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Thompson v. County of Cook

August 8, 2005

LAWRENCE THOMPSON, PLAINTIFF,
v.
THE COUNTY OF COOK; MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, IN HIS OFFICIAL CAPACITY; CALLIE BAIRD, DIRECTOR, COOK COUNTY DEPARTMENT OF CORRECTIONS, IN HER OFFICIAL CAPACITY; RUTH ROTHSTEIN, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC HEALTH, IN HER OFFICIAL CAPACITY; AND LEONARD R. BERSKY, CHIEF OPERATING OFFICER, CERMAK HEALTH SERVICES OF COOK COUNTY, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

In this lawsuit, Lawrence Thompson, an attorney proceeding pro se, contends that upon being incarcerated after being found in civil contempt by a Cook County judge, he was forced by Cook County personnel to submit to a visual cavity strip search, and to undergo a urethral swabbing test which involved insertion of a metal rod with a swab on the end into his penis. Thompson claims that these procedures violated his Fourth Amendment, Eighth Amendment, and Fourteenth Amendment rights. The defendants have moved for summary judgment. For the reasons outlined below, the Court denies the defendants' motion.

Facts

On October 9, 2002, a Circuit Court of Cook County judge found Thompson in civil contempt when he refused to sign certain documents related to his pending divorce proceedings and ordered him held in custody until he signed the documents. See Pl's Ex. B. A Cook County Sheriff's deputy took Thompson into custody and searched him at the courthouse. Thompson was later transported to the Cook County Jail. Upon his arrival at the jail, Thompson was processed along with approximately 250 other new inmates. It is likely that most, if not all, of the others were pretrial detainees, that is, persons charged with crimes awaiting trial.

After spending some time in a holding pen, Thompson and the others were given identification cards and were photographed. Thompson was then interviewed by a Cermak Health Services employee, who asked him medical screening questions. The defendants maintain that during this interview, Thompson responded to questions on a standard form concerning his medical history and current problems and signed the following "consent for treatment" portion of the form:

I consent to a medical and mental health history and physical including screening for tuberculosis and sexually transmitted diseases as part of the intake process of the Cook County Jail. I also consent to ongoing medical treatment by Cermak Health Services staff for problems identified during this process. I understand I may be asked to sign forms allowing other medical treatments. I understand that every effort will be made by CHS staff to keep my medical problems confidential. I understand the policy of CHS regarding access to heath care at Cook County Jail.

Thompson Dep. Ex. 1. Thompson acknowledges that the medical intake form produced by the defendants accurately reflects his medical history and current conditions. Though he has no independent recollection of the exact questions he was asked, he testified that the questions on the form appear to be the type of questions he was asked during intake. He likewise agrees that the signature on the medical intake form looks like his signature. Thompson denies, however, that it is his signature and says he had never seen the medical intake form before it was produced during discovery in this matter.

The defendants claim that during the interview, Charles Kinnerk, the employee they say conducted the interview,*fn1 informed Thompson of his right to refuse the medical screening. Kinnerk testified that he believed the medical intake form informed inmates of their right to refuse consent and that he informs inmates of the existence of a refusal to consent form. Kinnerk Dep. at 22-23. According to Kinnerk, if an inmate refuses to consent, he notes "patient refused" on the signature line, and the inmate fills out a refusal of medical treatment form. Id. at 12, 52. Thompson denies that anyone ever informed him of his right to refuse consent.

Following this brief interview, Thompson's personal property was inventoried. Next, he and the inmates underwent a urethral swabbing procedure. According to Thompson, a man who was smoking a cigarette and referred to himself as the "dick doctor" addressed the group, making various threats, such as "you don't want to piss-off the dick doctor." Thompson Supp. Aff. ¶ 14. The inmates, who were in a single file line, went into the room one at a time for the procedure. The prisoner next in line waited at the threshold of the open door while the test was administered to the prisoner in front of him. Thompson testified that when it was his turn, the individual performing the procedure directed him to take out his penis and hang it over a garbage can, and then inserted a metal rod into his urethra. He claims he felt pain both during and after the procedure.

The defendants assert that in 2002, it was the policy of Cermak Health Services, in conjunction with the Cook County Department of Health and the City of Chicago Department of Health, to conduct urethral swabbing on male detainees entering Cook County Jail to screen for syphilis and chlamydia. The defendants aver that this joint project was developed for purposes of promoting the health of inmates even after they are discharged from the Department of Corrections. Dr. John Raba, the Chief Operating Officer of Cermak Health Services, testified that the test involves inserting a thin swab a short distance into the urethra and gently rotating it to collect any organisms or inflammatory cells. Raba Aff. ¶ 3. Dr. Raba described this as a minimally invasive medical procedure that is very safe and rarely causes even minimal injury to the human body. Id. However, he acknowledged that the procedure may cause some discomfort during and for a short time after the test. Id.

Dr. Raba also stated that it was the policy of Cermak Health Services to obtain medical consent for the procedure in the form of the medical intake forms. Id. at ¶ 5. Though the defendants did not produce any completed refusal to consent forms, they maintain that fewer than ten inmates a year refuse the urethral swabbing procedure. Def's 56.1 Stmt. ¶ 28. Thompson acknowledges that he did not verbally refuse to undergo the procedure. But he contends that prior to the urethral swabbing procedure, he was unaware of what medical tests would be performed as part of the intake process and thus could not have provided informed consent. The defendants claim that there is a sign in the room where the urethral swabbing procedure occurs that describes the procedure. See Kinnerk Dep. at 13-14.

After the urethral swabbing, Thompson and the other inmates received a chest x-ray and had blood drawn. Though Thompson maintains that he did not consent to these procedures, they do not form part of his complaint in this case.

Finally, the inmates were escorted into a receiving tunnel -- a hallway that is approximately ten feet wide and 100 yards long -- in groups of forty to fifty at a time. The parties appear to be in agreement concerning the details of the subsequent strip/visual body cavity search.*fn2 Thompson and the others were lined up on both sides of the hallway with their backs against the wall and ordered by Department of Corrections officers to take off all their clothes and place them on the ground in front of them. As a number of officers watched, Thompson and the others were told to face the wall, reach high up on the wall, and run their fingers through their hair. They were then instructed to bend over and spread their buttocks -- a position they had to maintain until an officer was able to observe each inmate. Thompson Dep. at 57-58. No prisoners were physically touched during this process. After being ordered to hold up each item of clothing for inspection, the inmates were allowed to get dressed.

Thompson contends that the visual cavity search violated the Fourth Amendment's prohibition against unreasonable searches. He also maintains that because he did not consent to the urethral swabbing, the defendants subjected him to that test in violation of his Fourth Amendment rights, his due process right to be free from unjustified intrusions into his body and to refuse unwanted medical treatment, and the Eighth Amendment's prohibition against cruel and unusual punishment.

Thompson sues Cook County and four Cook County administrators in their official capacities. The defendants are Michael Sheehan, the Sheriff of Cook County; Callie Baird, the Director of the Cook County Department of Corrections; Ruth Rothstein, the Director of the Cook County Department of Public Health; and Leonard Bersky, the Chief Operating Officer of Cermak Health Services.

Discussion

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that 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). In determining whether a genuine issue of material fact exists, the Court must construe all facts and draw all reasonable and justifiable inferences in favor of Thompson, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The defendants' motion presents two issues for consideration: first, whether Thompson has brought suit against the appropriate defendants, and second, whether the defendants are entitled to judgment as ...


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