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McCALL v. SHEAHAN

August 23, 2005.

ADDIE McCALL Plaintiff,
v.
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.

BACKGROUND

  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 Services.

  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).

  ANALYSIS

  A. Claims Against Officer Gambino

  1. Count One: Federal Deliberate ...


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