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Jose Estrella (#M-25649 v. Tom Dart

May 29, 2012

JOSE ESTRELLA (#M-25649), PLAINTIFF,
v.
TOM DART, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Jose Estrella brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he was denied adequate medical care for an injury to his hand at the Cook County Jail. Plaintiff names as Defendants unknown officers and Cook County Sheriff Tom Dart, who remains in the case solely for the purpose of naming the John Doe medical Defendants.*fn1

Presently before the Court are Defendant Tom Dart's motion for summary judgment, Plaintiff's motion in response to Defendant's motion for summary judgment, and Plaintiff's motion for appointment of counsel. For the reasons stated in this order, Defendant's motion for summary judgment is granted and Plaintiff's motion in response and motion for appointment of counsel are denied.

I. BACKGROUND

On March 31, 2010, Plaintiff was a pre-trial detainee at the Cook County Jail. (Def's 56.1(a)(3) statement, ¶ 1.) Plaintiff was housed in Division 10, Living Unit 4C. (Def's 56.1(a)(3) statement, ¶ 3.) On March 31, 2010, Plaintiff was involved in an altercation with Inmate Pullman during the 3:00PM -- 11:00PM shift. (Def's 56.1(a)(3) statement, ¶ 4.) During the altercation, Plaintiff injured his hand either from striking Inmate Pullman or as the result of Plaintiff falling down. (Def's 56.1(a)(3) statement, ¶ 5.)

During the altercation, Plaintiff also suffered a bloody lip and had pain in his right hand in a region extending from the knuckle of the middle finger to the knuckle of his pinky finger. (Def's 56.1(a)(3) statement, ¶ 6.) After officers broke up the fight, Plaintiff was taken to the bullpen area of Division 10 for a couple of minutes before being taken back up to the second floor. (Def's 56.1(a)(3) statement, ¶ 7.) Plaintiff was then checked by a nurse and sent to Cermak Health Service. (Def's 56.1(a)(3) statement, ¶ 8.) Once Plaintiff reached Cermak Health Service, Plaintiff met with a doctor who wrapped his hand with an elastic bandage and gave him ibuprofen for the pain. (Def's 56.1(a)(3) statement, ¶ ¶ 9, 10.)

The next day Plaintiff returned to Cermak Health Service and received an X-ray of his hand from another doctor. (Def's 56.1(a)(3) statement, ¶ 11.) This doctor told Plaintiff that he saw nothing wrong with his hand; there were no broken bones or fractures. (Def's 56.1(a)(3) statement, ¶ 12.) For the next week, Plaintiff complained of the pain to nurses who dispensed medications in Division 10. (Def's 56.1(a)(3) statement, ¶ 13.) Plaintiff continued taking ibuprofen for three to four days, which eased the pain in Plaintiff's hand. (Def's 56.1(a)(3) statement, ¶ ¶ 14, 15.) In his deposition, Plaintiff testified that, on a scale of one to ten, ten being highest and one being the lowest, the ibuprofen decreased the pain from a nine to a four. (Def's 56.1(a)(3) statement, ¶ 15.) Plaintiff's hand hurt less a week later, and was getting better over time; however, Plaintiff continues to have some pain in his hand. (Def's 56.1(a)(3) statement, ¶ 16, and Plaintiff's response to Def's. 56.1 (a)(3) statement, ¶ 16.) At the time of his deposition in July of 2011, Plaintiff testified that the pain in his hand is very small unless he puts a lot of pressure on it. (Def's 56.1(a)(3) statement, ¶ 26.)

Plaintiff asked two unidentified sergeants and unidentified officers for medical attention, but was told that they had no control over medical. (Def's 56.1(a)(3) statement, ¶ 17.) At some point in April 2010, Plaintiff met with an unidentified Division 10 dispensary doctor who noted that Plaintiff's hand had tremors, a condition predating the altercation on March 31, 2010. (Def's 56.1(a)(3) statement, ¶ 18.) This doctor referred Plaintiff to a nerve specialist at Stroger Hospital. (Def's 56.1(a)(3) statement, ¶ 19.) Plaintiff saw a nerve specialist at Stroger Hospital three or four times. (Def's 56.1(a)(3) statement, ¶ 20.)

The "Detainee Grievance Procedure" was available to all detainees at the Cook County Jail in 2010 and 2011. (Def's 56.1(a)(3) statement, ¶ 2.) Plaintiff filed a grievance with a control number of 2010 X 1936, signed by him though written by another inmate, on July 25, 2010. In that grievance, Plaintiff requested treatment for his hand and claimed that he had been denied an x-ray. (Def's 56.1(a)(3) statement, ¶ 21.) The response to the grievance indicated that Plaintiff had an appointment at Cermak on August 2, 2010 for a follow-up. (Def's 56.1(a)(3) statement, ¶ 22.) Plaintiff appealed the grievance on August 10, 2010, alleging that he went to Cermak but did not receive any treatment. (Def's 56.1(a)(3) statement, ¶ 23.)

Plaintiff filed another grievance with control number 2010 X 2127 on August 18, 2010, requesting medical attention for his hand. (Def's 56.1(a)(3) statement, ¶ 24.) Plaintiff did not appeal this grievance. (Def's 56.1(a)(3) statement, ¶ 25.)

On March 23, 2011, the Court completed its initial review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, dismissing all named Defendants other than Tom Dart. (ECF Doc. 4.) Tom Dart was expressly retained as a Defendant solely for the purpose of identifying the John Doe Defendants in this case. Id. Plaintiff has seen Thomas Dart only on television, and has never spoken or written to him personally. (Def's 56.1(a)(3) statement, ¶ 27.) Plaintiff has never sought leave to amend his complaint to name the John Doe Defendants.

II. Summary Judgment Standard

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).

To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In turn, summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. And the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. ...


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