Baker v. Hertz et al

Filing 129

MEMORANDUM AND ORDER, The Court ADOPTS in part and REJECTS in part the Report (Doc. 124 ), OVERRULES the defendants' objections (Doc. 125 ), OVERRULES in part Baker's objections (Doc. 126 ). The Court GRANTS in part and DENIES in par t the defendants' motion for summary judgment( Doc. 104 ). The Court DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Defendants Blankenship, Hare and Collman/Coleman are terminated as defendants in this case.The Court further GRANTS Baker's motion for appointment of counsel (Doc. 128 ) and DIRECTS Magistrate Judge Wilkerson to attempt to recruit counsel for the purposes of trial. Signed by Judge J. Phil Gilbert on 11/21/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEFFREY BAKER,
Plaintiff,
v.

Case No. 15-cv-600-JPG-DGW

ROBERT HERTZ, JOHN LAKIN, GARY BOST,
DONALD BUNT, ROBERT HOLLENBACH,
RANDY YOUNG, LT. HILL, MIRAN
THOMPSON, SGT. DOVER, JODIE COLLMAN,
PAUL SARHAGE, STEVE RIDINGS, DONALD
McNAUGHTON, KENT GRIFFITH, TIM
WALKER, CRAIG RICHERT, MIKE TASSONE,
MIKE HARE, OFCR. MARK SPURGEON, BLAKE
SELLERS, MARK RYAN, MATT MILLER,
ROBERT BLANKENSHIP, MARTHA MAJOR,
ALICIA RUSHING, and VALERIE BASSETS,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
124) of Magistrate Judge Donald G. Wilkerson recommending that the Court grant in part and
deny in part the defendants’ motion for summary judgment (Doc. 104). Specifically, Magistrate
Judge Wilkerson recommends that Court grant the motion as to Counts 1, 2, 4, 5 (as against
Richert and Hill), 6 (as against Blankenship), 10 (as against Hare, Collman/Coleman, Spurgeon
and Hollenbach) and 13, and deny the motion as to Counts 3, 5 (as against Sarhage and Miller), 6
(as against Rushing, Major and Bassets), 10 (as against Bost, Bunt, Ryan, Sellers, McNaughton,
Dover, Tassone, Griffith, Richert, Ridings, Sarhage and Hill) and 16.
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.

72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
All parties have objected to the Report in some way or another (Docs. 125 & 126). The
Court reviews de novo the portions of the Report to which objections have been made and reviews
the other portions for clear error.
I.

Background
This case arose when plaintiff Jeffrey Baker was a pretrial detainee in the Madison Country

Jail (“Jail”). He makes a variety of claims, including retaliation; deliberate indifference to his
medical needs stemming from his being given incorrect medication and not being provided
appropriate follow-up medical treatment for that and other medical complaints; conditions of
confinement based on the contamination of the Jail with raw sewage, lack of clean water, too much
time between meals, cold temperatures in the cells, housing with dangerous criminals, deprivation
of personal property, dirty razors, and lack of first aid items; denial of access to the courts because
of an inadequate law library and time in the law library, and lack of stamps and notary service; lack
of a functional grievance procedure; and verbal harassment. The Court has already dismissed a
number of these claims, and the defendants’ motion for summary judgment seeks judgment on the
remaining ones.
II.

Objections to the Report
Objections have only been filed to the recommended disposition of Counts 3, 6 and 10.

The Court has reviewed the Report’s recommended disposition of the other remaining counts for

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clear error and finds none. Accordingly, it will adopt those portions of the Report. As for
Counts 3, 6 and 10, the Court reviews the Report’s recommended disposition of those counts de
novo.
A.

Count 3: Deliberate Indifference to Serious Medical Need on June 2-3, 2014, by
Non-Medical Personnel

In this count, Baker claims defendants Spurgeon, Ridings, Thompson, Young, Miller,
Sarhage, McNaughton, Walker, and Ryan refused to obtain any medical care or examination for
him within the day after he ingested Efferdent on June 2, 2014, despite his persistent vomiting and
complaints of severe pain. He had been given Efferdent, a denture cleaner not intended for
human consumption, by a Jail officer after he complained about heartburn.
Magistrate Judge Wilkerson found in the Report that there is sufficient evidence that Baker
suffered an objectively serious medical condition because he ingested Efferdent, including
uncontrollable vomiting with blood, intense cramps, chest and abdomen pain, dizziness, hot
flashes, and feeling deathly ill. Magistrate Judge Wilkerson further found that there is evidence
from which a reasonable jury could conclude the Count 3 defendants ignored him after seeing he
was uncontrollably vomiting and in intense pain or provided blatantly inappropriate treatment
(milk and observation) rather than calling for immediate medical help. He therefore recommends
denying summary judgment on Count 3.
The defendants object to Magistrate Judge Wilkerson’s recommendation on Count 3, but
their objection does not specifically address Count 3. Instead, it focuses on Count 6, Baker’s
claim that medical personnel were deliberately indifferent to his medical needs. Nevertheless, the
Court has reviewed Magistrate Judge Wilkerson’s recommendation regarding Count 3 de novo
and, for the reasons stated in the Report, find it is correct. Accordingly, it will adopt the Report as
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to Count 3 in its entirety and will deny summary judgment to the Count 3 defendants.
B.

Count 6: Deliberate Indifference to Serious Medical Need by Medical Personnel

In this count, Baker claims defendants Rushing (nurse), Blankenship (doctor), Major
(nurse), and Bassets (nurse) were deliberately indifferent to Baker’s serious medical needs,
including the severe vomiting and pain after taking Efferdent; elbow injuries; his ongoing
headaches, chest and other pain; his earache; and his exposure to raw sewage.
1.

Dr. Blankenship

Magistrate Judge Wilkerson noted that Baker saw Dr. Blankenship on June 3, 2014, the
day after eating Efferdent, and that Dr. Blankenship examined him, ordered an x-ray and urine and
blood tests. He also substituted one pain medication for another. He assessed that the test results
were normal and the x-ray showed no significant problem. Magistrate Judge Wilkerson noted
that Baker has pointed to no other contact with Dr. Blankenship before he filed this lawsuit in June
2015, and that his September 2015 care from Dr. Blankenship cannot be at issue in this case.
Magistrate Judge Wilkerson found no reasonable jury could find Dr. Blankenship was deliberately
indifferent to Baker’s medical needs based on his June 2014 treatment and that he was therefore
entitled to summary judgment. 1

Magistrate Judge Wilkerson applied the Eighth Amendment standard for inadequate medical
care to this case. However, there has been some uncertainty about whether Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015), changed this standard for pretrial detainees. In Kingsley, a
pretrial detainee sued for excessive force, and the Supreme Court held that the appropriate
standard was whether the officers’ purposeful or knowing use of force was objectively
unreasonable, not whether the officers were subjectively aware that their use of force was
unreasonable. Id. at 2470. Kingsley calls into question whether deliberate indifference is the
correct standard for a pretrial detainee’s conditions of confinement claim, but the Seventh Circuit
Court of Appeals has suggested the Eighth Amendment standard still applies. See Phillips v.
Sheriff of Cook Cty., 828 F.3d 541, 554 n. 31 (7th Cir. 2016). But see Mulvania v. Sheriff of Rock
Island Cty., 850 F.3d 849, 856-58 (7th Cir. 2017) (applying objective unreasonableness standard
to conditions of confinement claim).
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Baker objects, noting that the blood tests Dr. Blankenship ordered on June 3, 2014, were
not normal and, in fact, showed four results out of the “reference interval” (Doc. 110-2, p. 99-100)
and that the x-ray report indicated a “Nonspecific abdominal gas pattern without significant
gaseous distention” and a “Moderate amount of stool throughout the colon” (Doc. 110-2, p. 98).
He argues this shows Dr. Blankenship was deliberately indifferent for not treating these
conditions.2 Dr. Blankenship states, though, that he viewed those test results as normal and not
warranting further investigation or treatment beyond what was already being done. No evidence
suggests that the particular out-of-range test results indicated a possible cause for Baker’s medical
complaints, required action by a doctor, or posed any serious threat to Baker’s health. Indeed, the
two tests that were repeated in subsequent rounds of tests eventually returned to within the
“reference interval” even without any follow-up by Dr. Blankenship (Doc. 110-2, pp. 103 & 110).
There is no evidence from which a reasonable jury could find Dr. Blankenship subjectively knew
of a serious risk to Baker’s health because of these test results or that the test results were so
abnormal that he responded unreasonably by not taking action to investigate the test results further.
Magistrate Judge Wilkerson was also correct that Dr. Blankenship’s failure to conduct a
more thorough examination to Baker’s liking on June 3, 2014, does not amount to a constitutional
violation.
Baker also points to Dr. Blankenship’s verbal instructions to a nurse, reflected on a June
17, 2014, sick call slip, that if Baker’s prescription medication was not working, discontinue it.
Baker views this as an unreasonable response, but it is in fact eminently reasonable to discontinue

Baker also points to three different blood test results that were out of the “reference interval”
from blood drawn on September 16, 2015 (Doc. 110-2, p. 110), but, as noted above, Dr.
Blankenship’s conduct on that date post-dates Baker’s filing of this lawsuit and is therefore not at
issue in this case.
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medication that is not working. This is especially true where it is clear that nursing staff were
available to Baker and were able to alert Dr. Blankenship to any serious need for medical attention
that might arise as a result when the medicine was discontinued.
Baker also notes one blood test result out of the “interval range” for blood drawn
September 3, 2014 (Doc. 110-2, p. 103), and that an x-ray report from September 8, 2014,
indicated no elbow fractures or dislocation but the presence of “mild spurring” (Doc. 110-2, p.
106). There is not, however, any evidence Dr. Blankenship was aware of these test results at the
time such that he could have been deliberately indifferent to them or could be said to have
responded unreasonably. In fact, one of Baker’s persistent complaints was that he was not
allowed to see a doctor for his ailments. Instead, the record shows Bassets and Major were the
medical providers who saw Baker in connection with these test results, and no evidence suggests
they discussed those results with Dr. Blankenship.
Finally, Baker argues that Dr. Blankenship must have been aware of the complaints Baker
listed in a September 17, 2014, sick call slip because he wrote on that slip a prescription for severe
pain medication. The vast majority of Baker’s complaints were pain-related, so the Court is
hard-pressed to see how giving Baker pain medication could be construed as deliberately
indifferent or an unreasonable response to his complaints.
In sum, taking the record as a whole, there is no evidence from which a reasonable jury
could conclude that Dr. Blankenship was deliberately indifferent to any of Baker’s serious medical
needs or that his response to any of the needs about which he knew was objectively unreasonable.
Accordingly, the Court agrees with Magistrate Judge Wilkerson that Dr. Blankenship is entitled to
summary judgment on Count 6.

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2.

Nurse Defendants

As for the three nurse defendants, Magistrate Judge Wilkerson noted that the defendants
did not address in their motion the specific responses each individual had to her awareness of
Baker’s medical problems. He further concluded that there was evidence from which a
reasonable jury could find they ignored his subsequent complaints when he sought medical
treatment. He recommended denying summary judgment to these defendants.
The defendants object to this part of the Report. They argue that each time Baker put in a
sick call slip, he was seen by medical staff and that he was repeatedly evaluated and prescribed
medications to treat his discomfort. The defendants, however, persist in failing to discuss each
individual’s response to Baker’s complaints, including allegations that each ignored certain
complaints. Instead, they rely on the general provision of medical care to Baker, which is not
enough to establish that no individual was liable. Magistrate Judge Wilkerson was correct to
deny summary judgment to the nurse defendants on Count 6.
C.

Count 10: Deliberate Indifference to Sewage

In this count, Baker claims defendants Bost, Bunt, Hare, Collman/Coleman, Ryan, Sellers,
Spurgeon, McNaughton, Dover, Tassone, Griffith, Richert, Ridings, Sarhage, Hill, and
Hollenbach allowed Baker to be exposed to raw sewage, failed to provide cleaning supplies or
protective gear for the cleanup, failed to provide Baker with water for personal hygiene and
consumption, and failed to clean the sewage residue and mold which contaminated Baker’s living
area.
Magistrate Judge Wilkerson found that most of the defendants in this count were not
entitled to summary judgment because there is a genuine issue of material fact regarding the

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severity of the sewage backup and the defendants’ awareness of and response to the problem.
Specifically, he found there was a genuine issue of material fact regarding whether the defendants
that actually were present at the sewage spill failed to take appropriate action. However, he
recommended granting summary judgment for defendants Hare, Collman/Coleman, Spurgeon and
Hollenbach because there was on evidence regarding them.
Baker objects to granting summary judgment for Hollenbach. He points to evidence that
Hollenbach was aware of the sewage backup and actively swept it into Baker’s cell. The Court
believes this is sufficient to keep Hollenbach in the case for trial. Accordingly, it will reject this
portion of the Report and deny summary judgment for Hollenbach on Count 10.
III.

Conclusion
For the foregoing reasons, the Court hereby:


ADOPTS in part and REJECTS in part the Report as indicated above (Doc. 124);



OVERRULES the defendants’ objections (Doc. 125);



OVERRULES in part Baker’s objections (Doc. 126);



GRANTS in part and DENIES in part the defendants’ motion for summary judgment
(Doc. 104) as follows:
o Summary judgment is granted on the following claims:
 Count 1 in favor of Ryan and against Baker;
 Count 2 in favor of Ryan and against Baker;
 Count 4 in favor of Lakin and against Baker;
 Count 5 in favor of Richert and Hill and against Baker;
 Count 6 in favor of Blankenship and against Baker;
 Count 10 in favor of Hare, Collman/Coleman and Spurgeon and against
Baker; and
 Count 13 in favor of McNaughton and against Baker;
o Summary judgment is denied on the following claims, which shall proceed to trial:
 Count 3 against Spurgeon, Ridings, Thompson, Young, Miller, Sarhage,
McNaughton, Walker and Ryan;
 Count 5 against Sarhage and Miller;
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





Count 6 against Rushing, Major and Bassets;
Count 9 against Bost, Bunt, Hertz, and Lakin;
Count 10 against Bost, Bunt, Ryan, Sellers, McNaughton, Dover, Tassone,
Griffith, Richert, Ridings, Sarhage, Hill, and Hollenbach; and
Count 16 against Hollenbach.

DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
Defendants Blankenship, Hare and Collman/Coleman are terminated as defendants in this

case.
The Court further GRANTS Baker’s motion for appointment of counsel (Doc. 128) and
DIRECTS Magistrate Judge Wilkerson to attempt to recruit counsel for the purposes of trial.
IT IS SO ORDERED.
DATED: November 21, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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