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Thomas Hunt, Deceased, By and Through His Supervised Administrator v. Thomas Dart

December 8, 2010

THOMAS HUNT, DECEASED, BY AND THROUGH HIS SUPERVISED ADMINISTRATOR, TRACY CHIOVARI, PLAINTIFF,
v.
THOMAS DART, AS SHERIFF OF COOK COUNTY, AND COOK COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

Plaintiff's second amended complaint, brought under 42 U.S.C. §1983, charges the Sheriff of Cook County and Cook County -- the remaining defendant -- with civil rights violations that allegedly led to the death of Thomas Hunt while he was in custody at the Cook County Jail. Count II seeks to hold the Sheriff liable under Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658 (1978), alleging that the Sheriff is responsible for policies authorizing excessive force and/or deliberate indifference at the jail. Count III is a state law, wrongful death claim against the Sheriff. The Sheriff has filed a motion for summary judgment on both counts..

I.

BACKGROUND

A.

Local Rule 56.1 Requirements As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion "a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law." Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph must refer to the "affidavits, parts of the record, and other supporting materials" that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both "a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), and a separate statement "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment," Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633.

If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n.1 (7th Cir. 2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). District courts are "'entitled to expect strict compliance'" with Rule 56.1 and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's requirements. Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The court is not required to hunt for evidence in the record that supports a party's case if a party fails to point it out; that is the responsibility of counsel. See Bay Area Business Council, 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission).

B.Factual Background

On April 27, 2006, Mr. Hunt got drunk and fell while staying at a motel in Worth, Illinois. (Sheriff's Rule 56.1 Statement of Facts ("Shf.St."), ¶ 57-58; Plaintiff's Response ("Pl.Rsp."), ¶ 57-58). He sustained extremely serious injuries, including traumatic brain injury, skull fracture, facial fracture, aphasia, and impaired cognition. (Shf.St. ¶ 59; Pl.Rsp. ¶ 59). He spent two weeks in the rehabilitation unit at Advocate Christ Medical Center and was discharged May 11th. (Sheriff's Ex. 25).*fn1 Following his release from the hospital, he suffered intermittent fainting spells. (Shf.St. ¶ 61; Pl.Rsp. ¶ 61).

Fast forward about five months to October 22, 2006. Officer James Kaczmark of the Worth, Illinois, police department responded to a 911 call regarding a disturbance at what he described as a "flop house." (Sheriff's Ex. 2, Kaczmark Dep., at 6, 21). At the scene, there was one individual standing outside the building, who identified himself as Michael Kuebler. When Officer Kaczmark ran the name through the system, the closest name that came up was a Paul Kuebler, whose description fit the man at the scene and who was wanted by the Palos Park police department and the Cook County Sheriff's police. (Sheriff's Ex. 2, Kaczmark Dep., at 14). Officer Kaczmark arrested him. During a cursory search, he found an ID indicating Kuebler was actually Thomas Hunt. (Sheriff's Ex. 2, Kaczmark Dep., at 14). Officer Kaczmark arrested him for obstruction because he had falsely identified himself. (Shf.St. ¶ 4; Pl.Rsp. ¶ 4).

Mr. Hunt was transported to the Worth police station, where he was kept overnight. (Shf.St. ¶ 5; Pl.Rsp. ¶ 5). On October 23, 2006, Worth Police Officer, Anthony Ritz, transported Mr. Hunt, alone, to Cook County Circuit Court in Bridgeview, Illinois for his bond hearing. (Shf.St. ¶¶ 6-7; Pl.Rsp. ¶¶ 6-7). Following the hearing, Cook County Corrections officers took him to the Cook County Jail. (Shf.St. ¶ 8; Pl.Rsp. ¶ 8). Once there, Mr. Hunt was taken to an intake area and placed in a "bull pen" prior to being classified, processed, and having his personal property inventoried. (Shf.St. ¶¶ 9-10; Pl.Rsp. ¶¶ 9-10). Detainees at the jail are also examined by Cermak Health Services Medical Technicians, who prepare intake sheets reflecting their medications. (Shf.St. ¶¶ 14-15; Pl.Rsp. ¶¶ 14-15). This is usually done after property inventory, but the order of processing is inconsistent. (Sheriff's Ex. 4, Maxwell Dep., at 23, 40-41, Ex.7, Gatlin Dep., at 16). Physicians visit the facility at regularly scheduled times and attend to any detainees in the bullpen who need to see a doctor. (Sheriff's Ex. 5, Colon Dep., at 20-21). On rare occasions, a detainee might request medical attention and a physician would be called. (Sheriff's Ex. 5, Colon Dep., at 49-50).

By all accounts, Mr. Hunt was in the line to the property cage for property inventory when he fell to the floor.*fn2 But there is no testimony regarding what preceded or precipitated his fall. Michelle Maxwell, who was in the property cage at the time, testified:

When it happened, I was not facing the detainee. I was retrieving property. And I heard a loud thud. It almost sounded like a coconut hitting the ground. It was extremely loud. And it drew my attention.

And I turned around, at which point I noticed the detainee was not in line. And there was a space where he had been. And I stepped forward in the property cage and looked down and saw him on the ground. (Sheriff's Ex. 4, Maxwell Dep., at 56). Ms. Maxwell said blood was coming from Mr. Hunt's head, and that he was shaking or convulsing as he was lying on the floor. (Sheriff's Ex. 4, Maxwell Dep., at 55, 59). She shouted for a medical technician and saw Lena Colon responding. (Sheriff's Ex. 4, Maxwell Dep., at 61). Ms. Maxwell left the property cage and cleared the area around Mr. Hunt to allow the medical technicians room to work. (Sheriff's Ex. 4, Maxwell Dep., at 63).

Ms. Colon, a medical technician on duty at the time, testified that she "remember[ed] hearing a bang on the floor on the side of me and I jumped up and saw blood coming out of [Mr. Hunt's] head and he was having a seizure." (Sheriff's Ex. 5, Colon Dep., at 26). He fell near the line at the property cage. (Sheriff's Ex. 5, Colon Dep., at 29). There is no dispute that she responded immediately to render medical assistance. (Shf.St. ¶ 25; Pl.Rsp. ¶ 25). Mr. Hunt was lying on his back, so she turned him on his side to keep his airway clear. (Sheriff's Ex. 5, Colon Dep., at 31, 35). Her co-workers followed with equipment. They bandaged his head, fitted him with a cervical collar, secured him to a backboard, and placed him on a stretcher. (Shf.St., ¶ 27; Sheriff's Ex. 5, Colon Dep., at 35, 38-40. Pl.Rsp., ¶ 27; Plaintiff's Ex. 19, Horner Dep., at 9-10). No physician was called, but paramedics were contacted with a report of a 65-year-old man experiencing a seizure; Mr. Hunt was put into an ambulance. (Sheriff's Ex. 5, Colon Dep., at 41; Plaintiff's Ex. 9).

Michael Horner, one of the paramedics from Cermak Health Services who responded to the call from the jail, noted that when they arrived to transport Mr. Hunt to the hospital, the on-scene medical technicians "already had [Mr. Hunt] perfectly packaged for [them] just to switch to [their] stretcher and get out." (Pl.Rsp., ¶ 27; Plaintiff's Ex. 19, Horner Dep., at 9). At that time, Mr. Horner said he didn't recall noticing any seizure activity; but he also said he had no recollection of how Mr. Hunt looked or how he was acting. (Plaintiff's Additional Facts ("Pl.St."), ¶ 22; Plaintiff's Ex. 19, Horner Dep., at 13-14). The other responding paramedic, Anthony Loveless, stated that he did not see any seizure activity until Mr. Hunt got to the hospital. (Pl.St. ¶ 22; Plaintiff's Ex., Loveless Dep., at 30-31). That is the only evidence concerning what happened at the time Mr. Hunt fell. Neither party has produced any witnesses who actually saw what happened to cause Mr. Hunt to fall.

Ms. Colon said that Mr. Hunt was transported within five minutes of his fall. (Shf.St., ¶ 32; Sheriff's Ex. 5, Colon Dep., at 47-48). But, according to Ms. Maxwell's written report, Mr. Hunt collapsed at about 6:35 p.m. (Pl.St. ¶ 6; Sheriff's Response ("Shf.Rsp."), ¶ 6). According to the paramedic's report, the ambulance from Cermak Health Services was dispatched at about 6:57, arrived at 7:00, and took Mr. Hunt away at 7:03. (Pl.St. ¶ 7, Shf.St. ¶ 7). They arrived at the hospital at 7:09. (Plaintiff's Ex. 9). Mr. Hunt was pronounced dead at 8:20 p.m. the following day. (Shf.St. ¶ 33; Pl.Rsp., ¶ 33).

C. The Expert Opinions

Dr. Michel Humilier of the Cook County Medical Examiner's office performed the post-mortem examination. There were bruises on the right side of Mr. Hunt's chest; right upper arm, elbow, forearm, wrist, and hand; left upper arm and forearm; right side of back; left groin; above the right eye; and lower lip. (Plaintiff's Ex. 21). There was a bruise on the left side of the tongue, the left shoulder, the right buttock, and the left thigh. (Plaintiff's Ex. 21). There was also a subgasleal insert spelling hemorrhage on the right side of the scalp and on the front of the scalp. (Plaintiff's Ex. 21).

Dr. Humilier concluded that Mr. Hunt died from natural causes: an intracerebral hemorrhage due to hypertensive cardiovascular disease. (Plaintiff's Ex. 21). At his deposition, Dr. Humilier explained that these injuries could all be the result of a fall or blow and medical intervention. (Plaintiff's Ex. 22, at 21-25). He testified that he had observed these kinds of injuries on victims of falls before, but it was not in his expertise to describe how such falls might occur since he had never witnessed one. (Plaintiff's Ex. 22, at 21-25). Internal examination revealed cerebral edema, cerebrovascular artherosclerosis, left ventricular cardiac hypertrophy, coronary artherosclerosis with 75% occlusion of the left anterior descending coronary artery, aortic artherosclerosis, and pulmonary edema. Dr. Humilier concluded that Mr. Hunt died from natural causes: an intracerebral hemorrhage due to hypertensive cardiovascular disease. (Plaintiff's Ex. 21). D r . G e o r g e Cybulski was the neurosurgeon on call when Mr. Hunt was brought into Stroger Hospital, and he evaluated Mr. Hunt. (Sheriff's Ex. 11, at 7). In his notes, he indicated that Mr. Hunt was brought in as the victim of an assault at the jail, but he did not know where he got that information. (Sheriff's Ex. 11, at 9-10; Plaintiff's Ex. 25).*fn3 Dr. Cybulski testified that he did not see anything in his examination that would be inconsistent with seizure activity, and noted that bruising on the tongue or mouth was a common injury with a seizure. (Sheriff's Ex. 11, at 22). He said that sudden intracerebral hemorrhage due to hypertensive hemorrhage would usually involve a person blacking out and falling. (Sheriff's Ex. 11, at 23). A seizure would occur about 20% of the time with an acute hypertensive episode. (Sheriff's Ex. 11, at 23). When a person has an acute hypertensive episode, there would not typically be a period of uncontrolled hypertension preceding it. (Sheriff's Ex. 11, at 23).

Dr. Faran Bhokari was the general surgeon on call at the Stroger Hospital trauma ward when Mr. Hunt was brought in. (Sheriff's Ex. 12, at 5). He noted that the intake form said Mr. Hunt was an assault victim, but didn't know where that information came from; he explained that incoming information like that was wrong about half the time. (Sheriff's Ex. 12, at 41-42). He said the CAT scan of Mr. Hunt's head was consistent with a hypertensive cardiovascular accident, but that it could be consistent with a fall or a car crash as well. (Sheriff's Ex. 12, at 42-43). Dr. Bhokari also testified that at the time of his death, Mr. Hunt had an increased R and I count, meaning his blood did not clot properly, which in turn would lead to an increased tendency to bruise. (Sheriff's Ex. 12, at 44-45). The final report from Stroger Hospital, which Dr. Bhokari signed, stated "S[tatus] /p[ost] Blunt head trauma." (Plaintiff's Ex. 26, at 1).

The plaintiff hired Dr. Elizabeth Kessler, a board certified neurologist, to review the medical records associated with Mr. Hunt's death.*fn4 She disagreed with Dr. Humilier's conclusion that Mr. Hunt died of intracerebral hemorrhage:

First, to know that there was a hypertensive hemorrhage, there would have to be history available of chronic, sustained hypertension, which is lacking in any of these records, including the pathologist's. In addition, while there is bleeding within the brain, there is also extensive evidence of bleeding outside of the brain that could not possibly be accounted for by hypertension or hypertensive hemorrhage. This additional bleeding includes bilateral subdural hematomas with evidence of fresh bleeding between the scalp and the surface of the brain on both sides and large hemorrhages between the scalp and the skull. The pathologist's conclusion also ignores the bruises in many locations over Mr. Hunt's face, arms, legs, groin, buttock and thigh. Even with the pathologist not examining or reporting the results of examination of what would have been pertinent parts of the autopsy, including the nasal cavity, sinuses and occipital laceration, his conclusion does not take into account the many bruises that he describes in his findings. (Plaintiff's Ex. 10A, at 3). Although conceding she had no evidence regarding what actually happened to Mr. Hunt, Dr. Kessler felt the autopsy report was "consistent only with multiple blunt trauma throughout the body and head" and that Mr. Hunt died from multiple traumatic injuries to the head. (Plaintiff's Ex. 10A, at 3).

A second doctor hired to review the records, Michael W. Kaufman, board certified in pathology, concluded that while Mr. Hunt could have had an intracerebral hemorrhage, with extension into the cerebral ventricles and subarachnoid space, it would not account for the bilateral subdural hematomas, or the subgaleal hematomas, or injury to the nose and paranasal sinuses. Likewise, he concluded that it would be unlikely that the deep seated hemorrhages in the body musculature as documented by the post-mortem photographs would have been the result of medical intervention:

There is a great discordancy between the clinical historical information, clinical findings while Mr. Hunt was alive, and the post-mortem autopsy findings, and the ultimate conclusion by Dr. Humilier. It is my opinion that Mr. Hunt sustained a traumatic injury both to his brain, head, and other parts of his body, and that his death was due to non-natural causes. It would be hard to believe that the multitude of injuries, seen both externally as well as internally, including injuries to Mr. Hunt's right maxillary, ethmoid, and sphenoid sinuses, and nasal cavity, as well as bilateral subgaleal and subdural hematomas, could have been caused by a single fall with or without seizure, due to loss of consciousness from hypertensive heart disease. That conclusion is weak, at best. While his heart did weigh slightly more than expected for a man of his weight, the heart's weight was by no means reflective of a significant and longstanding result of hypertension. The lack of renal damage is also confirmatory of that fact. While hypertension may be the cause of an intracerebral hemorrhage, with extension into the cerebral ventricles and subarachnoid space, it would not account for bilateral subdural hematomas, nor subgaleal hematomas, nor injury to the nose and paranasal sinuses. Likewise, the deep seated hemorrhages in the body musculature as documented by the photographs would unlikely be the result of medical intervention.

(Plaintiff's Ex. 11A, at 3). Dr. Kaufman opined that the "only reasonable explanation as to the cause and manner of death of Mr. Hunt would be as a result of a homicide. (Plaintiff's Ex. 11A, at 3). Ignored by him and the other plaintiff's experts were the extensive and critical injuries Mr. Hunt suffered to his face and head only a few months earlier and the fact that his blood values showed significantly lowered clotting capabilities, which could result in and thus account for extensive bruising from a fall.

Plaintiff's third doctor, Gary Lustgarten, a board-certified neurosurgeon, said he "could not disagree more strongly" that Mr. Hunt suffered a hypertensive intracerebral hemorrhage, because when they occur, they are not associated with acute subdural hemorrhages. (Plaintiff's Ex. 12A, at 5). Dr. Lustgarten said the autopsy results were very consistent with repeated episodes of head and facial injury. (Plaintiff's Ex. 12A, at 5). He said it would be well beyond his imagination and 41 years of experience to relate the injuries to a seizure disorder. (Plaintiff's Ex. 12A, at 5). He noted that Mr. Hunt was not on any anticonvulsant medication, and there was no medical history of such a disorder. (Plaintiff's Ex. 12A, at 5). He also said that in order to relate the hemorrhage to hypertensive cardiovascular disease, one would have to know that Mr. Hunt had a history of chronic, sustained hypertension. (Plaintiff's Ex. 12A, at 5). Dr. Lustgarten said the autopsy report ignored the many bruises and bleeding outside the brain. (Plaintiff's Ex. 12A, at 5). He noted that there were few statements regarding the events prior to Mr. Hunt's transfer to the emergency room, but it was hard to imagine that an accident would be the cause of the multitude of Mr. Hunt's bodily and cerebral injuries. (Plaintiff's Ex. 12A, at 5).

Dr. Lustgarten thought "that Mr. Hunt died from multiple traumatic injuries to the head and not hypertension." (Plaintiff's Ex. 12A, at 5). He added that he thought Mr. Hunt's injuries were inflicted by one or more individuals. (Plaintiff's Ex. 12A, at 4). The only opinions plaintiff gleans from her experts are that "Mr. Hunt died from multiple traumatic injuries to the head;" that he "sustained a traumatic injury to his brain and head and other parts of his body, an his death was due to non-natural causes;" and that "he died of multi trauma with the fatal injury being a traumatic brain injury that led to his death." (Pl.St., ¶¶ 27-29). It should be noted that despite their obvious relevance here, none of the three physicians considered Mr. Hunt's medical history regarding the severe, multiple traumatic injuries to his head, the skull fracture, and the extensive injuries to his face suffered in his drunken fall a few months prior to his arrest. (Plaintiff's Exs. 10A, at 1; 11A, at 2; 12A, at 1). This failure to have considered this rather significant history means either that the information was not provided to the experts or that they simply chose to put it out of view. The result is the same in this case, as discussed infra at insert The remaining evidence offered by the plaintiff is a 2008 letter from the Department of Justice (DOJ letter) to the Sheriff and the Cook County Board president regarding conditions at Cook County jail, and the report of yet another expert, Victor Lofgreen. In its ninety-eight pages, the DOJ letter did not have many good things to say about the Cook County jail.*fn5 The plaintiff mines just a few nuggets from the letter. First, he points out that the letter states that detainees confined at the jail are not adequately protected from harm, including physical harm from excessive use of force by staff and assaults from fellow detainees due to inadequate supervision. (Pl. St., ¶ 41). The DOJ letter also found that the jail "fails to provide adequate emergency care" and chastised the administration for an incident in July 2007, where an ambulance and emergency medical technicians took fifteen minutes to arrive (Pl. St., ¶ 43), although it's not entirely clear how the response time of an outside ambulance would be the fault of the Cook County jail. The DOJ letter noted that a: pattern of inappropriate and excessive use of force . . . throughout the CCJ divisions, ... an especially high number of abuse of force allegations do emerge from the CCJ's RCDC intake unit" and that "the RCDC is chronically overcrowded, cramped, chaotic and insufficiently staffed. The impact of these conditions on the use of force is considerable. (Pl. St., ¶ 44). The letter also found that there were attempts by officers or other staff at the CCJ to conceal the inappropriate or excessive use of force. (Pl. St., ¶45).

Mr. Lofgreen reviewed all the evidence in this case on the plaintiff's behalf and came to ...


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