value.” Id. at *1. The
court granted summary judgment for defendant on causation, holding
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Lindsey’s claims were “plainly not foreseeable”, and that Lindsey’s
account was “too long, too tenuous, and too unpredictable to hold
Defendants accountable.” Id. at *6.
Here, Levingston was taken to the emergency room within hours
of
the
alleged
beating.
At
the
emergency
room,
Levingston
was
catheterized. He continued to complain of back pain and erectile
dysfunction in the days and weeks following his release from custody.
Unlike in Lindsey, Levingston’s account came within a reasonable
amount of time from the interaction in question. Levingston alleges
that he suffered back injuries and erectile dysfunction. These are
foreseeable consequences of being kneed in the back with great force
and of being catheterized. Therefore, Lindsey’s “too long, too
tenuous, and too unpredictable” standard does not apply. The Court
denies summary judgment on this ground.
B.
Myles’
next
Need for Expert Testimony
argues
that
Levingston
cannot
prove
causation
without expert medical testimony. Causation can be proven without
expert testimony, “if all the primary facts can be accurately and
intelligibly described to the jury, and if they, as men of common
understanding, are as capable of comprehending the primary facts and
of
drawing
correct
conclusions
from
them.”
Cyrus
v.
Town
of
Mukwonago, 624 F.3d at 864 (quoting Salem v. U.S. Lines Co., 370
U.S. 31, 35(1962)). In Cyrus, a police officer tased the plaintiff
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several times, after which plaintiff died. Id. at 860. The district
court excluded plaintiff’s experts’ testimony and granted summary
judgment for the defendant. Id. at 861. On appeal, the Seventh
Circuit reversed, stating that plaintiff stopped breathing shortly
after being shocked with the taser, and that there was no evidence
of alternate, or intervening, causes of death. Id. at 865. The
Seventh
Circuit
added,
“In
short,
although
the
exclusion
of
a
significant part of the medical examiner's testimony leaves the
Estate with a major gap in its case, the record is not so wholly
devoid of evidence on which a jury could find causation.” Id.
Levingston
did
not
file
any
expert
reports
in
this
case.
However, Levingston argues that he does provide medical evidence of
causation. Levingston asserts that this evidence comes from his
treating physicians, who need not file expert reports. Levingston
confuses the admission of physician testimony generally with the
ability
of
physicians
to
testify
about
causation
specifically.
Treating physicians may properly testify about their observations,
diagnoses, and treatments. without filing an expert report. Coleman
v. American Family Mut. Ins. Co., 274 F.R.D. 641, 644 (N.D. Ill.
2011); see also Blameuser v. Hasenfang, 345 F. App'x 184, 187 (7th
Cir.
2009).
However,
treating
physicians
may
not
opine
about
causation without being properly qualified as experts. Coleman, 274
F.R.D. at 644 (“Physicians who intend to offer testimony regarding
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causation of the plaintiff's injuries often go beyond the scope of
treatment, requiring the physician to submit a complete expert
report.”); McCann v. Illinois Cent. R.R. Co., 711 F.Supp. 2d, 861,
868 (C.D. Ill. 2010). Because Levingston did not formally disclose
any
treating
physicians
as
experts,
they
are
treated
as
fact
witnesses. In other words, they may testify to what they observed
and the diagnoses they made, but they may not testify about what
could have caused the injuries.
Even without expert testimony about causation, Levingston’s
claim survives summary judgment. From the day he was released from
custody, Levingston complained about both back pain and penile pain
to several medical professionals. He was ultimately diagnosed with
both back injuries and erectile dysfunction. In that way, this case
is akin to Cyrus. While Levingston’s claims could have been bolstered
with expert medical testimony, the record he presents enough evidence
that creates a genuine dispute of material fact as to causation.
IV.
For
the
reasons
stated
CONCLUSION
herein,
Myles’
Motion
for
Summary
Judgment (Dkt. No. 117) is denied.
IT IS SO ORDERED.
Dated: 3/30/2022
Harry D. Leinenweber, Judge
United States District Court
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