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Ayoubi v. Dart

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

February 13, 2017

Firas M. Ayoubi #2012-1207168, Plaintiff,
v.
Tom Dart, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Charles R. Norgle, Judge

         Plaintiff Firas Ayoubi, a pretrial detainee confined at the Cook County Jail, brought this 42 U.S.C. § 1983 action against six jail officials and Cook County ("Defendants") asserting they acted with deliberate indifference to Plaintiffs health when inmates contagious with the flu were housed in the same tier as Plaintiff and other uninfected inmates for a period of five days. Plaintiff became ill with a high fever, night sweats, chills, and uncontrollable coughing for two weeks as a result. He contends that Defendants failed to take adequate precautions to ensure that uninfected inmates did not become ill. Currently before the Court is Defendants' motion for summary judgment, to which Plaintiff has responded.

         Also before the Court is Plaintiffs motion to compel discovery, wherein he states additional discovery is needed. Defendants have responded to Plaintiffs motion. For the reasons stated herein, the Court grants Defendants' motion for summary judgment and denies Plaintiffs discovery motion. This case is dismissed. The dismissal is without prejudice to Plaintiff seeking to bring his state-law claims of negligence in state court. The case in this Court, however, is terminated.

         BACKGROUND[1]

         Plaintiff entered the Cook County Jail on December 7, 2012. (Dkt. #126, Defs.' SOF ¶ 1; Dkt. #139, PL Resp. ¶ 1.) At that time, Tom Dart was Cook County Sheriff; Connie Menella was an official for Cermak Health Services (the healthcare provider for jail inmates); John Murphy was acting Executive Director of the Cook County Department of Corrections; Erica Queen was Superintendent of Records, Receiving, and Classification; Tyrone Everheart was Superintendent of Division 5; and Dr. Marghoob Khan was an attending physician of Division 5. (Id. at ¶ 2.)

         When Plaintiff entered the jail, he was first housed in Division 3 for three days. (Id. at ¶ 41.) From December 10, 2012 to January 15, 2013, Plaintiff was housed in Division 5, Tier 2A. (Id. at ¶ 4.) For a period of five days, from December 27, 2012 to January 2, 2013, cells on the upper level of Tier 2A were used to house inmates with influenza-like illness ('TLI") symptoms. (Id. at 8.) The inmates were designated as quarantine or isolation. (Id.) Plaintiff was never housed in a cell with an isolation or quarantine inmate. (Id. at ¶ 21.) Although the record is unclear as to when isolation/quarantine inmates and non-isolation/quarantine inmates were in the dayroom, Plaintiff was never in the dayroom at the same time as isolation/quarantine inmates. (Id. at ¶ 22.)

         Cermak had policies in place specifically addressing the housing of inmates with influenza. (Id. at ¶¶ 11-13.) Inmates who exhibited flu-like symptoms that were contagious by droplet transmission (meaning the illness could be spread through coughing and sneezing) were deemed isolation inmates and could share a cell with another isolation inmate, but not a non-isolation inmate. (Id. at ¶ 12.) Isolation inmates could be housed on the same tier as general population inmates, but isolation inmates were supposed to have their own dayroom and wear masks. (Id.) Quarantine inmates were inmates who did not exhibit flu symptoms (in particular droplet transmissions) but who may have been exposed to a symptomatic inmate. (Id. at ¶ 13.) The same rules applicable to isolation inmates (being housed in a cell with only similarly-designated inmates; using their own dayroom; wearing masks) applied to quarantine inmates. (Id.) Plaintiff does not contest that the above-described policies existed. He does contest, however, if and how those policies were enforced. (Dkt. #139, ¶ 13.)

         The policies are unclear as to whether quarantine and isolation inmates were supposed to have their own dayroom or only their own dayroom time. What is clear is that Plaintiff and isolation/quarantine inmates used the same dayroom but at different times. (Dkt. #126, ¶ 22) (citing Dkt. #126, Exh. B, PI. Depo., pg. 43.) When isolation/quarantine inmates were in the dayroom, Plaintiff was in his cell. (Dkt. #126, ¶ 23; Dkt. #139, ¶ 23, citing Dkt. #138, Exh. A, PI. Depo. at 57) (Plaintiff explains that his cell door is solid steel with a chuckhole in the middle; no glass or other covering is over the chuckhole.) Plaintiff had a toilet in his cell that was not used by any quarantined/isolation inmates. (Dkt. #126, ¶ 25.) Although quarantined/isolation inmates were never in the dayroom or other places at the same time as non-quarantined/isolation inmates, they all used and touched the same surfaces. (Dkt. #126, ¶ 26; Dkt. #139, ¶ 26.)

         Between December 27, 2012 and January 2, 2013, jail sanitation crews sanitized Tier 2A four times. They also sanitized the tier on January 3, 2013, after the isolation/quarantine inmates were moved off the tier. (Dkt. #126, ¶ 28) (citing Exh. D). Plaintiff does not contest whether sanitation crews were on his tier several times during the five-day period isolation/quarantine inmates were there, but he questions what sanitizing an area means, i.e., whether all items and surfaces of common use were wiped down and how well. (Dkt. #139, ¶ 28.)

         Plaintiff became sick about a week after isolation/quarantine inmates were moved onto his tier. He suffered the following: very high fever, extreme uncontrollable coughing, difficulty walking, difficulty talking, uncontrollable shivering, dizziness, and sweating. (Dkt. #126 ¶ 33, citing Exh. B, PI. Depo. at 120, 122); (Dkt. #139 ¶ 33, citing #140 PI. Aff. ¶ 13.) Plaintiff was sick for approximately two weeks. (Dkt. #126, ¶ 34, citing Exh. B, PL Depo. at 123 ("It felt like I was sick approximately two weeks or so."); Dkt. #140, ¶ 13.) Plaintiff does not contend he was denied medical attention while he was sick. (Dkt. #126, ¶ 39; Dkt. #139, ¶ 39.)

         Before Plaintiff was moved to Division 5, he complained he was feeling ill. (Dkt. #126, ¶ 42; Dkt. #139, ¶ 42.) Plaintiff submitted a health request slip four days after he transferred from Division 3 to Division 5 complaining of: "dizziness, nausea, can't sleep, night sweats, chills." (Dkt. #126, ¶ 45, citing Exh. C.) Plaintiff contends his Division 3 illness was different than his Division 5 illness he had a week after his transfer. According to Plaintiff, his symptoms in Division 3 were from cold cell temperatures. He states he began to feel better after the transfer. (Dkt. #139, ¶ 42.)

         Cook County Jail had a grievance system in 2012 and 2013. (Dkt. #126 ¶ 55.) Plaintiff filed a grievance on December 30, 2012, complaining that he was being exposed to isolation/quarantine inmates' illness and requesting that either he or isolation/quarantine inmates be moved out of Tier 2A. (Id. at ¶ 52; Dkt. #139, ¶ 52.) The grievance was construed as a non-grievance request, which was denied. (Dkt. #126, ¶ 58; Dkt. #139, ¶ 58.) Plaintiff received a response on January 8, 2013, which informed him that isolation/quarantine inmates had been moved off Tier 2A. (Dkt. #126, ¶ 53.) Plaintiff did not appeal. (Id.) He attempted to appeal, but officers refused to accept it because an appeal is unavailable from a response to a request. (Dkt. #139, ¶ 53.) According to Defendants, when a grievance is converted into a request and is then denied, an inmate is supposed to submit another grievance and begin the process again. (Dkt. #126, ¶ 58.)

         DISCUSSION

         Defendants' motion for summary judgment argues: (1) Plaintiff cannot establish that he was exposed to or suffered a serious health condition; (2) he fails to present evidence that any Defendant was personally involved with housing isolation/quarantine inmates in Tier 2A or had personal knowledge that these inmates and Plaintiff were being housed in the same tier; (3) Plaintiff cannot establish that Defendants were negligent under state law not only because they are protected by the Illinois Tort Immunity Act but also because the policies about separating inmates with the flu from uninfected inmates demonstrate they fulfilled their duty ...


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