Johnson v. David

Filing 110

ORDER denying 102 Sealed Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Williams on 3/23/2017. (anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MATTHEW JOHNSON,
Plaintiff,
vs.
ALFONSO DAVID,
Defendants.

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Case No. 12-cv-1038-SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
INTRODUCTION
Plaintiff filed his amended complaint on April 27, 2015 (Doc. 62) alleging a single
claim of violation of the Illinois Gender Violence Act, 740 IlCS 82/1, et seq (hereinafter
“the IGVA”) against Defendant Alfonso David. This matter is before the Court on
Defendant David’s motion for summary judgment (Doc. 102). Plaintiff has filed a
response (Doc. 107) in opposition to the motion and Defendant has filed a reply (Doc.
108).

Based on the following, the Court DENIES Defendant David’s motion for

summary judgment.
FACTUAL BACKGROUND
The Court notes that neither side has provided a factual background indicating
the relevant facts in this case. As such, the Court has gleaned what it deems the
relevant facts from the briefs and the records in evidence.

Plaintiff attended a physical examination for his employment with IDOC on April
26, 2010 (Doc. 102-3, p. 5, 8). Plaintiff’s examination was performed by Dr. David, the
medical director of the Health Care Unit (Id. at p. 8-9). Plaintiff had to submit to the
evaluation in order to get the job and David provided medical evaluations to determine
fitness for the job (Id. at p. 8-9, 18). The administrative directives for pre-employment
physical examinations indicate that the examination should include, at a minimum:
blood pressure, height and weight, pulse, lab urinalysis, examination of organ
symptoms, a test for tuberculosis, a complete blood count, and blood chemistry (Doc.
107-5, p. 4). The pre-employment medical examination form does not include sexually
transmitted diseases on the clinical evaluation, nor does it include an examination of the
genitalia (Doc. 102-10).
Plaintiff testified that he consented to the physical examination (Id. at p. 16). As
part of that examination, Plaintiff understood that the examination would include his
genital area to determine if he had any hernias (Id.). Plaintiff testified that he consented
to that part of the examination (Id.). He also testified that he understood that, as a part
of that exam, Dr. David would be using his hands to touch Plaintiff’s genitals (Id. at p.
19). Plaintiff further testified that during the exam he felt like he was free to leave at
any time (Doc. 102-3, p. 22). The door was not locked (Id.). There was no impediment
to Plaintiff leaving the room if he chose (Id. at p. 22-23). He testified that he was not
restrained to the table and Dr. David could not have kept him in the room if Plaintiff
chose to leave (Id. at p. 23).
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At some point during the examination, David asked Plaintiff to pull his pants
down (Doc. 102-3, p. 24). Although Plaintiff testified that he did not know why David
wanted him to do so, Plaintiff acknowledged that he understood the examination would
involve a hernia check and would require David to touch his groin area (Id.). Plaintiff
testified that he did not have a problem pulling down his pants for a hernia check and
complied with the request (Id. at p. 24-25). Plaintiff testified that he was lying down
during this portion of the examination and that David performed an extensive
palpitation of his genitals which he repeated four or five times (Id. at p. 25-30). Plaintiff
testified that portion of the exam lasted two to five minutes (Id. at p. 33-35). Plaintiff
stated that he did not understand this examination to be part of a sexually transmitted
disease evaluation or screening and he would have objected to such a test (Id. at p. 31).
Nor did he feel that David was checking him for a sexually transmitted disease (Doc.
107-1, p. 4). Plaintiff testified that David did not check him for a hernia (Doc. 102-3, p.
33). He further testified that the exam did not feel right, he had never had an exam like
that before, and David never explained what he was doing (Id. at p. 38-39).
Dr. David testified that as part of the examination, he tells patients that he is going
to examine their genitals and check for hernias (Doc. 102-11, p. 2). David palpitates the
groin area to feel for any masses (Id. at p. 3-4). David also testified that he checked the
penis of all potential male employees for tenderness or abnormalities, as well as for
discharge (Doc. 107-8, p. 2). David indicated that portion of the exam was related to the
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job requirements as pain, or having a discharge which could indicate an infection that
causes pain, could affect their ability to perform physical activities (Id. at p. 2). He
testified that if there was tenderness, that would mean an abnormality existed which
would impact their ability to perform their jobs (Id.). While David acknowledged that
he could ask the potential employee if they were suffering from pain, the palpation
elicits tenderness which David testified would be different than a patient saying that
they are in pain (Id.).

David indicated that he performed this test on every

pre-employment physical without exception (Id.).
SUMMARY JUDGMENT STANDARD
Summary Judgment is proper only “if the admissible evidence considered as a
whole shows there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Dynegy Mktg. & Trade v. Multi Corp., 648
F.3d 506, 517 (7th Cir. 2011) (internal quotation marks omitted) (citing FED. R. CIV. P.
56(a)). See also Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607
(7th Cir. 2005).

The party seeking summary judgment bears the initial burden of

demonstrating—based on the pleadings, affidavits, and/or information obtained via
discovery—the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
After a properly supported motion for summary judgment is made, the adverse
party “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P.
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56(e)(2)).

A fact is material if it is outcome determinative under applicable law.

Anderson, 477 U.S. at 248; Ballance v. City of Springfield, Ill. Police Dep’t, 424 F.3d 614,
616 (7th Cir. 2005); Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004). A
genuine issue of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248.

“A mere

scintilla of evidence in support of the nonmovant’s petition is insufficient; a party will be
successful in opposing summary judgment only when it presents definite, competent
evidence to rebut the motion.” Albiero v. City of Kankakee, 246 F.3d 927, 931–32 (7th
Cir. 2001) (citations and quotations omitted).
On summary judgment, the Court considers the facts in the light most favorable
to the non-movant. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). The Court
adopts reasonable inferences and resolves doubts in the nonmovant’s favor. Id.; Nat’l
Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

Even

if the facts are not in dispute, summary judgment is inappropriate when the information
before the court reveals that “alternate inferences can be drawn from the available
evidence.”

Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004), abrogated on other

grounds by Spiegla II, 481 F.3d at 966 (7th Cir. 2007). See also Anderer v. Jones, 385
F.3d 1043, 1064 (7th Cir. 2004).
ANALYSIS
A. Elements of the Illinois Gender Violence Act
Plaintiff brings his claim under the Illinois Gender Violence Act, 740 IlCS 82/1,
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et seq (hereinafter “the IGVA”). A cause of action under this Act arises when there is a
“physical intrusion or physical invasion of a sexual nature under coercive conditions
satisfying the elements of battery under the laws of Illinois.” 740 ILCS 82/5. Battery
can be defined as the willful touching of the person of another without that person’s
consent. Flores v. Santiago, 986 N.E.2d 1216, 369 Ill.Dec. 580, 583 (1st Dist. 2013).
Defendant David argues that he is entitled to summary judgment because there is
no evidence that David performed the exam without consent, that it was done in a
sexual manner, or that the exam was completed under coercive conditions. However,
the Court finds that there are too many issues of material fact as to each element which
prevents an award of summary judgment.
1. Consent
As to the element of consent, under Illinois law, “a total lack of consent to medical
procedures [is] treated as batter[y] because [it] involve[s] an intentional unauthorized
touching of the person of another.” Gaskin v. Goldwasser, 166 Ill.App.3d 996, 520
N.E.2d. 1085, 1095 (4th Dist. 1988). A battery occurs when “the patient establishes a
complete lack of consent to medical procedures performed, when the treatment is
against the patient’s will, and/or when the treatment is substantially at variance with
the consent given.” Hernandez v. Schittek, 305 Ill.App.3d 925, 713 N.E.2d 203, 207-08
(5th Dist. 1999) (quotations and citations omitted). The scope of a patient’s consent is
critical to the analysis as a physician is protected from acts that are “substantially similar
to those to which the patients consented.” Hernandez, 305 Ill.App.3d 925, 713 N.E.2d at
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708.
As to this element, Defendant argues that Plaintiff consented to a physical
examination by Dr. David and that he knew that it would be a head to toe examination.
Plaintiff testified that he knew that there would be some evaluation of his genital area to
check for a hernia and consented to lowering his pants and underwear. Defendant
offers the testimony of his expert, Roger Wujek, who testified the examination of the
penis head and shaft were within the consent of the pre-employment physical
examination (Doc. 107-3, p. 4 (noting that “touching the shaft and glans of the penis in
[the manner described]…is a typical part of a thorough pre-employment physical
examination”); 102-5, p. 2-4).
However, Plaintiff has presented evidence that such an examination does not fall
within the general consent of a pre-employment physical and that Plaintiff, in fact, did
not consent to that portion of the examination. Plaintiff has presented evidence that
David’s examination was substantially different than what was required for a
pre-employment physical examination. While Wujek testified that such an examination
was within the bounds of consent for a pre-employment physical exam, Wujek also
testified that the penile portion of the examination was not a necessary part of the
examination and did not relate to anything a correctional officer would be doing in his
line of work (Doc. 107-7, p. 3). Further, Plaintiff’s expert, Barbara Bellar, testified that
while contact with the male genitalia might be appropriate depending on the purpose of
the examination, such contact for the purposes of a pre-employment physical was
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inappropriate (Doc. 107-4, p. 3-4). She testified that the only contact in the vicinity of
the male genitalia would be to check for a hernia, but not the genitals themselves (Doc.
107-4, p. 3).

Further, neither the administrative directives regarding physical

examinations nor the pre-employment medical examination form mention an
examination of the male genitalia, which Plaintiff argues shows that such an
examination was not a part of a pre-employment physical and, thus, not part of
Plaintiff’s consent (Doc. 107-5; 102-10).

On these facts, the Court finds that there

remains issues of fact as to whether the portion of David’s examination related to
Plaintiff’s genitals were substantially different than a pre-employment physical such
that it fell outside of Plaintiff’s general consent.
There is also evidence that Plaintiff did not consent to such an examination.
Plaintiff testified that he knew a part of the examination would involve a hernia check
and that he would have to pull down his pants for that portion and Dr. David would
have to touch his groin area (Doc. 102-3, p. 24-25). However, Plaintiff testified that he
only consented to the hernia portion of the exam, was not told about the genitalia exam
by David before or during the examination, and would not have consented to such an
examination (Id. at p. 24, 38-39; 107-1, p. 4). Plaintiff further testified that although
David asked if he had pain or any discharge, David did not tell him what he was doing
nor did Plaintiff understand David’s actions to be part of a sexually transmitted disease
test (Id. at p. 24-25, 31, 38-39). While David testified that he told each of the individuals
what he was going to do, Plaintiff testified that David never explained the exam and just
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started doing the exam once he had pulled his pants down (Docs. 107-8, p. 2; 102-3, p.
38-39).
Defendant makes much of the fact that aspects of the genitals examination were
substantially similar to the hernia check that Plaintiff consented to, but there is evidence
to suggest that there were substantial differences from the two tests. David, himself,
testified that the hernia test involved palpitating the groin for masses, but did not
include touching the testicles (Doc. 102-11, p. 4). However, the genitals examination
that Plaintiff described, and David admitted that he performed, involved palpitating the
actual shaft of the penis, as well as squeezing the head. Plaintiff’s expert testified that
while there might be some moving of the testicles during a hernia examination, neither
palpitating the testicles themselves or the penis was a necessary part of the exam (Doc.
102-6, p. 12-13).

The Court notes that Plaintiff testified that David never actually

performed the hernia portion test, that David never palpitated his groin region during
the examination (Doc. 102-3, p. 33). Thus, there are certainly facts in the record from
which a jury could find that the test David performed was substantially different from a
hernia check, making Plaintiff’s consent to the hernia test separate from the issue of
whether he consented to the genitals examination.

Accordingly, the Court finds that

there remains an issue of fact as to whether Plaintiff consented to the portion of the
examination at issue in this case.
2. Sexual Nature
Defendant also argues that Plaintiff has failed to point to any evidence that
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David’s actions were of a sexual nature. The parties note that the IGVA does not define
what constitutes contact “of a sexual nature.”

Defendant argues that there is no

evidence to suggest that David derived any sort of sexual arousal from the contact, citing
the fact that Plaintiff denied that David displayed various actions during the exam
would could suggest sexual arousal on David’s part (Doc. 102-3, p. 37-40). But Plaintiff
points out, and the Court agrees, that there is evidence in the record that David’s
examination of Plaintiff’s genitalia was inappropriate for the pre-employment physical.
While Defendant’s expert’s report indicates that touching the shaft of the penis was a
typical part of the pre-employment physical examination, he later testified that he was
including the hernia examination as an important part of the examination (Doc. 107-3, p.
4; 107-7, p. 3). He testified, however, that the examination of the penis shaft and glans
was not a necessary part of the examination and did not relate to anything a correctional
officer would be doing in his line of work (Doc. 107-7, p. 3). David has certainly
testified as to why he performed the test, to root our unacknowledged pain, but there is
also evidence in the record that the exam was unnecessary and inappropriate in this
context. Thus, if the examination that David performed of Plaintiff’s genitals was not
necessary, as both Wujek and Bellar testified, that begs the question why David would
be performing such an examination in the course of Plaintiff’s physical. Certainly, there
is enough evidence from which the jury could infer that the exam was done for an
inappropriate purpose, including for sexual gratification. Plaintiff certainly testified
that the exam made him feel uncomfortable.
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3. Coercive Conduct
Finally, Defendant argues that he is entitled to summary judgment because
Plaintiff cannot show that David coerced Plaintiff into submitting to the examination.
Defendant points to Plaintiff’s testimony that during the examination the door was not
locked nor was he restrained in any way (Doc. 102-3, p. 22-23). Plaintiff also testified
that he felt he could leave at any time and he did not tell David to stop nor did he
express feelings of discomfort during the examination (Id. at p. 22-23, 29-30, 35).
Plaintiff, however, points to the fact that he was required to submit to the
pre-employment physical examination as a step towards employment with IDOC (Doc.
107-1, p. 3).
While Defendant argues that under the administrative directives, the chief
administrator of the facility, and not Dr. David who was employed by Wexford Health
Systems, had the final determination as to whether an individual met the physical job
requirements, there is evidence in the record that Dr. David had the power to at least
recommend disqualification from potential employment (Doc. 107-5). The directives
require that all prospective employees submit to a physical examination, which is to be
conducted at the assigned facility by the facility’s medical examiner (Doc. 107-5, p. 2).
The directives also indicate that “the medical examiner shall make a recommendation
regarding a prospective employee’s physical ability to perform the essential functions of
the assigned position” (Doc. 107-5, p. 3). That decision is then forwarded to the chief
administrator officer. Employment could then be denied based on the findings of the
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examination (Id.).
Here, Dr. David, as the assigned medical examiner to perform the
pre-employment physical, did have authority to make a recommendation to the chief
administrative officer as to whether Plaintiff could perform in his position. While the
directives do indicate that the chief administrator has the final decision making power,
Dr. David, as Plaintiff suggests, had some power in that process as he could either
recommend that Plaintiff could perform the essential functions of his job or he could
recommend that Plaintiff was unable to perform the functions of his job (Doc. 107-5, p.
3). A jury could find that this relationship had a coercive effect on Plaintiff as he was
required to submit to the examination and could be disqualified from a job with the
facility based on Dr. David’s findings. As such, the Court finds that issues of fact
remain as to whether Dr. David’s actions were conducted under coercive conditions.
B. Statute of Limitations
In addition to his merits argument, Defendant David also argues that Plaintiff’s
complaint is barred by the statute of limitations. The statute of limitations under the
IGVA is seven years, and Plaintiff filed his original complaint on August 23, 2012, well
within the time limits of the IGVA. 740 ILCS 82/20. Defendant, however, argues that
Plaintiff’s claim should not be subject to the seven year statute of limitations found in the
IGVA but rather under the two-year statute of limitations for claims arising out of
patient care. See 735 ILCS 5/13-212. Defendant argues that Plaintiff should be subject
to the two year statute of limitation because his claim, stemming from his
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pre-employment physical examination, arose out of patient care.

District Judge

Herndon previously rejected this argument twice, finding that the IGVA’s statute of
limitations applied to Plaintiff’s claims (Doc. 26, p. 5; Doc. 32, p. 4). Defendant’s motion
for summary judgment attempts to re-raise arguments previously denied by Judge
Herndon. The Court agrees with Judge Herndon’s analysis of the statute of limitations
issue. The Court finds that Plaintiff’s allegations of sexual battery due not arise out of
patient care as sexual battery is not incidental to his medical care. See Kaufman v.
Schroeder, 241 Ill.2d 194, 946 N.E.2d 345, 349 (Ill. 2011) (Finding that alleged actions
did not arise out of patient care when the harm alleged arose out of sexual assault
rather than medical treatment received). Nor was Plaintiff a patient of Defendant at
the time the alleged sexual battery took place, but rather was an employee who was
receiving a mandated pre-employment physical examination (Doc. 32, p. 4).
Accordingly, the Court DENIES Defendant’s motion for summary judgment as to his
statute of limitations argument.
CONCLUSION
Accordingly, the Court DENIES Alfonso David’s motion for summary judgment.
IT IS SO ORDERED.
DATED: March 23, 2017.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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