United States District Court, Northern District of Illinois, E.D
February 1, 1984
ESTATE OF CARL R. EKLUND,[FN1] PLAINTIFF,
PHILLIP T. HARDIMAN, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
(7th Cir. 1983) (en banc)), this Court will indulge whatever
pro-Eklund inferences may reasonably be drawn in those
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.
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
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 standards far different from
the simplistic notions underpinning respondeat superior (687
F.2d at 1005):
[A] defendant's direct participation in the deprivation is not
required. An official satisfies the personal responsibility
of section 1983 if she acts or fails to act with a deliberate
or reckless disregard of plaintiff's constitutional rights, or
if the conduct causing the constitutional deprivation occurs at
her direction or with her knowledge and consent.
Thus Eklund can establish liability either by showing Hardiman
breached a direct duty to him or by meeting the elevated
standards of the last-quoted sentence.
As for any theory Hardiman has breached a duty owing directly
to Eklund, Eklund asks too much of the law and provides too
little in the way of facts. He has shown no affirmative acts by
Hardiman that might lead to liability.*fn5 Instead he relies
on the wholly untenable premise that the filing of two lawsuits
alleging inadequate medical care for inmates in Department's
custody imposes on Hardiman a duty to Eklund personally to
protect him from inadequate medical care. No such duty exists.
Prisoner litigation is common, and two prior complaints do not
render Hardiman an insurer as to the third one filed. It is
unreasonable to expect Hardiman, charged with operation of a
4,500-inmate institution, to have a command of what kinds of
claims those inmates file. And even if he did, he cannot fairly
be required to have changed his behavior in response to only
two lawsuits, one of which had been dismissed and the other of
which had not yet proved itself to have been meritorious.
As to the theory Hardiman should be liable for "deliberate or
reckless disregard" of Eklund's rights in the supervision of
prison guards,*fn6 Eklund's showing cannot be distinguished
from the showings of simple negligence in supervision that
Crowder, Lenard and Lojuk held inadequate to support
Section 1983 liability. Crowder, 687 F.2d at 1006 (emphasis
in original) criticized the position of the plaintiff there
because its logical result "would be to hold any well informed
Commissioner of Corrections personally liable for damages
flowing from any constitutional violation occurring at any
jail within that Commissioner's jurisdiction." Eklund's case
suffers from at least as great a weakness, for he has shown no
facts from which it might be inferred Hardiman was guilty of a
disregard of Eklund's rights with either of the pejorative
adjectives "deliberate" or "reckless."*fn7 Were Eklund's
position sustained, its logical consequence would cause
Hardiman to be personally liable for all violations of the
right to medical care within his jurisdiction — a result
rejected by Crowder. In much the same way Lenard, 699 F.2d
at 885 suggested:
There can be liability only when there is an extremely high
degree of culpability for inaction.
Nor can Eklund find solace in the passage from Lojuk, 706
F.2d at 1468 suggesting "a plan or pattern of incidents which
should have put defendant . . . on notice" of constitutional
violations might support Section 1983 liability.*fn8
has failed as a matter of law to establish such a "pattern of
incidents." As already stated, eight of the ten lawsuits he
cites were filed after this one, and one of the other two had
resulted in summary judgment for defendants before Eklund came
on the scene.
One swallow does not a summer make, and one pending lawsuit
does not define any cognizable "pattern." Moreover, Eklund has
not shown any similarities whatsoever between the facts of that
one case and the facts of his claim that might support a
finding of a "pattern" of constitutional violations.
In sum, Eklund has presented no evidence in opposition to
summary judgment, instead asking only for judicial notice of
ten lawsuits. As a result summary judgment must be granted in
Eklund seeks sanctions against Hardiman and his attorney,
Assistant State's Attorney David Allen ("Allen"), for violation
of a Rule 16 court order and for bad faith conduct of
litigation in contravention of 28 U.S.C. § 1927 ("Section
1927"). Eklund's complaint is that Allen was working on his
Rule 56 motion while Eklund's attorney, William S. Wigoda
("Wigoda"), was wasting his time working to meet an approaching
deadline for completion of the Final Pretrial Order. Allen
filed his motion November 7, 1983, while the Final Pretrial
Order was to be submitted by November 18. Wigoda says the only
good faith course of action would have been for Allen to inform
Wigoda of his intent to seek summary judgment as soon as he
decided to do so.
Bad faith is indeed the criterion for imposition of sanctions
here. It alone can support such sanctions under either Section
1927 or the bad faith exception to the "American Rule" (that
each party pays his own legal fees). See McCandless v. Great
Atlantic & Pacific Tea Co., 697 F.2d 198, 200-01 & n. 4 (7th
Cir. 1983). And no other potential grounds apply under the
circumstances of this case:
1. Any argument Hardiman's motion was groundless obviously
evaporates upon its being granted.
2. Absent bad faith, this Court is disinclined to penalize
Allen's alleged violation of a court order in light of the
facts next discussed.
On the issue of good or bad faith, Allen has explained that
specific items in his schedule prevented him from devoting
attention to the strategic question whether he should seek
summary judgment until he began work on the Final Pretrial
Order. In that respect he has produced the extensive work he
actually did on the Final Pretrial Order, establishing beyond
question he had no plan or scheme to waste Wigoda's time by
ignoring that submission.
Wigoda's claim Allen was covertly working on the Rule 56 motion
rather than the Final Pretrial Order during the week of October
24-31, when the two lawyers met regularly during the taking of
depositions, does Allen's effort too much credit. It appears
highly likely from the advanced stage of Allen's draft Final
Pretrial Order that he marshalled nearly all the evidence and
legal authorities he ultimately used in support of summary
judgment while he was still working on that draft. Drafting of
his motion (not to disparage its style or effectiveness) could
have been accomplished in one or two work days. On such a short
timetable, Allen cannot be faulted for not having called Wigoda
at the start of his drafting process.*fn9
Each of several reasons thus supports the inappropriateness of
sanctions. Wigoda undoubtedly (and understandably) feels
frustrated at having prepared the case toward trial, only to be
met with a dispositive legal motion. But had it been otherwise
— had Allen worked with Wigoda to complete the Final Pretrial
Order and ready the case for trial — the litigation's end
result would have been the same, with a far greater investment
in time by Wigoda. Allen's lack of bad faith in leading to the
summary judgment route is dispositive.
There is no genuine issue as to any issue of material fact, and
Hardiman is entitled to a judgment as a matter of law. In
addition Eklund's counter-motion for sanctions is denied. This
action is dismissed with prejudice.