United States District Court, N.D. Illinois, Eastern Division
November 22, 2004.
IRVING RAMEY, # B00964, Plaintiff,
VELASCO, CHIN, EDWARDS, PULLER AND LYLES, Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
The Plaintiff, Irving Ramey, ("Ramey"), currently a prisoner at
Stateville Correctional Center, and formerly a detainee at the
Cook County Jail ("Jail") has brought this pro se civil rights
action pursuant to 42 U.S.C. § 1983. Counsel was appointed by the
court to represent Ramey, and later counsel withdrew. Ramey, once
again pro se, claims that the defendants, various jail
officials, violated his constitutional rights by improperly
screening and segregating inmates who have active tuberculosis,
so that he was housed on a living unit with someone who had the
disease, and that he therefore, tested positive for the disease.
He further claims that he received medication for this only
sporadically. In Plaintiff's amended complaint filed on February
3, 2000, defendants Cook County Board of Commissioners, Dr. Reid,
Dr. Shue, and Michael Cordova were dropped out, leaving the
remaining defendants: Velasco, Chin, Edwards, Puller and Lyles.
Further, the court, finding no policy or custom applicable to the
complaint, dismissed the amended complaint, and gave plaintiff
time to submit a second amended complaint. This Ramey never did.
This matter is thus before the court for consideration of the defendants' motion for summary judgment. Ramey asked for and
received additional time to respond. Although he was given an
extension of time, and also given the Local Rule 56.2 warning,
telling him of the consequences of failing to respond,
nevertheless he has not submitted a timely response. Therefore,
defendants' Rule 56.1 statement of facts are uncontroverted and
accepted as true. For the reasons stated in this order, the
motion for summary judgment is granted.
Standard of Law
Summary judgment will be granted when there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Fed.R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). O'Connor v. DePaul Univ.,
123 F. 3d 665, 669 (7th Cir. 1997). In weighing a motion for
summary judgment, the court must take the facts in the light most
favorable to the party opposing the motion and draw all
reasonable inferences in that party's favor. Bahl v. Royal
Indemnity Co., 115 F. 3d 1283,1289 (7th Cir. 1997); Condo v.
Sysco Corp., 1 F. 3d 599, 601 (7th Cir. 1993). The party
opposing the motion must present evidence of a triable issue of
material fact. See Vance v. Peters, 97 F. 3d 987, 990 (7th Cir.
1996). The nonmoving party is required to go beyond the pleadings
and designate specific facts showing a genuine issue for trial.
Bank-Leumi Le-Israel, B.M. v. Lee, 928 F. 2d 232, 236 (7th Cir.
1991). A fact is material when it would determine the outcome
under the governing law. Whetstine v. Gate Rubber Co.,
895 F.2d 388, 392 (7th Cir. 1990). A material fact is genuinely in dispute
when "the evidence is such that a reasonable jury could return a
verdict for the non-moving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). When a responding party's
statement fails to controvert the facts as set forth in the
moving party's statement in the manner dictated by the Rule 56.1, those facts shall be deemed admitted
for purposes of the motion. . . . A district court is not
required to "wade through improper denials and legal argument in
search of a genuinely disputed fact." Bordelon v. Chicago School
Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). A
mere disagreement with the movant's asserted facts is inadequate
if made without reference to specific supporting material.
Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196
(7th Cir. 1993).
With this standard in mind, the court first summarizes the
uncontroverted statement of facts as submitted by defendants.
Ramey was in the custody of the Jail from July 3, 1993, until
April 1998. On July 3, 1996 he was tested for tuberculosis and
tested negative. On June 2, 1997, he was again tested for
tuberculosis and this time he tested positive for exposure to the
virus. He was then given a follow-up chest x-ray and it was
determined that the virus was inactive in Ramey's body; thus he
was asymptomatic and was placed on prophylactic medications of
Isoniazid and Pyridoxine HCL, which he was given every ree to
four days. Monthly assessments were completed on September 11,
1997, October 6, 1997, November 5, 1997, and December 5, 1997.
Plaintiff complained that he did not receive this medication from
November 24 December 5, and again on January 6, 1998. Defendant
Cordova corrected this problem by marking the monthly assessments
for both these time periods to make up for the missed
medications. Additionally, Plaintiff was given this medication on
March 6 and finally, on April 7, the medication was discontinued.
On April 27, 1998 when Plaintiff saw a doctor, he did not
complain that he had not received medication. According to the
radiology report, Plaintiff had xrays taken on June 3, 1997,
April 7, 1998, and May 28, 1998, each showing normal chest impression, confirming that Plaintiff had no active tuberculosis
Ramey has failed to controvert these facts. However, shortly
after his deposition, he submitted an affidavit to the court, in
which he claims that the information provided is "more correct"
than the answers he gave at the deposition. The court notes that
he reserved his signature at the deposition and later signed that
it was true and correct and made no corrections. Nevertheless,
Ramey has submitted this additional sworn document. He states
that he has a bad memory and that he wanted to tell the court
that he received his medication only erratically, although he
further claims that he does not remember dates he received the
medication. He further alleges that defendants conspired to
change his medical charts to correct any discrepancy related to
skipped medications. Because Ramey repeats that he cannot
remember when he got the medication, this affidavit does nothing
to support any of his claims.
Plaintiff's initial complaint (the amended complaint was filed
on February 3, 2000; subsequently, the court dismissed this
complaint with leave to file a second amended complaint, but
Ramey never filed another complaint), alleges basically two
problems which he claims rise to the level of a constitutional
violation: inadequate screening and separation of detainees with
active tuberculosis so that Ramey was housed with someone who
either had the disease or could spread the disease; and failure
to properly deliver the medications to Plaintiff once he tested
positive for exposure to the virus. Because this court previously
granted Cook County Board of Commissioner's motion to dismiss
because the court found that there was no policy or practice
implicated in these claims, what remains to review in this motion
is whether any remaining individual defendants were deliberately
indifferent to Plaintiff's health care needs. In a Fourteenth Amendment claim of inadequate medical care in a
jail, a Plaintiff must show that a responsible county official
was deliberately indifferent to his serious medical condition.
See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Gutierrez v. Peters, 111 F. 3d 1364, 1369 (7th Cir. 1997). A
condition is serious if "the failure to treat a prisoner's
condition could result in further significant injury or the
unnecessary and wanton infliction of pain." Gutierrez,
111 F. 3d at 1373 (citation and internal quotations omitted). Since
Ramey never contracted any disease, it is questionable whether
his having tested positive for it is even a serious medical
condition. It is clear that Ramey never contracted tuberculosis
in the jail. But exposure to tuberculosis can be a serious risk
to a detainee's health if there is failure to take protective
measures. Forbes v. Edgar, 112 F. 3d 262, 264 (7th Cir. 1997).
The positive skin test shows only that a person has been exposed,
not that he has the disease. If defendants failed to have
screening devices in place, that could be evidence of deliberate
indifference. However, in this case the defendants had a testing
program in place, further screening through x-rays for those who
tested positive from the skin test, and then the provision of
prophylactic medication for those who showed no sign of the
Detainees are entitled to reasonable measures to protect
against this disease and such measures were provided. Forbes v.
Edgar, 112 F. 3d at 267. However, there is no evidence of any
kind, that an infectious inmate was purposely kept in the general
population to infect others. Therefore, Ramey has failed to show
that he suffered from a serious medical condition.
Ramey must also show that a state official acted with the
requisite culpable state of mind, deliberate indifference, a
subjective standard. State officials are deliberately indifferent
if they "know of and disregard an excessive risk to inmate health
or safety; the official[s] must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [they] must also
draw the inference." Farmer, 511 U.S. at 837. See Dunigan v.
Winnebago County, 165 F. 3d 587, 590-91 (7th Cir. 1999).
The court examines each of the remaining defendants' actions to
determine if, based on the uncontroverted facts, any was
deliberately indifferent to Ramey's medical care. First Velasco
was the executive director of the jail at the time, and was not
personally involved in Ramey's treatment. Thus, Ramey has not
shown that the violation of his rights occurred at defendants'
direction or with his knowledge and consent, Gentry v.
Duckworth, 65 F. 3d 555, 561 (7th Cir. 1995). An individual
cannot be held liable in a § 1983 action unless he caused or
participated in the alleged constitutional deprivation. Vance v.
Peters, 97 F. 3d 987, 991 (7th Cir. 1996). Rascon v. Hardiman,
803 F.2d 273 (7th Cir. 1986) (citing Wolf-Lillie v.
Sonquist, 699 F. 2d 864, 869 (7th Cir. 1983). Supervisors and
others in authority cannot be held liable for any alleged
wrongdoing on the part of subordinates pursuant to the doctrine
of respondeat superior because that doctrine does not apply in
§ 1983 actions. Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir.
1992). See Jones v. City of Chicago, 856 F. 2d 985, 992 (7th
Cir. 1988). For this reason, Ramey fails to state a claim against
him. The remaining defendants are Chin, Edwards, Puller and
Lyles. Defendant Edwards was superintendent of Division 9, the
living unit where Ramey was housed. Defendant Chin was the
Program Service Director, and defendant Lyles was the assistant
medical director. None of these defendants was personally
involved in delivery of Ramey's medical care. Therefore, for the
same reasons, Ramey has failed to state a claim against any of
Further, based on the affidavit of Dr. Mennella, the jail
policy regarding tuberculosis was that all incoming inmates
received the PPD skin test and if positive, they also receive a
followup chest x-ray. Ramey benefitted from these procedures. If found to
have active tuberculosis, detainees were isolated from other
inmates. Since this policy shows no inappropriate denial of
medical care at the jail, Plaintiff has further failed to state a
claim against any of these remaining supervisory correctional
defendants. As in Forbes, Ramey has shown no deliberate
indifference on the part of any defendant regarding exposure to
the risk of contacting tuberculosis.
Provision of medication
The only remaining defendant is Puller, the nurse who provided
the prophylactic medication to Ramey. Dr. Mennella states that
Ramey had the skin test in July and then the medication was begun
in August after other testing was completed, and completed in
April, 1998. Ramey had no adverse reaction and no evidence of
active tuberculosis was ever found.
Ramey's only remaining claim was that he did not receive all
the prophylactic medication he was supposed to get. However, the
defendants' uncontroverted statement of facts clearly shows that
he did receive the correct prophylactic medication. Ramey seems
not to have understood, based on his comments at the deposition,
that this medication was not to treat an illness, but rather to
insure that none developed. He received this course of treatment,
according to the affidavit of correctional medical technician
Michael Cordova, (although he missed one dose on January 6, 1998)
and he did not contract the disease. It appears to the court that
Ramey received the medication, that he was properly treated by
defendants, including Nurse Puller, and that there is no basis
for any deliberate indifference claim against her or any other
defendant. Further, to the extent that Ramey claims he missed any
medication, he failed to allege that defendants did this
intentionally. One missed medication, with no adverse results,
could not be characterized as any more then negligence, which by
itself, fails to present a constitutional claim. It is well established that negligent conduct by a government
official is insufficient to support a claim under § 1983.
Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Soto v.
Johansen, 137 F.3d 980, 981 (7th Cir. 1998) ("mere negligence or
even gross negligence does not constitute deliberate
indifference"); Nabozny v. Podlesny, 92 F. 3d 446, 453-54 (7th
Cir. 1996); Eberhardt v. O'Malley, 17 F. 3d 1023, 1029 (7th
It is therefore ordered that the motion for summary judgment is
granted. This case is dismissed in its entirety. Any pending
motions are denied as moot.
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