Gevas v. Shearing et al

Filing 361

ORDER GRANTING IN PART and DENYING IN PART 303 Motion for Summary Judgment filed by Defendants Ronald Skidmore, Nicki Malley, Kimberly Butler, and Richard Harrington. Summary judgment is GRANTED on Count 1 as to Defendant Skidmore and DENIED as to Defendants Malley, Butler, and Harrington. Summary judgment is GRANTED on Count 2; this claim is DISMISSED with prejudice in its entirety. And Count 5 is DISMISSED without prejudice. This matter will proceed to trial on Count 1 for deliberate indiff erence against Defendants Jeremy Butler, Nicki Malley, Kimberly Butler, and Richard Harrington. Magistrate Judge Donald G. Wilkerson is DIRECTED to set a telephonic conference prior to the Final Pretrial Conference. Signed by Judge Nancy J. Rosenstengel on 2/1/17. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID C. GEVAS,
Plaintiff,
vs.
DR. ROBERT SHEARING,
WEXFORD HEALTH SOURCES, INC.,
JEREMY BUTLER,
RONALD SKIDMORE,
NICKI MALLEY, KIMBERLY BUTLER,
and RICHARD HARRINGTON,
Defendants.

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Case No. 14-CV-134-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court is the Motion for Summary Judgment filed by
Defendants Ronald Skidmore, Nicki Malley, Kimberly Butler, and Richard Harrington
(Doc. 303). For the reasons explained below, the motion is granted in part and denied in
part.
INTRODUCTION
Plaintiff David Gevas, an inmate in the Illinois Department of Corrections at
Stateville Correctional Center, filed a pro se civil rights action pursuant to 42 U.S.C.
§ 1983 on February 6, 2014. Plaintiff alleged that he was temporarily transferred to
Menard Correctional Center for two weeks in August and September 2013, and during
that time, he was deprived of various prescription medications and other items,
including Neurontin for chronic pain in his left leg, Motrin for chronic pain in his left
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shoulder, Flomax for an enlarged prostate and urination problems, Blink lubricating eye
drops, multi-purpose solution for contact lenses, and a contact lens case. Plaintiff further
alleged that as a result of these deprivations he suffered pain in his leg and shoulder,
nausea, vomiting, insomnia, muscle jerking, frequent and uncontrollable urination,
headaches, and the inability to see. He claimed that he made written and verbal requests
for the items and to see a doctor, but those requests were denied by Defendants Jeremy
Butler and Ronald Skidmore, who are both nurses at Menard. He further claimed that
his grievances and complaints were ignored by Defendant Nicki Malley, the Health Care
Unit Administrator; Kimberly Butler, the Assistant Warden; and Richard Harrington,
the Warden. Plaintiff believes that the medications were denied in retaliation for a
previous lawsuit and in an effort by Defendant Wexford Health Sources, Inc.
(“Wexford”) to save money. Plaintiff also believes that a portion of any money saved
was funneled to Defendant Robert Shearing, a doctor at Menard.
Following a threshold review of the complaint pursuant to 28 U.S.C. § 1915A,
Plaintiff was permitted to proceed on six counts:
Count 1:

Eighth Amendment deliberate indifference claim against
Defendants Jeremy Butler, Ronald Skidmore, Nicki Malley,
Dr. Robert Shearing, Kimberly Butler, and Richard
Harrington for refusing to provide Plaintiff with
previously-prescribed medications and denying him access
to a doctor;

Count 2:

Fourteenth Amendment equal protection claim against
Defendants Jeremy Butler, Ronald Skidmore, Nicki Malley,
Dr. Robert Shearing, Kimberly Butler, and Richard
Harrington for refusing to provide Plaintiff with prescription
medications based on his status as a prisoner on temporary
transfer to Menard from his home institution;

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Count 3:

Eighth Amendment deliberate indifference claim and
Fourteenth Amendment equal protection claim against
Wexford for promulgating a policy, practice, and custom of
denying prescription medication to inmates on temporary
transfer away from their home institution;

Count 4:

First Amendment retaliation claim against Wexford for
denying Plaintiff his necessary prescription medications
because he previously filed a lawsuit against Wexford;

Count 5:

Negligence claim under Illinois law against Defendants Nicki
Malley, Kimberly Butler, and Richard Harrington for
neglecting their duty to respond to Plaintiff’s requests for
prescription medications and to see a doctor;

Count 6:

Medical malpractice claim under Illinois law against
Defendants Dr. Robert Shearing, Kimberly Butler, Ronald
Skidmore, and Nicki Malley for refusing to provide Plaintiff
with his prescription medications or an examination by a
doctor.

(See Doc. 5).
On June 12, 2015, Nurse Jeremy Butler, Dr. Robert Shearing, and Wexford (“the
Wexford Defendants”) filed a motion for summary judgment on Counts 1, 2, 3, 4, and 6
(Doc. 213). The Court concluded that a jury could find that Plaintiff’s prostate problems,
shoulder pain, leg pain, and the lack of contacts constituted serious medical conditions
to which Dr. Shearing and Nurse Butler were deliberately indifferent (Count 1)
(Doc. 318). Summary judgment was granted, however, in favor of Nurse Butler and
Dr. Shearing on Plaintiff’s equal protection claim (Count 2) and in favor of Wexford on
Plaintiff’s deliberate indifference and equal protection claims (Count 3) and retaliation
claim (Count 4) (Doc. 318). Count 6 also was dismissed as to all Defendants (Doc. 318). In
light of these rulings, the following claims remain:
Count 1:

Eighth Amendment deliberate indifference claim against

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Defendants Jeremy Butler, Ronald Skidmore, Nicki Malley,
Dr. Robert Shearing, Kimberly Butler, and Richard
Harrington for refusing to provide Plaintiff with
previously-prescribed medications and denying him access
to a doctor;
Count 2:

Fourteenth Amendment equal protection claim against
Defendants R o n al d Skidmore, N i c k i Malley, K i m b e r l y
Butler, and R i c h a r d Harrington for refusing to provide
Plaintiff with prescription medications based on his status
as a prisoner on temporary transfer to Menard from his home
institution; and

Count 5:

Negligence claim under Illinois law against Defendants Nicki
Malley, Kimberly Butler, and Richard Harrington for
neglecting their duty to respond to Plaintiff’s requests for
prescription medications and to see a doctor.

(See Doc. 318).
Defendants Ronald Skidmore, Nicki Malley, Kimberly Butler, Richard Harrington
(“the IDOC Defendants”) filed their own motion for summary judgment on November
30, 2015 (Doc. 303). There was a significant delay in Plaintiff responding to the motion
because he was appointed counsel, and his deadline was extended more than once
(Docs. 313, 323, 338). Plaintiff was finally able to file his response on December 12, 2016
(Doc. 345). The IDOC Defendants did not file a reply.
In the Court’s previous summary judgment Order (Doc. 318), certain findings
were made that are relevant to Plaintiff’s claims against the IDOC Defendants. Neither
Plaintiff nor the IDOC Defendants has challenged any of those findings. As such, those
findings of fact are law of the case for purposes of the pending motion for summary
judgment. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“Under this doctrine, the court
should not reopen issues decided in earlier stages of the same litigation.”). Those facts

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will be repeated only to the extent needed to give context to the facts set forth by the
IDOC Defendants. With that in mind, the following facts are undisputed except where
noted.
FACTUAL BACKGROUND
Plaintiff David Gevas was temporarily transferred from Stateville to Menard from
August 21, 2013, to September 4, 2013. According to Plaintiff, at the time of his transfer,
he had prescriptions for Neurontin, Motrin, Flomax, Depakote, Remeron, Benadryl, and
Blink eye drops (see Doc. 214-3, p. 3). This information is corroborated by the Health
Status Transfer Summary form, with two exceptions: the summary does not indicate
that Plaintiff was taking Motrin, but it does indicate that he was taking an additional
medication that he did not mention—Hytrin—which is used to treat prostate issues
(Doc. 214-1, p. 1; Doc. 214-2, ¶¶5, 14). Plaintiff also testified that he wore soft contacts, for
which he needed solution and a case (Doc. 214-3, p. 3).
The medical records show that when Plaintiff arrived at Menard on August 21st,
he was screened at intake by nurses Christi Rayburn (who is not a defendant) and
Defendant Jeremy Butler (see Doc. 214-1, p. 1; Doc. 214-4, ¶5). After the nurses completed
the intake assessment of Plaintiff, Dr. Robert Shearing, the Medical Director at Menard,
was contacted (Doc. 214-2, ¶9). Dr. Shearing prescribed Hytrin, Remeron, Depakote, and
Benadryl for Plaintiff (Doc. 214-1, p. 20; Doc. 214-2, ¶9). Dr. Shearing did not re-prescribe
the Neurontin, Motrin, Flomax, or the Blink eye drops. He also did not provide Plaintiff
with contact solution or a case.
According to Dr. Shearing, inmates were instructed to use the sick call process if

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they felt they needed medications other than the ones that were prescribed for them
(Doc. 214-2, ¶17). “If the inmate follows the proper steps, sick call usually takes place
within just a few days of arrival” (Id.). It is undisputed that an inmate should be seen
within 72 hours of making a sick call request. The medical records show that, at his
intake assessment on August 21st, the nurse check-marked the box for “routine” sick call
(Doc. 214-1, p. 1). This notation does not mean that Plaintiff was automatically
placed on the sick call list; it means that if Plaintiff wanted to be seen, he had to
submit a sick call request (Doc. 304-7, p. 26).
The medical records indicate that Plaintiff was seen at nurse sick call by Nurse
Ronald Skidmore on August 24th, where he stated that he needed his Flomax and
Neurontin (Doc. 214-1, p. 3). 1 Plaintiff complained to Nurse Skidmore that he was
experiencing nerve pain and frequent urination (Id.). It is undisputed that Nurse
Skidmore noted on the progress report that he was referring Plaintiff to the doctor (Id.).
Plaintiff testified that he told Nurse Skidmore that he was in a lot of pain. He indicated a
ten on a ten-point scale with ten being the worst pain possible, but Nurse Skidmore,
after stating that a ten was a broken bone, said that Plaintiff probably felt a seven to
eight on such a scale (Doc. 214-3, p.15-16). Plaintiff further testified that Nurse Skidmore
told him that Dr. Shearing discontinues “non-formulary” medication in order to save

1 The medical record from the sick call indicates that Plaintiff complained he needed his “Flonase,
Neurontin and Tramadol” (Doc. 214-1, p. 3). Plaintiff indicated at his deposition that he asked for
“Flomax,” but Nurse Skidmore mistakenly wrote down “Flonase” (Doc. 214-3, p. 16). Plaintiff claims that
he also requested Ibuprofen, Blink contact eye drops, multipurpose solution, and a contact lens case from
Nurse Skidmore (Doc. 345, pp. 30-31). The evidence cited, however, does not support this fact (See Doc.
345-2, p. 2).

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money and recoup percentage (Id. p. 16). 2 That was the one-and-only contact Plaintiff
had with Nurse Skidmore.
As previously noted, it is undisputed that when an inmate is referred to a doctor,
medical directives indicate that he should be seen within 72 hours. According to Nurse
Skidmore, someone from the medical records department was responsible for ensuring
that Plaintiff was seen (Doc. 345-5, pp. 4, 5). That’s because after Nurse Skidmore
entered Plaintiff in the referral logbook, “medical records” was responsible for actually
scheduling Plaintiff to see a doctor (Id.). Nurse Skidmore further testified that the
nurses simply saw too many inmates at sick call to be able to follow-up and make sure
that each inmate was in fact scheduled to see a doctor (Id.). It is undisputed that Plaintiff
was never taken to the Health Care Unit or seen by a physician during the two weeks
that he was at Menard (see Doc. 214-1).
The Health Care Unit Administrator (“HCUA”), Nicki Malley, has the
“responsibility to ensure medical care services were provided for the inmates that were
held at Menard” (Doc. 304-2, p. 7). During the relevant time period, Assistant Warden
Kimberly Butler “oversaw the entire health care unit,” ensuring that they complied with
regulations and directives (Doc. 304-2, pp. 8-9). 3 And Warden Richard Harrington had
the duty to review and respond to emergency grievances filed by inmates (Doc. 304-1,
In particular, Plaintiff states “[Nurse Skidmore] said . . . [Dr. Shearing] discontinues these medications
that are non-formulary and/or prescribed at another facility for purposes of money saved and that he gets
a percentage of this money saved” (Doc. 214-3, p. 16). Plaintiff also states that Defendant Jeremy Butler
told him that “Shearing has a practice and custom of discontinuing medication that is prescribed at
another facility in order to save money and then he gets a percentage of this money saved” (Doc. 214-3,
p. 9). Defendant Skidmore explained in his deposition that Menard did not recognize the prescriptions
written by non-Menard physicians and had a policy of requiring a new prescription to be written by a
doctor at Menard (Doc. 304-7, p. 19-20).
2

3

Kimberly Butler is currently the Warden at Menard.

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pp. 25-27). Warden Harrington, Assistant Warden Butler, and HCUA Malley had no
direct contact with Plaintiff while he was at Menard (Doc. 304-1, p. 26; Doc. 214-3, p. 15;
Doc. 345, p. 25). None of these Defendants recalls receiving or reading any
correspondence or grievances from Plaintiff (Doc. 304-1, p. 26 (Harrington); Doc. 304-1,
pp. 36-39 (Butler); Doc. 304-2, p. 40 (Malley)). It is undisputed that these Defendants
indicate that if they did receive correspondence or grievances regarding lack of medical
care they would have read it, contacted the Health Care unit, and made a determination
on what to do with the correspondence/grievance (Doc. 304-1, p. 25-26 (Harrington);
Doc. 304-2, pp. 30-31, 38 (Butler); See Doc. 304-3, pp. 54-55 (Malley)).
As Plaintiff tells it, however, he wrote to HCUA Malley “many times” about his
medications, but nothing was done (Doc. 214-3, p. 15). Plaintiff also wrote three
emergency grievances—on August 23rd, 25th, and 29th (Doc. 214-3, p. 16-17; Doc. 304-5,
p. 4; Doc. 304-6, p. 3). Only the first one was documented as received by the Warden; it
was deemed a non-emergency and returned to Plaintiff (see Doc. 57, pp. 5, 6). Plaintiff
also sent four or five “kites” (Doc. 214-3, p. 17). Plaintiff does not have copies of the
grievances, kites, or letters but states that they contained “the same thing that was
written in the grievance” (Doc. 214-3, p. 17). It is undisputed that these documents
concerned Plaintiff’s lack of medication that forms the basis of this suit (See Doc. 51-1,
pp. 1-5). Plaintiff delivered these documents by placing them in the bars of his cell or
dropping them in a sick call box in the gallery (Doc. 214-3, p. 17). Plaintiff believes that if
the Warden received the emergency grievance, Defendants must have received his other
correspondence because they all go through the same mail system (Doc. 214-3, p. 18).

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DISCUSSION
The standard applied to summary judgment motions under Federal Rule of Civil
Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows
that there is no genuine dispute as to any material fact and that the moving
party is entitled to judgment as a matter of law. A “material fact” is one
identified by the substantive law as affecting the outcome of the suit. A
“genuine issue” exists with respect to any such material fact . . . when “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” On the other hand, where the factual record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party, there is nothing for a jury to do. In determining whether a genuine
issue of material fact exists, we view the record in the light most favorable
to the nonmoving party.
Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).
A. Count 1: Deliberate Indifference
In Count 1, Plaintiff alleges that Nurse Skidmore, HCUA Malley, Assistant
Warden Butler, and Warden Harrington were deliberately indifferent to his medical
needs when they refused to provide him with previously prescribed medications and
denied him access to a doctor, causing him to suffer pain and physical discomfort, in
violation of the Eighth Amendment.
In order to prevail on a claim for deliberate indifference to a serious medical need,
there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex rel.
Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must
demonstrate that his medical condition was “objectively, sufficiently serious.” Greeno v.
Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation marks omitted).
Second, the plaintiff must demonstrate that the “prison officials acted with a sufficiently
culpable state of mind,” namely deliberate indifference. Greeno, 414 F.3d at 653.
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The Court previously concluded that Plaintiff’s chronic leg and shoulder pain,
prostate problems, and lack of functioning contact lenses constituted serious medical
needs (Doc. 318). The IDOC Defendants do not dispute this finding. The Court must
now decide whether Nurse Skidmore, Wardens Butler and Harrington, and HCUA
Malley acted with deliberate indifference to those medical needs.
In order to show that prison officials acted with a sufficiently culpable state of
mind, a plaintiff must put forth evidence that the prison officials knew that the
prisoner’s medical condition posed a serious health risk, but they consciously
disregarded that risk. Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir.
2012). “This subjective standard requires more than negligence and it approaches
intentional wrongdoing.” Id.; accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)
(“Deliberate indifference is intentional or reckless conduct, not mere negligence.”);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (“[N]egligence, even gross
negligence does not violate the Constitution.”).
1. Nurse Ronald Skidmore
In order for a medical professional to be held liable under the deliberate
indifference standard, he or she must respond in a way that is “so plainly inappropriate”
or make a decision that is “such a substantial departure from accepted professional
judgment, practice, or standards,” that it gives rise to the inference that they
intentionally or recklessly disregarded the prisoner’s needs. Holloway, 700 F.3d at 1073;
Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008) (quoting Sherrod v. Lingle, 223 F.3d 605,
611 (7th Cir. 2000)). In other words, a prison medical professional is “entitled to

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deference in treatment decisions unless no minimally competent professional would
have so responded under those circumstances.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011) (quoting Sain, 512 F.3d at 894–95). See also Holloway, 700 F.3d at 1073 (“There is not
one ‘proper’ way to practice medicine in prison, but rather a range of acceptable courses
based on prevailing standards in the field.” (quoting Jackson v. Kotter, 541 F.3d 688, 697
(7th Cir. 2008))).
Here, Nurse Skidmore saw Plaintiff one time at a sick call on August 24th. The
nurse evaluated Plaintiff’s condition, noted that Plaintiff was seeking his medication,
and took the only step he could take in order to achieve that goal—he referred Plaintiff
to the doctor. Nurse Skidmore did not ignore the risk to Plaintiff’s health and took steps
to ensure that he would receive care.
Plaintiff seems to suggest that Nurse Skidmore should have done more, but it is
unclear to the Court what more Nurse Skidmore could have done. Plaintiff also seems to
suggest that Nurse Skidmore’s actions were illusory in light of his belief that Dr.
Shearing may not have prescribed the medication upon intake because of self-interest.
The evidence on this point is sketchy at best—Plaintiff testifies that Nurses Butler and
Skidmore told him that Dr. Shearing discontinues non-formulary medication upon
intake in order to save money and pocket a bonus. Even if a jury believed Plaintiff’s
testimony, there is no evidence that Nurse Skidmore thought Dr. Shearing would
maintain his refusal to prescribe medication even in the face of the nurse’s report. In
other words, there is no evidence that Nurse Skidmore referred Plaintiff to Dr. Shearing
even though he knew the referral was futile. Speculation to this effect cannot defeat a

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motion for summary judgment. Stephens v Erickson, 569 F.3d 779, 786 (7th Cir. 2009)
(noting that “inferences relying on mere speculation or conjecture will not suffice”).
Accordingly, Nurse Skidmore is entitled to summary judgment on Count 1.
2. HCUA Malley, Assistant Warden Butler, and Warden Harrington
Non-medical defendants, like Malley, Butler, and Harrington, are entitled to rely
on the medical judgment of medical personnel. Greeno v. Daley, 414 F.3d 645, 655-656 (7th
Cir. 2005) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004)). However, while they
may rely on the competence of prison doctors, they still “cannot simply ignore an
inmate’s plight.” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011); see also Figgs v.
Dawson, 829 F.3d 895, 903 (7th Cir. 2016); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir.
2010). If Plaintiff’s communication to these Defendants “in its content and manner of
transmission, gave the prison official[s] sufficient notice to alert him or her to ‘an
excessive risk to inmate health or safety,’” they can be found to be deliberately
indifferent to Plaintiff’s serious needs. Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996)
(quoting Farmer, 511 U.S. 837).
Plaintiff testified that he sent these Defendants letters, kites and emergency
grievances through the prison mail system, indicating that he was not receiving
necessary medication that would prevent pain and incontinence. Defendants deny ever
receiving these communications. If they received the communications but took no
action, then a jury could find them deliberately indifferent. Resolving whether the
Defendants received Plaintiff’s letters, kites, and/or grievances requires the Court to
make a credibility determination. But the Court cannot decide on summary judgment

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whether Defendants’ testimony is believable; a jury must make that decision. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
Consequently, Defendants Malley, Butler, and Harrington are not entitled to
summary judgment on Count 1. In light of this conclusion, the Court must address
Defendants’ argument that they are protected by qualified immunity.
“Generally, qualified immunity protects government agents from liability when
their actions do not violate ‘clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Hernandez v. Cook Cnty. Sheriff’s Office, 634
F.3d 906, 914 (7th Cir. 2011) (citing Purvis v. Oest, 614 F.3d 713, 720 (7th Cir. 2010)). “It
protects ‘all but the plainly incompetent or those who knowingly violate the law.’”
Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)). In determining whether Defendants are entitled to qualified immunity, the
Court must ask two questions: (1) whether the facts, taken in the light most favorable to
Plaintiff, show that Defendants violated a constitutional right; and (2) whether that
constitutional right was clearly established at the time of the alleged violation.
Hernandez, 634 F.3d at 914 (citing Saucier v. Katz, 533 U.S. 194, 201, 202 (2001)).
As set forth above, Plaintiff has set forth enough facts for a jury to find that
Malley, Butler, and Harrington violated his constitutional rights. And, as further set
forth above, it has long been held that jail personnel cannot simply ignore an inmate’s
complaints about inadequate medical care. Figgs, 829 F.3d at 903; Arnett, 658 F.3d at 755;
Berry, 604 F.3d at 440; Vance, 97 F.3d at 993. Accordingly, these Defendants are not
entitled to qualified immunity.

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B. Count 2: Equal Protection
In Count 2, Plaintiff alleges that Defendants Skidmore, Malley, Butler, and
Harrington violated his right to equal protection when they treated inmates on a
temporary transfer to Menard differently than other inmates with regard to the delivery
of medical care.
For the reasons set forth in this Court’s previous Order (Doc. 318), Plaintiff has
failed to come forth with any evidence to support this claim. Specifically, Plaintiff has
not pointed to any similarly situated inmate who was treated differently, which is a basic
requirement for prevailing on an equal protection claim. See Chavez v. Illinois State Police,
251 F.3d 612, 636 (7th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000).
Accordingly, Defendants Skidmore, Malley, Butler, and Harrington are entitled to
summary judgment on Count 2.
C. Count 5: Negligence
Under Illinois law, tort claims against state officers for conduct arising out of their
state employment are subject to dismissal in state and federal court on the basis of
sovereign immunity. See Turner v. Miller, 301 F.3d 599, 602 (7th Cir. 2002). Sovereign
immunity generally bars lawsuits against the government unless the government
consents to be sued. Jackson v. Alvarez, 831 N.E.2d 1159, 1163 (Ill. App. Ct. 2005). Plaintiff
has conceded that this count should be dismissed without prejudice (Doc. 347), and it
will not be addressed further.

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CONCLUSION
For the reasons set forth above, the motion for summary judgment filed by
Defendants Ronald Skidmore, Nicki Malley, Kimberly Butler, and Richard Harrington
(Doc. 303) is GRANTED in part and DENIED in part. On Count 1, summary judgment
is GRANTED as to Defendant Skidmore and DENIED as to Defendants Malley, Butler,
and Harrington. On Count 2, summary judgment is GRANTED as to Defendants
Skidmore, Malley, Butler, and Harrington. Count 2 is DISMISSED with prejudice in its
entirety. And Count 5 is DISMISSED without prejudice.
This matter will proceed to trial on Count 1 for deliberate indifference against
Defendants Jeremy Butler, Nicki Malley, Kimberly Butler, and Richard Harrington. A
Final Pretrial Conference before the undersigned is set for February 22, 2017, at 9:30 a.m.
and a Jury Trial is set for March 21, 2017, at 9:00 a.m.
Magistrate Judge Donald G. Wilkerson is DIRECTED to set a telephonic
conference prior to the Final Pretrial Conference.
IT IS SO ORDERED.
DATED: February 1, 2017

NANCY J. ROSENSTENGEL
United States District Judge

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