United States District Court, N.D. Illinois, Eastern Division
August 23, 2005.
ADDIE McCALL Plaintiff,
MICHAEL SHEAHAN, et al. Defendants.
The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Addie McCall, ("McCall"), individually and as Mother
and Next Friend of Charles Jackson ("Jackson"), filed a first
amended complaint on February 18, 2005 against defendants Michael
F. Sheahan in his official capacity as Sheriff of Cook County,
Cook County Correctional Officer Joseph Gambino ("Gambino"), and
other Cook County Correctional Officers (collectively
"defendants"). (Dkt. No. 53). The defendants filed the pending
motion on March 31, 2005 for summary judgment. (Dkt. No. 63). The
defendants also filed the pending motions to strike portions of
McCall's Local Rule 56.1 material on May 19, 2005. (Dkt. No. 77,
79). For the reasons set forth below, this court grants in part,
and denies in part, the defendants' motion for summary judgment
and denies the defendants' motions to strike.
Unless otherwise noted, the parties agree to the following
facts. Jackson was arrested by the Chicago Police on June 22,
2001 and detained in the Cook County Department of Corrections
from June 23, 2001 until his death on August 26, 2001. (Dkt. No.
65 at ¶ 12-13). During early August 2001, Jackson began to
experience headaches, sharp backaches and was up at night moaning in pain. (Dkt. No. 67 at ¶ 3). Jackson started to fill
out medical request forms during late July or early August 2001.
(Id. at ¶ 5). McCall asserts that Jackson requested medical
attention from correctional officers during this time period of
late July to early August 2001 and that correction officials
refused to offer him medical attention. (Id. at ¶¶ 4-7).
The parties agree that Jackson was taken to Cermak Health
Services at some point in August 2001 (Dkt. No. 67, at ¶ 8; Dkt.
No. 81 at ¶ 8), saw a doctor and then later an ophthalmologist
who examined Jackson's swollen eye. (Dkt. No. 67, at ¶ 10; Dkt.
No. 81 at ¶ 10). The parties disagree over almost everything else
related to this visit including the date that it occurred,
whether Jackson was suffering from bacterial sinusitis, whether a
doctor could have identified that illness (assuming that Jackson
was suffering from it), what other treatment Jackson received,
whether the ophthalmologist recommended other treatment,
specifically an x-ray, and the physical location of Cermak Health
The parties agree that by August 24, 2001, two days before
Jackson's death on August 26, 2001, Jackson had contracted
meningitis. (Dkt. No. 67, at ¶¶ 13; Dkt. No. 81 at ¶¶ 13). McCall
asserts that Jackson would have been exhibiting symptoms of his
illness including increasing confusion, change in mental status,
becoming more sleepy, a stiff neck and fever. (Dkt. No. 67, at ¶
13). McCall argues that Jackson had additional symptoms including
the swelling of his eye to the size of a tennis ball, he was
disoriented and slow, could not hold onto his belongings and had
a bad odor. (Id. at ¶ 14). Furthermore, McCall argues that the
correctional officers were aware of Jackson's condition because
Jackson interacted with the correction officers, the other
prisoners located with Jackson informed the officers of his
condition, and Jackson's sickness was so apparent that the
correction officers had to be aware of it when they performed
their routine inspections.
Finally, McCall argues that on the night of Jackson's death,
the entire tier of prisoners were very aware of Jackson's
condition and his immediate need for medical attention, were
screaming, chanting and complaining in an attempt to get Gambino,
the officer on duty, to come and help Jackson but Gambino failed
to do so. McCall also argues that Gambino failed to perform the
routine checks of the tier, including Jackson's cell, and
falsified his report. (Dkt. No. 67, at ¶ 52).
The defendants dispute McCall's version of the events. They
assert that Jackson never asked for medical attention. The
defendants also challenge McCall's version of events arguing that
much of McCall's Local Rule 56.1 material should be stricken.
(Dkt. Nos. 77, 79).
McCall filed her first amended complaint on February 18, 2005.
(Dkt. No. 53). Count One is a § 1983 claim for deliberate
indifference against Gambino and other unknown correctional
officers, Count Two is a Monell claim against Sheahan in his
official capacity, and Count Three is a state law wrongful death
claim against Gambino and other unknown correctional officers.
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is proper "if 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 a
judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on
a motion for summary judgment, the evidence of the nonmovant must
be believed and all justifiable inferences must be drawn in the
nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This court's function is not to weigh
the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial. A party who
bears the burden of proof on a particular issue, however, may not
rest on its pleadings, but must affirmatively demonstrate, by
specific factual allegations, that there is a genuine issue of
material fact that requires trial. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). In considering a motion for summary
judgment, this court is not required to scour the record in
search of evidence to defeat the motion; the nonmoving party must
identify with reasonable particularity the evidence upon which
the party relies. Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 898 (7th Cir. 2003). Finally, the evidence relied upon must
be competent evidence of a type otherwise admissible at trial.
Stinnett v. Iron Work Gym/Exercise Health Spa, Inc.,
301 F.3d 610, 613 (7th Cir. 2002).
A. Claims Against Officer Gambino
1. Count One: Federal Deliberate Indifference Claim
"A prison official violates the Fourteenth Amendment when he is
deliberately indifferent to a substantial risk of serious harm to
the inmate." Castellano v. Chicago Police Dep't.,
129 F. Supp. 2d 1184, 1189 (N.D. Ill. 2001) (citing Payne v. Churchich,
161 F.3d 1030, 1041 (7th Cir. 1998)). The plaintiff must demonstrate
"that the defendants were aware of a substantial risk of serious
injury to the detainee but nevertheless failed to take
appropriate steps to protect him from a known danger." Jackson
v. City of Chicago, No. 00 C 538, 2001 WL 1286804, at *5 (N.D.
Ill. Oct. 23, 2001) (citations omitted). "In order to determine
deliberate indifference, the court must examine a two-part test:
(1) an objective component which examines whether the medical condition was serious, and (2) a subjective component which
examines whether the defendants were deliberately indifferent to
that serious medical need." Castellano, 129 F. Supp. 2d at 1189
(citing Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000)).
"A serious medical need is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor's attention." Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997) (citations omitted). Meningitis, the condition
that resulted in Jackson's death, is a serious medical condition.
Gambino argues that summary judgment is proper because McCall
has failed to demonstrate his he had subjective deliberate
indifference to Jackson's objectively serious medical condition.
A defendant is subjectively deliberately indifferent to an
inmate's serious medical condition when "the official knows of
and disregards an excessive risk to an inmate[`s] health or
safety." Castellano, 129 F. Supp. 2d at 1290 (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
There is sufficient evidence in the record to create a genuine
issue of fact as to whether Gambino was subjectively indifferent
to Jackson's serious medical condition. McCall's medical
witnesses argue that Jackson's symptoms should have been severe
and readily apparent. The inmate witnesses allege that both they
and Jackson attempted to obtain medical attention for Jackson but
were refused. It is for the jury to determine whether Gambino was
informed of Jackson's condition and ignored it, as McCall argues,
or whether Gambino was never informed as he argues.
Gambino also argues that he is entitled to summary judgment
under the statute of limitations. The claim was brought against Gambino through the
first amended complaint filed on February 18, 2005. Jackson's
death occurred on August 25, 2001 and the statute of limitations
for a § 1983 claim is two years. See Orange v. Burge, No. 04 C
168, 2005 WL 742641, at *5 (N.D. Ill. Mar. 30, 2005).
The original complaint in this case was filed within the two
year statute of limitations on August 22, 2003. The claims
against Gambino are properly brought within the statute of
limitations because those claims relate back to the original
complaint for statute of limitations purposes pursuant to Rule
15(c)(3) of the Federal Rules of Civil Procedure. Furthermore,
McCall has a right to argue that the statute of limitations are
equitably tolled due to Gambino's alleged concealment. See Voogd
v. Pavilion Found., No. 03 C 2465, 2004 WL 877996, at *4 (N.D.
Ill. Apr. 23, 2004).
2. Count Three: State Law Wrongful Death Claim
Gambino argues that McCall's state law wrongful death claim
should be barred under the state law statute of limitations
contained in the Illinois Local Government and Governmental
Employees Tort Immunity Act ("Tort Immunity Act").
745 ILCS 10/1-101 et seq. The Tort Immunity Act contains a one-year
statute of limitations and the "statute of limitations begins to
run when a plaintiff knows or should have known of the commission
of the alleged illegal act." Thompson v. City of Chicago, No.
01 C 8883, 2004 WL 1197436, at *3 (N.D. Ill. May 28, 2004).
Jackson died on August 25, 2001 yet McCall did not file her
original complaint until almost two years later on August 22,
McCall responds that the statute of limitations should not be
applied in this case because Gambino fraudulent concealment of
information by not properly completing his report and this impacted her ability to identify him in a timely manner. She also
argues that she was unable to identify all the witnesses needed
for her claim within the one-year statute of limitations period.
McCall's original complaint filed on August 22, 2003 names
unknown correctional officials as defendants for the state law
wrongful death count. She did not need to know of Gambino's
identity to comply with the statute of limitations since she was
able to file an amended complaint at a later date that allowed
for a relationship back to the original complaint. McCall has no
good reason for missing the one-year Illinois statute of
limitation because of the availability of filing her complaint
against an unknown official and then later amending the complaint
once determining the official's identity through discovery.
McCall's state law claims are barred under the one-year statute
B. Count Two: Monell Claim against Sheahan
McCall brings a deliberate indifference claim against Sheahan
in his official capacity as Cook County Sheriff. Under Monell,
a municipality cannot be held liable for the acts of its
employees under respondeat superior but instead can only be
liable for its own deliberate indifference. Anderson v.
Templeton, Nos. 00 C 3065, 01 C 1115, 2002 WL 226882, at *2
(N.D. Ill. Feb. 14, 2002) (citations omitted). "A municipality is
liable under § 1983 when a deprivation of constitutional rights
is caused by a municipal policy or custom." Franklin v. City of
Evanston, 384 F.3d 838, 843 (7th Cir. 2004) (citing Monell v.
New York City Dep't. of Soc. Servs., 436 U.S. 658 (1978)).
"Municipalities are answerable only for their own decisions and
policies; they are not vicariously liable for the constitutional
torts of their agents." Eversole v. Steele, 59 F.3d 710, 715
(7th Cir. 1995) (quoting Auriemma v. Rice, 957 F.2d 397, 399
(7th Cir. 1992)).
To meet her ultimate burden for a Monell claim, McCall must
show that (1) the municipality had an express policy, that when enforced, caused
the constitutional deprivation, (2) the municipality had a
widespread practice that, although not authorized by written law
or express municipal policy, is so permanent and well settled as
to constitute a custom or usage within the force of law, or, (3)
the plaintiff's constitutional injury was caused by a person with
final policymaking authority. McCormick v. City of Chicago,
230 F.3d 319, 324 (7th Cir. 2000).
McCall argues that Sheahan's failure to train the correctional
officers is so widespread of a practice as to create a custom or
usage with the force of law. Inadequate training "may serve as
the basis of § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of the person
with whom the [government official] came into contact." Ashworth
v. Round Lake Beach Police Dep't., No. 03 C 7011, 2005 WL
1785314, at *3 (N.D. Ill. July 21, 2005 (citing Canton v.
Harris, 489 U.S. 378, 388 (1989)). "The alleged failure to train
or supervise must be closely related to the ultimate injury and
. . . the plaintiff must `prove that the deficiency in training
actually caused the constitutional violation.'" Hanno v.
Sheahan, No. 01 C 4677, 2004 WL 2967442, at *13 (N.D. Ill. Nov.
29, 2004). The plaintiff must show "that the defendants were on
notice of constitutional violations committed by their
inadequately trained employees." Id. (citing Hirsch v. Burke,
40 F.3d 900, 904 (7th Cir. 1994)).
McCall has provided no evidence that Sheahan was on notice of
the alleged constitutional violation being caused by his alleged
failure to train his employees. McCall cannot sustain a Monell
claim in this case and therefore summary judgment must be granted
in Sheahan's favor.
C. Claims Against the Other Cook County Correctional
McCall's first amended complaint names both Gambino and other
Cook County Correctional Officers. "Although a plaintiff may
bring suit against an unknown defendant and undertake discovery in order to identity the party who has
injured her, a case cannot proceed to trial against an unknown
defendant." Ciesielski v. Hooters of America, Inc., No. 03 C
1175, at *8 n. 12 (N.D. Ill. July 28, 2004) (citations omitted).
The unnamed Cook County Correctional Officers are dismissed and
this case shall go forward only as to defendant Gambino.
For the reasons set forth above, the defendants' motion for
summary judgment of March 31, 2005 (Dkt. No. 63), is granted in
part and denied in part. Counts Two and Three are dismissed in
their entirety. Defendants Sheahan and the unnamed correctional
officers are dismissed from this action. The defendants' motions
to strike portions of McCall's Local Rule 56.1 material of May
19, 2005 (Dkt. No. 77, 79), are denied. This case is set for a
report on status on September 1, 2005 for the entry of an order
setting dates for the submission of the Pre Trial Order, Pre
Trial Conference and Trial. The parties are encouraged to discuss
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