May 26, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 11 C 2030 - Jorge
L. Alonso, Judge.
Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
appeal we address a specific piece of evidence that has
divided the judges of the Northern District of Illinois. In a
number of cases, including this one, plaintiffs have asserted
that medical care at the Cook County Jail falls below
constitutional standards as a matter of official policy,
custom, or practice. The evidence question is whether such
plaintiffs may use as evidence the 2008 findings from a U.S.
Department of Justice investigation of health care at the
Jail. The investigation found systemic flaws in the
Jail's scheduling, record-keeping, and grievance
procedures that produced health care below the minimal
requirements of the United States Constitution.
those findings are admissible for the truth of the matters
asserted, they go a long way toward meeting a plaintiff's
burden of proving an unconstitutional custom, policy, or
practice under Monell v. Department of Social
Services, 436 U.S. 658, 694-95 (1978). The Department of
Justice Report is hearsay if used to assert the truth of its
contents, and the district court held that the Report was not
admissible to prove the truth of its findings. But we
conclude it should be admitted under the hearsay exception
for civil cases in Federal Rule of Evidence 803(8)(A)(iii)
for factual findings from legally authorized investigations.
district court granted summary judgment for defendants
because the plaintiff had not offered evidence of an
unconstitutional official custom, policy, or practice. We
determine that he has offered sufficient evidence on summary
judgment, and we therefore reverse and remand.
Factual and Procedural Background
we are reviewing a grant of summary judgment for defendants,
we present the evidence in the record in the light reasonably
most favorable to the non-moving party, plaintiff Alex
Daniel, who in 2010 was a pretrial detainee at the Cook
County Jail. Rahn v. Board of Trustees of Northern
Illinois Univ., 803 F.3d 285, 287 (7th Cir. 2015). On
April 24, 2010, Daniel fell and injured his wrist while
playing basketball. The bone in his wrist suffered multiple
asserts, and an orthopedic specialist agrees with him, that
the treatment of his wrist was disrupted by avoidable delays
that caused permanent damage to Daniel's hand and wrist.
There were delays at first, but the principal concern is that
the Jail and its health care staff failed to ensure that
Daniel's second cast was removed on time. Leaving the
second cast on too long caused permanent damage to his hand
and wrist that was aggravated by a further failure to provide
April 24, the day Daniel was injured, on-duty general
practitioner Dr. Gawo used an elastic bandage and a sling to
stabilize his wrist. This was a temporary solution, of
course, and Dr. Gawo asked for Daniel to see an orthopedic
specialist as soon as possible. On April 30, Daniel had yet
to see an orthopedist. Accordingly, he filed a grievance with
Daniel waited for a response, he finally saw an orthopedist
on May 10, sixteen days after his injury The specialist, Dr.
Mejia, put Daniel in a long arm cast extending from his wrist
to just above his elbow. The cast was the standard treatment
for Daniel's fracture, and Dr. Mejia did not think that
the delay in putting on the cast was improper. Dr. Mejia
wanted Daniel to return in two to three weeks for transition
to a short arm cast. On June 1-the three week mark-Daniel was
placed in the short arm cast. He was instructed to return in
another three weeks. That did not happen; Daniel did not see
an orthopedist for removal of that cast until ten weeks
later, on August 12. That delay is the principal focus of
meantime, on June 11, Daniel received the Jail's reply to
his grievance. The reply said that he had been cared for
properly, and Daniel appealed. "I have swelling in my
fingers and I can barely move them, ' he wrote. The Jail
referred the matter to health administrators.
22, three weeks after the short arm cast was put on, Daniel
saw an unidentified practitioner. That doctor simply noted
that Daniel was awaiting treatment from an orthopedist.
Daniel did not see another doctor until August 3, nine weeks
after his last appointment with an orthopedist. He saw Dr.
Baker, a family practitioner, who wrote that Daniel was still
in the cast and still needed to see an orthopedist. On August
10, Daniel again saw Dr. Baker. Daniel was "scheduled
for ortho last night, " Baker wrote, "but
apparently not taken by security." The doctor expressed
alarm that the cast had not come off yet.
meantime, Daniel had raised his own concerns about the delay.
On July 26, he filed a second grievance: "It's been
3 months [since I broke my wrist] and I have very limited
movement in fingers.... I am not receiving proper medical
care or treatment...." And on August 10, after a
perfunctory reply by the Jail, Daniel appealed again.
"They still haven't removed my cast, " he
wrote, "and I still can't move [my] fingers
on August 12, nearly ten weeks after receiving his short arm
cast, Daniel's cast was finally removed by orthopedist
Dr. Kapotas. In Dr. Kapotas's view, the immobilization
had gone beyond the proper six to eight week window for a
short arm cast. He recommended that Daniel see an
occupational therapist to recuperate and return in a month
for a check-up. That did not happen either. Daniel was
scheduled for a therapy appointment on August 27 but was not
seen by a therapist. He filed a third grievance that day,
saying he could barely move his fingers, could not make a
fist or turn his palm upright, and was experiencing continued
wrist pain. His therapy appointment was rescheduled for
August 30, but that day came and went without Daniel able to
visit the therapist. He was rescheduled for September 6, and
again officials did not take Daniel to therapy.
in late September, the Jail responded to several of
Daniel's grievances. On September 30, in accepting
Daniel's second grievance, the Jail asked its health
administrators to address his issues. On October 4, the Jail
responded to Daniel's third grievance: "patient will
be rescheduled for therapy." He was not, and Daniel
appealed the response to his August 27 grievance to alert the
Jail. On November 9, the Jail denied the appeal, responding
incorrectly: "Per CHS Admin seen/therapy 9/13 - 10/25 -
days before that response, on November 3, Daniel saw Dr.
Kapotas again. At their last appointment on August 12, Dr.
Kapotas had recommended occupational therapy and a check-up
in a month. No therapy had occurred, and the follow-up was
nearly three months after their first meeting. A November 3
x-ray showed that Daniel's wrist had suffered a loss in
density, the onset of arthritis, and abnormal joint spacing.
Daniel would later enlist an orthopedic expert, Dr. Fetter,
to examine his injury in 2013. Dr. Fetter concluded that
Daniel had suffered "residual and permanent stiffness of
his left hand and wrist, " more likely than not caused
by the unduly long cast immobilization.
March 24, 2011, Daniel filed a pro se complaint, though the
district court later recruited counsel for him. In the
operative version of the complaint, Daniel has sued the Cook
County Sheriff's Office, Cook County Sheriff Dart in his
indi- vidual capacity, and Cook County under 42 U.S.C. §
1983 alleging violations of his Fourteenth Amendment due
process rights that parallel, for pretrial detainees, the
Eighth Amendment rights of prisoners to adequate health care.
In support of his claim, he offered evidence from his own
experience, as recounted above. He also presented extensive
testimony from Jail medical staff. And finally, he offered
three additional documents: the 2008 Department of Justice
Report detailing systemic health care problems at the Jail, a
subsequent Agreed Order that incorporated the Report's
findings, and a 2010 Monitor Report that provided a detailed
account of the Jail's progress in remedying the problems.
district court granted summary judgment for the defendants.
This appeal followed. We begin with the merits of
Daniel's Monell claims under § 1983 on our
review of summary judgment, without relying on the three
additional documents arising from the Department of Justice
investigation to prove the truth of their contents. We then
address these additional documents in more detail to
determine if they were incorrectly excluded as hearsay.
Daniel's Monell Claims
The Monell Claim for Inadequate Health Care
individual rights in our Bill of Rights have long been
understood as negative rights, meaning that the Constitution
protects individuals from some forms of government intrusions
upon their liberty, without imposing affirmative duties on
governments to care for their citizens. See DeShaney v.
Winnebago County Deft of Social Services, 489 U.S. 189,
196 (1989). One broad exception to this general principle
applies when the government takes people into its custody so
that they are no longer able to take steps to protect their
own health. Id. at 198-99. The Eighth
Amendment's prohibition on cruel and unusual punishment
requires governments not to act with deliberate indifference
to serious threats to prisoners' health and safety.
Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also
Farmer v. Brennan, 511 U.S. 825, 828-29 (1994);
King v. Kramer, 680 F.3d 1013, 1020 (7th Cir. 2012).
For people like Daniel, in government custody other than
through a criminal conviction, the Due Process Clause of the
Fourteenth Amendment imposes at least as robust a duty on
government custodians. E.g., Rice v. Correctional Medical
Services, 675 F.3d 650, 664 (7th Cir. 2012).
Daniel claims that Cook County and its Sheriff violated their
duties under the Due Process Clause by acting with deliberate
indifference toward his serious health needs as the result of
inadequate customs and practices. The district court granted
the defendants' motion for summary judgment against
Daniel's suit; we review that decision de novo.
Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007).
Summary judgment is appropriate only "where there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law." Id.
damages remedy available under 42 U.S.C. § 1983
establishes a remedial scheme focused primarily on the
responsibilities of individual government employees and
agents. As applied to local governments like Cook County, the
Supreme Court has interpreted § 1983 to bar
respondeat superior liability. Monell, 436
U.S. at 694-95, 707. Most inmates who believe their right to
health care has been violated therefore seek damages from
individual doctors or other health care professionals, or
from correctional staff who might have ignored or interfered
with the inmates' efforts to seek the health care they
need. See, e.g., Glisson v. Indiana Dep't of
Corrections,813 F.3d 662, 668 (7th Cir. 2016) (Wood,
C.J., dissenting), vacated and rehearing en banc
granted (May 24, 2016). In such cases, ...