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McCroy v. Illinois Dep't of Corrections

June 2, 2008


The opinion of the court was delivered by: Harold A. Baker United States District Judge

Order On Post Trial Motions

The plaintiff suffers from a progressive eye disease called Keratoconus. The plaintiff filed this case pro se in July 2002, a case which began primarily about the defendants' alleged deliberate indifference to the plaintiff's eye disease while he was incarcerated in Western Illinois Correctional Center, particularly to his need for a corneal transplant for his left eye and the need for a properly fitting contact for his right eye. The plaintiff also alleged retaliation for complaining about that indifference and discrimination against him in the provision of services in violation of the Americans with Disabilities Act and the Rehabilitation Act.

The plaintiff did receive a corneal transplant on his left eye in February 2003. His need for that surgery was only one aspect of the case, however. The plaintiff alleged continuing deliberate indifference to the post-operative care of his left eye, deliberate indifference to his progressing Keratoconus in his right eye (through, primarily, not fitting him properly for a contact), past and continuing retaliation, and past and continuing violations of his rights under the ADA and RA.

The court appointed counsel on March 25, 2004. On June 8, 2004, the plaintiff was moved from the infirmary, where he had been housed since his corneal transplant (except for certain periods when he was housed in a single cell), into the general prison population for double-celling. In September 2004 the plaintiff's cellmate struck the plaintiff in his left eye, causing the plaintiff to lose not only the transplant, but his left eye entirely. This case then became also about the defendants' alleged deliberate indifference to a substantial risk of serious harm to the plaintiff, i.e. failure to protect him.

A jury trial was held from October 29 through November 7, 2007. The claims presented to the jury were:

* 1st Amendment retaliation for the plaintiff's exercise of his First Amendment rights to file grievances and lawsuits and/or to claim his rights under the ADA

* 8th Amendment deliberate indifference to the plaintiff's serious medical needs

* 8th Amendment deliberate indifference to a substantial risk of serious harm to the plaintiff by his placement in general population with a cellmate and/or by leaving him celled with a potential attacker

* ADA discrimination and retaliation claim against the IDOC (exclusion from participation in services, programs or activities because of disability; retaliation for pursuing rights under ADA)*fn1

On November 9, 2007, the jury reached a verdict in favor of Defendants Hockaday, Law, Kellerman, Flagg, Lochard, and Mills. The jury found against Defendants Funk, Fuqua, Wexford and Winters on the Eighth Amendment claim(s). The jury found against Defendant Brown on both the First Amendment claim and the Eighth Amendment claim(s). The jury found against the IDOC on the ADA discrimination and retaliation claims. The jury assessed compensatory damages of $810,000. Judgment was entered against Defendants IDOC, Wexford, Brown, Winters, Funk, and Fuqua for that amount. (d/e 457). The jurors also assessed punitive damages as follows: Dr. Lowell Brown ($50,000); Deborah Fuqua ($20,000); Kevin Winters ($10,000); Sandra Funk ($10,000).*fn2 (d/e's 441, 457). The plaintiff was released on parole in December 2007 and appears to be on mandatory supervised release.

Before the Court are the defendants' motions for judgment as a matter of law or, in the alternative, for a new trial. (d/e's 462, 466). For the reasons below, the court denies the motions. The court also dismisses the plaintiff's request for injunctive relief as moot, necessitating the dismissal of Roger Walker, who was sued in his official capacity only for purposes of injunctive relief.


Federal Rule of Civil Procedure 50(a)(1) permits judgment as a matter of law against a party on an issue if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue . . . ." Fed. R. Civ. P. 50(a)(1). The test is "'whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed.'" Susan Wakeen Doll Co., Inc., v. Ashton-Drake Galleries, 272 F.3d 441, 449 (7th Cir. 2001)(quoting Goodwin v. MTD Prods., Inc., 232 F.3d 600, 606 (7th Cir. 2000)(additional citations omitted)). "In considering a motion for judgment as a matter of law, a court must review all the evidence in the record; it must 'draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.'" Equal Employment Opportunity Commission v. Bd of Regents, 288 F.3d 296, 301 (7th Cir. 2002), quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 122, 150 (2000). The court "'must disregard all evidence favorable to the moving party that the jury is not required to believe.'" Id.

The test for determining whether to grant a new trial under Fed. R. Civ. P. 59(a) is whether "'the verdict is against the weight of the evidence, the damages are excessive [or insufficient], or if for other reasons the trial was not fair to the moving party.'" Shick v. Illinois Dep't of Human Serv., 307 F.3d 605, 610 (7th Cir. 2002)(brackets in original)(quoted and other cites omitted). "Only when a verdict is contrary to the manifest weight of the evidence should a motion for a new trial challenging the jury's assessment of the facts carry the day." Cefalu v. Village of Elk Grove, 211 F.3d 416, 424 (7th Cir. 2000).

Defendant Wexford Health Sources, Inc.

The jury found against Wexford on at least one of the plaintiff's Eighth Amendment claims. (See jury verdict, d/e 144)("Yes" answer to question,"Has the plaintiff proved either one of his Eighth Amendment claims against this defendant?" ).*fn3 *fn4

Wexford argues that evidence did not support a finding that it had a custom, policy or practice that amounted to deliberate indifference to inmates' serious medical needs. Wexford contends that, at most, the evidence shows a delay in approval of the plaintiff's recommended corneal transplant, which was not proven to cause any injury to the plaintiff. Wexford also objects to the court's refusal of Wexford's proposed jury instructions explaining that an inmate complaining of a delay in medical treatment "'must place verifying medical evidence in the record to establish the detrimental effect of delay . . . . .'" Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)(quoted cite omitted); Medical Defendant's proposed jury instruction no. 9.

Langston involved a one hour delay in medical treatment following the rape of an inmate. The plaintiff in Langston failed to show that the one hour delay caused him injury. The court does not view Langston's "'verifying medical evidence'" requirement as an additional evidentiary hurdle for inmates, but instead an explanation of what it takes to prove a delay in medical treatment proximately caused compensable damage. See Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007)( "To satisfy section 1983, . . . [Plaintiff] must demonstrate not only that . . . [Defendants] violated his constitutional rights, but also that the violation caused . . .[Plaintiff] injury or damages."); see also Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007)(". . . a plaintiff must offer medical evidence that tends to confirm or corroborate a claim that the delay was detrimental."). That concept was already covered in the court's jury instructions explaining that a defendant is liable only if that defendant's conduct proximately caused the plaintiff's claimed damages. Final Jury Inst. Pp. 5-6, 21 (definition of proximate cause), 25. The court's instructions already explained that the plaintiff must prove: 1) that a defendant was deliberately indifferent to the plaintiff's serious medical need; 2) the plaintiff suffered damages; and 3) the defendant was a proximate cause of ...

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