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Daroush Ebrahime v. Thomas Dart

January 6, 2012

DAROUSH EBRAHIME, PLAINTIFF,
v.
THOMAS DART, SHERIFF OF COOK COUNTY, COOK COUNTY, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

The plaintiff was attacked and beaten in a county courthouse holding cell on February 17, 2009. At the time, he was a pre-trial detainee in the custody of the Sheriff of Cook County. He is suing the Sheriff and the County under 42 U.S.C. §1983, alleging that the defendants violated his Eighth Amendment rights by failing to properly and timely address his medical needs following the assault. He also brings a state law claim for intentional infliction of emotional distress. The defendants have moved for summary judgment, arguing that there is no genuine issue of fact that plaintiff's constitutional rights were violated, and that they are immune from liability for the state law claim under Illinois's Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act").

I.

A.

Summary Judgment At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c); Scott v. Harris, 550 U.S. 372, 380 (2007). Once the moving party has made a properly supported motion for summary judgment, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue' for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in original).

B.

Local Rule 56.1 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 instructions 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 job of counsel. See Bay Area Business Council., 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission).

C.

Facts On February 17, 2009, plaintiff was a pre-trial detainee at the Cook County Department of Corrections ("CCDOC"), awaiting trial on criminal charges. (Defendants' Local Rule 56.1 Statement of Facts ("Def.St."), ¶ 9; Plaintiff's Response to Def.St.("Pl.Rsp."), ¶ 9). He was escorted to the criminal courts building located at 2600 South California Avenue in Chicago, Illinois, so that he could appear on a regularly scheduled court status date, and placed in a holding cell near the courtroom. (Def.St., ¶¶ 11-12; Pl.Rsp., ¶¶ 11-12). There, he was attacked and beaten by another detainee. (Def.St., ¶ 12; Pl.Rsp., ¶ 12).

At the time, plaintiff was fifty-seven years old. (Def.St., ¶ 10; Pl.Rsp., ¶ 10). He had a heart condition and had previously undergone heart surgery and received six stents. (Plaintiff's Statement of Additional Facts ("Pl.St."), ¶ 48; Defendants' Response to Pl.St. ("Def.Rsp."), ¶ 48). A sheriff's deputy described his assailant as a "big guy . . . in his 20s, . . . at least 6 feet tall, . . . nearly 200 pounds, . . . who appeared "very strong." (Pl.St., ¶ 1; Def.Rsp., ¶ 1). Plaintiff says that he was hit about ten times about his head, face, chest, torso, and back. (Def.St., ¶ 13; Pl.Rsp., ¶ 13). He claims he suffered a split tongue, chipped tooth, lacerations to his scalp and lip, contusions to his skull, back, and ribs, and severe injury to his right eye. (Def.St., ¶ 14; Pl.Rsp., ¶ 14). When Cook County Sheriffs' deputies became aware of the attack, the first responding officer called for back-up officers, and 911 emergency personnel were called for medical assistance. (Def.St., ¶ 15; Pl.Rsp., ¶ 15). Approximately twenty officers responded. (Def.St., ¶ 16; Pl.Rsp., ¶ 16).

Once the backup officers arrived, they took plaintiff to a separate holding area. (Def.St., ¶ 17; Pl.Rsp., ¶ 17). Emergency medical personnel bandaged plaintiff's head and transported him by ambulance a short distance to St. Anthony's Hospital; he was checked in about 2 p.m. (Def.St., ¶¶ 18-20; Pl.Rsp., ¶¶ 18-20). Medical personnel observed that plaintiff had multiple abrasions and contusions all over his head, and "tiny" lacerations to the right lateral orbit and inner cheek. (Def.St., ¶ 21; Defendant Ex. 4, at 1765-66; Pl.Rsp., ¶ 21). The attending physician ranked his injuries as moderately severe. (Def.Ex. 4, at 1766). Plaintiff complained of left-side chest pain, shortness of breath, headache, and dizziness. (Def.Ex. 4, at 1766-67). He denied having lost consciousness. (Def.Ex. 4, at 1766-67). He rated his pain as a 10 out of 10. (Def.Ex. 4, at 1765). He was treated with aspirin and Tylenol, and given oxygen. (Def.Ex. 4, at 1767-68). A portable chest x-ray revealed clear lungs and an enlarged heart. (Def.Ex. 4, at 1774). A CT scan of plaintiff's head showed a mild septal deviation, but no evidence of intracranial hemorrhage or skull fracture. (Def.Ex. 4, at 1771). Plaintiff's pain subsided completely at about 4 p.m. -- he then reported his pain as 0 out of 10 -- and he was released from St. Anthony Hospital in stable condition later that day at 6:15 p.m., still saying he was in no pain. (Def.Ex. 4, at 1765).

From St. Anthony's, plaintiff was taken to Cermak Hospital, on CCDOC grounds, where medical personnel examined him again. (Def.St., ¶ 22; Pl.Rsp., ¶ 22). Plaintiff testified that his problem with his treatment is that he did not receive timely medication or timely medical visits from Cermak personnel. (Def.St., ¶ 40; Pl.Rsp., ¶ 40). Over the next two days, plaintiff was given a cold compress for his pain. (Def.St., ¶ 23; Pl.Rsp., ¶ 23). Plaintiff says he got a single cold compress in those two days (Pl. Ex. 8, Pl.Dep., at 120), but the medical record indicates that he was to have been given a cold compress four times a day -- "QID" -- during that period. (Def.Ex. 2(7), at 3). There is no order for any type of pain medication during that time. (Def.Ex. 2(7), at 3). Cermak Nurse Judy Price testified that she was unable to confirm whether plaintiff actually received the ice-packs as often as he was supposed to because her nurses were "very bad with documenting." (Pl.St., ¶ 16; Pl.Ex. 5, Price Dep., at 91; Def.St., ¶ 16). The Cermak physician treating plaintiff who ordered the four daily compresses-- Dr. Paul Skirvan -- testified that if plaintiff hadn't received them as directed, he would have suffered pain and swelling. (Pl.St., ¶ 23; Pl.Ex. 6, at 106; Def.Rsp., ¶ 23).

Plaintiff filled out a Detainee Health Service Request Form on or about February 20, 2009, requesting treatment for pain in the shoulder, head, right eye, ear, ribs and back, as well as trouble sleeping, dizziness, and possible bleeding from the right ear. (Def.St., ¶ 26; Pl.Rsp., ¶ 26; Def.Ex. 3(1)). He also filed a Detainee Grievance, dated February 20th, stating that he "need[ed] to see a doctor ASAP." (Pl.Ex. 10).*fn1 When there was no response, he filled out a second health service request form the next day. (Pl.Ex. 10(2)). Three days after his initial request, plaintiff was seen at "sick call" by Nurse Price and Dr. Ledvora on February 23, 2009, and was said to have vital signs within normal ranges and be in "no acute distress." (Def.St., ¶ 27; Pl.Rsp., ¶ 27). Dr. Ledvora examined plaintiff's eye and observed some bruising about the right eye, a small bump or swollen area on the right temple area; exam of the eye itself was normal. (Def.St., ¶ 28; Pl.Rsp., ¶ 28). Upon further examination, the doctor found no lesions in plaintiff's mouth. (Def.St., ¶ 29; Pl.Rsp., ¶ 29). Lungs were clear, but there was some left rib cage tenderness. (Def.St., ¶ 30; Pl.Rsp., ¶ 30). Dr. Ledvora referred plaintiff to an ophthalmologist for an eye exam, ordered rib x-rays, and a brain CT scan. (Def.St., ¶ 31; Pl.Rsp., ¶ 31). The doctor also prescribed plaintiff Robaxin (a muscle relaxant) and Atarax (an anxiety medicine), and made a notation in the record to have plaintiff follow up with a medical visit in ten days. (Def.St., ¶ 32; Pl.Rsp., ¶ 32).

Plaintiff saw an ophthalmologist at Cermak later that day. (Def.St., ¶ 33; Pl.Rsp., ¶ 33). He also had his ribs x-rayed, a CT scan of his eye sockets, and a CT scan of his head. (Def.St., ¶ 34; Pl.Rsp., ¶ 34). The CT scan of the head revealed nothing other than "soft tissue swelling over the left frontal and parietal region." (Def.Ex. 3(6)). Dr. Ledvora characterized the scan as normal. (Def.St., ¶ 35; Pl.Rsp., ¶ 35). He said that the results were "really good for someone who's had head trauma." (Def.St., ¶ 36; Pl.Rsp., ¶ 36). The CT scan of the eye sockets revealed "a defect along the anterior nasal septum and underlying post traumatic defect of the septum is most likely." (Pl.Ex. 3(6)). Dr. Ledvora said that plaintiff "might have had a little blunt trauma to the nose. Nothing he's going to run off to a surgeon for an immediate procedure for." (Pl.St., ¶ 35; Def.Rsp., ¶ 35; Pl.Ex. 7, at 72).

The rib x-ray revealed healed fractures to the left 5th, 6th, 7th, 8th, and 9th ribs. (Def.Ex. 2(3)). Dr. Ledvora testified that he: kn[e]w he's got a rib fracture. A rib fracture, the management is some pain medication and you let it heal. A rib fracture knocks a pro football player out of the game for a few weeks. Is there any reason to expect he's not going to have any discomfort? He's a 60-year-old guy. But if I keep layering medicines on top of what he's already on, I could do him a great disservice. (Def.Ex. 3, Ledvora Dep., at 84).

Plaintiff was given muscle relaxers and a pain relievers from February 23, 2009 to March 21, 2009. (Def.St., ¶ 37; Pl.Rsp., ¶ 37). Plaintiff testified that the medication didn't work, and upon request to the Cermak doctor, the doctor doubled his prescription. (Def.St., ¶ 38; Pl.Rsp., ¶ 38). All told, between February 17, 2009, and February 23, 2009, plaintiff got medications from Cermak personnel for his heart, cholesterol, sleeping, and psychiatric conditions. (Def.St., ¶ 39; Pl.Rsp., ¶ 39).

On March 5, 2009, plaintiff received Tylenol and a cold compress from Cermak personnel. (Def.St., ¶ 41; Pl.Rsp., ¶ 41). On March 9, 2009, Dr. Ledvora ordered a non-emergency EKG4 for Plaintiff, as part of plaintiffs routine health maintenance. (Def.St., ¶ 42; Pl.Rsp., ¶ 42). Plaintiff filed his lawsuit on March 11th. He filled out a "Detainee Health Service Request Form" to be seen for difficulty walking, blurry vision and back pain on March 23, 2009, and was seen by Dr. Ledvora the same day. (Def.St., ¶ 43; Pl.Rsp., ¶ 43). Plaintiff's back and torso were x-rayed on April 1, 2009, (Def.St., ¶ 44; Pl.Rsp., ¶ 44). On the 10th, he saw a Cermak doctor for back pain, sore throat and runny nose. (Def.St., ¶ 45; Pl.Rsp., ¶ 45).

On May 20, 2009, Dr. Ledvora renewed plaintiff's prescription for Robaxin, the muscle relaxant, in response to his complaints of back pain and trouble sleeping. (Def.St., ¶ 46; Pl.Rsp., ¶ 46). Dr. Ledvora testified that giving plaintiff stronger pain medications, at that time, could have been contrary to plaintiff's best interest since plaintiff was already on multiple other medications for other ailments, and adding stronger pain medication may have upset those existing medications. (Def.St., ¶ 47; Pl.Rsp., ¶ 47). On May 26, 2009, plaintiff saw Dr. Ledvora with complaints of back pain and difficulty sleeping; plaintiff was put on a more powerful pain medication, Salsalate, at that point. (Def.St., ¶ 48; Pl.Rsp., ¶ 48; Pl.St., ¶ 39; Def.Rsp., ¶ 39). Dr. Ledvora ordered a chest x-ray to follow up on the healing of plaintiff's rib fractures. The doctor felt plaintiff "looked pretty good for what he's been through and his multiple problems." (Def.St., ¶ 49; Pl.Rsp., ¶ 49).

Dr. Ledvora testified that he didn't think plaintiff "ever presented with the manifestations of a severe injury" and that he remembered "in a subjective way his presentations were very consistently on the dramatic side for what my physical exam showed." (Def.St., ¶ 50; Pl.Rsp., ¶ 50).

The doctor felt he "ordered enough tests to make sure that there was nothing serious there."

(Def.St., ¶ 51; Pl.Rsp., ¶ 51). "Now that I've seen so many records," Dr. Ledvora said, "he's getting a lot of follow-up from medical and psychiatric staff here. So he's had a lot of -- well, I shouldn't say he's had a lot. He's had multiple visits and follow-up with medical ...


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