Jackson v. Sheriff of Winnebago County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

BETTYE JACKSON, as Independent )

Administrator of the Estate of Eugene )

Washington, Deceased )

)

Plaintiff, ) No. 3:20-cv-50414

)

v. )

) Judge Iain D. Johnston

)

SHERRIFF OF WINNEBAGO COUNTY, )

ILLINOIS, in his official capacity, and )

JEFF VALENTINE, Individually and as )

Agent, )

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Bettye Jackson, as the administrator of the estate of the decedent

Eugene Washington, brings this action under 42 U.S.C. § 1983 against the Sheriff of

Winnebago County and Jeff Valentine. In Count I, Plaintiff invokes the Fourteenth

Amendment and claims that Defendants deprived Washington of his civil rights

while he was a pretrial detainee in the Winnebago County Jail and claims that this

deprivation led to Washington’s death. Dkt. 20. Counts IV and V are brought under

state law for wrongful death and a Survival Act claim.1 Defendants now bring this

motion for summary judgment. Dkt. 43.

1 Count II was voluntarily dismissed. Dkt. 42. There was no Count III pled.

I. Background

The following background is taken from the parties’ Local Rule 56.1

statements of undisputed material facts. Dkt. 45, Dkt. 49. In the Winnebago

County Jail (“the jail”), between the hours of 10:30PM to 6:00AM inmates are

placed on lockdown, and during that period an assigned jail officer monitors the

cells remotely from the “Floor Control Desk”. Def. SOF, Dkt. 45, at 6. At least

one officer is required to be present at the Floor Control Desk at all times. In

addition to the remote monitoring, other officers conduct rounds in the cell

blocks every thirty minutes. During this period, if inmates are unable to get the

attention of officers conducting rounds, the only official way for them to contact

officers is to press an emergency intercom button located in each cell that

connects them with the officer stationed at the Floor Control Desk. The intercom

system is intended for emergency purposes only but is frequently used by

inmates for improper non-emergency purposes. When an inmate uses the

intercom for an improper purpose, officers are trained to remind the caller that

the intercom is for emergency purposes only. The parties agree that most non-

emergency calls, such as most plumbing calls2, do not require an immediate

physical response by an officer.

Between 2016–2019, Eugene Washington was an inmate at the jail on five

separate occasions. On October 27, 2019, Washington was once again detained at

the jail, this time as a pretrial detainee, where he had been detained for

2 Certain plumbing issues, such as flooding, may qualify as an emergency.

approximately two months. As part of standard procedure, the jail conducted

medical intake interviews with Washington upon each of his incarcerations. Def.

SOF, Dkt. 45, at 9. Washington never disclosed to medical personnel or jail staff

that he had sleep apnea or any disease, diagnosis, condition or issue that

affected his ability to breathe. Id.

During his final stint at the jail, Washington shared a cell with inmate

Lamar Simmons. Early in the morning of October 28, 2019, Simmons awoke to

the sound of Washington gasping for air while sleeping. Simmons went over to

Washington’s bed and tried to wake him by shaking him and calling his name,

but Simmons was unsuccessful. Simmons Dep., Dkt. 55-10, at 13–14.

Washington continued to lay in his bed with his eyes closed, struggling to

breathe.

At 4:37AM, on October 28th, Simmons pressed his cell’s emergency intercom

button to request assistance for Washington. At 4:38AM, the officer on duty at

the Floor Control Desk, Defendant Jeff Valentine, answered the call by asking

Simmons what the emergency was. The parties give different versions of

Simmons’ response. Simmons testified that he told Valentine, “My cellie can’t

breathe.” Simmons Dep., Dkt. 55-10, at 9. This testimony was corroborated by

the testimony of another inmate. Dkt. 48, at 12. In contrast, Valentine testified

that he had difficulty hearing what Simmons said into the intercom but heard

Simmons “say something along the lines that the toilet or the sink [was] not

working.” Valentine Dep., Dkt. 55-6, at 52. Valentine further testified that he

asked Simmons to repeat himself, and again heard Simmons say the same thing

he previously heard, “that the toilet and the sink were not working.” Valentine

Dep., Dkt. 55-6, at 52–53. Valentine states that he responded by telling

Simmons that the intercom was for emergency use only and ended the call.

Plaintiff disputes that Valentine asked Simmons to repeat himself and that

Simmons made any statement regarding the toilet or sink. Instead, according to

Plaintiff, Simmons replied to Valentine by asking rhetorically “who pushes the

button at this time of night and it’s not an emergency?” Simmons also testified

that the officer he connected with on the intercom “acted like he could not hear

[him]” and disconnected the call without saying anything else. Simmons Dep.,

Dkt. 55-10, at 9. Officers frequently had trouble hearing or understanding what

an inmate said over the intercom due to the inmate either speaking too loudly or

standing too close to the microphone of the intercom. Arbisi Dep., Dkt. 55-1, at

22, Valentine Dep., Dkt. 55-6, at 52. The parties agree that Simmons was calm

and not panicking during the initial call. To Valentine, Simmons’ tone did not

sound like he was attempting to report an emergency. Plaintiff admits that

Simmons had no way of knowing what Valentine heard Simmons say during the

first call, and that Simmons “can’t speak for his end.” Simmons Dep., Dkt. 55-10,

at 38–39.

At 4:46AM—eight minutes later—Simmons pressed the emergency call

button again. Upon connecting the call, approximately 90 seconds later,

Valentine heard Simmons report that Washington was having irregular

breathing. Valentine was able to clearly hear Simmons during the second call

and immediately directed officers to respond to Washington and Simmons’ cell.

After “[a] minute to two minutes, maybe even shorter," the responding officers

arrived at the cell. Arbisi Dep., Dkt. 55-1, at 67–68. Simmons testified that he

knew his intercom worked “[b]ecause he heard me the second time clearly and

hurried up and had them come in, but they [were] not fast enough.” Simmons

Dep., Dkt. 55-10, at 39. Before the morning of October 28th, Valentine did not

know Washington and knew nothing about his medical history.

When officers arrived at the cell, Simmons told them that Washington was

not breathing. The officers found Washington on the top bunk, unresponsive,

and with his mouth and eyes open. He did not have a detectable pulse, his lips

were blue, he was cold to the touch, and he was not breathing. Arbisi Dep., Dkt.

55-1, at 34. Additional officers and medical staff arrived at the cell, performed

CPR and used an Automatic External Defibrillator attempting to resuscitate

Washington, but to no avail. EMTs arrived and were also unable to resuscitate

Washington. They took him to a local hospital, where he was pronounced dead

shortly after his arrival.

Dr. Mark Peters performed an autopsy on Washington and opined in the

autopsy report that the manner of death was cardiac arrythmia caused by sleep

apnea. According to Dr. Peters, arrythmia caused by sleep apnea can result in

death either “very fast or very slowly,” and a person can be in an arrhythmic

state for many minutes before “you finally reach that fatal arrhythmic state.”

Peters Dep., Dkt. 55-11, at 38. However, Dr. Peters relied on an Illinois State

Police summary of Simmons’ statements because he was unable to determine

Washington’s cause of death from his own examination. The parties agree that

Dr. Peters did not provide any opinion on the timeliness or adequacy of the

resuscitation efforts made by jail staff or EMTs. Def. SOF, Dkt. 45, at 17–18.

Nowhere in Dr. Peters’ testimony or autopsy report did Dr. Peters provide any

opinion on whether any delay in treatment caused Washington pain or

contributed to his death. It is undisputed that when Simmons first noticed

Washington “gasping for air,” his arms were “locked straight in the air” and his

eyes were closed. Ditto Dep., Dkt. 55-7, at 44. Despite Simmons attempts to

wake Washington, Simmons never saw Washington open his eyes again.

II. Motion for Summary Judgment

Legal Standard

A successful motion for summary judgment demonstrates that there is no

genuine dispute of material fact and judgment is proper as a matter of law. A

party opposing summary judgment must proffer specific evidence to show a

genuine dispute of fact for trial. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). A genuine dispute of material fact exists if a reasonable

jury could return a verdict for the non-movant when viewing the record and all

reasonable inferences drawn from it in the light most favorable to the non-

movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the

existence of just any disputed facts will not defeat an otherwise proper motion

for summary judgment. Borcky v. Maytag Corp., 248 F.3d 691, 695 (7th Cir.

2001). Rather, the disputed facts must be both “genuine” and “material.” Id. A

fact is material if it might affect the outcome of the suit under governing law. Id.

If the nonmoving party has the burden to establish the existence of an element

essential to his case and fails to do so, summary judgment must be granted for

the moving party. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).

A party opposing summary judgment "is entitled to the benefit of all

favorable inferences that can reasonably be drawn from the underlying facts, but

not every conceivable inference." De Valk Lincoln Mercury, Inc. v. Ford Motor

Co., 811 F.2d 326, 329 (7th Cir. 1987). The court must construe the "evidence

and all reasonable inferences in favor of the party against whom the motion

under consideration is made." Rickher v. Home Depot, Inc., 535 F.3d 661, 664

(7th Cir. 2008). The court does not “judge the credibility of witnesses, evaluate

the weight of the evidence, or determine the truth of the matter.” Gonzalez v.

City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009). Summary judgment is

appropriate only when the court determines that "no jury could reasonably find

in the nonmoving party's favor." Blasius v. Angel Auto, Inc., 839 F.3d 639, 644

(7th Cir. 2016).

Analysis

In her amended complaint, Plaintiff pleaded a constitutional claim under 42

U.S.C. § 1983 that Defendants Jeff Valentine and his employer, Sheriff of

Winnebago Country, failed to timely provide Eugene Washington adequate

medical care in violation of the Due Process Clause of the Fourteenth

Amendment. Jackson also pleaded two claims under Illinois law: a wrongful

death claim, and a Survival Act claim. Before the Court is Defendants’ motion

for summary judgment on all of those claims. Defendants claim that

Washington’s civil rights as a pretrial detainee were not violated and further

argue they are entitled to the protections afforded by the Illinois Government

and Governmental Employees Tort Immunity Act (“Tort Immunity Act”).

Although there are disputed facts over whether the Defendants’ conduct was

objectively reasonable, Defendants are nevertheless entitled to summary

judgment on Plaintiff’s Fourteenth Amendment claim because Plaintiff failed to

present verifying medical evidence that a delay in receiving medical care was

detrimental to Washington. In the absence of any remaining federal claim, the

Court declines to exercise supplemental jurisdiction over the state law claims in

Counts IV and V, and those claims are dismissed without prejudice.

I. Fourteenth Amendment – Count I

Defendants move for summary judgment on Plaintiff’s § 1983 civil rights

claims for two reasons. First, Defendants contend that Valentine’s conduct

during the intercom calls was objectively reasonable. Second, Defendants argue

that Plaintiff has failed to provide any verifying medical evidence that the

delay in providing Washington with medical care harmed Washington, caused

his death, or was otherwise detrimental. The Court does not address

Defendants’ first argument; instead, summary judgment is granted based on

the second argument.

Because Washington was a pretrial detainee at the Winnebago County Jail,

Plaintiff’s claim that Defendants failed to timely provide adequate medical care

arises under the Fourteenth Amendment’s Due Process Clause. Miranda v.

County of Lake, 900 F.3d 335, 352 (7th Cir. 2018); see Fisher v. Lovejoy, 414

F.3d 659, 661 (7th Cir. 2005). Under the Fourteenth Amendment, a plaintiff’s

claim of constitutionally inadequate medical care is subject only to the

objective unreasonableness inquiry, rather than the Eighth Amendment’s

deliberate indifference test. Miranda v. County of Lake, 900 F.3d at 352. So, a

pretrial detainee need not prove that the defendant was subjectively aware

that his actions were unreasonable. McCann v. Ogle Cty., 909 F.3d 881, 886

(7th Cir. 2018).

The objective unreasonableness inquiry is a two-part test. First, the plaintiff

must show that the defendant acted purposely, knowingly, or recklessly. Id.

Negligence, or even gross negligence, is not enough to satisfy this requirement.

Id; see also Kemp v. Fulton County, 27 F.4th 491, 495–96. Second, the court

decides if the conduct was objectively reasonable considering the relevant facts

and circumstances. James v. Hale, 959 F.3d 307, 318 (7th Cir. 2020). Although

the result is the same, some Seventh Circuit decisions articulate a four-

element analysis that requires the plaintiff to prove each of the following

elements: (1) that the plaintiff suffered from an objectively serious medical

condition, (2) the defendant committed a voluntary act regarding the plaintiff’s

serious medical need, (3) that act was done purposely, knowingly, or recklessly

with respect to the risk of harm, and (4) that the defendant’s conduct was

objectively unreasonable under the circumstances. Gonzalez v. McHenry

County, 40 F.4th 824, 827–28 (7th Cir. 2022). Reasonableness is determined

from the perspective of a reasonable officer standing in the defendant’s shoes.

See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (“A court must make this

determination from the perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with 20/20 vision of

hindsight”).

If a plaintiff alleges that prison officials delayed, rather than denied, medical

treatment, the plaintiff must also present “verifying medical evidence” that the

delay, instead of the underlying condition, caused the harm. Walker v. Wexford

Health Sources, Inc., 940 F.3d 954, 964 (7th Cir. 2019) (internal citation

omitted). So, a plaintiff must offer medical evidence that tends to confirm or

corroborate a claim that the delay was detrimental. Williams v. Liefer, 491

F.3d 710, 715 (7th Cir. 2007). Expert opinions are a form of verifying medical

evidence, but not the only form. Medical records, treatment notes, or physician

notes that confirm or corroborate a claim that the delay was detrimental can be

sufficient. Id. However, evidence of a plaintiff’s diagnosis and treatment,

standing alone, is insufficient to meet the verifying medical evidence

requirement if it does not assist the jury to determine if a delay exacerbated

the plaintiff’s condition or otherwise harmed him. Id.

Plaintiff’s amended complaint and response brief frame the claim as a delay

in providing medical care case. Dkt. 47, at 9–11 (“Plaintiff Has Produced

Sufficient Evidence that Delay in Treatment Caused Washington Harm”); Dkt.

20, at 5, 6. Plaintiff never argued that the case was a denial of medical care

case. Dkt. 47, at 9–11; Walker, 940 F.3d at 964 (“In cases such as this one—

where the plaintiff alleges the defendant delayed, rather than denied, medical

treatment—we have required that the plaintiff present ‘verifying medical

evidence’ that the delay, and not the underlying condition, caused some

harm.”). So, any claim based on a denial of medical care is waived. Indeed,

although not using the term, Plaintiff’s amended complaint and response brief

sound as though Plaintiff is making a claim for “loss of chance”; specifically,

that Valentine’s failure to act in response to the first intercom call decreased

Washington’s chance at survival. Dkt. 47, at 10. Whether a loss of chance claim

exists under 1983 is questionable. Grafton v. Bailey, No. 13-2940, 2018 U.S.

Dist. LEXIS 85860, at *34 n.3, (citing Phillips ex rel Phillips v. Monroe County,

311 F.3d 369 (5th Cir. 2002)). But because the parties have not developed that

theory, the Court will not address it. Instead, the Court will limit itself to the

issues as framed by the parties.

Because Plaintiff frames the claim as a delay—not denial—of medical care,

Defendants argue that Plaintiff lacks any “verifying medical evidence” that the

delay in medical treatment, rather than the underlying condition, caused

harm. Walker, 940 F.3d at 964; see also Williams, 491 F.3d at 714–15 (“[A]

plaintiff must offer medical evidence that tends to confirm or corroborate a

claim that the delay was detrimental.”). Again, Plaintiff does not quarrel with

the proposition that her claim is a delay—not denial—of medical care claim.

Instead, Plaintiff argues that sufficient verifying medical evidence has been

presented, requiring a trial on the claim.

Under Walker, Plaintiff must have “verifying medical evidence” to show that

because Valentine dispatched officers to the cell only after the second call,

rather than after the first call eight minutes earlier, Washington was harmed,

his injury was exacerbated, or that the delay was detrimental. In Williams, 491

F.3d at 715, the Seventh Circuit explained the type of evidence that would

qualify as “verifying medical evidence.” Without doubt, a proper and

admissible expert opinion would constitute “verifying medical evidence.” Id.

Equally without doubt, evidence of a plaintiff’s diagnosis and treatment,

standing alone, is insufficient to survive summary judgment. Id. But, in

Williams, the Seventh Circuit found that medical records in conjunction with

testimony can be sufficient to allow a fact-finder to determine that the delay

caused additional harm. Id.; see, e.g., Grieveson v. Anderson, 538 F.3d 763, 779

(7th Cir. 2008).

In this case, Plaintiff chose not to provide expert testimony to support the

delay claim. Instead, in response to the summary judgment motion, Plaintiff

attempts to rely on medical records. The only medical evidence that Plaintiff

produces is the testimony of Dr. Peters and the autopsy report he created. Dr.

Peters testified that the manner of death was natural cardiac arrhythmia

caused by sleep apnea. Peters Dep., Dkt. 55-11, at 33. Specifically, Plaintiff

claims that Dr. Peters’ testimony that Washington suffered a cardiac

arrythmia “from at least the time period from when his cellmate noticed him

having irregular breathing and was unable to rouse him until the time that he

died”, is sufficient verifying medical evidence that the delay caused

Washington harm. Peters Dep., Dkt. 55-11, at 49–50; Pl.’s Mem. Opp. Sum.

Judg., Dkt. 47, at 10–11. But this testimony is merely a post-mortem diagnosis

of the manner and cause of death, which standing alone is insufficient to assist

the jury in determining whether the delay exacerbated Washington’s condition

and therefore does not meet the “verifying medical evidence” requirement.

Walker, 940 F.3d at 964. This type of evidence is evidence of the underlying

condition Washington suffered, which is insufficient. Id. (the evidence must

show that the delay, and not the underlying condition, caused some harm).

The proffered evidence is not verifying medical evidence tying harm to the

delay. Dr. Peters does not state any opinion on if the delay was detrimental to

Washington, nor does he express a view on the timeliness or adequacy of the

care that Washington eventually received. Def. SOF., Dkt. 45, at 17–18.

Accordingly, the record does not confirm or corroborate Plaintiff’s claim that

the delay in medical treatment was detrimental to Washington. See Williams,

491 F.3d at 715. On the contrary, there is evidence that Washington was

unconscious and unresponsive from the time when Simmons first tried to wake

him to when the officers arrived after the second intercom call. Simmons

testified that he never saw Washington open his eyes, and when the

responding officers arrived, Washington had no pulse and was cold to the

touch. Arbisi Dep., Dkt. 55-1, at 34.

Because Plaintiff failed to present verifying medical evidence, which is an

essential element to a claim alleging a constitutional violation due to a delay in

medical care, granting summary judgment is proper. Accordingly, the court

grants Defendant’s summary judgment motion on Count I.

II. Illinois State Law – Counts IV and V

Plaintiff also asserts claims under state law for wrongful death and under the

Survivor Act. When all federal claims have been dismissed before trial, federal

courts generally relinquish jurisdiction over the remaining state law claims

under 28 U.S.C. § 1367. Wilson v. Price, 624 F.3d 389, 395 (7th Cir. 2010).

Because no federal questions remain the court declines to exercise 28 U.S.C. §

1367 jurisdiction over the Illinois state law claims. As a result, the Court need

not address the Defendants’ arguments under the Tort Immunity Act.

Conclusion

For the reasons given, Defendants’ motion for summary judgement is granted on

Count I. Counts IV and V are dismissed without prejudice to being refiled in state

court.

Date: October 13, 2022 By: Ss

IAIN D. JOHNSTON

United States District Judge

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