Currie v. Cundiff et al

Filing 152

ORDER, GRANTING IN PART AND DENYING IN PART 89 MOTION for Summary Judgment filed by Gary Tyner, Tom Cundiff, R. Horn, Darren Ferrell, Brandy Milani, Robert Craig, C.J. Watts, David Sweetin, Dennis Pinkerton, Bennie Vick, Williamson County Illinoi s; and DENYING 147 MOTION to Supplement (Doc. 100) Reply to Plaintiff's Response to Defendants Motion for Summary Judgment to Correct a Misstatement of Fact and Law. Defendant Bennie Vick is terminated as a party to this case. Signed by Judge Michael J. Reagan on 3/22. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JACLYN CURRIE,
Plaintiff,
vs.
TOM CUNDIFF,
WILLIAMSON COUNTY, ILLINOIS,
UNKNOWN EMPLOYEES AND
SUPERVISORS OF WILLIAMSON
COUNTY JAIL,
GARY TYNER,
DAVID SWEETIN,
ROBERT CRAIG,
DENNIS PINKERTON,
OFFICER DARREN FERRELL,
OFFICER R. HORN,
OFFICER BRANDY MILANI,
OFFICER C.J. WATTS,
HEALTH PROFESSIONALS, LTD.,
DOCTOR JOGENDRA CHHABRA,
MARILYN ANN LYNN, and
BENNIE VICK,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 09-cv-866-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
In December 2008, Phillip Okoro, who was being held in the Williamson County
Jail, died as a result of diabetic ketoacidosis. 1 Plaintiff Jaclyn Currie, as administrator of
Okoro’s estate, and as the personal representative of his heirs, brought suit on October 14, 2009
(Doc. 2). Plaintiff’s Second Amended Complaint (Doc. 59) now controls. Plaintiff brings suit
1

According to the National Institute of Health (NIH), diabetic ketoacidosis occurs in people with
diabetes when the body cannot use sugar (glucose) as a fuel source because there is no insulin or
not enough insulin, so fat must be used for fuel instead, which creates a byproduct known as
ketones. Keytones are acids, and in high levels they are poisonous; this condition is known as
ketoacidosis and it can be fatal. http://www.nlm.nih.gov/medlineplus/ency/article/000320.htm
1

against prison officials, the contract healthcare providers and their employer, Health
Professionals, Ltd., and Williamson County, Illinois.

The 93-count complaint asserts the

following claims:
Counts I-XV:

civil rights claims pursuant to 42 U.S. C. §
1983;

Counts XVI-XXX:

claims under the Illinois Wrongful Death
Act, 740 ILCS 180/1;

Counts XXXI-XLV:

claims under the Illinois Survival Act, 755
ILCS 5/27-6;

Counts XLVI-LX:

claims under the Illinois Family Expense
Act, 750 ILCS 65/15, and the common law;

Counts LXI-LXXV:

state law claims for intentional infliction of
emotional distress;

Counts LXXVI-LXVII:

state law claims of respondeat superior
liability;

Count LXXVIII:

a state law claim for indemnification;

Counts LXXIX-XCIII:

state law claims for willful and wanton
conduct.

Defendant Vick, as the current Sheriff of Williamson County, is sued in his official capacity
only. Defendant Cundiff, the former Sheriff, and Defendant Tyner, Captain of the Williamson
County Jail, are both sued in their official and individual capacities. The Second Amended
Complaint does not specify in what capacity the other individual defendants are sued, and
Defendants have not raised this issue. For purposes of the claims under 42 U.S. C. § 1983, they
will be considered to be sued in their individual capacities. See Miller v. Smith, 220 F.3d 491,
493-494 (7th Cir. 2000); Hill v. Shelander, 924 F.2d 1370, 1373-1374 (7th Cir. 1991).
Before the Court is the motion for summary judgment filed by Defendants Bennie
Vick, in his official capacity as Sheriff of Williamson County, Tom Cundiff, individually and in
2

his official capacity as former Sheriff of Williamson County; Captain Gary Tyner, individually
and in his official capacity as Captain of the Williamson County Jail, the County of Williamson,
Lieutenant David Sweetin, Lieutenant Robert Craig, Sergeant Dennis Pinkerton, Officer Darren
Ferrell, Officer Ryan Horn, Officer Brandi Milani and Officer C.J. Watts (Doc. 89).2 Plaintiff
Jaclyn Currie has filed a response (Doc. 97), to which the Defendants have replied (Doc. 100).
1. Synopsis of Material Facts
Defendants’ motion (Doc. 89) and Plaintiff’s response (Doc. 97) both contain
detailed recitations of the facts, with citations to deposition testimony and documentation.
There is little dispute regarding the majority of the facts underlying this case, so only a synopsis
is necessary to place the issues in context. Factual disputes and Plaintiff’s expert opinion
evidence will be discussed separately, if necessary for the resolution of Defendants’ motion for
summary judgment.
On October 16, 2008, Phillip Okoro was arrested after a neighbor complained that
Okoro had thrown a rock through her car window. Okoro was charged with Criminal Damage to
Property, a misdemeanor offense. He was taken to the Williamson County Jail, and that is where
he stayed until his death on December 23, 2008.
At all relevant times, Defendant Tom Cundiff was the Sheriff of Williamson
County. Gary Tyner was Captain and Administrator of the Jail. Lieutenant Dave Sweetin’s was
responsible for ensuring inmates received the proper diabetic meals, based on a diabetic menu
plan produced by Marion Memorial Hospital. Defendants Craig, Pinkerton, Ferrell, Watts,
Milani and Horn were all correctional officers at the Jail.
2

Defendants Health Professionals, Ltd., Doctor Jogendra Chhabra and Marilyn Ann Lynn,
generally referred to as the “Health Professionals,” do not join in this motion. Defendant
“Unknown Employees and Supervisors of Williamson County Jail” have never been identified
and served with summons and the complaint.
3

Health Professionals, Ltd., (“HPL”) was the contract provider of healthcare
services for the Williamson County Jail. HPL provided correctional officers with training
regarding general health and mental health. Correctional officers also received mental health
training at the St. Clair County Correctional Academy.

HPL is responsible for inmate health

assessments, provision of general health care, and advising the Jail administration and
correctional officers regarding medical services. HPL also provides prescription medications for
inmates and detainees, as prescribed by HPL doctors. Pursuant to the contract with HPL, Dr.
Chhabra works at the Jail 2 hours per week, and is available on-call 24 hours per day, seven days
per week. Nurse Lynn, a registered nurse, is at the Jail 25 hours per week, and is otherwise oncall 24 hours per day, seven days per week.
HPL medical providers set the protocol for diabetics housed at the Jail. The
standard protocol for diabetic detainees and inmates is to check blood sugar levels twice daily
and administer the appropriate dosage of insulin. Diabetic detainees and inmates at the Jail are
provided three diabetic meals per day and also a diabetic snack each evening. HPL trained the
correctional officers at the Jail how to use Accu-Check blood sugar meters, chart the levels and
administer insulin. Nurse Lynn instructed the officers how to administer the insulin. It was the
correctional officers, not HPL staff, who routinely delivered the food and carried out the
monitoring and insulin injections. This was due in part because Okoro had once thrown an
insulin needle at Nurse Lynn, and there had been other behavioral concerns (and, presumably,
because Nurse Lynn only worked at the Jail 25 hours per week). As a practical matter, the
officers allowed Okoro to administer the insulin shot himself. The officers would direct any
questions to Nurse Lynn. Also, if, for example, a diabetic inmate did not eat his diabetic meal,

4

that would be reported to Nurse Lynn. Nurse Lynn and Dr. Chhabra monitored the records of
Okoro’s insulin levels and injections.
Franklin-Williamson Human Services, not HPL, was the contract provider of
mental health evaluations and services.

Darla Dawson, who has a bachelor’s degree in

psychology, was the crisis counselor assigned to the Jail.
After Okoro was brought to Jail on October 16, 2008, Rebecca Nance, who is not
named as a defendant, completed Okoro’s booking chart in the computer, noting that Okoro had
stated that he was taking medication for diabetes; that fact was also relayed to Nurse Lynn. At
an unspecified time, Okoro’s foster-father also called and relayed to Captain Tyner that Okoro
was diabetic.
On the first day Okoro was incarcerated, Nurse Lynn met with him and discussed
his diabetes. According to Lynn, Okoro was uncooperative and not forthcoming with
information, but she did glean that he did not recall the last time he had checked his blood sugar
or taken insulin. Nurse Lynn subsequently discussed Okoro’s medical history with Dr. Chhabra,
who assessed what was needed and established the appropriate treatment protocol. Okoro’s
blood sugar was to be checked twice daily (8:00 a.m. and 3:00 p.m.); a specific dosage of insulin
was to be administered in the morning and afternoon and, if needed, additional units of insulin
were to be administered based on a sliding scale.
Mental health worker Darla Dawson reviewed Okoro’s medical file, spoke with
Nurse Lynn and met with Okoro. Dawson considered Okoro moderately depressed, and she
opined that Okoro did not need any further mental health evaluations or psychiatric treatment.
She recommended that he remain in isolation for the safety of himself, the guards and the

5

medical staff. She further recommended that the Jail continue to monitor and treat his diabetes.
Finally, she recommended that the Jail contact Franklin-Williamson Human Services as needed.
On October 28, 2008, Dr. Chhabra reviewed Okoro’s charts (including Dawson’s
report) and examined him in person. Okoro’s medication and treatment protocol were not
adjusted.
On November 11, 2008, Dr. Klug (not a defendant in this case) conducted a
mental fitness examination in connection with Okoro’s criminal case. Dr. Klug noted apparent
auditory hallucinations and persecutory delusions. Dr. Klug also observed that Okoro’s blood
sugar level was “not controlled,” he was “not in good shape,” and ‘[h]e certainly needs
treatment.” “Something needs to be done.” Dr. Klug reported to the Court that Okoro was not
competent to stand trial. Doc. 97, Exhibts N, JJ.
Although the Jail is equipped with a video recording system, audio is not
recorded, and there is no direct view of Isolation Cell #1, where Okoro was celled at the time of
his death. Consequently, only a video of the hallway outside the cell is available. Correctional
Officers are required to check on inmates every 30 minutes (or less), and there are logs of these
checks.
Correctional Officer Watts recalls that on the afternoon before Okoro died, Okoro
had made a joking remark about getting a “computer phone” and then being able to get more
dates than Dennis Pinkerton. Leading up to the emergency situation on December 23, 2008,
Officers Horn and Crites were the last to check on Okoro. Horn checked at 7:56:30 a.m., and
Crites checked at 7:57:36 a.m. The last official log entry was at 8:24:19 a.m. on December 23,
2008. Officers Ferrell, Milani, Horn, Watts and Crites gathered at Okoro’s cell to perform the
morning insulin check and injection, but Okoro did not respond. Horn and Ferrell entered the

6

cell, recognized the emergency and began CPR. According to Horn, Okoro’s body had changed
position from when he last checked Okoro’s cell at 7:56 a.m. The surveillance video recording
does not show anyone going into Okoro’s cell between Horn’s cell check and when the team
arrived to administer insulin.

An emergency was declared at 8:24 a.m. An ambulance was

called and Okoro was taken to the hospital, where he was pronounced dead. An autopsy
indicated that Okoro died of the consequences of diabetic ketoacidosis (Doc. 97, Exhibit DD).
As a point of reference, Dr. Louis Philipson, Plaintiff’s expert regarding diabetes
and ketoacidosis, explains:
Symptoms include thirst, decreased vision, increased urination, weight
loss, weakness, fatigue, shortness of breath, abdominal pain, headache,
and a fruity smell on the breath. Death can result from low blood pH,
which can cause altered mental status and cardiac arrest. In the case of
chronic ketosis, the patient with diabetes can become accustomed to the
slow onset of symptoms and many if not all of the usual symptoms might
not appear. Over many days the patient builds up a level of ketones and
ketoacids that can cause fluid and electrolyte shifts, abnormalities in
potassium, sodium and other electrolyte in the blood, so that an arrythmia
resulting in cardiac arrest or a stroke from the hypercoagulable state is a
common cause of death.
Doc. 97, Exhibit V, pp. 9-10.

2. Summary Judgment Standard
Summary judgment is appropriate if 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);
Mercatus Group, LLC v. Lake Forest Hospital, 641 F.3d 834, 839 (7th Cir. 2011). A genuine
issue of material fact exists when “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 movant bears the burden of establishing that there is no genuine issue of material fact.

7

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the nonmovant must set forth specific facts demonstrating that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 252.
The evidence is viewed in the light most favorable to the non-movant, and “all
justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Summary
judgment is inappropriate when alternate inferences can be drawn from the evidence, as the
choice between reasonable inferences from facts is a jury function. Id.; Spiegla v. Hull, 371 F.3d
928, 935 (7th Cir. 2004). However, conclusory allegations do not create issues of fact that will
forestall summary judgment. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir.
2006).
3. Analysis
Defendants present the following arguments:
1. The critical elements necessary for §1983 liability are lacking because
the Defendants did provide mental and medical care to Phillip Okoro
while he was a detainee at the Williamson County Jail;
2. Without an individual violation of Phillip Okoro’s constitutional
rights, Plaintiff’s Monell claim against the County, and the associated
official capacity claims against Sheriff Vick, Sheriff Cundiff and
Captain Tyner, cannot survive;
3. Plaintiff also is unable to establish the other necessary elements of the
Monell claims: (a) there is no evidence of a prior pattern of
constitutional violations in the Jail demonstrating the Sheriff’s
culpable failure to adopt or implement adequate policies or practices in
the Jail; and (b) there is no evidence that deficiencies in Jail policy and
practice were the moving force behind any prior constitutional
violations or any violation of Phillip Okoro’s constitutional rights;
4. Plaintiff is unable to establish her supplemental state law claims for
the same reasons that she is unable to demonstrate Defendants’
deliberate indifference on the §1983 claims; and

8

5. In addition, the Illinois Tort Immunity Act provides Defendants with
immunity from liability on each of the supplemental state law claims.
a.

Federal Civil Rights Claims Against the Individual Defendants

As a preliminary matter, the appropriate standard for liability must be determined.
Defendants characterize Mr. Okoro as a pretrial detainee and analyze the Section 1983 civil
rights claims using the “deliberate indifference to a serious medical need” standard usually
applied for such claims under the Fourteenth Amendment. Smith v. Knox County Jail, 666 F.3d
1037, 1039 (7th Cir. 2012). The same deliberate indifference standard (albeit by way of the
Eighth Amendment) is applicable to inmates who have been convicted. Id. However, as
Plaintiff correctly observes, it does not appear that Okoro can be characterized as a detainee, he
is merely an arrestee. In reply, Defendants did not address Okoro’s legal status and whether the
Fourth Amendment standard is applicable (see Doc. 100).
Defendants belatedly seek leave to supplement their reply to “correct a
misstatement of the law”—meaning Plaintiff’s statement that the Fourth Amendment applies
(Doc. 147). The time for briefing the summary judgment motion and addressing the applicable
legal standard has passed, at least for purposes of the motion for summary judgment. Plaintiff’s
raised the applicability of the Fourth Amendment standard in their response to Defendants’
motion for summary judgment, and Defendants filed a reply, but elected not to address the issue.
Therefore, Defendants’ motion to supplement their reply (Doc. 147) is DENIED. In any event,
Defendants are incorrect in asserting that the legal standard shifts from the Fourth Amendment to
the Fourteenth Amendment at the time the individual “is brought before the Court for a First
Appearance or an arraignment” (Doc. 147, p. 2 ¶ 5). Defendants appear to be relying upon a

9

loose statement of the law from Pyka v. Village of Orland Park, 906 F.Supp. 1196 (N.D.Ill.
1995):
[T]he Fourth Amendment protects a person from the initial moment of
seizure (the arrest) through the period of custody that culminates in a
formal arraignment or probable cause hearing. After a formal charge is
made, the arrestee becomes a pretrial detainee who is protected by the
Fourteenth Amendment Due Process Clause.
Id. at 1217.
In Gerstein v. Pugh, 420 U.S. 103, 123-125 (1975), the Supreme Court delineated
which legal standard controls at which procedural milestone. The Court of Appeals for the
Seventh Circuit has summarized the Gerstein scheme:
The Fourth Amendment protects against unreasonable seizures; an
arrest is a seizure, and the Fourth Amendment affords persons who are
arrested the further, distinct right to a judicial determination of probable
cause “as a prerequisite to extended restraint of liberty following arrest.”
Gerstein, [420 U.S. at 114]. The judicial determination of probable cause
may be made before the arrest (in the form of an arrest warrant) or
promptly after the arrest, at a probable cause hearing (sometimes called a
Gerstein hearing). But whether the arresting officer opts to obtain a
warrant in advance or present a person arrested without a warrant for a
prompt after-the-fact Gerstein hearing, the Fourth Amendment requires a
judicial determination of probable cause. See Haywood v. City of Chi., 378
F.3d 714, 717 (7th Cir. 2004) (even though warrantless arrest was “clearly”
supported by probable cause, Fourth Amendment required a probable
cause hearing before a judicial officer).
** *
Accordingly, we have held that “the Fourth Amendment governs
the period of confinement between arrest without a warrant and the
preliminary hearing at which a determination of probable cause is made,
while due process regulates the period of confinement after the initial
determination of probable cause.” Villanova v. Abrams, 972 F.2d 792, 797
(7th Cir. 1992); see also Brokaw v. Mercer County, 235 F.3d 1000, 1018 n.
14 (7th Cir. 2000) (after a probable cause hearing the Fourth Amendment
no longer applies); Luck v. Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999)
(Fourth Amendment applies before the probable cause hearing and Due
Process Clause applies after); Reed v. City of Chi., 77 F.3d 1049, 1052 (7th
Cir. 1996) (the “seizure” of an arrestee ends after the probable cause
hearing). Our cases thus establish that the protections of the Fourth
Amendment apply at arrest and through the Gerstein probable cause
10

hearing, due process principles govern a pretrial detainee's conditions of
confinement after the judicial determination of probable cause, and the
Eighth Amendment applies following conviction.
Lopez v. City of Chicago, 464 F.3d 711, 718 -719 (7th Cir. 2006); see also Williams v. Rodriguez,
509 F.3d 392, 403 (7th Cir. 2007). Okoro was arrested on a citation, not a warrant or indictment,
and there is no indication that he was ever given a probable cause hearing. See Docs. 97-1, 972. Defendants assert: “In Illinois there is no right to a Preliminary Hearings [sic]. 725 ILCS
5/109-1 et seq.”

(Doc. 147, p. 2 ¶ 3).

Although 725 ILCS 5/109-1 does not require a

preliminary hearing 3 , except in “appropriate cases,” and 725 ILCS 5/109-3 only requires a
preliminary hearing for felony offenses.

Nevertheless, in accordance with Gerstein, a

warrantless arrest would require either a probable cause hearing or indictment. Defendants make
much of the fact that Okoro had an initial appearance and arraignment before a judge. However,
neither an initial appearance, nor a preliminary hearing necessarily entails a probable cause
determination. See 725 ILCS 5/109-1(b), see also Gerstein, 420 U.S. at 124-125. As Gerstein
explains, being informed of the charge and having a judicial officer determine probable cause are
legally distinct acts.
At this time, there is no evidence before the Court that Okoro ever had a probable
cause hearing, or that he waived his constitutional right under the Fourth Amendment and
Gerstein to have a judicial officer find probable cause to believe that he committed the offense
charged. Therefore, the Court must apply the Fourth Amendment standard of liability to the
Section 1983 claims in this case.

3

Under Illinois law, the probable cause determination would typically occur at the preliminary
hearing, unless waived by the Defendant, and/or superseded by an indictment. See 725 ILCS
109-3, 109-3.1(b).
11

Defendants’ position, as originally briefed, is that, even under the Fourth
Amendment “objectively unreasonable” standard (which lowers the threshold for liability), they
are entitled to summary judgment because they did not provide mental and medical care; that
care was provided by the non-moving Defendants, HPL, Dr. Chhabra and Nurse Lynn.
In the medical needs context, there are four aspects to consider when determining
whether a defendant’s conduct was objectively unreasonable: (1) the defendant must have notice
of the arrestee’s medical need, by word or by observation of physical symptoms; (2) the
seriousness of the medical need—based on a sliding scale, balanced against the third factor; (3)
the scope of the requested treatment; and (4) “police interests” relevant to the reasonableness
determination, encompassing such factors as administrative, penological, or investigatory
concerns. Williams, 509 F.3d at 403; Sides v. City of Champaign, 496 F.3d 820, 823, 827-828
(7th Cir. 2007).
Defendants’ argument is premised upon the assertion that they did not provide
mental or medical health care to Okoro; rather, such care was provided by HPL, Dr. Chhabra and
Nurse Lynn. From Defendants’ perspective, they were all merely following the directions of
Nurse Lynn and Dr. Chhabra.

Citing Greeno v. Dailey, 414 F.3d 645 (7th Cir. 2005), and its

progeny, Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010), Defendants contend that they are not
required to make their own medical determinations.

In Greeno, an Eighth Amendment case,

the Court of Appeals for the Seventh Circuit adopted the Third Circuit’s reasoning for absolving
non-medical prison officials of liability when a medical concern is referred to the prison medical
providers:
If a prisoner is under the care of medical experts . . . a non-medical prison
official will generally be justified in believing that the prisoner is in
capable hands. This follows naturally from the division of labor within a
12

prison. Inmate health and safety is promoted by dividing responsibility for
various aspects of inmate life among guards, administrators, physicians,
and so on. Holding a non-medical prison official liable in a case where a
prisoner was under a physician's care would strain this division of labor.
Greeno, 414 F.3d at 656 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004)). However,
in Greeno the appellate court recognized, “[p]erhaps it would be a different matter if [the
defendant] had ignored [the plaintiff’s] complaints entirely. . . .” Id. In Greeno, a non-medical
prison official was found not to be deliberately indifferent because he responded to an inmate’s
complaints by speaking to medical staff, who assured the official that the inmate’s concerns were
being addressed. Id. at 657. In Spruill, the Court of Appeals for the Third Circuit included just
such a caveat: “. . . absent a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be
chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill,
372 F.3d at 236; see also Johnson v. Doughty, 433 F.3d 1001 1010 fn.9 (7th Cir. 2006) (quoting
Spruill and citing Greeno, 414 F.3d at 656).
Although Dr. Chhabra and Nurse Lynn were monitoring the blood sugar logs, the
division of labor was blurred. The non-medical Jail officials were trained and were responsible
for monitoring Okoro’s blood sugar and administering insulin, making adjustments based on a
sliding scale. The non-medical Jail officials were also relied upon to relay their observations to
Nurse Lynn and Dr. Chhabra. Questions of material fact remain regarding whether the Jail
officials saw Okoro’s rising blood sugar levels and unusual behavior and did not alert the
medical personnel. A jury could conclude that the information known to the non-medical Jail
officials would have lead a reasonable Jail official to act differently. See Egebergh v. Nicholson,
272 F.3d 925 (7th Cir. 2001) (summary judgment denied to defendant police officers who knew

13

detainee was diabetic and complaining of feeling shaky and woozy, and who also knew that a
diabetic deprived of insulin can be seriously harmed, even though the arrestee had been seen by a
physician).
The issue of qualified immunity cannot be determined at this time, because it
turns on the applicable standard of liability (the factual underpinnings of which are not entirely
clear from the present record), and factual determinations yet to be made by a jury. See
Egebergh v. Nicholson, 272 F.3d 925 (7th Cir. 2001).
Therefore, Defendants’ motion for summary judgment on the Section 1983 civil
rights claims lodged against the Defendants in their individual capacities (Counts III-XI) is
DENIED.
b. Federal Civil Rights Claims Under Monell
Count I asserts a Section 1983 civil rights claim against Williamson County,
similar to the claims asserted against each individual Jail Defendant in Counts III-XI. Counts II,
III and IV assert similar claims against Sheriff Vick, Sheriff Cundiff and Captain Tyner in their
official capacities.4
In Monell v. N.Y. City Department of Social Services, 436 U.S. 658 (1978), the
Supreme Court ruled that municipal liability will exist only “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury.”

4

Id. at 694.

In Board of County

Defendants construe Count V against Defendant Sweetin and Count VI against Defendant
Craig as asserting official capacity Monell claims. However Defendants Sweetin and Craig
appear to only be sued in their individual capacities, so the Court does not perceive Counts V
and VI to be Monell claims.
14

Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997), the Supreme Court
further specified:
As our § 1983 municipal liability jurisprudence illustrates, however, it is
not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the “moving force”
behind the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.
Bryan County, 520 U.S. at 404.
The official capacity claims against Sheriff Vick, Sheriff Cundiff and Captain
Tyner are treated as claims against the County, hence the similar legal standard for liability:
In order to survive summary judgment on a § 1983 officialcapacity claim, the plaintiff must present evidence demonstrating the
existence of an “official policy, widespread custom, or deliberate act of a
county decision-maker of the municipality or department.” Wagner v.
Washington County, 493 F.3d 833, 836 (7th Cir.2007). Further, the
plaintiff must show that the official policy or custom was the cause of the
alleged constitutional violation-the “ ‘moving force’ behind it.” Estate of
Sims, 506 F.3d at 514 (quoting City of Canton, Ohio v. Harris, 489 U.S.
378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008).
Relative to fault and causation, single instances, random acts and isolated
instances are usually insufficient to establish municipal liability. Id. at 405-410; see Gable v.
City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002). A single occurrence will suffice “only where
the evidence that the municipality had acted and the plaintiff had suffered a deprivation of
federal rights also proved fault and causation.” For example, “one application of [an] offensive
policy resulting in a constitutional violation is sufficient to establish municipal liability. Calhoun
v. Ramsey, 408 F.3d 375, 379-380 (7th Cir. 2005) (citing City of Oklahoma v. Tuttle, 471 U.S.

15

808, 822 (1985)). However, where “widespread practices that are not tethered to a particular
written policy” are involved, more evidence than a single incident is needed to establish liability.
Calhoun, 408 F.3d at 380 (citing Tuttle, 471 U.S. at 822-823)). “’[W]here the policy relied upon
is not itself unconstitutional, considerably more proof than the single incident will be necessary
in every case to establish both the requisite fault on the part of the municipality and the causal
connection between the [omission in the policy] and the constitutional deprivation.’” Calhoun,
408 F.3d at 380-381 (quoting Tuttle, 471 U.S. at 824 (footnote omitted)).
Williamson County, Vick, Cundiff and Tyner argue that, because there is no
causal link between any municipal policy or practice and the alleged constitutional violations,
and because this is a single, isolated incident, Plaintiff’s Monell claims fail. Citing City of
Canton v. Harris, 489 U.S. 378, 389-390 (1989), Plaintiff counters that municipal liability exists
because Williamson County, by and through its officials, failed to train its employees to
recognize and report symptoms of diabetic distress in mentally ill, barely communicative,
inmates.
In Bryan County, the Supreme Court addressed Canton and inadequate training
claims:
We concluded in Canton that an “inadequate training” claim could
be the basis for § 1983 liability in “limited circumstances.” Id., at 387, 109
S.Ct., at 1204. We spoke, however, of a deficient training “program,”
necessarily intended to apply over time to multiple employees. Id., at 390,
109 S.Ct., at 1205. Existence of a “program” makes proof of fault and
causation at least possible in an inadequate training case. If a program
does not prevent constitutional violations, municipal decision makers may
eventually be put on notice that a new program is called for. Their
continued adherence to an approach that they know or should know has
failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action-the “deliberate
indifference”-necessary to trigger municipal liability. Id., at 390, n. 10,
109 S.Ct., at 1205, n. 10 (“It could . . . be that the police, in exercising
their discretion, so often violate constitutional rights that the need for
16

further training must have been plainly obvious to the city policymakers,
who, nevertheless, are ‘deliberately indifferent’ to the need”); id., at 397,
109 S.Ct., at 1209 (O'CONNOR, J., concurring in part and dissenting in
part) (“[M]unicipal liability for failure to train may be proper where it can
be shown that policymakers were aware of, and acquiesced in, a pattern of
constitutional violations . . .”). In addition, the existence of a pattern of
tortious conduct by inadequately trained employees may tend to show that
the lack of proper training, rather than a one-time negligent administration
of the program or factors peculiar to the officer involved in a particular
incident, is the “moving force” behind the plaintiff's injury. See id., at
390-391, 109 S.Ct., at 1205-1206.
Bryan County, 520 U.S. at 407-408 (all internal citations are to City of Canton, 489 U.S. 378,
109 S.Ct. 1197).
The Court has already concluded that questions of fact remain regarding the
policy and/or custom of dividing responsibility between the medical team and the non-medical
Jail officials. However, even if there is individual liability, and an official policy or custom
caused Okoro’s death, the requisite pattern is absent. The tragic consequence of this single
incident is insufficient to show the notice and continued adherence to a flawed training program
that is required for municipal liability. The training program and the policies and customs, as
they are meant to apply to reoccurring circumstances, do not themselves violate federal law, and
they do not present an objectively obvious potential for a violation and the “highly predictable
consequence” required for liability under City of Canton and Bryan County.

Therefore,

Defendants Williamson County, Sheriff Vick, Sheriff Cundiff and Captain Tyner are
GRANTED summary judgment relative to Plaintiff’s Monell claims, Counts, I-IV. The Section
1983 claims in Counts III and IV against Defendants Cundiff and Tyner in their individual
capacities shall proceed.

17

c. State Law Claims
In addition to the federal claims, the Second Amended Complaint contains claims
against the Defendants under Illinois law: the Wrongful Death Act, 740 ILCS 180/1; the Survival
Act, 755 ILCS 5/27-6; the Family Expense Act, 750 ILCS 65/15, and the common law relative to
intentional infliction of emotional distress, respondeat superior liability, and willful and wanton
conduct.
Plaintiff now abandons her claims the Family Expense Act, Counts XLVI-LX
(Doc. 97, p. 33 n. 1). In accordance with Federal Rule of Civil Procedure 41(a)(2), Counts
XLVI-LX are DISMISSED, without prejudice.
Having concluded that Williamson County is entitled to summary judgment on
the federal Section 1983/Monell claim, in accordance with 28 U.S.C. § 1367(c), the Court must
now consider whether to retain supplemental jurisdiction over the state law claims asserted
against the County. In a case containing both state and federal claims, the Court may exercise
supplemental jurisdiction over the state law claims when those claims arise out of the same case
or controversy that affords the Court subject matter jurisdiction over the federal claims. 28
U.S.C. § 1367(a). See United Workers of America v. Gibbs, 383 U.S. 715, 725 (1966); Myers v.
County of Lake, 30 F.3d 847, 850 (7th Cir. 1994). The decision regarding retention of
supplemental claims is left to the discretion of the Court. 28 U.S.C. § 1367(c);VanHarken v. City
of Chicago, 103 F.3d 1346, 1354 (7th Cir.1997). “[I]t is the well-established law of this circuit
that the usual practice is to dismiss without prejudice state supplemental claims whenever all
federal claims have been dismissed prior to trial.” Groce v. Eli Lilly & Co., 193 F.3d 496,501 (7th
Cir. 1999). In this instance, the Court will not depart from that usual practice, except in relation
to Count LXXVIII, the Indemnification claim against the County. Including the state law tort

18

claims against the County will unnecessarily complicate the case and could confuse a jury.
Therefore, the Court declines to retain supplemental jurisdiction over Williamson County, and
the state law claims against it; Counts XVI, XXXI, LXI, LXXVII, LXXIX are all DISMISSED,
without prejudice.
The Court will retain supplemental jurisdiction over Count LXXVIII, regarding
indemnification of County employees because, by statute, a local entity pays tort judgments and
settlements for compensatory damages relative to employees acting with the scope of their
employment. See 745 ILCS 10/9-102; 745 ILCS 10/2-109.
i.

Illinois Tort Immunity Act

Defendants claim immunity under the Illinois Tort Immunity Act, §§ 745 ILCS
10/4-103 and 10/4-105. In relevant part, Section 10/4-103 pertains to the failure to provide
personnel and supervision:
§ 4-103. Neither a local public entity nor a public employee is liable for
failure to provide a jail, detention or correctional facility, or if such facility
is provided, for failure to provide sufficient equipment, personnel,
supervision or facilities therein. Nothing in this Section requires the
periodic inspection of prisoners.
Section 10/4-105 pertains to the failure to provide medical care to prisoners:
§ 4-105. Neither a local public entity nor a public employee is liable for
injury proximately caused by the failure of the employee to furnish or
obtain medical care for a prisoner in his custody; but this Section shall not
apply where the employee, acting within the scope of his employment,
knows from his observation of conditions that the prisoner is in need of
immediate medical care and, through willful and wanton conduct, fails to
take reasonable action to summon medical care. Nothing in this Section
requires the periodic inspection of prisoners.
Plaintiff does not address Section 10/4-103, regarding failure to provide personnel
and supervision. Relative to Section 10/4-105, regarding provision of medical care, Plaintiff
contends that a jury could find that Defendants acted willfully and wantonly, and that that factual
19

characterization should be left to the jury. Plaintiff cites Chelios v. Heavener, 520 F.3d 678, 692
(7th Cir. 2008), which cites Stamat v. Merry, 397 N.E.2d 141, 145 (Ill.App. 1st Dist. 1979), for
the proposition that whether conduct is willful and wanton is “usually” a question for the jury to
decide.
Insofar as the factual allegations incorporated into the state law claims pertain to
insufficient personnel or supervision, Defendants are entitled to immunity under the Illinois Tort
Immunity Act, § 745 ILCS 10/4-103.

Accordingly, Defendants are GRANTED summary

judgment as to those specific aspects of Plaintiff’s state law claims.
Section 10/4-5 affords Defendants immunity relative to the provision of medical
care, but not if they acted willfully and wantonly. Defendants argue that Plaintiff’s claims under
Wrongful Death Act (740 ILCS 180/1), the Survival Act (755 ILCS 5/27-6), and the common
law claims for willful and wanton conduct, all fail because Plaintiff has not established that
Defendants’ conduct even approached the intentional level required for culpability.
The Illinois Tort Immunity Act defines “willful and wanton” as an utter
indifference or conscious disregard to the safety of another. 745 ILCS 10/1-210. For the sake of
comparison, the Court of Appeals for the Seventh Circuit has held that the “willful and wanton”
standard and the “deliberate indifference standard” are remarkably similar.

Williams v.

Rodriguez, 509 F.3d 392, 404-405 (7th Cir. 2007). Illinois has also equated the two standards.
See Moran v. City of Chicago, 676 N.E.2d 1316, 1325 (Ill.App.1st Dist. 1997).

Defendants

reference their arguments regarding the Section 1983 federal claims, as analyzed under the
Fourteenth Amendment (and Eighth Amendment).
Just as the Court concluded that summary judgment was not appropriate at this
time relative to the Section 1983 federal claims under the Fourth Amendment standard, summary

20

judgment is inappropriate relative to these state law claims. Questions of material fact remain
for the jury to decide. There is no dispute that Defendants were aware that Okoro was a diabetic,
and that diabetes is a serious medical condition that requires careful monitoring. Correctional
Officer Watts’ testimony indicates that a correlation between Okoro’s behavior and his blood
sugar levels was recognized. The evidence indicates that the Defendants were trained and were
responsible for taking blood sugar readings and adjusting the insulin dosages; and they were
responsible for relaying their observations and any other medical issues to the medical
Defendants. A jury could conclude that, in some respect, Defendants’ actions or inactions were
willful and wanton, and causally linked to Okoro’s death. These factual matters are best left to
the jury.

Therefore, Defendants’ motion for summary judgment will be DENIED, relative to

alleged behavior regarding the provision of medical care that rises to the level of “willful and
wanton” action.
ii.

Illinois Wrongful Death Act

Counts XVI-XXVI, allege claims against the Defendants under the Illinois
Wrongful Death Act, 740 ILCS 180/1.

A claim under the Act requires proof that: “’(1)

defendant owed a duty to decedent; (2) defendant breached that duty; (3) the breach of duty
proximately caused decedent’s death; and pecuniary damages arising therefrom to persons
designated under the Act.’” Thompson v. City of Chicago, 472 F.3d 444, 457 (7th Cir. 2006)
(quoting Leavitt v. Farwell Tower Ltd. Partnership, 625 N.E.2d 48, 52 (Ill. App. 1st Dist. 1993)).
A defendant’s conduct must be willful and wanton for liability to attach. See Richman v.
Sheahan, 270 F.3d 430, 442 (7th Cir. 2001). Again, a jury must decide whether the Defendants’
conduct was willful and wanton. Therefore, Defendants’ motion for summary judgment will be

21

DENIED, relative to the Illinois Wrongful Death Act claims asserted against the remaining Jail
Defendants in their individual capacities, Counts XVII-XXVI.
iii.

Illinois Survival Act

Counts XXXI-XLI are claims against the Defendants pursuant to the Illinois
Survival Act, 755 ILCS 5/27-6. More specifically, these claims allege: “As a result of the
misconduct described…, Phillip Okoro was battered and was forced to endure great conscious
pain and suffering before his death.” Plaintiff, on behalf of herself, the Estate and Okoro’s nextof-kin, sues for damages for Okoro’s conscious pain and suffering. Defendants parse these
claims, contending there is no evidence of any battery, or that Okoro was denied medical care.
Plaintiff does not specifically address this argument.
Again, the remaining factual issues preclude summary judgment regarding
whether Okoro was generally denied medical care.
As a general matter, a battery claim requires an intentional act by Defendants
which results in contact with Okoro. See McNeil v. Carter, 742 N.E.2d 1277, 1281 (Ill. App. 3rd
Dist. 2001). Defendants are correct to the extent that there is no evidence of an offensive
touching in the traditional sense; for example, Okoro was not struck. However, in the medical
context, a battery claim may be based upon a lack of informed consent to medical procedures,
which, due to lack of consent, result in offensive contact. See McNeil v. Brewer, 710 N.E.2d
1285, 1288 (Ill.App. 3rd Dist. 1999). Defendants offer merely an assertion that there was no
battery; they do not even delve into what is required to establish a battery claim. This argument
is not presented in a manner that allows for proper analysis by the Court, so Defendants’ motion
for summary judgment on the Survival Act claims against the remaining Jail Defendants in their
individual capacities, Counts XXXIII-XLI, is DENIED.
22

iv.

Intentional Infliction of Emotional Distress

Defendants argue that they are entitled to summary judgment on Counts LXILXXI, which allege Intentional Infliction of Emotional Distress, because Plaintiff has produced
no evidence of extreme and outrageous conduct, which is an element of the offense. See Public
Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976).

A jury could conclude that

Defendants’ conduct, as summarized in this Order, was extreme and outrageous, “beyond all
possible bounds of decency.” See Id. Therefore, Defendants’ motion for summary judgment on
the remaining claims against the Jail Defendants in their individual capacities for Intentional
Infliction of Emotional Distress, Counts LXIII-LXXI, is DENIED.
4. Conclusion
For the reasons stated:
• Defendants’ motion to supplement their reply (Doc. 147) is DENIED.
• The motion for summary judgment filed by Defendants Bennie Vick, in
his official capacity as Sheriff of Williamson County, Tom Cundiff,
individually and in his official capacity as former Sheriff of Williamson
County; Captain Gary Tyner, individually and in his official capacity as
Captain of the Williamson County Jail, the County of Williamson,
Lieutenant David Sweetin, Lieutenant Robert Craig, Sergeant Dennis
Pinkerton, Officer Darren Ferrell, Officer Ryan Horn, Officer Brandi
Milani and Officer C.J. Watts (Doc. 89) is GRANTED IN PART AND
DENIED IN PART.
• Defendants’ motion for summary judgment on the Section
1983 civil rights claims lodged against the Defendants in
their individual capacities, Counts III-XI, is DENIED.
• Defendants are GRANTED summary judgment relative
to Plaintiff’s Monell claims, Count I, relative to County of
Williamson, and Counts II, III and IV, insofar as
Defendants Vick, Cundiff and Tyner are sued in their
official capacities under Monell.
• The Court declines to retain supplemental jurisdiction over Williamson
County, and the state law claims against it; Counts XVI, XXXI, LXI,
LXXVII, LXXIX are all DISMISSED, without prejudice.
23

• The Court will retain supplemental jurisdiction over Count LXXVIII,
regarding indemnification of County employees.
• In accordance with Federal Rule of Civil Procedure 41(a)(2), Plaintiff’s
claims under the Family Expense Act, Counts XLVI-LX (as to all
Defendants) are DISMISSED, without prejudice.
• Insofar as the factual allegations incorporated into the state law claims
pertain to insufficient personnel or supervision, Defendants are entitled to
immunity under the Illinois Tort Immunity Act, § 745 ILCS 10/4-103.
Accordingly, Defendants are GRANTED summary judgment as to those
specific aspects of Plaintiff’s state law claims, but DENIED relative to
alleged behavior regarding the provision of medical care that rises to the
level of “willful and wanton” action.
• Defendants’ motion for summary judgment is DENIED, relative to the
Illinois Wrongful Death Act claims asserted against the remaining Jail
Defendants in their individual capacities, Counts XVII-XXVI.
• Defendants’ motion for summary judgment on the Survival Act claims
against the remaining Jail Defendants in their individual capacities, Counts
XXXIII-XLI, is DENIED.
• Defendants’ motion for summary judgment on the claims against the
remaining Jail Defendants in their individual capacities for Intentional
Infliction of Emotional Distress, Counts LXIIII-LXXI, is DENIED.
Defendant County of Williamson remains in the case, but only as to Count
LXXVIII, the claim regarding indemnification.
All claims against Defendant Bennie Vick, who was sued only in his official
capacity, have been resolved. Vick was granted summary judgment on Count II, and the Court
declines to retain supplemental jurisdiction over Counts XVII, XXXIILXIIL, and XXX.
Judgment shall enter in favor of Vick and against Plaintiff at the conclusion of the case.
All other claims against all other Defendants shall proceed. However, the Court
observes that Defendant Unknown Employees and Supervisors of Williamson County Jail have

24

never been identified, nor have they been served with summons and the complaint. Therefore,
they are ripe for dismissal at the final pretrial conference.
IT IS SO ORDERED.
DATED: March 22, 2012
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

25