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Abbott v. LeMarr

United States District Court, S.D. Illinois

February 15, 2018

JAMES ABBOTT Plaintiff,
v.
DEPUTY LeMARR, et. al., Defendants.

          REPORT AND RECOMMENDATION

          Hon. Reona J. Daly United States Magistrate Judge

         Now pending before the Court is the Motion to Dismiss Count II, or, in the Alternative, Motion for Summary Judgment as to Count II filed by Defendants LeMarr and Tassone on April 20, 2017 (Doc. 20). The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law and that Defendants' Motion be GRANTED IN PART and DENIED IN PART.

         Findings of Fact

         Plaintiff James Abbott, a former pretrial detainee at the Madison County Jail (“the Jail”), filed this pro se civil rights action pursuant to 42 U.S.C. §1983 alleging his constitutional rights were violated while he was detained at the Jail. In particular, Plaintiff brings this action against Deputy LeMarr, Deputy Lt. Hill, and Deputy Tassone alleging he was not protected from attack from another inmate and that his injuries were not adequately treated. Plaintiff's complaint underwent an initial screening pursuant to 28 U.S.C. §1915A and the Court allowed Plaintiff to proceed on the following two counts:

         Count One: Claim against Hill and LeMarr for failing to protect Plaintiff from the attack by inmate Cole, Count Two: Claim against LeMarr and Tassone for failing to obtain prompt medical treatment for Plaintiff after the attack.

         In support of the first count, Plaintiff alleges he was attacked by inmate Cole on February 23, 2016. Plaintiff claims he was placed in a choke-hold and his head was rammed into a metal bar causing a laceration on his head. Plaintiff asserts he informed LeMarr and Hill about Cole's threats against him, yet they failed to take any steps to protect him from an attack.

         In support of the second count, Plaintiff alleges Defendant LeMarr was aware of a sizeable gash on his head, but initially did nothing to help Plaintiff and made him wait for an undetermined period of time before he summoned Hill and Tassone. Plaintiff states that Tassone took him to the infirmary, but decided not to take Plaintiff to the hospital for treatment, despite Plaintiff's claim that stitches were required to close the wound.

         In response to Plaintiff's Complaint, Defendants filed a motion to dismiss (Count II), or in the alternative, a motion for summary judgement as to Count II (Doc. 20). In particular, Defendants argue Plaintiff's complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, as Defendants attached an affidavit of Nurse Martha Major in support of their arguments, Defendants request that the motion to dismiss be converted to a motion for summary judgment. Plaintiff did not file a response to Defendants' motion.

         Attached to Defendants' Motion is the Affidavit of Martha Major (Doc. 20-1), a licensed registered nurse employed at the Madison County jail infirmary. According to the affidavit, on February 23, 2016, at approximately 2140 hours, Plaintiff informed jail staff that he had suffered a seizure and that he was bleeding from the top right side of his head (Doc. 20-1 at 2). Plaintiff then changed his story and informed jail staff that he had been involved in an altercation with another detainee (Id.). Plaintiff was then escorted to the jail infirmary to clean and apply a steri-strip to the cut on the top of his head (Id.).

         On February 24, 2016, Plaintiff was evaluated by jail staff (Id. at 3). During the evaluation Plaintiff complained of right hand pain, as well as left jaw pain (Id.). However, medical staff noted in the medical record that neither Plaintiff's right hand nor jaw showed signs of swelling (Id.). It was noted by medical staff that Plaintiff had a 1 ½ inch laceration on the side of his head, which Plaintiff asserted was the result of the altercation with another detainee (Id.). Based on Plaintiff's complaints, Plaintiff was given Tylenol, which is a pain reliever (Id.). During the examination, Plaintiff admitted to medical staff that he lied about having seizures (Id.). Based on Plaintiff's complaints of hand pain and jaw pain, x-rays of Plaintiff's hand and skull were ordered (Id.). On February 24, 2016, Plaintiff's right hand was x-rayed (Id.). The Radiology Report reflects that there was no fracture or dislocation, and no acute osseous abnormality (Id.). On February 24, 2016, Plaintiff's skull was also x-rayed (Id.). The Radiology Report reflects no fractures or abnormalities (Id.).

         Conclusions of Law

         Defendants filed their motion to dismiss pursuant to Rule 12(b)(6); however, Defendants attached the affidavit of Nurse Martha Major in support of their motion and asked the Court to convert their 12(b)(6) motion into a motion for summary judgment under Rule 56. Importantly, when a party attaches a document to a motion to dismiss, Rule 12(d) prescribes that the court must either convert the 12(b)(6) motion into a motion for summary judgment, or exclude the documents attached to the motion to dismiss and continue its analysis under Rule 12. Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998); see also Fed. R. Civ. P. 12(d). Importantly, the district court ultimately has discretion in determining whether to convert a motion to dismiss into a motion for summary judgment. Levenstein, 164 F.3d at 347 (citing Venture Associations Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993)). The Court exercises its discretion and converts Defendants' motion into a motion for summary judgment, pursuant to Rule 12(d), in order to consider the attached affidavit.

         Summary judgment is appropriate only if the moving party can demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In assessing a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).

         Plaintiff was a detainee awaiting trial at the time of the incident, therefore his claims arise under the Fourteenth Amendment and not the Eighth Amendment. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000). Nonetheless, the Seventh Circuit has “found it convenient and entirely appropriate to apply the same standard to claims arising under the Fourteenth Amendment (detainees) and Eighth Amendment (convicted prisoners) ‘without ...


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