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Hagopian v. Joseph

United States District Court, S.D. Illinois

June 18, 2019




         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 109) of Magistrate Judge Gilbert C. Sison recommending that the Court grant in part and deny in part the defendants' motion for summary judgment (Doc. 84), leaving only parts of each count for trial. Plaintiff Brandon Hagopian (Doc. 114) and the defendants (Docs. 115) have objected to the Report.

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         The Court will discuss the Report and the parties' objections by count.

         I. Count I

         In the remaining parts of Count I, Hagopian sues defendants Lakin, Bost, Joseph, Rushing, and Major for deliberate indifference to medical needs presented by Hagopian's broken foot that occurred on December 29, 2015, but for which he did not receive medical treatment and evaluation until late January 2016. There is a dispute of fact over why this was. The defendants claim Hagopian had a medical appointment scheduled for December 31, 2015, but he refused to go; Hagopian claims that his supposed refusal was a fabrication of a correctional officer. Thereafter, Hagopian received medical treatment, including several visits to an outside orthopedic specialist, but not always the treatment recommended by the doctors who saw him such as, for example, a bone growth stimulator or surgery.[1]

         Magistrate Judge Sison recommends granting summary judgment for all defendants except Bost and Joseph in their individual capacities on the grounds that there is no evidence of their personal involvement. Hagopian objects to the Report's recommendation to grant summary judgment for Lakin, Bost, and Joseph in their official capacities, and the defendants object to the Report's recommendation to deny summary judgment to Bost and Joseph in their individual capacities. The Court addresses each of these objections in turn.

         A. Hagopian's Objection

         Magistrate Judge Sison correctly identified Hagopian's official capacity claims against the sheriff in his official capacity as claims pursuant to Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), [2] Under Monell a local government body such as a sheriff may not be held liable under § 1983 on a respondeat superior theory, but may be liable if its official policy or custom violates a plaintiff's constitutional rights. Id. at 690-91. Such a policy may exist if (1) the municipality had an express policy calling for constitutional violations, (2) the municipality had a widespread practice of constitutional violations that was so permanent and well settled as to constitute a custom or usage with the force of law or (3) a person with final policymaking authority for the municipality caused the constitutional violation. Id. at 694; McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000).

         With respect to the supposed widespread practice of correctional officers falsifying inmate refusals to attend medical appointments, Magistrate Judge Sison found there was insufficient evidence of any widespread practice. He noted there was only evidence that refusals were falsified twice, both times involving Hagopian. This is not enough to show a practice that was so widespread, permanent and well settled that it in effect constituted a custom or usage with the force of law. See Daniel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016) (noting inmate may carry his burden of showing official policy by pointing to a general pattern of repeated behavior, not just an isolated event); Wilson v. Cook Cty., 742 F.3d 775, 780 (7th Cir. 2014) (“Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident-or even three incidents-do not suffice.”). While there is evidence in this case of more than a single instance of falsifying a refusal to attend a medical appointment, the evidence shows only two instances, still not enough to establish a pattern of repeated behavior so widespread as to constitute a custom or practice of the Sheriff's Department with the force of law.

         In his objection, Hagopian also suggests his own lack of medical treatment between the time of his injury and his eventual care in late January establishes a widespread pattern. However, his own experience of inadequate medical treatment for a one-month period again is not sufficient to allow a reasonable jury to find a widespread practice. A plaintiff claiming a municipal policy violated his constitutional rights “must do more than simply rely upon his own experience to invoke Monell liability.” Estate of Perry v. Wenzel, 872 F.3d 439, 461 (7th Cir. 2017), cert. denied, 138 S.Ct. 1440 (2018) (citing Daniel, 833 F.3d at 734). If any individual defendants were responsible for Hagopian's inadequate medical treatment, they may be liable in their individual capacities, but on the record before the Court, the Sheriff in his official capacity may not.

         For these reasons, the Court will overrule Hagopian's objection and will adopt the portion of the Report granting summary judgment on Count I for Lakin, Bost, and Joseph in their official capacities.

         B. Defendants' Objection

         The defendants object to Magistrate Judge Sison's recommendation to deny summary judgment for Bost and Joseph in their individual capacities. Magistrate Judge Sison found that Bost and Joseph were aware of Hagopian's allegedly ineffective medical treatment because they received and responded to grievances about that treatment. He concluded that a reasonable jury could find they were responsible for any inadequate treatment because they failed to act in response to the grievances. The defendants argue that they were not personally involved in Hagopian's medical treatment and permissibly relied on medical personnel to provide appropriate treatment.

         “[I]ndividual liability under § 1983 . . . requires personal involvement in the alleged constitutional deprivation. The plaintiff must demonstrate a causal connection between (1) the sued officials and (2) the alleged misconduct.” Colbert v. City of Chi., 851 F.3d 649, 657 (7th Cir. 2017) (internal quotations and citations omitted), cert. denied, 138 S.Ct. 657 (2018). An official is personally involved if he knows about the unconstitutional conduct and facilitates, approves, condones or deliberately turns a blind eye to it. Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006). Simply ruling on a prison grievance about an alleged constitutional violation does not necessarily cause or contribute to the violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). However, where an official learns from a detainee's grievance or other correspondence that the detainee is being deprived of a constitutional right, the failure to exercise his authority to investigate and/or address the situation may be sufficient to establish the official's personal involvement in the wrong. Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015). Nevertheless, a nonmedical official may defer to the judgment of medical professionals so long as he did not ignore the plaintiff and had no reason to believe the plaintiff was not receiving adequate care. McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).

         Here, Hagopian stated in numerous grievances from February 2016 to May 2016 that he continued to experience extreme pain and wanted surgery and/or the bone growth stimulator recommended by an outside orthopedic doctor. Joseph (and/or some other unknown person who did not sign the responses) consistently responded that the jail medical staff was following the care instructions provided by the orthopedic doctor, was waiting for a report from Hagopian's visit to the orthopedic doctor before deciding how to proceed, was weighing whether to provide surgery, and had scheduled follow-up visits as directed by the orthopedic doctor. Joseph directed Hagopian to use the jail's sick call procedure for pain until his next orthopedic appointment, and informed Hagopian that the jail doctor was going to increase his medication in response to his complaints of pain. Joseph eventually responded to Hagopian's complaints about not getting a bone grown stimulator by telling him it would not be provided because the orthopedic surgeon had not recommended it, instead recommending conservative treatment with a special shoe and pain medication.

         The responses to Hagopian's grievances show the responding officials did a good job of inquiring of the jail's medical personnel about the status of Hagopian's case and how his treatment was expected to progress. However, Hagopian continued to complain of extreme pain, even after the jail medical personnel increased his pain medication. The Court believes a reasonable jury could conclude that Hagopian's continued complaints of extreme pain should have been an indication to Bost and Joseph that Hagopian might not have been receiving adequate treatment and that they should have used their authority to insist that the medical team do a better job of treating his pain or its underlying cause. For this reason, the Court agrees with Magistrate Judge Sison that Bost and Joseph should remain in Count I in their individual capacities.

         C. Unobjected to Parts of the Report

         The Court has received no objection to the Report's recommendation as to the other parts of Count I. The Court has reviewed the Report for clear error in those regards and, with one exception, finds none. That exception is the Report's explanation of the standard applicable to pretrial detainees' claims of inadequate medical care. Historically, the Court has applied to pretrial detainees the Eighth Amendment test for deliberate indifference to the health needs of convicted prisoners. See Miranda v. County of Lake, 900 F.3d 335, 350-51 (7th Cir. 2018); Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015). The test for an Eighth Amendment violation has two components, an objective and a subjective one. Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the need about which the inmate complains must be objectively serious. Id. Second, the defendant must have a sufficiently culpable state of mind, that is, he must at a minimum be deliberately indifferent. Farmer, 511 U.S. at 834. He is deliberately indifferent if he “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. That is the standard set forth in the Report with respect to Hagopian's medical claims.

         The application of the deliberate indifference standard was called into question by the Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015). In Kingsley, a pretrial detainee sued for excessive force, and the Supreme Court held that the appropriate standard for a pretrial detainee plaintiff's claim was whether the officers' purposeful or knowing use of force was objectively ...

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