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Acosta v. City of Chicago

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

July 31, 2018

Cesar Acosta, Plaintiff,
City of Chicago, et al., Defendants.


          Manish S. Shah United States District Judge

         Plaintiff Cesar Acosta, high on cocaine and marijuana, and with a blood alcohol content nearly three times the legal limit, caused a car accident. He was treated for minor injuries at the hospital and discharged under sedation. About an hour after police officers booked him into the police station lockup, Acosta had a fractured jaw and lacerations on his face and head. His memory of his time in custody is limited, but these wounds were self-inflicted. Acosta brings this action against certain present or former employees of the Chicago Police Department, defendants Mark Timmel, Michele Wilkoszewski, John Ward, David Widmann, and Wilson Fantauzzi, as well as the City of Chicago, for their roles in either causing or exacerbating Acosta's injuries. Defendants move for summary judgment on Acosta's claims. For the following reasons, that motion is granted in part and denied in part.

         I. Legal Standards

         Summary judgment is appropriate if the movant shows 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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th Cir. 2018).

         II. Facts

         Acosta, under the influence of drugs and alcohol, caused an accident involving two other cars. [91] ¶¶ 5-6.[1] He was charged, in relevant part, with driving under the influence and drug possession. [92-11] at 1. An ambulance took him from the scene of the accident to the hospital for medical treatment. [91] ¶ 7. Acosta's blood alcohol level was almost three times the legal limit and his toxicology test was positive for cocaine and marijuana; the hospital staff placed him in soft restraints during his stay. Id. ¶¶ 9, 11-12. After several hours of treatment, the hospital staff discharged him; at that time, he was sedated and calm. Id. ¶¶ 14, 16. Officer Wilkoszewski watched officers escort him from the hospital into the back of the police transport van-Acosta was handcuffed and he walked slowly and quietly. [92-19] at 45:2-46:12. The police transported Acosta from the hospital to the police station in that van.[2] [91] ¶ 17. All Acosta remembers of the transport was being in a wheelchair and not speaking to the police officers. Id. ¶ 21; [83-1] at 27, 120:14-22. Acosta does not remember getting out of the transport van or walking into the police station. [91] ¶ 22; [83-1] at 26, 85:7-21; id. at 27-28, 120:20-121:9.

         Acosta's theory of his case is that he harmed himself during the transport (and again when he was in a police cell).[3] He asserts as a fact that he banged his head against the metal cage in the transport van, see [102] ¶ 3; to support that factual assertion, he cites the Case Incident Report, in which Officer White (who is no longer a party opponent in this case) wrote: “during the transport by CPD to 016 station above began banging his head against the metal cage, ” see [92-8] at 2. Narratives in such reports may contain inadmissible hearsay. See Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). In fact, when White was asked about the source of the information for that sentence, he said that there was “chatter” going on between the officers while walking into the station and that “That's just the way I phrased it for the summary, ” but he could not remember which officers participated in that “chatter, ” nor could he remember who transported Acosta in the van that night. [92-7] at 39:12-41:5. Neither White nor any of the named defendants have personal knowledge as to whether Acosta banged his head in the van. It is undisputed that a CPD Evidence Technician took photos of blood stains in the van as part of her assignment investigating Acosta's injuries while he was in police custody. [102] ¶ 4. Other than the evidence that there were blood stains (of unknown size and placement) in the van, there are no admissible facts that indicate how Acosta was injured in the van, what part of the body was injured, or how extensive the injury was. Nevertheless, an inference can be drawn in Acosta's favor from the stains alone that he was injured during transport.

         Officers Timmel and Wilkoszewski followed the transport van in a separate vehicle from the hospital to the police station; when they arrived at the station, Wilkoszewski saw officers take Acosta out of the van and assist him in walking from the van to the station. Id. ¶ 5; [92-19] at 47:2-48:20. At that time, Wilkoszewski observed that Acosta was handcuffed and that he walked slowly and quietly, with the help of the officers. [92-19] at 47:2-48:20. There is nothing in the record about what Timmel saw when Acosta exited the van; but in his interrogatory responses, Timmel says that sometime before Acosta was discharged from the hospital, he saw Acosta limping and stumbling, and he noticed that Acosta had bruising and cuts on his face. [92-14] ¶ 16; see also [92-4][4]; [92-12] at 2. Additionally, Timmel said that “[o]n information and belief, [Acosta] made numerous general threats of violence during his transport, processing and while in lockup, ” [92-14] ¶ 21, but this is not admissible because it is not based on personal knowledge.

         When the officers escorted Acosta into the station, though, Acosta was twisting, flailing, yelling, and threatening to kill people. [102] ¶ 7. Lockup keeper Widmann observed that Acosta was limping, not handcuffed, and wearing a hospital gown.[5] Id. ¶ 13; [92-2] at 23:23-24:22. Widmann had never seen someone who was as “out of his mind” as Acosta was; Widmann believed that Acosta was highly intoxicated and Widmann was surprised that Acosta was let out of the hospital in such a state. [102] ¶¶ 8-9. Widmann did not believe Acosta should have been in the lockup because Widmann was concerned that Acosta might harm himself. Id. ¶ 9. The officers who transported Acosta to the station did not tell Widmann that Acosta harmed himself in the van during the transport. [92-2] at 64:2-6.

         Lockup keepers are required to conduct an intake questionnaire with each incoming detainee; the questionnaire asks whether the inmate is suicidal, depressed, sick, injured, or intoxicated, among other things. [102] ¶ 36. Answers to these questions help the lockup keepers determine the amount of observation an arrestee needs or if an arrestee needs to be transferred elsewhere. Id. When Acosta was in lockup, however, the lockup keepers never asked him such questions. Id. Instead, the officers immediately escorted him into a cell.[6] Id. ¶ 12; [92-2] at 30:16- 31:3. After locking the cell door, Widmann watched Acosta walk around the cell, attempt to stand on a concrete bench, fall off of the bench, and continue walking around the cell. Id. at 31:1-3, 35:2-36:25. Widmann did not ask anyone to put handcuffs or leg irons on Acosta while he was in the cell, even though they were available, nor did he seek medical care for Acosta at that time. [102] ¶¶ 16, 37. Widmann watched Acosta for a few minutes, and then he returned to the front of the lockup to process another prisoner. Id. ¶ 16.

         When lockup keeper Fantauzzi started his shift, Widmann told him that they had a combative arrestee in a cell, so they both needed to watch him.[7] [91] ¶ 28. At about 9:30 p.m., Widmann went back to check on Acosta again. [102] ¶ 17. About fifteen minutes later, Fantauzzi went back to the cell area to check on Acosta and the other prisoners. Id. ¶ 19. There was nothing that concerned Fantauzzi about his observation of Acosta in his cell at that time, [91] ¶ 33, but he did notice some stitches above Acosta's eyebrow and some dry blood above the stitches. [92-9] at 31:12-23. Soon thereafter, Widmann and Fantauzzi heard noise coming from the cell area, and Widmann went to check on Acosta. [91] ¶ 34. When Widmann arrived at Acosta's cell, Acosta was banging his head against the door and the wall, causing his head to bleed; Acosta also pulled off his hospital gown and he smeared his blood on the wall. Id. ¶ 35. Widmann did not try to stop Acosta from hurting himself because Acosta was in such a state of rage that Widmann felt it was unsafe to open the cell door and interact with him. Id. ¶ 36. Widmann also did not ask Fantauzzi to come back to help. [102] ¶ 24. Instead, Widmann immediately called the front desk to have Sergeant Ward call an ambulance. [91] ¶ 35, [92-2] at 47:18-19. Within moments, Sergeant Ward appeared in the lockup with Acosta's attorney, Nicholas Kournetas.[8] [92-2] at 47:13-22; [83-1] at 85, 41:22-42:11. Then, Widmann, Fantauzzi, Ward, and Kournetas walked back to Acosta's cell. [83-1] at 85, 42:11- 16.

         Kournetas observed that Acosta was unresponsive, incoherent, and naked; he also saw blood on the cell wall and floor. [102] ¶ 33. Given that Acosta was not in a state that warranted release from the cell, Ward only permitted Kournetas to talk to Acosta through the cell door. Id. ¶ 32. The only memory Acosta has of his time at the station that night was this brief moment when he was “laying [sic] in a corner, naked, with a blanket, ” and he looked up and saw his attorney's face. [91] ¶ 22; [83-1] at 26, 85:7-21; id. at 27-28, 120:20-121:9. Unable to facilitate a productive attorney-client meeting, Ward escorted Kournetas out of the lockup and he called for an ambulance. [91] ¶ 40. Kournetas remembers telling an officer that the police should call the hospital because Acosta needed medical attention. [92-6] at 30:15- 19. He does not remember what the officer said in response.[9] Id. at 30:20-31:4. Fantauzzi did not open the door to try and render aid to Acosta because he was under the impression that the ambulance was on the way, [91] ¶ 37, and Ward never directed Fantauzzi or Widmann to administer any sort of aid to Acosta. [102] ¶ 29.

         The Chicago Fire Department dispatched an ambulance at 10:28 p.m., [91] ¶ 41; the ambulance arrived at the station at approximately 10:33 p.m. Id. ¶ 43. White also arrived at the station to escort Acosta to the hospital with the paramedics. [102] ¶ 38. Acosta was extremely combative with the paramedics, which limited their ability to assess and care for him. [91] ¶ 43. At approximately 10:41 p.m., the ambulance left the police station with Acosta, and less than ten minutes later, it arrived at the hospital. Id. ¶¶ 44-45. The hospital staff treated Acosta for the second time that evening; he was combative with them too, because he did not want to be there. Id. ¶ 45. During the second visit, Dr. Barrick began Acosta's treatment, but at some point during the hospitalization, Dr. Collier took over Acosta's treatment. [92-4] at 53:2-55:6. The diagnoses from the second visit included a closed fracture of an unspecified part of the ramus mandible, a facial laceration, and a scalp laceration. Id. at 53:8-55:11. Dr. Collier did not see any reference to a facial or scalp laceration in the notes concerning Acosta's first visit; but, Dr. Collier explained that the notes from the first visit did not refer to an observation of any trauma to Acosta's head, face, or neck-other than some abrasions around Acosta's mouth. Id. Once Acosta was released from police custody, he received treatment at Advocate Illinois Masonic where he received additional diagnoses of an ankle fracture and cranial facial fractures. [102] ¶ 40. Acosta has no memory of how these injuries occurred. [91] ¶ 46; [83-1] at 20, 49:10- 12.

         Acosta dismissed certain counts and defendants from this action, [81] at 1; [90] at 25, and the following counts remain: Counts I and II are against defendants Timmel, Wilkoszewski, Ward, Widmann, and Fantauzzi for endangering Acosta while he was in custody, in violation of 42 U.S.C. § 1983; Count III is against these same officers for failing to provide medical attention in violation of § 1983; Count IV is against the officers for failing to intervene in violation of § 1983; Count V is against the City of Chicago for willful and wanton negligence (but the parties treat it as a claim against the individual defendants); Count IX is an indemnification claim against the City of Chicago; and Count X is a respondeat superior claim against the City of Chicago for state-law claims against the defendant officers. See [69].

         III. Analysis

         A. Counts I and II: Endangerment

         Acosta argues that defendants violated his substantive due process rights by endangering him while he was in their custody. The due process clause does not provide an affirmative right to governmental aid; it aims to protect the people from the government, but it does not ensure that the government protects people from each other. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015) (quoting DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989)). When state actors ...

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