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Kevin Schawitsch v. Chad Downs and Brent Fischer

October 3, 2012


The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:


Wednesday, 03 October, 2012 01:19:27 PM Clerk, U.S. District Court, ILCD


This matter comes before the Court on Defendants Chad Downs and Brent Fischer's Motion for Summary Judgment Under Federal Rule of Civil Procedure 56 (d/e 31) (Motion). The parties consented, pursuant to 28 U.S.C. § 636(c), to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference entered October 11, 2011 (d/e 19). For the reasons set forth below, the Motion is allowed.

STATEMENT OF FACTS Plaintiff Kevin Schawitsch was incarcerated in the Adams County, Illinois Jail (Jail) on October 19, 2009. At that time Plaintiff suffered from a number of health conditions including coronary artery disease, chronic obstructive pulmonary disorder (COPD), high blood pressure, esophageal reflux, anxiety, insomnia, chronic pain, and a seizure disorder. See Motion, Exhibit 2, Deposition of Lionel Smith, at 14-17, 20-21, 24, 27. He had undergone heart bypass surgery in 2000. Motion, Exhibit 3, Deposition of Steven Krause, at 8. He also had a stroke in 2005. Smith Deposition, at 22; Krause Deposition, at 7.

Schawitsch took a number of prescription medications for these problems, including narcotic pain killers and an anti-seizure drug called Keppra. Smith Deposition, at 15-17, 21. On October 20, 2009, Schawitsch met with Sherry Ann Richmiller, a Licensed Practical Nurser employed by the Jail. Schawitsch had a bag with him that was full of his medications. He told her that he had to take these medications as prescribed. She called the doctors to confirm the prescriptions. She also spoke to Defendant Chad Downs as the Jail Administrator because Jail policy normally did not allow inmates to take narcotic medicines. Downs authorized the narcotic medication. Defendants' Reply to Plaintiff's Response to Motion for Summary Judgment (d/e 34) (Reply), Exhibit 1, Deposition of Sherry Ann Richmiller, at 9-12, 14, 17-18.

Richmiller prepared all of Schawitsch's medications for dispensing, along with medications for other prisoners. Richmiller prepared medicines a week at a time. She put each medication for each inmate in a small coin envelope. Each envelope had the name of the inmate and time for dispensing the medication to the inmate. She then put the small coin envelopes into a larger envelope for each inmate for each day. Richmiller Deposition, at 15, 41-45. The Jail correctional officers picked up the medications in the envelopes daily and dispensed the medicines to the inmates. Richmiller testified that the correctional officers were trained to observe the inmates take the medications. Richmiller Deposition, at 15-17. Richmiller testified that Schawitsch started receiving his medicines in the Jail on October 20, 2009. Richmiller Deposition, at 14, 41.

On October 26, 2009, Richmiller was called to Schawitsch's cell because he was not feeling well. When she arrived, he appeared pale and sweaty. He was weak and could not walk. He had very low blood pressure, and a slightly elevated pulse. Schawitsch also could not move the left side of his face. Richmiller believed that Schawitsch was having a stroke and told the officers to send Schawitsch to the hospital emergency room. Richmiller Deposition, at 22-28, 46-47. Schawitsch was taken by an ambulance to the emergency room at Blessing Hospital in Quincy, Illinois. Richmiller Deposition, at 29-31.

The Blessing Hospital physician, Dr. Hrishikesh Ghanekar, testified in his deposition that Schawitsch was brought to the Blessing Hospital emergency room on October 26, 2009. Motion, Exhibit 3, Deposition of Hrishikesh Ghanekar, at 9. The emergency room records listed Schawitsch's condition as a TIA/seizure disorder. A TIA is a transient ischemic attack, or a small stroke. Ghanekar Deposition, at 22. Schawitsch received an antidote for narcotics overdose while in the emergency room. He seemed to respond to the antidote. He also had a seizure while in the emergency room and was given an anti-seizure medicine, Ativan. Ghanekar Deposition, at 23-24, 27. He was then transported to the intensive care unit (ICU). Ghanekar Deposition, at 24. Dr. Ghanekar treated Schawitsch in that ICU. Ghanekar Deposition, at 30.

One of the emergency doctors, Dr. Pyatt, tested Schawitsch for Dilantin. Dilantin was an anti-seizure medication that was not prescribed for Schawitsch. Doctor Pyatt ran the test because a nurse or family member reported that Schawitsch might have taken Dilantin in the Jail. The test was negative for Dilantin. The emergency room doctors did not test for Keppra, the anti-seizure medicine that was prescribed for Schawitsch. Ghanekar Deposition, at 26-27, 29, 45. Schawitsch ultimately recovered and was released from Blessing Hospital on November 3, 2009. Ghanekar Deposition, at 21. He was then released from the Jail's custody. See Richmiller Deposition, at 34.

Several months later, on April 16, 2010, Schawitsch went to see Dr. Smith for an office visit. Schawitsch's condition was worsening. According to Dr. Smith's notes, Schawitsch stated that the officials in the Jail refused to give him his "meds" while he was incarcerated in October 2009. Smith Deposition, at 34. Dr. Smith stated that he received all of his information about Schawitsch's treatment in the Jail from Schawitsch.

Dr. Smith did not review any medical records or other documentation. Id.

Schawitsch filed this action on May 3, 2011. He named Jail Administrator Downs and Adams County, Illinois, Sheriff Brent Fischer as Defendants. He alleged that the Defendants were told about his medical conditions, but were deliberately indifferent to his medical condition and did not give him his medications while he was incarcerated at the Jail. He alleged that he had a seizure at the Jail on October 26, 2009, due to the defendants' deliberate indifference. He alleges a violation of his Eighth Amendment right against cruel and unusual punishment. Complaint (d/e 1), ¶¶ 5-18.

In discovery, Schawitsch provided his Rule 26(a)(2) expert disclosure. Motion, Exhibit 1, Disclosure Pursuant to Rule 26(a)(2)(A). The Rule 26(a)(2) Disclosure stated that Schawitsch's primary physician Dr. Smith, the ICU physician Dr. Ghanekar, and his cardiologist Dr. Steven Krause, would provide expert opinion evidence about the Defendants' actions at the Jail. Id. Each doctor was deposed. Each doctor testified that he could not ...

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