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09/08/95 NORMAN MITCHELL v. RICHARD J. ELROD

September 8, 1995

NORMAN MITCHELL, PLAINTIFF-APPELLEE,
v.
RICHARD J. ELROD, PHILIP HARDIMAN, ROBERT E. GLOTZ, RICHARD ENGLISH AND COUNTY OF COOK, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. The Honorable Paul Elward, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Egan delivered the opinion of the court: Rakowski, J., and Zwick, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

This is an appeal by the defendants from a jury verdict in favor of the plaintiff, Norman Mitchell, for personal injury suffered by him while he was a prisoner at the Cook County Jail (Jail).

The plaintiff alleged in his complaint that he was raped in the Jail in August 1981. He named as defendants Cook County on a theory of respondeat superior and six others, individually and in their official capacities: Richard Elrod, the then Sheriff; Philip Hardiman, the Executive Director of the Cook County Department of Corrections; Robert Glotz, the Assistant Director of Security for the Jail; Richard English, the Assistant Superintendent of Division I of the Jail; Lorenzo Fowler, a shift commander at the Jail; and Andre Weaver, a guard at the Jail.

The jury found that Fowler and Weaver were not liable; it found that the other named individual defendants were not liable for compensatory damages but fixed punitive damages of $40,000 against Elrod; $35,000 punitive damages against Hardiman; $25,000 punitive damages against Glotz; and $10,000 punitive damages against English. The jury also assessed $1,100,000 in compensatory damages against Cook County. The defendants' principal arguments are that the verdicts are inconsistent; that the evidence failed to establish as a matter of law willful and wanton conduct on the part of the individual defendants; and that Cook County may not be held liable under a respondeat superior theory for actions of the Sheriff and his employees.

In August 1981, the defendant had just been convicted of robbery and sentenced to six years' imprisonment. The sentence was to run concurrent with another felony conviction, the nature of which is not disclosed in the record. He was placed in Division I, Tier D3, of theJail to await the weekly shipment to the Illinois State Penitentiary. This Division housed felons who had been convicted and were awaiting shipment to the State penitentiary, those who had been charged with serious crimes and those who were disciplinary problems.

The defendant was born in 1961, was 5'7" tall and was not a member of a gang. In addition, a psychological evaluation that resulted from a 1978 theft conviction in Lake County, Illinois, indicated that he was borderline-retarded due to head injuries in his childhood. When he was arrested on robbery charges in 1980, he was again given a psychological evaluation at the Jail by the Cermak Mental Health Institute that showed he was retarded, had "persecutory delusions," had hallucinations and had attempted suicide in 1978. As a result of this evaluation, he was placed in the Residential Treatment Unit (RTU) of the Jail, where there were more officers to supervise inmates and the inmates live in a dormitory rather than in cells. The defendant left the RTU when his mother posted bond. He remained on bond until his conviction on the robbery charges.

After his conviction, the plaintiff was placed in Division I on August 3. Upon arriving in the Division, he received no psychological evaluation, although this is required by the Illinois County Jail Standards and the Jail's own regulations. Personnel from the Cermak Medical Health Institute were responsible for performing these evaluations on inmates in the receiving room of the Jail. The Cermak Institute (or Hospital) is located in Division II of the Jail.

The floor of Division I, where the plaintiff was assigned, consisted of two wings, or "tiers," of 19 cells; each wing had its own day room. A guard's office was between the two day rooms and separated from them by bars. From the guard's office between the day rooms, a guard could not see into the cells, but every half hour, the guard was supposed to leave the office and walk along the catwalk adjacent to the cells, from which he could see into the cells.

The plaintiff alleged that, when he arrived in Division I, no Jail official gave him a cell assignment, but rather an inmate, Michael Veal, assigned him to a cell with another inmate, Douglas Montgomery. (Later defense testimony was that it would be against Jail policy for an inmate to assign another inmate to a cell.)

The plaintiff alleged that on August 4 Veal raped him. After the rape, the plaintiff went to the day room to ask a guard for help but there was no guard there. He returned to Montgomery's cell where Montgomery hit him and "did oral sex first, then with [the plaintiff's] rear." After Montgomery was through with him, he was bleeding from his mouth and his "rear." The plaintiff testified that when he again went to the day room to ask for help Veal told the guard thatthe plaintiff was lying and was his "bitch"; the guard told Veal and other inmates to take the plaintiff away and do what they wanted with him. The plaintiff did not tell the guard that he had been raped. (The identity of that guard was never established.) Veal, Montgomery and four other inmates then took the plaintiff to a cell where they all raped him. The plaintiff testified that he was later given the "okay," by either Veal or Montgomery or both, to tell the guards that he was sick. He did tell a guard that he was sick; Montgomery also told the guard that the plaintiff was sick and that the guard should take the plaintiff's "ass" off the floor. The guard and another officer took him off the floor, and at that time the plaintiff told one of the officers that he had been raped.

One of the inmates the plaintiff accused of raping him, Terry Perkins, testified that he did not assault the plaintiff; he did not see Montgomery or Veal assault him; and he did not hear a correctional officer tell Veal that he could take the plaintiff away and do what he wanted to him. Montgomery, however, testified that he saw Veal rape the plaintiff, that he himself had forced the plaintiff to perform oral sex on him and that the plaintiff had performed oral sex on a couple of other inmates. He did not testify that any guard said that the prisoners could do what they wanted to do to the plaintiff. After the alleged rape, Montgomery was convicted of burglary and aggravated battery and sentenced to 14 years imprisonment. He was paroled and later convicted of aggravated criminal sexual assault and sentenced to 8 years' imprisonment. He was serving that sentence when he testified.

The defendant Andre Weaver was the guard assigned to the 4:00 p.m. to 12:00 a.m. shift on August 4. Officer Weaver and the officer assigned as a "prowler" during Weaver's shift testified that they were not aware of any of the events the plaintiff alleged. It was against Jail policy for a guard to leave the office without permission for any reason other than the walks along the catwalk and for lunch. Jail policy required the guards to keep a log of who was on duty and of incidents in the Division. There is no entry in the log book that indicates which officer replaced Officer Weaver when he went to lunch between 9:00 p.m. and 10:00 p.m. on August 4.

Weaver testified that the plaintiff handed him a note that said he had been raped. Weaver did not notice anything unusual about the plaintiff at this time. Weaver informed his shift commander, the defendant Sergeant Lorenzo Fowler, of the plaintiff's note, and Fowler directed Weaver to bring the plaintiff to the day room. (Fowler was deceased at the time of trial; his administrator was named as a defendant.) The plaintiff identified his attackers from pictures of theinmates. The six inmates whom the plaintiff accused were transferred to segregation pending investigation; they received disciplinary reports for sexual abuse and gang activity; and the tier was placed on lock-down. On August 12, Veal and two of the other accused inmates were transferred to disciplinary segregation.

The plaintiff was taken to Cermak Hospital on August 5. The plaintiff testified that the doctors there did no more than give him a shot and some medicine. The emergency room record, which the plaintiff signed, stated that swabs and smears were taken from him and that there was no sign of injury or discharge in the ...


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