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February 1, 1984


The opinion of the court was delivered by: Shadur, District Judge.


Estate of Carl R. Eklund (for convenience, like the decedent himself, "Eklund") pursues this 42 U.S.C. § 1983 ("Section 1983") claim brought during Eklund's lifetime against Phillip T. Hardiman ("Hardiman"), Executive Director of the Cook County Department of Corrections ("Department"). Eklund seeks damages for Hardiman's failure to provide Eklund adequate medical care while Eklund was in Department's custody.

Hardiman now moves for summary judgment under Fed.R.Civ.P. ("Rule") 56 on the ground Eklund can prove no facts from which it could reasonably be inferred Hardiman should be held personally liable. Meanwhile Eklund seeks sanctions against Hardiman and his attorney for bad faith in filing the Rule 56 motion. For the reasons stated in this memorandum opinion and order, Hardiman's motion is granted and Eklund's is denied.


In response to Hardiman's Rule 56 motion Eklund recounts a harrowing tale of mistreatment and neglect at Department's hands. If true, that story would certainly establish an infringement of Eklund's right to essential medical care while incarcerated. Both parties however have concerned themselves exclusively with the grounds for holding Hardiman personally liable for that alleged infringement, so that Eklund has presented no evidence establishing the infringement in the first instance.*fn2

During the asserted period of mistreatment Hardiman himself had never met Eklund or heard from him in connection with his need for medical treatment or for any other reason (Eklund Dep. 358-60). Neither party has developed an evidentiary record as to whether Hardiman diligently enforced (or indeed even knew the contents of) Department's policy assuring adequate medical care for inmates (Department Gen. Order 80-3 (the "Order") at 1):

  The Cook County Department of Corrections will provide all
  necessary and appropriate assistance to implement and
  facilitate the delivery of health care services to all inmates.
  Medical and correctional

  staff will cooperate to [sic] the achievement of this goal.
  The Department of Corrections will ensure that inmates have
  access to health care personnel and facilities. . . .

Nonetheless, because the evidence must be viewed in a light favorable to Eklund (Egger v. Phillips, 710 F.2d 292, 296 (7th Cir. 1983) (en banc)), this Court will indulge whatever pro-Eklund inferences may reasonably be drawn in those respects.*fn3

Eklund's case for Hardiman's personal responsibility is built solely on the existence of ten lawsuits in this District Court alleging Department's failure to provide adequate medical care to its inmates. Those cases, Eklund claims, put Hardiman on notice sufficient to create a duty under Section 1983 to act to prevent the injury asserted here. That theory is problematic at best, because eight of the ten lawsuits were filed in 1982 or 1983 — after Eklund's alleged mistreatment, indeed after this case was brought. Both pre-Eklund cases were dismissed without trial: Barnes v. Hardiman, No. 78 C 1133 (N.D.Ill. Aug. 31, 1982) and William v. Elrod, No. 77 C 1644 (N.D.Ill. Mar. 30, 1980). Both of them concerned alleged incidents occurring before Hardiman took his current position of Executive Director of the Department, and one suit (Williams) was filed before Hardiman took office. In fact Williams had been disposed of by summary judgment for defendants before Eklund's troubles with Department even arose.

Summary Judgment*fn4

Eklund's limited fact submission simply does not rise to the level required for Section 1983 liability, as exemplified by Lojuk v. Quandt, 706 F.2d 1456, 1468 (7th Cir. 1983); Lenard v. Argento, 699 F.2d 874, 885-86 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983); and Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir. 1982). Those cases have dealt with the ramifications of (or variants on) Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Our Court of Appeals' treatment of the operative principles is instructive, even though not squarely applicable, for current purposes.

Monell held Section 1983 liability cannot be foisted on a municipality simply through the operation of respondeat superior principles. It (436 U.S. at 694, 98 S.Ct. at 2037) required such liability rather to be grounded on some governmental act, omission or policy that breaches a duty running directly from the municipality to the plaintiff. Cf. Means v. City of Chicago, 535 F. Supp. 455, 462-63 (N.D.Ill. 1982) (liability of municipality and supervisors determined with reference to general tort principles other than respondeat superior).

Crowder, affirming a directed verdict in favor of a state Commissioner of Corrections in a damage action charging unacceptable prison conditions, sought to clarify the limitations imposed by Monell. As in Monell, breach of a direct duty to the plaintiff suffices to create personal liability; and lacking that, breach of a duty to supervise may be sufficient if it meets defined ...

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