ESTATE OF AMON PAUL CARLOCK, JR., Deceased, by Mary L. Andreatta-Carlock, Executor, Plaintiff,
NEIL WILLIAMSON, AS SHERIFF OF SANGAMON COUNTY; ANTHONY SACCO, CHIEF DEPUTY; TERRY DURR, JAIL SUPERINTENDENT; WILLIAM STRAYER, ASSISTANT JAIL SUPERINTENDENT; LT. RON BECKNER, ADMINISTRATOR OF SANGAMON COUNTY JAIL; LT. CANDACE CAIN; LT. TAMMY POWELL; SGT. TODD GUY; CO KEVIN FURLONG; NURSE LEE ANNE BRAUER, R.N.; NURSE NIECEY WEST, L.P.N.; NURSE LUCY RAMSEY, L.P.N.; JOSEPH MAURER, M.D.; CHAUNCEY C. MAHER, III, M.D. and SANGAMON COUNTY, Defendants.
SUE E. MYERSCOUGH, District Judge.
On October 9, 2007, Anon Paul Carlock was discharged from St. John's Hospital to the Sangamon County Jail. At that time, Carlock was in stable condition, although he had chronic medical conditions including diabetes, obesity, and depression. On November 16, 2007, Carlock left the Sangamon County Jail on a stretcher, not breathing and without a pulse. He had lost approximately 30 pounds. He had numerous broken ribs, abrasions, contusions, and two broken front teeth. He was also suffering from acute renal failure and lithium toxicity. Carlock was pronounced dead at the hospital. What happened during those 39 days in jail is in dispute.
Defendants argue they are entitled to summary judgment on the claims. See Defendant Dr. Joseph Maurer's Motion for Summary Judgment (d/e 390); Defendant Dr. Chauncey Maher's Motion for Summary Judgment (d/e 396); Defendant Todd Guy's Motion for Summary Judgment (d/e 405); and the Motion for Summary Judgment filed by Defendants Ron Beckner, Lee Anne Brauer, Candace Cain, Terry Durr, Kevin Furlong, Tammy Powell, Lucy Ramsey, Anthony Sacco, William Strayer, Niecy West, and Sheriff Neil Williamson (these defendants and Defendant Guy are hereinafter referred to as the County Defendants). Given the factual disputes, Defendant Guy, Dr. Maurer, and Dr. Maher's Motions for Summary Judgment (d/e 390, 396, 405) are DENIED. The remaining Defendants' Motion for Summary Judgment (d/e 407) is GRANTED IN PART and DENIED IN PART. Defendants Williamson, Sacco, Durr and Strayer are entitled to summary judgment on Count I because Plaintiff has pointed to no evidence supporting why those defendants should be liable.
The Court has read the pleadings, all of the documents submitted, and has held oral argument on the Motions. While the Court need only consider the material cited by the parties, the Court may, and did in this case, consider other materials in the record. See Fed.R.Civ.P. 56(c)(3).
As an initial matter, all of the motions to strike are denied. Although some of the expert's reports submitted by Plaintiff were not sworn, their sworn depositions were also part of the record. See Loeffel Steel Products, Inc. v. Delta Brands, Inc. , 379 F.Supp.2d 968, 984 (N.D. Ill. 2005) (wherein the court found the expert's unsworn report inadmissible but relied on the expert's deposition testimony when considering the summary judgment motion).
James McLemore's Affidavit is also adequate. See Fed.R.Civ.P. 56(c)(4) (affidavits must be made on personal knowledge, set forth admissible facts, and show the declarant is competent to testify on the matters stated). A witness may testify about his observations regarding another person's condition. See Watson v. Allen Cnty. Sheriff's Officers, 2013 WL 4540597, at *4 (N.D. Ind. August 27, 2013). McLemore's Affidavit admittedly contradicts some of the facts Plaintiff admitted were undisputed and that simply adds to the questions of fact remaining in this case.
The Court also finds that Carlock's status as a federal detainee does not render § 1983 inapplicable. See Belbachir v. County of McHenry, 726 F.3d 975 (7th Cir. 2013) (finding that where "the contract did not federalize McHenry County Jail, which continued to house nonfederal as well as federal prisoners, " the claim was properly brought under §1983); Lewis v. Downey , 581 F.3d 467, 471 n. 3 (7th Cir. 2009) (noting the issue in a footnote and refusing to decide it but also expressing doubt that the contractual relationship between the federal government and a local correctional facility to house federal inmates "does anything to change the status of county jail employees as state actors.") (emphasis omitted.)
Finally, the appropriate standard governing the § 1983 excessive force and medical treatment claims is the Fourteenth Amendment. The Fourth Amendment standard applies to claims up to the point of the judicial determination of probable cause. Lopez v. City of Chicago , 464 F.3d 711, 719 (7th Cir. 2006). The Fourteenth Amendment applies to the period in between a judicial determination of probable cause and conviction. See Smith v. Sangamon Cnty. Sheriff's Dep't , 715 F.3d 188, 191 (7th Cir. 2013) (Fourteenth Amendment applies to pretrial detainees). In this case, Carlock was arrested pursuant to an arrest warrant on October 9, 2007. See United States v. Carlock, 07-30111. Therefore, the Fourteenth Amendment standard applies to Plaintiff's § 1983 claims. While the appropriate standard for an excessive force claim under the Fourteenth Amendment is unclear, this Court has generally followed Wilson v. Williams , 83 F.3d 870, 875 (7th Cir. 1996) (noting that the appropriate standard is neither wholly objective nor wholly subjective; a plaintiff must prove deliberate indifference but the court must also examine whether the officials behaved in a reasonable way in light of the facts and circumstances).
A. Questions of Fact Preclude Summary Judgment on Count I (Excessive Force)
Questions of fact preclude summary judgment on the excessive force claims against Defendants Cain, Powell, Guy, Furlong, and Beckner. Taking the evidence and inferences in the light most favorable to Plaintiff, the facts pertaining to the November 16, 2007 incident show that Carlock was not combative and/or had been subdued when the officers continued to apply force. See McLemore Affidavit; evidence pertaining to Carlock's medical condition; see also Abdullahi v. City of Madison , 423 F.3d 763, 772 (7th Cir. 2005) (finding that the decedent's "undisputed attempts to squirm' or arch his back upward while he was being restrained may not constitute resistence at all, but rather a futile attempt to breathe while suffering from physiological distress akin to drowning'"). Medical and circumstantial evidence is sufficient to create triable issues of fact in excessive force cases. Abdullahi , 423 F.3d at 772 (finding that the officer's assertion that he merely put enough pressure on the decedent to stop him from squirming was not the only account of the incident where the medical evidence showed the individual suffered injuries consistent with extreme external pressure); see also Plakas v. Drinski , 19 F.3d 1143, 1147 (7th Cir. 1994) ("The award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify").
Moreover, Defendants Cain, Powell, Guy, Furlong, and Beckner are not entitled to qualified immunity on summary judgment. It was clearly established on the day Carlock died that an officer cannot continue to use force on a person who is not resisting or who is subdued. Abbott v. Sangamon County, Ill. , 705 F.3d 706, 732 (7th Cir. 2013) (holding that it was clearly established on June 25, 2007 that a police officer could not use significant force on a nonresisting or passively resisting suspect) (citing cases involving various uses of force including grabbing, throwing, and shoving); Lewis, 678 F.3d at 528-29 (clearly established in 2006 that a taser could not be used against a prone, weakened, and docile prisoner who had been told to rise once, was not given a chance to respond, and was not warned that he would tased if he did not rise).
In addition, drawing all reasonable inferences in Plaintiff's favor, Carlock was obviously seriously ill, was being taken to the hospital, and the officers should have known that holding him in the prone position could cause his injury or death. The law governing excessive force claims was clearly established on November 16, 2007 that compressing the lungs of an obviously vulnerable person might kill him. See Richman v. Sheahan , 512 F.3d 876, 882-83 (7th Cir. 2008) (involving incident that occurred on November 18, 2007 when officers attempted to remove the decedent from the courtroom and relying on cases from as long ago as 1996 under the Fourth Amendment standard and 2002 under the Eighth Amendment standard when finding that a reasonable officer would know that compressing the lungs of a morbidly obese person might kill him).
As to the two October 16, 2007 incidents involving Defendants Guy and Powell, Plaintiff admitted the facts alleged by those Defendants which show that Carlock was combative. However, no warning was given prior to the use of the taser. See Forrest v. Prine , 620 F.3d 739, 745 (7th Cir. 2010) (noting the officer warned the plaintiff several times that noncompliance would result in tasing); Lewis , 581 F.3d at 479 (noting that prior case law made it clear that the use of chemical agents should generally follow adequate warnings). Certainly, situations can arise that justify the immediate use of a taser without the benefit of a warning. Lewis , 581 F.3d at 478 ("In a jail or prison setting, it is not hard to imagine any number of scenarios that would justify the ...