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Cruz v. Cook County Sheriff's Office

United States District Court, N.D. Illinois, Eastern Division

September 22, 2016

JOSE CRUZ, Plaintiff,


          Robert M. Dow, Jr. United States District Judge

         Plaintiff Jose Cruz (“Plaintiff”) brings suit against the Cook County Sheriff's Office, Dr. Howard, Dr. Gomez, C/O McMunes, Cermak Health Services, Nurse Dunmares, Nurse Pulvirenti, Unknown County Cermak Health Personnel, and Cook County, Illinois for allegedly ignoring his serious medical needs during his incarceration in the Cook County Department of Corrections (“CCDOC”). Defendants Cook County (through Sheriff Tom Dart), Dr. Gomez, and the Cook County Sheriff's Office have waived service of the complaint (see [21], [22], [24]) and Dr. Howard has waived any defenses to the insufficiency of service by filing a responsive pleading. See [36]; see also Shalash v. Mukasey, 576 F.Supp.2d 902, 906 (N.D. Ill. 2008). In this order, the Court will refer to these four defendants collectively as “Defendants.”

         Currently before the Court is Defendants' motion [36] to dismiss Plaintiff's Third Amended Complaint [33].[1] For the reasons set forth below, the Court denies Defendants' motion [36]. In addition, the Court orders Plaintiff's counsel to serve the Third Amended Complaint on (or seek waivers of service from) the remaining defendants (C/O McMunes, Cermak Health Services, Nurse Dunmares, Nurse Pulvirenti, and Unknown County Cermak Health Personnel) no later than October 31, 2016, or the claims against those defendants will be dismissed without prejudice. See Fed.R.Civ.P. 4(m). This matter is set for status on November 15, 2016 at 9:15 a.m. at 9:15 a.m.

         I. Background [2]

         Plaintiff was diagnosed with Attention Deficit Disorder, depression, and hyperactivity in his early childhood. Plaintiff has been hospitalized for his medical condition numerous times over his lifetime. Psychiatrists have noted that Plaintiff's mental state is unstable-resulting in lack of concentration, aggressive behavior, and suicidal tendencies-and have concluded that Plaintiff needs psychological treatment and medication to ensure his well-being.

         Plaintiff has been incarcerated in the CCDOC several times. In July 2010, while incarcerated awaiting trial, Plaintiff requested medical treatment after feeling the onset of a mental episode. After filing several grievances, Plaintiff was eventually evaluated, diagnosed as mentally ill and suffering from attention deficient hyperactivity disorder (“ADHD”), and proscribed with atomoxetine, brand name “Straterra.” However, CCDOC's delivery of the Straterra was problematic and Plaintiff's attorney had to seek the intervention of the court to obtain proper treatment for Plaintiff. Plaintiff attempted to kill himself several times while in CCDOC custody, before he was eventually acquitted and released. Some of Plaintiff's suicide attempts were documented. Plaintiff and CCDOC settled a lawsuit (Case No. 11-cv-630) concerning CCDOC's alleged failure to provide medical treatment to Plaintiff from 2010 to 2011.

         The instant lawsuit concerns Plaintiff's incarceration in CCDOC in 2014. On January 14, 2014, Plaintiff was arrested for trespass, resisting arrest, and damage to a state vehicle. On January 15, 2014, he was incarcerated. He was promptly prescribed a daily dose of 50 milligrams of Straterra to treat his ADHD.

         Plaintiff bonded out of jail. He violated the conditions of his bond and, on April 1, 2014, was again incarcerated at CCDOC.[3] Plaintiff did not receive any medication for approximately two months following his re-incarceration. Finally, Dr. Howard treated Plaintiff and prescribed him 25 milligrams a day of Straterra (half the dose he was prescribed in January). According to Plaintiff, Dr. Howard knew or should of known from his background, education, and experience that the 25 milligram dose was insufficient to be therapeutic for Plaintiff, but “hoped that the small dose . . . would alleviate Defendant Cermak's frequent shortage of the medication and silence Plaintiff's complaints.” [33] at 4-5.

         On May 30, 2014, Plaintiff filed a grievance challenging Defendants' medical indifference and refusal to provide his medication. The grievance and appeal therefrom were denied. On June 25, 2014, Plaintiff went to the dispensary to obtain his medication. He spoke with Nurse Pulvirenti “about the lack of medicine and the adverse consequence to his mental state if he's not medicated, ” but “Plaintiff again did not receive his medication.” [33] at 5. Plaintiff filed a grievance protesting Nurse Pulvirenti's indifference and refusal to provide his medication. The grievance and appeal therefrom were denied.

         On July 8, 2014, Plaintiff used a CCDOC health request form to request a psychiatric evaluation. Plaintiff did not receive an evaluation. He filed grievances in protest on July 9, 2014, July 25, 2014, and subsequent dates, and all of his grievances were denied.

         On August 5, 2014, Plaintiff spoke to Dr. Howard about “the deficiencies in his medication treatment and dosages.” [33] at 6. “Dr. Howard purportedly prescribed Plaintiff medication increasing the dosage to fifty (50) mg of Straterra, ” but “Defendants indifferently and without just cause ignored or failed to properly administer Dr. Howard's prescription.” [33] at 5-6. On August 6, 2014, Plaintiff filed another grievance, which was denied. Plaintiff did not receive the appropriate dosage of his medication.

         On August 11, 2014, Plaintiff notified C/O McMunes that “he was feeling the ill effects of his lack [of] medication and that he needed help in obtaining his medicine.” [33] at 6. C/O McMunes refused to assist Plaintiff and instead ordered Plaintiff to lock himself in his cell. Plaintiff refused and was “handcuffed and escorted . . . off to the jail tier” as he “begged and pleaded to see a mental health care worker.” Id.

         Eventually, Plaintiff spoke with Dr. Gomez. Plaintiff “notified defendant Gomez that he was feeling suicidal along with other ill effects associated with his lack of medication” and “pleaded with defendant Gomez that he needed help in obtaining his psychotic medication.” [33] at 6. Dr. Gomez refused to assist Plaintiff, failed to call other medical personnel, failed to escort Plaintiff to a medical facility within the jail, and failed to adequately document Plaintiff's complaints so that others could assist Plaintiff when Dr. Gomez was off duty.

         On August 12, 2014, “Plaintiff started experiencing difficulties in concentrating and began having suicidal thoughts due to lack of medicine.” [33] at 7. He told C/O McMunes “that he was feeling ill effects due to his lack of medication and that he was experiencing difficulties in concentrating and having suicidal thoughts.” Id. McMunes told Plaintiff, “kill yourself, faggot, ” and prevented Plaintiff from making a “comfort call” to his wife on the telephone. ...

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