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Hagopian v. Joseph

United States District Court, S.D. Illinois, East St. Louis Division

April 15, 2019

BRANDON HAGOPIAN, Plaintiff,
v.
CAPTAIN JOSEPH, JOHN LAKIN, NURSE MAJOR, NURSE RUSHING, KYLE SHREIBER, OFFICER NICK, JODY COLLMAN, and GARY BOST, Defendants.

          REPORT & RECOMMENDATION

          GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE

         In October 2017, Plaintiff Brandon Patrick Hagopian, through counsel, filed an amended complaint alleging deliberate indifference to his serious medical needs following an incident on December 29, 2015, in which he broke his foot while in custody at the Madison County Jail (Count I). Hagopian also alleged excessive force (Count II) and deliberate indifference (Count III) related to an incident on February 27, 2016, in which he was sprayed with mace, subdued by deputies and suffered a back injury as a result. On April 18, 2019, Defendants moved for summary judgment (Doc. 84). The matter is fully briefed and has been referred to the undersigned by District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). For the reasons delineated below, it is RECOMMENDED that the Court GRANT in part and DENY in part Defendants' motion for summary judgment (Doc. 84).

         Findings of Fact

         1. Count 1: Deliberate Indifference to Hagopian's Foot Fracture

         At all times relevant to his complaint, Hagopian was a pretrial detainee held at the Madison County Jail in Edwardsville, Illinois. On or about December 29, 2015, Hagopian alleges that he slipped and fell while exiting the shower and broke his left foot on the cell bars. (Doc. 84-3). He requested and was given an ice pack by Lieutenant Courts, a member of the jail staff. (Deposition of Brandon Hagopian, Doc. 84-1, p. 2). Hagopian testified that he also requested to see a doctor or a nurse and described his foot as swollen “like a football.” (Doc. 85-2, p. 15).

         On December 30, 2015, Hagopian submitted a sick call slip requesting medical attention. (Doc. 84-3). Defendant Alisia Rushing, a nurse, testified that Hagopian was called for a medical appointment on December 31, but she wrote on the sick call slip that he refused the appointment. (Deposition of Alisia Rushing, Doc. 84-7, p. 2). According to Hagopian, he did not follow-up with the infirmary until the end of January 2016. (Deposition of Brandon Hagopian, Doc. 85-2, p. 6). At that point, he was seen by a doctor and given an x-ray. The radiology report indicated that a non-displaced fracture of the fifth metatarsal could not be excluded. (Doc. 84-9). In addition to receiving the x-ray, Hagopian testified that he was given, at various times, ibuprofen and Flexeril by medical staff. (Doc. 85-2, p. 6-7).

         On January 31, 2016, Hagopian submitted a sick call indicating that his foot was still swollen and bruised after the x-ray. (Doc. 84-10). On February 1, 2016, Hagopian was referred to Dr. Jeniece Stewart for an examination. Dr. Stewart concluded that Hagopian had a non-displaced fracture of the fifth metatarsal. She recommended a post-op shoe for walking, as well as pain medication and ice on an as needed basis. (Doc. 84-11).

         Dr. Stewart examined Hagopian again on February 23, 2016. (Doc. 84-12). She recommended that he continue to use the special shoe and indicated that due to the lack of healing, she recommended a bone stimulator. If the lack of healing continued, Dr. Stewart noted that typically surgery is recommended. She also recommended that Hagopian continue taking ibuprofen for pain and Tramadol as needed. (Doc. 84-12).

         Hagopian saw Dr. Stewart again on March 24, 2016, and they discussed both surgical and nonsurgical interventions. She again recommended that he use a bone stimulator due to the delayed healing of his fracture. Her treatment plan involved a follow-up appointment in six weeks if Hagopian used a bone simulator. If he chose to go the surgical route, she recommended that he follow-up with Dr. Aaron Omotola for a surgical evaluation. (Doc. 84-13). Jail records indicate that several discussions about purchasing a bone stimulator were had during March 2016. (Doc. 84-14). Notes of phone calls to Dr. Stewart's office suggest that Madison County would not pay for the bone stimulator. (Doc. 85-4).

         On April 1, 2016, Hagopian saw Dr. Omotola for a surgical consultation. He recommended conservative management of the fracture with a hard-soled shoe. (Doc. 84-15). Dr. Omotola testified that surgery was an option, but he did not recommend it. While it might have healed his fracture, the risk of infection was “exponential” due to Hagopian's incarceration. His recommended course of treatment was a hard-soled shoe because the location of the fracture should not cause any impairment. Dr. Omotola said that if it was his foot, he would not have surgery on it. (Deposition of Dr. Aaron Omotola, Doc. 84-16, p. 2-3).

         Hagopian did not receive the bone stimulator recommended by Dr. Stewart, nor did he receive surgery on his fracture. Throughout his treatment, Hagopian submitted several grievances, which the parties agree were reviewed and responded to by Defendants David Joseph and Gary Bost. (Doc. 84-2). He alleges that Defendant John Lakin, Sheriff of Madison County, had supervisory control of Defendants Captain David Joseph, Captain Gary Bost, Nurse Major, and Nurse Alisia Rushing, who all participated in denying his written grievances and provided no assistance or treatment to Hagopian other than ice and over-the-counter pain medication. According to Hagopian, this lack of treatment by Defendants Lakin, Joseph, Bost, Major, and Rushing demonstrates their deliberate indifference to his serious medical needs: to wit, his broken left foot.

         2. Counts II & III: Excessive Force & Deliberate Indifference by Deputies and Jail Officials

         On February 27, 2016, Hagopian was involved in an incident with deputies in the Madison County Jail. He was on his way back from a healthcare visit. Hagopian testified that he was talking to another inmate under the door to a different cell block when he was “banged around” and pepper-sprayed by the guards. (Doc. 85-2, p. 11). He acknowledges that it was not normal to lay down to yell to somebody in a different cell block under the cell block door (Doc. 85-2, p. 11).

         Hagopian testified that Defendant Deputy Kyle Schreiber[1] was at the end of the hall as he laid down to yell under the door, and Schreiber told him to get up. Schreiber began “hustling” towards him, telling him to get up again. According to Hagopian, he was in the process of getting up, but was slowed down by his foot injury, and he did not have time to stand before Schreiber ran up and sprayed him. He heard Schreiber tell him to stand up twice and testified that it seemed like only seconds before he was sprayed. (Doc. 85-2, p. 12). According to Hagopian, Deputies Richert, Miller, and Bardelmeier[2] arrived after he was sprayed, stomped on his foot and forcibly smacked his head into the floor, repeatedly jamming his forehead on the floor. (Doc. 85-2, p. 13).

         According to an incident report prepared by Deputy Kyle Schreiber (Doc. 84-22), he was escorting Hagopian back to his cell block after a nurse call. Hagopian stopped at another cell block, A-North, laid on the floor and started yelling under the door at another detainee. Deputy Schreiber instructed Hagopian to get up and go to his cell block, but Hagopian continued to yell under the door. Schreiber again told him to return to his cell block, but Hagopian continued to yell under the door. Schreiber warned Hagopian that if he did not get up, then he would be sprayed with OC spray, which is akin to pepper spray (Doc. 84-22).

         The incident report indicates that Hagopian continued to yell under the door, despite Schreiber's instructions to stop. Schreiber then gave Hagopian a one-second burst of OC spray, at which point Hagopian stood and began to yell obscenities at him. According to Schreiber, Hagopian clenched his fists and squared off in a threatening stance, leading Schreiber to administer another one-second burst of OC spray. Hagopian turned away and started to take off his shirt. Deputies Bardelmeier, Miller, and Richert arrived and grabbed Hagopian. Hagopian was subdued face down on the floor and restrained with handcuffs. Defendants Schreiber, Bardelmeier and Collman[3] escorted Hagopian to the female drunk tank after the incident, where he was given a wet towel and instructions on how to ease the effects of the O.C. spray. (Doc. 84-22; 84-4, p. 10).

         Hagopian denies being warned that he was about to be sprayed, and he claims that each spray burst lasted several seconds. He denies that he stood up and began to yell after being sprayed. He also denies taking a threatening or intimidating stance. (Doc. 85-2, p. 13). He acknowledged taking off one layer of his shirt because it had mace foam on it, but he denied clenching his fists. (Doc. 85-2, p. 13). Schreiber testified that all of the commands and warnings he gave Hagopian, including spraying the O.C. spray, occurred in a ten second period of time. (Doc. 84-5, p. 7).

         Deputy Bardelmeier testified that he remembered Hagopian yelling on the day of the incident. (Deposition of Nick Bardelmeier, Doc. 84-4, p. 4). Deputy Collman testified that he was in the hallway during the altercation, but he was focused on maintaining order among the other inmates while other deputies subdued Hagopian. (Deposition of Jody Collman, Doc. 84-6, p. 6). Bardelmeier testified that he is very sensitive to the OC spray, but he described the use of OC spray as helpful in minimizing the use of force used on a person who is not following instructions. (Doc. 84-4, p. 11). He describes the use of OC spray as less force that putting a knee in someone's back and putting handcuffs on.

         According to Bardelmeier, the deputies followed the force continuum, which calls for going one level of force above what a detainee is doing. If a detainee is not following instructions, as Hagopian allegedly was not, Bardelmeier testified that OC spray would be an appropriate use of force. If an inmate takes a fighting stance while standing, the next step would be for officers to take physical control of him and take him to the ground to be secured, as they did with Hagopian. (Doc. 84-4, p. 12).

         At his deposition, Schreiber described Hagopian as creating a major safety and security risk by shouting under the door to the other cell block. (Deposition of Kyle Schreiber, Doc. 84-5, p. 3-4). Inmates in Madison County Jail do not communicate between different cell blocks, and there is a higher security risk communicating with someone in a different block, such as a risk of interaction between inmates who are to be housed separately to prevent fights or escape attempts. (Doc. 84-5, p. 4-5).

         Jail policy indicates that OC spray should not be used on any inmate who is under control with or without restraints and shall only be used as a last resort. Employees may use force as “reasonably appears necessary, ” but they may not use excessive force. Inmates who have been affected by OC spray are to be given a thorough medical examination and appropriate treatment immediately. (Doc. 85-7, p. 1, 3-4, 6). Deputy Schreiber described a lesser resort as verbal commands, which allegedly did not work on Hagopian. (Doc. 84-5, p. 14). Deputy Schreiber testified that detainees receive medical treatment after being sprayed with O.C. spray. The inmate is told how to relieve the effects of the spray and is given a towel and washcloth so that they can do so. (Doc. 84-5, p. 12).

         On February 27, 2016, Hagopian submitted a sick call slip indicating that he was in unbearable pain from the OC spray incident. (Doc. 84-18). Deputy Schreiber described the sick call process. When deputies are passing out medication, a detainee may request a sick call slip. The detainee must then fill it out and hand it back to a deputy. The deputy will then take the completed sick call slip and put it in the infirmary slot. The medical staff is responsible for putting an inmate on the sick call list. It is the deputies' job to take the detainees to the medical appointment when the infirmary informs them that they are ready. If an inmate refuses, deputies relate that information to the medical staff. (Doc. 84-5, p. 16).

         Hagopian was on Motrin for his foot injury before the OC spray incident, but, in a second sick call slip related to the incident submitted on February 29, Hagopian complained that his dosage had not changed and that he was in more pain after the encounter. A prescription for Flexiril was added, and he was given an x-ray of his lower back on March 1, 2016. (Doc. 84-19). The radiology report indicated a normal lumbar spine series. (Doc. 84-20). Hagopian submitted another sick call on March 1, 2016, complaining that he received a back x-ray but not a neck or foot x-ray. He was called for a nurse call on March 2, 2016, but the sick call slip indicates that he refused the appointment. (Doc. 84-21). Hagopian denies that he ever refused a sick call. (Doc. 85-2, p. 14).

         With respect to the February 27, 2016 altercation and its aftermath, Hagopian claims that Defendants Schreiber, Collman, and Bardelmeier exercised excessive force while under the direct supervision of Defendants Joseph, Bost and Lakin. He also alleges that these Defendants were deliberately indifferent to his health and safety in their use of force against him and after the incident ...


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