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Cunningham v. Downey

July 21, 2010


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This case is before the court for ruling on the Motion for Summary Judgment (#85) filed by Defendants the Medical Group of Kankakee County, LLC (TMG), Correctional Officer Lorita Benard, Correctional Officer Tonya Grant, Assistant Corrections Chief Carl Brown, Corrections Chief Michael Downey, Kankakee County, and the Kankakee County Sheriff's Office, and the Motion for Leave to File Amended Complaint Naming Additional Party Defendants (#92) filed by Plaintiff, Thomas Cunningham. This court has carefully reviewed the arguments of the parties and the documents filed by the parties. Following this careful and thorough review, Defendants' Motion for Summary Judgment (#85) is GRANTED in part and DENIED in part, and Plaintiff's Motion for Leave to File Amended Complaint (#92) is DENIED.


Plaintiff was incarcerated at the Kankakee County Detention Center beginning on September 17, 2007. Plaintiff was detained there pursuant to pending federal criminal charges. On October 13, 2007, Plaintiff filled out a sick-call slip seeking treatment for his tooth. On the slip, Plaintiff stated that he had an "emergency" infection in his jaw and an abscessed tooth which was "gumball size." There is no record of a response to this request. On November 1, 2007, Plaintiff submitted another request slip. Plaintiff stated that he had put in several requests for medical treatment and had an abscessed tooth which was causing him great pain. He stated that he "may be forced to pull this tooth tonight I am going to try." A response to this request was written on November 3, 2007, which stated "Will schedule appt - can take 4-8 wks." It is undisputed that, on November 1, 2007, Plaintiff pulled his own tooth. Plaintiff testified that he used a toothbrush to "beat the molar out of [his] jaw." Plaintiff then submitted a second request for medical care on November 1, 2007, which stated that he had "bashed" his tooth out. It is undisputed that Kankakee County had an agreement with a local dentist, Dr. John Peterson, to provide dental services to inmates at both the Kankakee County Detention Center and the Jerome Combs Detention Center. It is further undisputed that "[t]here was typically a wait of four or more weeks to see Dr. Peterson."

On November 3, 2007, Plaintiff submitted a request slip asking for aspirin. He stated he had a fever as a result of taking out his own tooth. On November 4, 2007, Plaintiff submitted a request slip requesting an antibiotic for his teeth, stating that a piece was still left in there and he had a fever. Plaintiff also requested aspirin for pain. Plaintiff was given aspirin in response to this request and also received aspirin or ibuprofen on several other occasions for pain.

On November 17, 2007, Plaintiff submitted a written request slip about open sores on his arms and requested ointment. At some point around that time, Plaintiff showed Defendant Benard sores on his skin and Benard notified a jail nurse about his condition. On November 19, 2007, Plaintiff saw a jail nurse and a culture was taken, which came back positive for methicillin-resistant staph aureus (MRSA). Plaintiff was "quarantined" and moved into isolation until December 3, 2007. He was provided antibiotics, a nasal spray, and a special soap designed to help treat MRSA. Plaintiff testified that the medication made him sick and caused him to throw up. TMG created the MRSA protocol used by the jail when an inmate was diagnosed with MRSA. The protocol was based on the MRSA protocol used by a local hospital. The protocol involves: (1) assessing a wound; (2) taking a culture; (3) placing the inmate on antibiotics and giving the inmate a nasal ointment and a special cleansing solution; (4) isolating the inmate for 10 days; and (5) reassessing the inmate's wound during the treatment period to make sure that the wound has resolved and that the infection is gone.

On January 17, 2008, the federal defender appointed to represent Plaintiff in his federal criminal case, Christina Farley Jackson, filed a Motion for Immediate Medical Treatment in the Northern District of Illinois. In the Motion, Jackson stated that Plaintiff's requests to see a dentist were ignored and he ultimately resorted to pulling his own tooth, without any medication, "to stop the pain, swelling, and hopefully prevent the infection from spreading further." Jackson stated that Plaintiff continued to request to see a dentist because he believed there was a piece of his tooth remaining, but he was never taken to see a dentist. Jackson stated that Plaintiff believed his significant hearing loss was related to the untreated abscess. Jackson also stated that, after Plaintiff was treated for MRSA, a highly contagious infection, he was released from quarantine even though he "was never medically cleared for release." Jackson stated that Plaintiff was again exhibiting symptoms of MRSA and his requests to see a doctor had been unanswered. Jackson asked that Plaintiff be transferred to the Metropolitan Correctional Center (MCC) so he could receive necessary medical treatment from both a doctor and a dentist. On January 22, 2008, a hearing was held before United States District Judge Harry D. Leinenweber, and Jackson's Motion was granted. Plaintiff was transferred to MCC on February 4, 2008. Plaintiff underwent oral surgery on February 19, 2008, and was seen for MRSA on February 28, 2008.

TMG has a contract with Kankakee County to provide inmates with medical attention. It is undisputed that TMG is not responsible for providing inmates with dental care or treatment. It is also undisputed that TMG was not responsible for overseeing the handling of inmate sick call slips. Plaintiff never saw a TMG doctor while he was incarcerated at a Kankakee County facility.

At all relevant times, Downey was the Chief of Corrections and Jail Administrator for Kankakee County. At no time during Plaintiff's incarceration did Downey ever meet or communicate with Plaintiff. Carl Brown was the Assistant Chief of Corrections for the Kankakee County Sheriff's Department. Brown worked at the Jerome Combs Detention Center and never had any contact or communication with Plaintiff during his incarceration. As part of his duties, Brown did, every morning, pick up medical request forms submitted by inmates at the Kankakee County Detention Center. Brown took the forms to the Jerome Combs Detention Center and gave the forms to the jail's medical staff for their review. Brown testified that he had never learned of any inmate who completed a request and did not get medical attention.

Benard had very little contact with Plaintiff during his incarceration. Defendants provided documentation which showed that Benard only worked on the floor where Plaintiff was housed on November 13 and 19, 2007. Accordingly, Benard had no contact with Plaintiff before he pulled his own tooth on November 1, 2007. On one occasion after that, Plaintiff asked her for aspirin for a toothache and Benard provided him with aspirin. It is undisputed that, after Plaintiff showed Benard the rash on his arm, Benard spoke with a nurse at the jail and Plaintiff was seen by the nurse on November 19, 2007, and was quarantined for two weeks.

Grant testified that Plaintiff told her he had pulled his own tooth sometime after he returned from quarantine but did not request medical attention at that time. Plaintiff testified that he had spoken to Grant about his dental problems and showed her the lesions on his arm. Plaintiff testified that it was not just Grant, he showed "almost everybody that was on shift my condition." Grant testified that she did provide aspirin to Plaintiff for a toothache but never observed Plaintiff's rash and never saw Plaintiff with a swollen jaw.


On March 19, 2008, Plaintiff sent a pro se Complaint (#1) to the Northern District of Illinois. On May 29, 2008, Plaintiff's case was transferred to this court. On June 3, 2008, Plaintiff's petition for leave to proceed in forma pauperis was granted and his pro se Complaint (#16) was filed in this court. On August 8, 2008, Attorney Fabian J. Rosati entered his appearance on behalf of Plaintiff. On December 3, 2008, a Rule 16 scheduling conference was held. This court approved the parties' Report of Planning Meeting (#44) and accepted the discovery deadline dates set out in the Report. The Report stated that the deadline for amending pleadings and joining additional parties was May 29, 2009. This court also set a final pretrial conference on September 3, 2010, at 11:00 a.m. and a jury trial on September 13, 2010, at 9:00 a.m. This court notes that the dates set gave the parties ample time to complete discovery and proceed to trial.

Plaintiff has filed several amended complaints, the most recent an Amended Complaint (#68) filed on October 21, 2009. In his Amended Complaint (#68), Plaintiff named the following defendants: Michael Downey, Chief of Corrections; the Kankakee County Sheriff's Department; Sheriff Timothy Bukowski;*fn2 County of Kankakee, Illinois; TMG; Correctional Officer Mike Canfield; Correctional Officer Edwin Kriegel; Correctional Officer Tonya Grant; Corporal Clifton Johnson; Assistant Chief Carl Brown; and Correctional Officer Lorita Benard.*fn3 In Count I, Plaintiff alleged a "Monell Claim." In Count II, Plaintiff alleged that all defendants were liable under 42 U.S.C. ยง 1983 for deliberate indifference to Plaintiff's serious medical needs. In Count III, ...

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