with known mental disorders or defects, or who appear to suffer from such a disorder or defect, can only be held temporarily in a municipal jail, must be transferred to an appropriate facility as soon as possible, must be afforded individualized supervision, and must be referred for immediate "professional study and diagnosis." See id. at 3 n.5 (quoting the Lockup Standards). As discussed above, there is substantial evidence that Bragado suffered from psychological problems of which the Zion police were aware, or should have been aware. There is some evidence that police personnel made inquiries regarding possible transfer of Bragado or for psychological evaluation of her, and that they asked her if she wanted professional help. The adequacy of those inquiries is arguable, however, and it is undisputed that Bragado was not transferred and was not professionally evaluated after her March 30, 1988 arrest. More significantly, the defendants concede that Bragado was not constantly supervised.
The legal force of the Illinois Municipal Jail and Lockup Standards, and the defendants' knowledge and understanding of those standards, are unclear. Nonetheless, it is undisputed that several aspects of the Lockup Standards were violated. These violations arguably show "deliberate indifference" or recklessness amounting to such indifference. See McGill v. Duckworth, 944 F.2d 344, 347-48 (7th Cir. 1991) (defining recklessness in this context), cert. denied, 117 L. Ed. 2d 493, 112 S. Ct. 1265 (1992); Holmes v. Sheahan, 930 F.2d 1196, 1199-1200 (7th Cir.) (discussing when failure to provide medical care for pretrial detainee may constitute deliberate indifference), cert. denied, 116 L. Ed. 2d 443, 112 S. Ct. 423 (1991).
Therefore, there are genuine issues of material fact regarding both the defendants' actual or constructive knowledge of Bragado's suicidal condition and whether their response to that condition constituted "deliberate indifference." Additionally, it was clearly established at the time of Bragado's March 30, 1988 arrest that the "deliberate indifference" standard applied to the handling of suicidal pretrial detainees, and that failure to take special precautions toward such detainees could violate that standard. See Hall, slip op. at 4-5 (no qualified immunity regarding arrest on May 4, 1986). Consequently, the defendants' motion for summary judgment on Count I is denied.
Moving on to the two state claims, Counts II and III, the defendants contend that they are entitled to summary judgment on these claims under a provision in the Illinois Local Government and Governmental Employees Tort Immunity Act, Ill. Rev. Stat. ch. 85, P4-105. That provision states that local governmental employees cannot be held liable for failing to provide medical care to prisoners unless that failure was the result of "willful and wanton conduct." Id. The term "willful and wanton" is defined in the Act as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." Id., P1-210. The Illinois Supreme Court has further defined "willful and wanton" conduct as being "intentional or . . . committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care." Lynch v. Board of Educ., 82 Ill. 2d 415, 429, 412 N.E.2d 447, 457, 45 Ill. Dec. 96 (1980).
Under Illinois law, whether certain conduct is "willful and wanton" is normally a question of fact for the fact-finder to decide, although the court must first decide as a matter of law that sufficient evidence has been presented on the issue. Brown v. Chicago Park Dist., 220 Ill. App. 3d 940, 943, 581 N.E.2d 355, 358, 163 Ill. Dec. 404 (1st Dist. 1991). The definitions of "willful and wanton" in both the Illinois Local Government Immunity Act and in Lynch are essentially the same as the definition of "deliberate indifference" under federal constitutional law. The plaintiff here has proffered sufficient facts to create a material issue of fact regarding the "willful and wanton" issue for the reasons discussed above concerning "deliberate indifference."
The defendants did not raise any additional arguments concerning the state claims, and therefore, summary judgment is denied as to Counts II and III. The court simply notes in reference to Count II, the Survival Act count, that the Survival Act merely preserves certain causes of actions which accrued to a decedent before their death, and does not create a cause of action. Wyness v. Armstrong World Indus., Inc., 131 Ill. 2d 403, 410-11, 546 N.E.2d 568, 571, 137 Ill. Dec. 623 (1989). Count II does not list any statutory or common law basis other than the Survival Act, but nonetheless appears to adequately plead a common law negligence claim and the court construes it as such a claim.
The defendants' motion for summary judgment is denied in its entirety.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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