The opinion
vcIN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID MICHON,
Plaintiff,
v.
Case No. 16 C 6104
OFFICER EMILY CAMPBELL
#15492; OFFICER KEITH Judge Harry D. Leinenweber
FUELLING #13618; OFFICER
ERIC OLIVER #8377; OFFICER
RICHARD SCOTT #308; and THE
CITY OF CHICAGO,
Defendants.
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
This case results from an incident of road rage involving the
Plaintiff, David Michon (“Michon”), and a settling Defendant,
Martin Ugarte. The police were summoned to break up the fight and
the incident resulted in the Plaintiff’s arrest for battery and
criminal damage to property. The Plaintiff also sustained a
significant twisting injury to his right knee and lacerations to
his head and face. Plaintiff was transported several miles to the
8th District Police Station on 63rd Street and St. Louis Avenue.
Approximately, four (4) hours elapsed between Plaintiff’s arrest
and his release from custody.
When the police approached him at the scene, blood was
dripping into his eyes from his head laceration. Although he asked
for medical treatment at the scene, he was rebuffed by Defendant
Campbell who told him basically to shut up. While being
transported to the station Plaintiff twice asked Defendant
Fuelling to take him to a hospital. He responded, “leave me out
of it.” At the station Plaintiff had a pronounced limp and was
bleeding from his head. Fuelling, instead of providing medical
attention, told Plaintiff to clean the blood off his face. As he
was doing so he again asked Officers Fuelling, Campbell and an
Officer Oliver to provide him with medical attention. All three
laughed at him and Campbell told him that he would be “lost in the
system,” and remain in custody until after New Year’s Day if he
continued to request medical treatment. He remained in the station
for four to five hours while being processed. As he was being
released from custody he asked for transport to a doctor one last
time. He was told to “get the fuck out.” He left with his personal
belongings, which included his wallet that contained some
“twenties.” He did not have his cell phone because he had left it
in his car which was parked at the scene of the arrest.
He then walked the 2.2 miles to his car, limping badly. He
attempted to board a bus but the driver, seeing him bloody, dizzy,
and limping, drove off. He looked for a cab but did not see one.
He had blood on his clothes and was still bleeding from his head
and was in extreme pain. Ultimately, he reached his vehicle and
drove himself to the hospital.
At the emergency room, x-rays were taken of his knee and his
head was stitched up. He was given medication for pain, given a
knee wrap, and recommendation at discharge that he use crutches
and be followed up by an orthopedic physician. Six days later he
was seen by an orthopedic surgeon, Dr. Thangamani who ordered an
MRI of his right knee. The MRI disclosed a full thickness anterior
cruciate ligament (“ACL”) tear on his right knee along with tears
in his medial and lateral aspects of his right meniscus. He also
sustained a lesion to his medial femoral condyle. One month later
Plaintiff had knee surgery. Even after surgery he is unable to
resume his preinjury work as a union floor layer. According to
Dr. Thangamani he is a candidate for total knee replacement.
II. DISCUSSION
This case is before the Court on Plaintiff’s Second Amended
Complaint which is now only against the City of Chicago and four
police officers. The case has three counts, two against the
officers, including a new one for deprivation of due process, one
for denial of medical care, and a state law count against the City
under the theory of respondeat superior. Defendants have moved
for summary judgment on all counts. The deprivation of due process
count is based on a state created danger theory and the denial of
medical care is based on the Fourth Amendment’s objectively
reasonable standard governing pre-trial detainees.
A. Denial of Medical Care
The Seventh Circuit has identified four factors in
determining whether the officers conduct was objectively
unreasonable. The first is whether the officers had notice of the
arrestee’s medical needs, whether by word or observation. Second,
the seriousness of the medical need, which alone need not be
objectively serious, but is to be balanced on a sliding scale with
the third factor, the scope of the requested treatment. Finally,
the forth factor is the police interests, i.e., administrative,
penological, or investigatory concerns. Williams v. Rodriquez,
509 F.3d 392, 403 (7th Cir. 2007). In addition, the plaintiff
must show that the defendant’s conduct caused the harm complained
of. Ortez v. Chicago, 656 F.3d 523, 530 (7th Cir.2011).
In analyzing the facts of this case, it appears to the Court
that Plaintiff has produced sufficient evidence that the denial of
medical care was objectively unreasonable. First, the officers
had notice of his claimed injuries: He told them over and over
again that he needed medical care, he was bleeding from the head,
and had a noticeable limp. Think back when watching a football
game, and the star running back limps off the field. The first
concern is that he may have suffered a serious knee injury. The
second factor, the seriousness of the need, was also there. While
the officers could not reasonably be said to be on notice that he
had suffered a torn ACL, nevertheless the Plaintiff was painfully
limping and was only asking to be taken to a hospital. He was not
requesting that the police provide him with surgery or a knee
replacement. Finally, there does not appear to have been a police
interest that would have prevented the transportation to a medical
facility. The City’s 30(b)(6) witness testified that under the
Department General Orders, an arrestee who requests medical care
is to receive it if not unreasonable. In addition, the Plaintiff
was being released from custody so there were no safety concerns
to the public. Finally, there are no claimed administrative
concerns, such as lack of manpower. So, a trip to the hospital
would not have caused the department undue hardship.
The final issue is whether the Defendants’ denial of medical
care caused injury to the Plaintiff. The Defendants make much of
the point that Plaintiff suffered the ACL tear during his scuffle
with Ugarte and that the police did not injure him. However, as
Plaintiff points out, having to walk 2.2 miles on an injured leg
cannot be said as a matter of law that he suffered no injury
traceable to that walk. In addition, Plaintiff’s expert witness,
Dr. Chudik, an orthopedic surgeon, testified that walking
activities accompanied by an ACL tear can lead to meniscus tears,
which the plaintiff did suffer. Dr. Thangamani, the orthopedist
who performed the knee surgery, testified that while walking 2.2
miles with a torn ACL would not cause the tear but such a walk
“after a significant injury would temporarily exacerbate the
swelling and pain that he would experience after the injury.” It
will be up to the jury to determine from the evidence, whether or
to what extent any injury the Plaintiff may have sustained as a
result of the failure to provide the requested medical treatment.
The Motion for Summary Judgment as to the denial of medical care
count with respect to Defendants Campbell, Fuelling, and Oliver is
denied. However, Defendant Scott is dismissed. He supplemented
the Motion with his affidavit of non-involvement and the Plaintiff
does not appear to challenge this.
B. The State Created Danger Count
This is a new count added after the Court ruled on the Motion
to Dismiss. The state created danger theory is an exception to
the DeShaney v. Winnebago County, 489 U.S. 189, 197 (1989), rule
that there is no affirmative right to governmental protection, and
it is a narrow one. Doe v. Village of Arlington Heights, 782 F.3d
535, 538 (7th Cir. 2015). The claim depends on an actual danger
created by the state rather than a potential one and is based on
the due process clause. Such claims are rare and normally require
that the state actor turn a potential dangerous situation into an
actual dangerous one. It appears that the paradigm of a state
created danger is the case where the police pick up an obviously
drunk individual who is in a relatively safe area, and then release
him into a known hazardous area. Paine v. Cason, 578 F.3d 500,
511 (7th Cir. 2012).
In this case the charge is that the police did not provide
medical care and released him 2.2 miles from his car without
providing transportation, knowing that he needed to recover it.
Plaintiff had the wherewithal to get to his car without having to
walk. He had money in his pocket. There were many establishments
along the route where he would have access to a telephone to call
a cab or a friend for a ride. While the police officers’ actions
appear (at least in Plaintiff’s version which we rely upon in a
summary judgment proceeding) to have been impolite bordering on
boorish, they nevertheless do not rise to the level of a due
process violation. It should also be recalled that this case
involves the denial of medical care giving rise to a claim under
the Fourth Amendment rather than due process, so that there is
some conflict in providing constitutional protection for the same
conduct under separate constitutional provisions. The court
grants the Motion for Summary Judgment as to the state created
danger claim.
C. Qualified Immunity Claim
With regard to the qualified immunity claim, the right to
medical care is clearly established. Paine at 506. The Court
need not determine whether the state created danger rule was
clearly established under the facts of this case because the court
found that there was no state created danger.
III. CONCLUSION
The Motion for Summary Judgment on behalf of Defendants
Campbell, Fuelling, and Oliver is denied as to the Denial of
Medical Care Count but is granted on the State Created Danger
Claim. Summary Judgment is granted in favor of Defendant Richard
Scott on all counts.
The Plaintiff has lately filed a Motion to Strike some of
Defendants’ Statements of Material Fact. The Court has read the
Motion and finds that it is moot as to the current summary judgment
motion. Accordingly, the Motion to Strike is denied.
IT IS SO ORDERED.
Chttwhe
«Harry D. Leinenweber, Judge
United States District Court
Dated: 1/10/2019
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