The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
Ann Darlene Wells, as representative of the estate of Donald L. Wells, has sued the City of Chicago and twenty-five Chicago police officers and employees for claims arising from his arrest, confinement, and death. Plaintiff asserts claims under 42 U.S.C. § 1983 for unreasonable denial of medical attention, deliberate indifference to medical needs, and unlawful detention, as well as supplemental state law claims for wrongful death, survival, willful and wanton conduct, and indemnification. Plaintiff has moved for summary judgment on the unlawful detention claims. The City has moved for summary judgment on the unlawful detention and denial of medical care claims against it. For the reasons stated below, the Court denies plaintiff's motion and grants the City's motion in part and denies it in part.
On April 25, 2008, Donald Wells (Wells), a resident of Michigan, drove his semi-trailer truck through a bus stop and into a Chicago Transit Authority "L" Station. Two women were killed and twenty people were injured. Firefighters removed Wells from the cab of his truck, and paramedics transported him to a hospital.
At the hospital, Chicago police officer Joann Butkus and her partner Rachel Golubiak were waiting for Wells when he arrived in an ambulance at 6:05 p.m. Butkus followed Wells into the emergency room and was never more than about fifteen feet from him while he was at the hospital. The parties dispute some of the events that occurred at the hospital and whether police took Wells from the hospital and subsequently returned him there, but it is undisputed that at 10:40 p.m., police took Wells from the hospital to an interview room at a police station. After some time in the interview room, police placed Wells in a cell at the station.
Wells remained at the police station until April 27. During this time, police investigated the collision and considered whether to charge Wells with a felony such as aggravated reckless driving or reckless homicide. Wells was never taken before a judge for a probable cause hearing. Ultimately he only received a traffic citation, though police kept investigating the collision until the time of his death.
Police captain John Farrell testified that he arrived at the station for work at 9:00 p.m. on April 27 and told Wells that a decision on his release would be made shortly. Farrell then learned that Wells would not be charged with a felony. Farrell testified that before 9:30 p.m., he went to Wells's cell and told him that he was being released. Farrell noticed that Wells had removed all his clothes and became concerned that Wells might need medical attention and had nowhere to go once released. Farrell left Wells in the cell and went looking for the telephone number of one of Wells's family members. When he returned to the cell, Farrell found that Wells had again removed his clothes and saw signs that Wells had been urinating and defecating on himself. Farrell decided to send Wells to a hospital for evaluation. He initially called for a police vehicle, but after finding that Wells had difficulty walking once released from his cell, Farrell instead called an ambulance. Wells' arrest record states that he was released from custody at 10:15 p.m. The ambulance arrived and took Wells from the police station at 10:56 p.m.
Wells remained hospitalized for six weeks, suffering from pneumonia, renal failure, and failure of multiple organs, and was never discharged before his death.
On a motion for summary judgment, the Court "view[s] the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir. 2010). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, a court may grant summary judgment "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff has moved for summary judgment on the unlawful detention claims against Chicago police officers and detectives Michael Deneen, Maureen McMahon, John Farrell, Tracey Sanders, Rachel Golubiak, Joann Butkus, Elliott Musial, Galo Gutierrez, Ronald Behling, and Arthur Block, and against the City. The City has moved for summary judgment in its favor on the unlawful detention and failure to provide medical care claims. The City also argues as part of its motion for summary judgment that the Court should bar plaintiff's expert Dennis Waller. The other defendants have not moved for summary judgment.
A. Unlawful detention claim against the individual defendants
A person arrested without a warrant is entitled under the Fourth Amendment to "a prompt judicial determination of probable cause." County of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991). It is generally sufficient if the government provides a probable cause hearing within forty-eight hours of arrest. If the arrested person is held less than forty-eight hours without a judicial probable cause determination, to establish a constitutional violation he must show that the hearing "was delayed unreasonably." Id. at 56. By contrast, if police hold an individual more than forty-eight hours without providing a probable cause hearing, the government has the burden of "demonstrat[ing] the existence of a bona fide emergency or other extraordinary circumstance" to show that the individual's Fourth Amendment rights were not violated. Id. at 57.
1. Length of Wells's detention
Plaintiff argues that Wells was arrested and held for more than forty-eight hours without being brought before a judge for a probable cause hearing. She assertsthat Wells was arrested at 6:05 p.m. on April 25 when he arrived at the hospital and was not released from custody until 10:56 p.m. on April 27 when paramedics took him from the police station to the hospital. Defendants argue that Wells was arrested at 10:20 p.m. on April 25, when investigator Elliott Musial told Wells that he was under arrest and went over his Miranda rights with him, and that Wells was released before 9:30 p.m. on April 27.
"An arrest requires either physical force . . . or . . . submission to the assertion of authority." California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis omitted). Police are considered to have made a "show of authority" to which a person can submit "'only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Id. at 627--28 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)) (internal quotation marks omitted). "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554.
Plaintiff argues that police arrested Wells at the time he arrived at the hospital because Butkus was waiting for him there and intended to place him under arrest. Butkus's subjective intent, however, "is irrelevant except insofar as [it] may have been conveyed to" Wells. Id. at 554 n.6. Defendants have presented evidence from which a reasonable jury could find that a reasonable person in Wells's situation would have believed he was free to leave. In her deposition, Butkus testified that she never placed Wells in handcuffs and that he was not handcuffed until he was transported to the police station at about 10:40 p.m. Pl. Ex. 2 at 39, 50. Butkus and Golubiak also told Wells that he should stay in the hospital and receive whatever treatment doctors thought he needed. Id. at 40. Butkus testified that she stayed near Wells the entire time he was in the hospital but that she did not interview him at times when medical staff were treating him and that the doctors' and nurses' questions to Wells took priority. Pl. Ex. 3 at 38--40. She also stated that after Wells was taken for a CT scan, she only had limited conversations with him and did not ask him any more questions about the collision. Indiv. Defs. Resp., Ex. A at 82. Butkus asked Wells his name and address and whether he had a driver's license, but he did not respond. Pl. Ex. 3 at 39--40. Butkus testified that she never told Wells that police were going to take him to the police station once he was released from the hospital. Indiv. Defs. Resp., Ex. A at 80--81. Butkus also testified that she was not always close to Wells at the hospital. She did not see hospital personnel draw his blood or perform other tests because she stood outside the curtain around his bed. Pl. Ex. 3 at 67, 91. She stated that at times she was sitting near a nurses' station about ten feet away from Wells's bed. Id. at 75--76.
Given Butkus's testimony, a reasonable jury could conclude that Wells was not under arrest while he was being treated at the hospital. Although there were often several police officers around him and police asked him questions, a reasonable jury could find that the police emphasized that Wells's medical treatment was a priority, he felt free to refuse to talk to them, and they maintained their distance while the medical staff worked.
Plaintiff also argues that Wells must have been arrested before 10:20 p.m. because he was led out of the hospital in handcuffs more than an hour before that. To support this, plaintiff offers footage from a television news broadcast on the night of the collision. The footage shows a man with a blurred-out face, identified as the driver of the truck involved in the collision, being led into a police vehicle and wearing handcuffs. Pl. Reply, Ex. 12 at 17:13--17:40. The news report bears a time stamp of 10:01, and the reporter states that the man was taken from the hospital "about an hour ago." Id. Plaintiff also presents medical records indicating that Wells initially signed out from the hospital against the medical advice of his doctor around 7:30 p.m. and returned around 10:30 p.m. so that doctors could obtain blood and urine samples for a DUI kit. Id., Ex. 8 at 1, 3. Plaintiff argues that police arrested Wells and took him from the hospital, returned him to the hospital for the DUI kit and then took him from the hospital to the police station at 10:40 p.m.
Even with plaintiff's video evidence, however, there is a genuine factual dispute regarding whether Wells was arrested before 10:20 p.m. As noted above, Butkus testified that Wells was never placed in handcuffs until police prepared to transport him to the station around 10:40 p.m. She also testified that even if Wells had signed out when he refused additional medical treatment, he never left the hospital. Pl. Ex. 2 at 51--52. Additionally, sergeant Ronald Behling talked to Butkus around 9:00 or 9:30 p.m. Pl. Reply, Ex. 9 at 28, 68. He testified that he believed that at the time, Wells either was not in the hospital or was leaving the hospital, but that he also thought that Wells was being transported to another hospital. Id. at 28, 71--72. A reasonable jury could use Behling's testimony to find that even if Wells had been taken from the hospital earlier than 10:40 p.m., it was for additional treatment or some purpose other than taking him to the police station for interrogation and that he was therefore not under arrest.
There is also a genuine factual dispute regarding the time that Wells was released from custody. A fire department record indicates that an ambulance was dispatched for Wells at 10:35 p.m. on April 27 and that it took Wells from the police station at 10:56 p.m. Pl. Ex. 1 at 3. An arrest report showed that Wells had been released at 10:15 p.m., and a report by investigator Galo Gutierrez stated that he and another investigator, Michael Deneen, arrived at the police station at 10:15 p.m. so that Wells could be released.
Captain John Farrell, however, gave testimony that would allow a reasonable jury to find that Wells was released earlier. Farrell stated that he learned that there would be no felony charges against Wells shortly after his arrival at the police station at 9 p.m. Indiv. Defs. Resp., Ex. C at 327--28. Before 9:30 p.m., Farrell said, he went back to talk with Wells to find out if there was anyone that the police could call for him or if they could drop him off somewhere. Id. at 328--39, 331. Wells was naked, and Farrell told him to get dressed because he was being released. Id. at 332--33. Wells did not provide Farrell with the name of anyone whom Farrell could call, and he was slow to get dressed. Id. at 335--38. After five minutes, Farrell left Wells in his cell and went to look through Wells's paperwork to see if he could find a phone number to call. Id. at 342. A few minutes later, when it was still about 9:30 p.m., Farrell returned to Wells's cell and found that Wells had again taken his clothes off. Id. at 347--48. At his deposition, Farrell did not remember any other prisoner who had ever been in less of a hurry to leave. Id. at 351--52. Farrell talked with Wells for about ten minutes. Id. at 349. By the end of that time, Farrell testified, Wells was mostly dressed but was unsteady when he stood. Id. at 354--55.
By this time, Farrell stated, Gutierrez had arrived, and Farrell told him that he intended to have Wells taken to a hospital. Id. at 355--56. A police vehicle arrived to take Wells to the hospital, and Farrell led Wells from his cell. Id. at 364. Wells had so much trouble walking that Farrell did not think that he could get into the police wagon, so Farrell had Wells sit down in a chair outside his cell and called an ambulance instead. Id. at 365--66. Farrell acknowledged that Wells's arrest report said he was released at 10:15 p.m., but he stated that 10:15 was just the time he completed the paperwork. Id. at 409--10. He said that Wells was waiting for the ambulance by then and was no longer in custody. Id. at 410. Farrell also said that if Wells had been quicker to get ready and had not shown signs of distress, he could have left the police station before 9:30 p.m. Id. at 410. A reasonable jury could use Farrell's testimony to find that Wells was no longer under arrest by some time before 9:30 p.m. on April 27.
In sum, there is a genuine factual dispute regarding whether Wells was in custody for more than forty-eight hours. A reasonable jury could find that police did not arrest Wells until 10:20 p.m. on April 25 and that they released Wells before 9:30 p.m. on April 27.
Plaintiff argues that even if police held Wells for less than forty-eight hours, she is still entitled to summary judgment, because police unreasonably delayed providing Wells with a probable cause determination by a judge. She argues that police held Wells while investigating to obtain evidence to bring felony charges against him and contends that this violated his Fourth Amendment rights.
"A jurisdiction that provides judicial determinations of probable cause within 48 hours will, as a general matter, comply with the . . . requirement" of prompt presentation before a judicial officer. County of Riverside, 500 U.S. at 56. To establish a constitutional violation, a plaintiff held less than forty-eight hours before he was given a judicial probable cause hearing has the burden of showing the detention was unreasonable. See, e.g., Ortiz v. City of Chicago, 656 F.3d 523,539 (7th Cir. 2011).
"Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." County of Riverside, 500 U.S. at 56. Plaintiff contends that the police delayed Wells' presentment before a judicial officer in order to gather more evidence to support criminal charges against him.
The Seventh Circuit's cases reflect some conflict in its reading of County of Riverside's statement that delay for "gathering additional evidence to justify the arrest" is unreasonable. In United States v. Sholola, 124 F.3d 803, 820 (7th Cir. 1997), the court read this only as a prohibition on prolonging detention to attempt to establish probable cause for an arrest for which probable cause was lacking in the first instance. And in United States v. Daniels, 64 F.3d 311 (7th Cir. 1995), the court said that County of Riverside does not preclude the police from bolstering their case against a defendant while he awaits presentment before a judge. Id. at 314. In Daniels, the police held the defendant while arranging and conduct a lineup to attempt to gain additional evidence on the charge for which they had arrested him. The court concluded that this did not violation the defendant's Fourth Amendment rights. The court stated:
Daniels' argument seems to interpret Riverside to preclude law enforcement from bolstering its case against a defendant while he awaits his Gerstein hearing; that is a ludicrous position. Gerstein and its progeny simply prohibit law enforcement from detaining a defendant to gather evidence to justify his arrest, which is a wholly different matter. Probable cause to arrest Daniels already existed and that is what [the officer's] affidavit reported. We therefore reject Daniels' contention that he did not receive a prompt Gerstein hearing.
Id. On the other hand, in Willis v. City of Chicago, 999 F.2d 284 (7th Cir. 1993), the court noted that the defendant had argued the plaintiff "was not held beyond [an intervening] court call so that the . . . crimes for which he had been arrested could be investigated further. [County of Riverside] would clearly prohibit such a presentment delay because it would be for the purpose of gathering evidence to justify the arrest." Id. at 288 (emphasis added). The court also concluded in Willis that prolonging the detention of an arrestee to investigate crimes other than the one for which he had been arrested violated the Fourth Amendment. Id. at 288-89.
Though reconciling these decisions is not all that easy, it appears that the Seventh Circuit has concluded, with respect to post-arrest detention of less than forty-eight hours, that delay in presentment in order to further investigate the offense for which the defendant was arrested passes muster under County of Riverside if, but only if, the arrest was supported by probable cause in the first instance. If, on the other hand, the authorities delay the arrestee's presentment in court so that they can investigate other offenses, the delay is unreasonable and violates the Fourth Amendment.
Plaintiff argues that Lopez v. City of Chicago, 464 F.3d 711 (7th Cir. 2006), indicates that delaying a prisoner's probable cause determination in order to gather evidence is never permissible. Lopez was held without a probable cause determination for five days, and thus the burden was on law enforcement to show an extraordinary circumstance that justified the delay. Id. at 721--22. The police offered no justification. The court stated that "[County of Riverside] held unequivocally that delays for purposes of gathering evidence are per se unreasonable." Id. at 722. In context, however, it is clear that the court was addressing delays of more than forty-eight hours, because that is what was at issue in the case. The Seventh Circuit has not clearly applied the same per se prohibition to delays of less than forty-eight hours.
In the present case, there is no evidence that the police delayed Wells' presentment in court to investigate him for anything other than the offense for which he was arrested in the first place, namely reckless driving and other potential offenses arising from the collision. Thus the delay passes constitutional muster if probable cause existed at the time Wells was taken into custody.
Probable cause to arrest exists if the arresting officers possess "knowledge from reasonably trustworthy information that would lead a prudent person to believe that a suspect has committed a crime." United States v. McCauley, 659 F.3d 645, 649 (7th Cir. 2011). Under Illinois law, a person commits the offense of aggravated reckless driving, a felony, by "driv[ing] any vehicle with a willful or wanton disregard for the safety of persons or property" and causing great bodily harm. 625 ILCS 5/11-503(a)(1), (c). A driver of a motor vehicle commits reckless homicide "if his acts whether lawful or ...