United States District Court, S.D. Illinois, East St. Louis Division
REPORT & RECOMMENDATION
GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE
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).
Count 1: Deliberate Indifference to Hagopian's Foot
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).
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).
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.
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.
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).
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).
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.
Counts II & III: Excessive Force & Deliberate
Indifference by Deputies and Jail Officials
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).
testified that Defendant Deputy Kyle Schreiber 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 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).
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).
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 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).
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).
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.
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).
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,
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).
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).
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).
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 ...