The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Kathleen Paine ("Paine"), as Guardian of the Estate of Christina Rose Eilman ("Eilman"), filed this suit against various members of the Chicago Police Department and the City of Chicago, alleging civil rights violations in connection with Eilman's arrest and subsequent release from the Second District women's lockup without providing her access to mental health treatment. Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1, Defendant City of Chicago (the "City") has renewed its Motion for Summary Judgment on Count XXXIX of Paine's Third Amended Complaint, which brings a claim against the City pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. Defendants David Berglind, Sharon Stokes, Teresa Williams, Cynthia Hudson, Catonia Quinn and Pamela Smith (collectively, the "Individual Defendants") have, pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1, renewed their combined Motion for Summary Judgment on Counts XV, XVIII, XX, XXII, XXIV, and XXVIII, which collectively allege that the Individual Defendants violated 42 U.S.C. § 1983 by failing to provide medical care to Eilman while she was in police custody.*fn1 Paine has filed a Motion to Strike the City's and the Individual Defendants' renewed Motions for Summary Judgment. Finally, Defendant Pamela Smith ("Officer Smith") filed a Motion for an Order Barring Plaintiff from Pursuing an "Augmented Danger" Claim Against Her at Trial. For the reasons set forth below, all the motions are denied.
This case, now six-years old, raises the issue of whether the Chicago Police Department, and certain of its officers, violated a young, mentally ill woman's constitutional rights when they failed to provide her with mental health treatment while she was in their custody; released her in a dangerous part of the city without her wallet or cellular telephone; after which she was raped and fell from a seventh-story window in a housing project nearby. Ms. Eilman suffers from permanent brain damage as a result of the fall. The specific facts of this case were previously described in copious detail in the Court's February 22, 2010 opinion and its February 26, 2010 opinion and are incorporated herein by reference. However, the facts that are relevant to the instant motions are set forth below.
In its February 22, 2010 opinion, this Court denied all of the Individual Defendants' motions for summary judgment. See Paine v. Johson, 689 F. Supp. 2d 1027, 1087-88 (N.D. Ill. 2010). The Court found that there was a genuine issue of material fact as to whether the defendants violated the Plaintiff's clearly established constitutional rights: (1) to receive care for her medical condition while in the custody of the police; and (2) to not have a state actor, without justification, increase her risk of harm. Id. In its February 26, 2010 Opinion, the Court denied the City's original Motion for Summary Judgment on Paine's ADA claim because it found that material issues of disputed fact existed as to whether Paine can prevail on this claim. See Paine v. Johnson, No. 06 C 3173, 2010 WL 785397 (N.D. Ill. Feb. 26, 2010).
After this Court issued those opinions, ten of the thirteen individual defendants filed an interlocutory appeal in the Seventh Circuit on the question of whether they are protected from this suit by the doctrine of qualified immunity. Paine v. Cason, 678 F.3d 500 (7th Cir. 2012). On April 26, 2012, the Seventh Circuit affirmed the Court's decision in part, reversed it in part, and remanded the case for further fact-finding to determine whether two defendants are entitled to qualified immunity. See id. at 513. The Court's decision to deny summary judgment to the City on Paine's ADA claim was not appealed to the Seventh Circuit. After the remand, the Court set this case for a jury trial to begin on January 14, 2013.
Pursuant to the Seventh Circuit's and this Court's direction, the parties filed additional motions for summary judgment regarding whether Defendants Carson Earnest and Pauline Heard were entitled to qualified immunity. After considering the parties' briefs, the Court granted summary judgment in favor of those two defendants on October 11, 2012. See Paine v. Johnson, No. 06 C 3173, 2012 WL 4852540 (N.D. Ill. Oct. 11, 2012).
On November 9, 2012, the Defendants filed a flurry of motions. Despite the fact the Court previously denied the City's Motion for Summary Judgment on Paine's ADA claim on February 26, 2010, the City re-raises its motion now. (Doc. 829.) In addition, the Individual Defendants moved for summary judgment, again, on claims that they failed to provide medical care to Eilman while she was in custody. (Doc. 831.) Finally, Defendant Pamela Smith moved to bar Paine from pursuing an "augmented danger" claim against her at trial. (Doc. 833.)
STATEMENT OF FACTS RELEVANT TO THESE MOTIONS
In February of 2005, Christina Eilman suffered from her first known manic episode. (Pl. 56.1 Resp. ¶ 45.)*fn2 During this episode, she was involuntarily committed to Sierra Vista Hospital, a mental health facility, because she was deemed a threat to herself or others. (Def. 56.1 Reply ¶ 10.) Eilman was subsequently diagnosed with bipolar disorder. (Pl. 56.1 Resp. ¶ 1.) Bipolar disorder is a severe mental illness and more than 90% of bipolar individuals who suffer one manic episode have subsequent episodes. (Def. 56.1 Reply ¶ 1.) Manic episodes are characterized by exhibition of traits such as inflated self-esteem, decreased need for sleep, rapid or pressured speech, increased activity and distractability, and excessive involvement in activities that have a high risk of negative consequences. (Def. 56.1 Reply ¶ 3.)
From at least November of 2005 until May 16, 2006, there is no documented evidence showing that Eilman received treatment or prescriptions for any mental health conditions. (Pl. 56.1 Resp. ¶ 14.) Individuals with bipolar disorder may be prescribed medications to help control their symptoms and to help prevent new manic and depressive episodes. (Pl. 56.1 Resp. ¶¶ 15, 16.)
From April 2005 through May 2006, Eilman was employed by 24 Hour Fitness. (Pl. 56.1 Resp. ¶ 18.) In September 2005, after being accepted as a student at UCLA, she moved to Los Angeles where she rented a room. (Pl. 56.1 Resp. ¶¶ 21, 22.) In the fall of 2005, Eilman enrolled in three classes at UCLA, finishing the semester with a C- average. (Pl. 56.1 Resp. ¶ 26.)
In March and April of 2006, Eilman began exhibiting changes in her behavior. (Pl. 56.1 Resp. ¶ 46.) On May 3, 2006, Eilman met with Kyle McJunkin ("McJunkin"), an academic advisor at UCLA, in order to retroactively withdraw from the Winter 2006 term. (Pl. 56.1 Resp. ¶ 42.) McJunkin did not refer Eilman to the student psychiatric center or the student counseling center. (Pl. 56.1 Resp. ¶ 42.)
On May 5, 2006, Eilman flew to Chicago, Illinois. (Pl. 56.1 Resp. ¶ 43.) On May 6th and May 7th, Eilman spent time at Midway Airport. (Pl. 56.1 Resp. ¶ 44.) While at Midway, her behavior was erratic and impulsive, including screaming at a quiet baby, yelling at a blind man claiming that he was a phony, and throwing her boot at airline personnel. (Def. 56.1 Reply ¶ 20.) She was arrested by the Chicago police on May 7th, held until the following day, and released. (Pl. 56.1 Resp. ¶¶ 48-50.) During her time in detention, eyewitnesses observed at various times that Eilman was excitable and yelling profanities; kicking, banging, and pounding the cell walls and bars; and dancing around, twirling in circles, and flapping her arms. (Def. 56.1 Reply ¶ 19.) Witnesses to Eilman's behavior also observed that her mood would change from jovial and pleasant to angry, abusive, and profane. (Def. 56.1 Reply ¶ 21.) During her detention, Eilman smeared her menstrual blood on her cell bench and walls, after which more than one of her cellmates requested a transfer to another cell. (Def. 56.1 Reply ¶ 28.)
Officer Yvonne Delia ("Delia") reported to at least two other officers that, according to Eilman's father, Eilman had not been diagnosed with bipolar disorder but could be bipolar. (Def. 56.1 Reply ¶ 33.) Paine, Eilman's mother, told a CPD officer during a phone call on the evening of May 7th, and again on the afternoon of May 8th, that Eilman had bipolar disorder. (Def. 56.1 Reply ¶¶ 34, 35.) In both conversations Paine stated that Eilman could be having a bipolar episode. (Def. 56.1 Reply ¶¶ 34, 35.) The City concedes that it had notice that Eilman had been diagnosed with bipolar disorder. (City ADA 56.1 ¶ 2.)
Officers at the facilities where Eilman was detained testified that she was uncooperative, irrational, and refused to answer questions. (Def. 56.1 Reply ¶ 24.) Numerous officers and detention aides described Eilman's behavior as "crazy," "nutty," or "erratic." (Def. 56.1 Reply ¶ 36.) However, they never reported Eilman's behavior to a desk sergeant or watch commander. (Pl. Add. 56. 1 ¶¶ 199, 209-10, 318, 323.) Instead, the lockup personnel harangued Eilman by telling her to:
(1) "shut the fuck up"; (2) "shut the hell up, white bitch, you got the blood - you got the blood all over the cell"; (3) "shut you white ass up! You got blood all over the cell with your nasty ass"; (4) "you crazy white bitch, you nasty bitch, get that nasty shit off my walls"; and (5) "shut your ass up and go to sleep." (Pl. Add. 56.1 ¶¶ 266, 273, 275-76, 289, 329, 346, 359.)
Dr. Craig J. Nelson, an expert psychologist, opined that Eilman was in the midst of a manic episode on May 7th and 8th. (Pl. 56.1 Resp. ¶ 51.) Dr. Joel Dvoskin, also an expert psychologist, opined that Eilman was experiencing a severe manic episode before, during, and after her detention by the Chicago police. (Pl. 56.1 Resp. ¶ 54.) Dr. Nelson opined that during a manic episode, appropriate medical care required hospital admission. (ID Und. 56.1 ¶ 3). Dr. Nelson further opined that Eilman could not have been treated at the Second District lockup. (ID Und. 56.1 ¶ 3).
St. Bernard Hospital, which was the designated intake facility for mental health evaluations for persons in Chicago police custody at the Second District lockup, was less than two miles away from the police station. (Pl. Add. 56.1 ¶ 175.) It takes approximately three minutes to drive from the Second District to St. Bernard. (Pl. Add. 56.1 ¶ 175.) While Eilman was in custody at the Second District, the police provided medical treatment to other detainees by taking them for an evaluation at a hospital. (Pl. Add. 56.1 ¶ 443-48.) Specifically, in the early morning hours of May 7, 2006, another arrestee, Dorsie Tullock, was brought into the Second District lock up. (Pl. Add. 56. 1 ¶ 443-48.) She was transferred to Michael Reese Hospital for medical care at approximately 6:23 a.m., and returned to the Second District lockup at 12:51 p.m. (Pl. Add. 56.1 ¶ 443-48.)
Without ever providing medical treatment to Eilman, the police released her on her own recognizance at approximately 6:30 p.m. on May 7, 2006. (ID Und. 56.1 ¶ 1.) Despite the fact that Eilman was not from Chicago, and that the Second District Lockup was located in a neighborhood of Chicago with an extremely high crime rate, Eilman was released from the lock up with no direction as to how to get out of the area. After she was released, Eilman proceeded through the parking lot of the Second District Station and made her way to JJ Fish Restaurant, located two blocks east of Federal Street at 51st and Wabash, where she asked for a glass of water to take her medication--medication which was presumably not in her possession since it was seized and inventoried at the Second District Station and only sweatpants were returned to her. (Def. 56.1 Reply ¶¶ 439, 449, 490; Pl. 56.1 Resp. ¶ 337.) Individuals who observed Eilman at JJ Fish described her behavior as crazy and that her "head just wasn't right." (Def. 56.1 Reply ¶¶ 449, 453, 454.)
At around 7:00 p.m., Eilman left JJ Fish Restaurant. (Def. 56.1 Reply ¶ 456; Pl 56.1 Resp. ¶ 339.) Outside JJ Fish, Eilman spoke with Robert Kimble and Floyd Fulton ("Fulton") and followed them to the Robert Taylor Homes located at 5135 South Federal. (Pl. 56.1 Resp. ¶ 340-43.) Outside 5135 South Federal, several individuals observed Eilman and thought that she was crazy and that there was something wrong with her. (Def. 56.1 Reply ¶¶ 450, 455.) Eilman then accompanied several young men into the Robert Taylor Homes, to Apartment 702, which was a vacant apartment where people went to sleep or hang out and where a number of people had congregated that evening. (Pl. 56.1 Resp. ¶¶ 343, 348.) Residents of the neighborhood were surprised to see a white girl in the building. (Def. 56.1 Reply ¶ 459.) Some individuals even told Eilman that she should leave the building because it was not safe for her to be there. (Def. 56.1 Reply ¶ 459.)
At some point, Marvin Powell, a.k.a. Red ("Red"), an individual who did not live at 5135 South Federal or in the community, entered Apartment 702, told everyone to leave, and said he was going to "show this bitch who the real killer is." (Pl. 56.1 Resp. ¶¶ 349-51.) Prior to that time, no one had harmed Eilman or tried to force her to do anything, and Eilman had not been the victim of a crime in the several hours preceding Red's entrance. (Pl. 56.1 Resp. ¶ 352, 362.)
When Eilman tried to leave the room, Red pulled her inside and locked the door. (Pl. 56.1 Resp. ¶ 353.) Eilman screamed, and Osman, Jerrell, Timothy and Robert banged and kicked the door trying to help her. (Pl. 56.1 Resp. ¶¶ 354-55.) Red and Eilman were alone in the room. (Pl. 56.1 Resp. ¶ 356.) Red then put a knife to Eilman's neck and told her he "would kill her" if she did not finish a sex act, and Eilman threatened to jump out of the window. (Pl. 56.1 Resp. ¶ 356; Def. 56.1 Reply ¶ 458.) Dr. Nelson opined that Eilman recognized that Red was a threat to her, and knew enough to try to get away and call for help. (Pl. 56.1 Resp. ¶ 363.) Less than five hours after Eilman was released from the Second District lockup, the paramedics were dispatched to 5135 South Federal, where Eilman had fallen out of a seventh floor apartment window wearing nothing but a bra and panties. (Def. 56.1 Reply ¶ 15; Pl. 56.1 Resp. ¶¶ 357, 361.) It is unknown whether she fell, jumped or was thrown from the building.
As a result of her fall, Eilman sustained severe bodily injuries, causing her to be hospitalized at Stroger Cook County Hospital until June 28, 2006, followed by three and a half months of therapy at the Rehabilitation Institute of Chicago and years of rehabilitation. (Def. 56.1 Resp. ¶ 16.) Plaintiff's counsel has informed the Court that she is now able to walk with assistance and speak, although her brain functioning remains at that of a much younger child. Eilman returned home to Los Angeles with her family in mid-October 2006. (Def. 56.1 Resp. ¶ 16.)
During discovery, the City's Police Practices Expert James Kennedy ("Kennedy") stated that the majority of people are not happy about being in lock up, and that it is not unusual for people in lock-up to feign medical problems or ask to see a doctor to be taken away from lock-up. (Pl. 56.1 Resp. ¶¶ 389-90.) Kennedy opined that a person in lock-up does not have to be taken for a mental health evaluation just because they have a possible history of bipolar disorder or make the statement "bitch, feed me." (Pl. 56.1 Resp. ¶¶ 218, 393.) Kennedy also detailed the procedures involved in seeking mental illness treatment for a detainee. When the police transport an individual in their custody to the hospital for mental illness treatment, a police officer is assigned to guard the prisoner. (Pl. 56.1 Resp. ¶¶ 395-96, 398.) At facilities like the triage center at St. Bernard Hospital, an emergency room physician and Community Mental Health Council make a judgment call as to whether that person should be admitted for mental health treatment. (Pl. 56.1 Resp. ¶¶ 395-96, 398.) One way that medical health professionals measure the extent of psychiatric illness is through ability to control one's behavior. (Pl. 56.1 Resp. ¶ 394.) If an arrestee requires psychiatric admission, he or she must be transferred to Cermak Hospital though a complicated, up to two day long process where the police appear in court to secure an order transferring custody to the Cook County Sheriff. (Pl. 56.1 Resp. ¶ 397.) A decision to admit a patient into a psychiatric unit must be endorsed by a psychiatrist. (Pl. 56.1 Resp. ¶ 399.) If the patient is not deemed a risk to herself or others, he or she may be discharged back into police custody or admitted to the psyche unit based on another admission criteria. (Pl. 56.1 Resp. ¶ 400.)
Paine's expert, Dr. Dvoskin, opined that if Eilman would have been taken to a mental health facility and evaluated, she probably would have been kept there, either voluntarily or involuntarily. (Def. 56.1 Reply ¶ 461; Pl. 56.1 Resp. ¶ 368.) If released, she would have been given some type of discharge plan to account for her personal safety, and someone would have likely come to get her and assist her in remaining safe. (Def. 56.1 Reply ¶ 461; Pl. 56.1 Resp. ¶ 368.) Kennedy disagreed with Dvoskin and opined that Eilman might have been released from an emergency room into the Robert Taylor Homes area, or, if she were brought to St. Bernard Hospital, released into a more dangerous area than Robert Taylor Homes. (Pl. 56.1 ...