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Fluker v. County of Kankakee

United States District Court, C.D. Illinois

May 10, 2013


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For Roy Fluker, Plaintiff: Jay Paul Deratany, LEAD ATTORNEY, Gregory J Olmstead, THE DERATANY FIRM, Chicago, IL; Roosevelt Allen, III, ALLEN FIRM LLC, Chicago, IL.

For Debra Fluker, Plaintiff: Gregory J Olmstead, Jay Paul Deratany, LEAD ATTORNEYS, THE DERATANY FIRM, Chicago, IL; Roosevelt Allen, III, ALLEN FIRM LLC, Chicago, IL.

For County of Kankakee, Defendant: Michael D Bersani, LEAD ATTORNEY, Jason W Rose, HERVAS CONDON & BERSANI PC, Itasca, IL.

For Kankakee County Sheriff's Office, Defendant: Jason W Rose, Michael D Bersani, HERVAS CONDON & BERSANI PC, Itasca, IL.



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This case is a § 1983 action by a prisoner who was seriously injured when the correctional officer driving his prison transport vehicle was required to brake suddenly, causing the prisoner to hurtle forward and hit his head on a metal divider. The case is before the court on Defendants' Motion for Summary Judgment (#63), Plaintiffs' Motion to Voluntarily Dismiss (#69), and Plaintiffs' Objections To and Appeal of Order (#81). Following a careful review of the briefs and evidence filed, Plaintiffs' Motion to Voluntarily Dismiss (#69) is DENIED; Plaintiffs' Objections to Order (#81) are DENIED; and Defendant's Motion for Summary Judgment (#63) is GRANTED.

Factual background

In May 2010, Plaintiff Roy Fluker (" Plaintiff" ) was convicted of federal charges. (#70 ¶ 1). Between February 11, 2011, and July, 2011, Plaintiff was temporarily held in custody at the Jerome Combs Detention Center (" JCDC" ). (#70, ¶ ¶ 2-3). On June 14, 2011, at approximately 4:00pm, after a visit to a doctor's office located off the JCDC grounds, Plaintiff was placed in a transport van to be taken back to the JCDC. (#63, #70 ¶ 9). Officers Matt Meehan and Chantal Montalvo were the two correctional officers transporting Plaintiff; Meehan was the driver, and Montalvo sat in the front passenger seat. (#63, #70 ¶ 10). The back of the transport van contained, among other details not relevant here, two long benches, one of which has six seatbelts. (#63, #70 ¶ ¶ 12-13; #63, Downey Dep. exh. E, pp 56-57). Plaintiff's hands were cuffed in front of him and attached to a chain around his waist, and his ankles were chained together. (#72 ¶ 11). He was seated on one of the benches and was not secured by any seatbelt, even though seatbelts were available. (#63, #70 ¶ ¶ 13). Plaintiff did not request to be seatbelted. (#63, #70 ¶ ¶ 16-17). There is no official JCDC policy on whether inmates should be secured by seatbelt. (#63, #70 ¶ 20). There is neither a policy nor a practice of informing inmates that they may choose to be seatbelted. (#63, #70 ¶ ¶ 20-21). Neither of the parties avers that inmates have previously requested to be seatbelted, but neither party avers that Defendants maintained a policy or practice to refuse to seatbelt inmates. (#63, #70 ¶ ¶ 21-22). Before the incident in question, the Chief of Corrections had discussed the policy of seatbelting inmates and had determined that there were administrative, security, and safety reasons for not mandating seatbelt usage, (#63, #70 ¶ 23), and that the transporting officers had the discretion to determine whether an inmate's request to be seatbelted was to be granted, (#63, #70 ¶ 22). The Chief of Corrections testified that if an inmate requested a seat belt,

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he expected the request would be granted. (#63 ex. E p. 79).

The parties disagree as to whether Meehan was driving too quickly for the road conditions, or whether he was driving erratically. While driving, Meehan braked abruptly to avoid an accident with the car ahead of the van. (#63, #70 ¶ 29). Due to this maneuver, Plaintiff slid off the bench, hitting his head against a metal surface inside the van. (#63, #70 ¶ 34). Montalvo heard a loud thump in the back of the transport van. (#63, #70 ¶ 35). Montalvo turned behind her, (#63, #70 ¶ 35), and due to a metal grating between the driver's seats and the rear holding area, (#63 exh. F), she saw that Plaintiff was bleeding profusely from his head, (#72 ¶ 9). Montalvo told Plaintiff not to move, and to stay down until someone could attend to his medical needs. (#63, #70 ¶ 37). At 4:30pm, within a minute of the incident, Montalvo called her supervisor, Lieutenant Kent Smith, for instructions, while Meehan resumed driving. (#63, #70 ¶ ¶ 39-41). Montalvo had an exchange with Smith, which went as follows:

Montalvo: Hey. Meehan had to stop kind of fast and Mr. Fluker fell and he's bleeding.
Smith: Like did he need stitches?
Montalvo: I don't know. He's bleeding. I can't see him and we're not going to stop. Do you know what I mean?
Smith: All right. When you get here, we'll have Tatum check him out.
Montalvo: All right, bye.

(#73 ¶ 31). The transport van arrived at the jail about 7-10 minutes later. (#63, #70 ¶ 44). Officer Tatum, a trained first responder, first assessed Plaintiff and then cleaned and bandaged the laceration on Plaintiff's head. (#63, #70 ¶ 58). Plaintiff was then transported to Provena St. Mary's Hospital for further evaluation, arriving at 5:11pm. (#63, #70 ¶ 63). Plaintiff was examined via X-ray, CT scan, and MRI. (#63, #70 ¶ 64). Plaintiff was informed that his vertebra had been fractured, and was transferred to Riverside Hospital where he underwent fusion surgery two days later. (#63, #70 ¶ 65).

The JCDC Policy and Procedure Manual contains the following policies:

20. Emergency Procedures:
A. Any emergency encountered while transporting inmates will be handled on an individual basis at the discretion of the Officer handling the transport.
[ * * *]
G. In the event that an inmate requires emergency medical attention during a transport the following will apply:
1) The Officer handling the transport will notify KanCom or ISP of the situation and request backup and an ambulance.
2) When only one Officer is present the Officer will follow the ambulance in the transport vehicle.
3) The Officer handling the transport will then notify the JCDC shift supervisor of the emergency as soon as possible.

(Jerome Combs Detention Center Policy and Procedure Manual 316-Transports, #63 exh. G).

In the middle of July 2011, Plaintiff was transferred out of the JCDC. (#74, p.6; #78, p. 3). In August 2011, he was sentenced to 15 years in a federal penitentiary, (#63, #70 ¶ 4), and is currently incarcerated at Devens Federal Medical Center in Massachusetts, (#63, #70 ¶ 5).

Procedural posture

On September 28, 2011, Plaintiff filed his original complaint in Kankakee County

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Circuit Court, against the County of Kankakee and the Kanakee County Sheriff's Office (collectively, " Defendants" ). (#1). This complaint did not name any individual defendants, but rather referred to Unknown Officer One and Two. (#1). The complaint alleged: (1) one claim of willful and wanton conduct, ostensibly pursuant to state common law, although the complaint does not explicitly indicate so; and (2) one claim of violating Plaintiff's Eighth Amendment rights pursuant to 42 U.S.C. § 1983. (#1).

On October 25, 2011, Defendants removed the case to this court. (#1). On December 5, 2011, Magistrate Judge David G. Bernthal entered a discovery order, which required, among other things, that: pleadings were to be amended by March 9, 2012; additional parties were to be joined by March 9, 2012; fact discovery was to be completed by June 1, 2012; Plaintiff shall disclose experts and provide expert reports by June 15, 2012 and make such experts available for deposition by July 15, 2012; Defendants shall disclose experts and provide expert reports by August 15, 2012, and make such experts available for deposition by September 15, 2012; all discovery, including deposition of experts, was to be completed by September 15, 2012; and all case-dispositive motions were to be filed by October 31, 2012. (#12).

On December 7, 2011, Defendant Kankakee County Sheriff's Office (" KCSO" ) filed its Answer and Affirmative Defenses, (#13), and on the same day, Defendant County of Kankakee (" KC" ) filed a Motion to Dismiss (#14). On December 27, 2011, Plaintiff filed his Reply to Defendants' affirmative defenses, (#16), and a Response to the Motion to Dismiss, (#17).

On March 9, 2012, Plaintiff filed an Amended Complaint, which still did not name any of the individual defendants, but added Plaintiff's wife, Debra Fluker (" Debra" ) and through her, two more claims: (3) loss of consortium from willful and wanton conduct; and (4) loss of consortium from the alleged Eighth Amendment violation, pursuant to § 1983. (#26).

On March 30, 2012, Defendant KCSO filed its Answer to Plaintiffs' Amended Complaint and Affirmative Defenses. (#28). On the same day, Defendant KC filed a Motion to Dismiss Plaintiff's Amended Complaint. (#29). On March 30, 2012, Defendants KCSO and KC filed a Motion to Dismiss Count IV of Plaintiff's Amended Complaint. (#31). Because Plaintiffs' Amended Complaint (#26) superseded his original Complaint (#1), and because Defendants' original Motion to Dismiss (#14) referenced the original Complaint, Magistrate Judge David G. Bernthal found the Motion to Dismiss (#14) to be moot, in a text order on April 13, 2012. On April 20, 2012, Plaintiffs filed another Reply to Defendants' Affirmative Defenses. (#39).

On June 1, 2012, Judge Bernthal filed his Report and Recommendations, recommending that this court grant Defendants' Motion to Dismiss Count IV of Plaintiffs' Amended Complaint, but denying the motion as to the remainder of the Amended Complaint. (#41). On July 25, 2012, this court accepted the Report and Recommendation. (#44). On July 31, 2012, following a joint Motion for Extension of Time to Complete Discovery, (#40), Judge Bernthal granted that Motion by text order, extending the deadline to complete fact and medical discovery to September 14, 2012. On September 6, 2012, Defendant KC filed its Answer to Plaintiff's Amended Complaint and Affirmative Defenses to Counts I-III of the Amended Complaint. (#47). On September 7, 2012, Judge Bernthal entered a text

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order extending Plaintiffs' deadline to disclose experts to September 30, 2012.

On September 7, 2012, Defendant KCSO filed a Motion for Leave to File an Additional Affirmative Defense. (#48). On September 24, 2012, Plaintiffs filed a brief Response, in which the only argument they raised was that " Defendant Kankakee County Sheriff's Office has failed to raise this affirmative defense seasonably and this affirmative defense may be deemed waived under Fed.R.Civ.P. 8(c)." (#49 ΒΆ 2). On October 25, 2012, ...

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