# Jackson v. Sheriff of Winnebago County

> District Court, N.D. Illinois · October 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10147810

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** October 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10147810

## Opinion text

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

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10147810. Public record. Not legal advice.