Brooks v. Kim

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JERMAINE BROOKS, )

)

Plaintiff, )

)

vs. ) Case No. 20 C 5744

)

YOUNG KIM, M.D. and )

WELLPATH, LLC, )

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Jermaine Brooks was, during the time relevant to this lawsuit, an inmate at Will

County Adult Detention Facility (WCADF). Brooks has sued Dr. Young Kim, M.D., a

doctor at the detention facility, as well as Kim's employer, Wellpath LLC. Wellpath is the

entity that provides medical services to those detained at WCADF. Brooks asserts

against Kim Fourteenth Amendment due process claims for invasion of privacy (count

1) and on a state-created danger theory (count 2). Brooks also asserts a claim against

Wellpath—on a theory of respondeat superior—under Illinois' AIDS Confidentiality Act,

410 ILCS 305/9 (count 3).

The defendants have moved for summary judgment on all of Brooks's claims.

For the reasons stated below, the Court denies the motion.

Background

The following facts are undisputed unless otherwise noted. At the times relevant

to the complaint, Brooks was detained at the WCADF on pending criminal charges.

Brooks is HIV-positive. Wellpath provides medical services for a number of detention

facilities nationwide, including the WCADF. Kim is a medical doctor who, at times

relevant to the complaint, was employed by Wellpath to provide medical services at the

WCADF. Because Brooks is HIV-positive, he was classified as "Level 3," an

administrative classification within the WCADF that indicates an inmate is disqualified

from working on the basis of one or more chronic conditions. Brooks testified during his

deposition that he was not aware until February 24, 2020 that he was classified as a

level 3 inmate.

On February 24, 2020, Brooks visited Kim in the medical clinic at the WCADF. It

is unclear whether Brooks visited Kim because of chest pain he was experiencing

and/or because he needed medical clearance from Kim to be employed as "a pod

worker" while detained at the WCADF.1 During the visit, the conversation between

Brooks and Kim became heated and moved from within the exam room to a more public

area of the clinic where other WCADF staff and inmates were present. It is undisputed

that both parties' voices were raised and that several witnesses were present: Will

County Sheriff's Deputies Claudia Baird and Edward Cassello, and Nurses Christina

Jefferson and Nolan Neef (now Thompson). Brooks testified during his deposition that

1 Brooks testified during his deposition that being a pod worker entails cleaning the pod

and feeding the inmates housed in the pod. Because HIV cannot be spread through

either of those activities, Brooks has—since the incident—advocated for a policy that

would allow him and other HIV-positive inmates to be eligible to work in the pod despite

being deemed a level 3 inmate.

approximately six to eight other inmates were also present in the clinic, though he could

not recall who they were.

Brooks alleges that, during this heated exchange, Kim loudly revealed Brooks's

HIV status to all those in proximity who could hear. Specifically, Brooks testified during

his deposition that:

During that process of [Brooks] talking to [Kim] explaining to him the

reasons why [Brooks] could have been [in the clinic], [Kim] lost his cool.

And during [Brooks] explaining to [Kim] why [he] was down there, [Kim]

lost his cool, and he yelled out, "You are a level 3. You cannot be a

fucking pod worker. You have HIV."

Brooks Dep. at 18:21–19:2.

Kim testified during his deposition that, during the visit, he tried to explain to

Brooks multiple times that WCADF policy would not allow him to work because of his

HIV status and that whoever told Brooks that he could work in the jail despite his

medical condition was stupid. The latter part of that testimony is corroborated by

Deputy Cassello, who testified during his deposition that he heard Kim say, loudly,

"[s]omeone that's stupid told this inmate he can be an inmate worker, he's a level 3."

Cassello Dep. at 43:10–20.

Kim testified during his deposition that Brooks became "upset and agitated," Kim

Dep. at 81:25, and eventually walked out of the exam room. Both Brooks and Kim

testified that when Brooks left the exam room, he went to speak to Nurse Jefferson—

who was in the nurse's exam room across the hall from Kim's exam room—about his

disagreement with Kim. Kim testified that he was frustrated with Brooks and that he

followed Brooks across the hall to the nurse's exam room to continue the conversation

and to ask Brooks to return to the exam room to finish the visit. When asked during his

deposition if he used the term HIV in this back-and-forth with Brooks, Kim testified that

he could not remember. Kim also testified that he could not say exactly what was said

in the exam room versus in the hallway versus the nursing exam room.

As indicated earlier, Brooks testified unequivocally that Kim said to him in the

presence of others, "You have HIV." Brooks further testified that, after the incident, he

was very shaken up and was "crying real bad." Brooks Dep. at 53:4-5. Brooks further

testified that he told Deputy Baird that "[Kim] just exposed my status," so Baird let him

"go in the bathroom for a minute to clean [himself] up." Id. at 53:1-4. After Brooks

collected himself, another officer came to pick him up and take him back to his unit.

That same day, Deputy Baird prepared a memorandum documenting the

incident. Deputy Baird testified during her deposition that her memorandum was an

accurate summary of what she had observed. The memorandum states as follows:

AT APPROXIMATELY 10:50 AM INMATE BROOKS, JERMAINE #19-7662

WAS SEEN BY DR. KIM IN CLINIC. WHEN INMATE BROOKS CAME OUT

OF THE DOCTORS OFFICE HE APPEARED A LITTLE UPSET, WENT

INTO SPEAK WITH NURSE JEFFERSON. AT THAT POINT THE

SITUATION WAS CALM. DR. KIM THEN CAME OUT OF HIS OFFICE,

WENT TO THE DOORWAY OF THE NURSES OFFICE AND SAID" YOUR

WASTING OUR TIME, GO SIT DOWN SO I CAN SEE ANOTHER

INMATE", THEN WALKED BACK INTO THE EXAM ROOM. AT THAT

TIME INMATE BROOKS CAME OUT OF THE NURSES OFFICE, VISIBLY

UPSET, CLENCHING FISTS AND HOLDING BACK TEARS. INMATE

BROOKS EXPLAINED TO ME (DEPUTY BAIRD) THAT HE ASKED DR.

LEE IF HE COULD BE A POD WORKER BECAUSE A CORRECTIONAL

OFFICER SAID HE COULD BE ONE IF CLEARED BY THE DOCTOR.

INMATE BROOKS FURTHER STATED "THE DOCTOR IS YELLING AT

ME FOR ASKING A QUESTION". ACCORDING TO DR. KIM HE TOLD

INMATE THAT DUE TO HIS DIAGNOSIS HE COULD NOT BE A POD

WORKER (THIS CONVERSATION TOOK PLACE IN THE DOCTORS

OFFICE). I LET INMTE GO INTO RESTROOM TO COMPOSE HIMSELF.

WHEN I LET HIM OUT OF RESTROOM. THE DOCTOR THEN CAME OUT

OF HIS EXAM ROOM AND STARTED RAISING HIS VOICE. DEPUTY

CASSELLO ENTERED THE CLINIC AT THAT TIME. DEPUTY CASSELLO

AND I MOVED INBETWEEN THE DOCTOR AND THE INMATE. THE

DOCTOR WAS THEN YELLING "YOU ARE THE STUPID", UNKNOWN AT

WHO THE COMMENT WAS DIRECTIED TORWARDS. HE CONTINUED

TO YELL "WHICH OFFICER TOLD INMATE HE COULD BE A POD

WORKER." THEN DEMANDED TO KNOW WHO TOLD INMATE BROOKS

THAT INFORMATION. I WAS SPEAKING TO DR. KIM WHEN HE STATED

IN A LOUD VOICE "YOU ARE LEVEL III", TOWARDS INMATE. NURSE C.

JEFFERSON NURSE NOLAN NEEF AND DEPUTY CASSELLO THEN

HEARD THE DOCTORSTATE "YOU HAVE HIV, YOU CAN'T BE A POD

WORKER". DOCTOR KIM WAS TOLD TO STEP AWAY AND HE HEADED

INTO THE EXAM ROOM. INMATE BROOKS WAS VISIABLY UPSET,

TEARS ROLLED DOWN HIS EYES. INMATE STATED "THE DOCTOR

JUST SAID MY DIAGNOSIS OUT LOUD, NOW I HAVE TO BE AFRAID

FOR MY SAFETY." INMATE BROOKS WAS DIRECTED TO GO INTO THE

NURSES EXAM ROOM AND SIT DOWN UNTIL I COULD GET A ROVER

TO TAKE HIM BACK TO HIS POD. I DEPUTY BAIRD, THEN CONTACTED

ROVER 6, DEPUTY CACERES TO COME TO CLINIC AND HAVE HIM

TAKE INMATE BACK UP TO HIS POD DUE TO THE INTERACTION

BETWEEN INMATE BROOKS AND DOCTOR KIM.

Pl.'s SOF, Ex. 1.

On February 25, 2020, Jennifer Briscoe, Kim's administrative supervisor,

disciplined him for his conduct vis-à-vis Brooks. Briscoe issued Kim a "Final Written

Warning" on a Wellpath "Corrective Action" form, which Kim signed. The warning

stated: "Employee was being disrespectful and unprofessional towards a patient, and

custody staff. Employee also violated HIPAA." Pl.'s SOF, Ex. 3. Briscoe claimed

during her deposition that "the Corrective Action Form did not mean that Kim violated

HIPAA guidelines." Briscoe Dep. at 90:4-6. She conceded, however, that the form did

not say Kim may have violated HIPAA, or that it was alleged he violated HIPAA, but

rather that he violated HIPAA. Id. at 97:24-98:2

Brooks alleges that he suffered shame, humiliation, anxiety, mental anguish,

degradation, and physical and emotional pain and suffering as a result of Kim's conduct.

Brooks testified during his deposition that his sexuality was exposed as a result of Kim's

conduct, which made him more vulnerable to all manner of violence:

Being in jail and being gay is not an easy thing. And being gay and being

in jail where gays are targeted for being raped and unwanted sexual

advances, unwanted sexual treatment, unwanted things because people

feel that because you're gay that you should be okay with whatever comes

your way. This is a hostile environment for gay people. This is a hostile

environment for gay people with HIV . . . . I have to deal with people saying

"Oh you faggot, you sissy, die slow,["] because of my HIV status.

Brooks Dep. at 41:13-23–43:1-3. Brooks further testified that, after the incident

with Kim, he constantly worried about being attacked and therefore showered

alone and requested a single-person cell.

On September 8, 2020, Brooks was sexually harassed by another inmate

named Angelo Ristick. Ristick nonconsensually groped Brooks's rear end.

Brooks concedes that it is unclear whether Ristick's conduct was related to the

revelation of his HIV status.

Following the incident with Kim, Brooks was physically attacked by three

other inmates on two separate occasions. The first attack came from his

cellmate, whose last name was either Turner or Tucker. When asked during his

deposition what made Brooks think that this attack was related to his HIV status,

Brooks testified that Turner/Tucker told a guard named Hale that he could no

longer be Brooks's cellmate because Brooks was gay. Brooks Dep. 46:1-23.

The second altercation took place sometime in December 2021 and

involved two inmates, Christopher Beale and Kendall (or Kendell) Coleman.

Brooks testified during his deposition that Beale was "going around telling people

about they need[ed] to stay away from [him] because [he] had HIV." Id. at 95:13-

–95:18. Brooks confronted Beale about this, and a fight between them ensued.

The parties agree that "it is unclear who first began physically fighting." Pl.'s

Resp. to Defs.' 56.1(a) SOF ¶ 15. At some point, Brooks was on top of Beale,

which caused Coleman to begin hitting Brooks in the back with a broom.

Coleman struck Brooks twice in the head with a chair, breaking the chair over

Brooks's head. Brooks testified that he believed Beale must have been in the

clinic on the day of the incident with Kim and thus learned of his HIV status in

that manner.

Brooks testified during his deposition that no inmates have ever directly

informed him that they learned of his HIV status as a result of Kim's disclosure.

He also testified, however, that he never heard another inmate mention his HIV

status before the incident with Kim but that afterwards, he heard other inmates

speaking about his HIV status more times than he could count.

Discussion

To succeed on their motion for summary judgment, the defendants must show

that "there is no genuine dispute regarding any material fact and that the movant is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of

material fact exists if "the evidence is such that a reasonable jury could return a verdict

for the nonmoving party." Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir.

2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When

deciding a summary judgment motion, courts must "construe all inferences in favor of

the party against whom the motion under consideration is made." Cremation Soc'y of

Ill., Inc. v. Int'l Bhd. of Teamsters Local 727, 869 F.3d 610, 616 (7th Cir. 2017) (citation

omitted).

A. Kim's disclosure

Regarding all three claims, the defendants contend that Brooks has not offered

evidence sufficient to permit a reasonable jury to find that Kim actually revealed

Brooks's HIV status, as opposed to just revealing the fact that he was a level 3 inmate.

This argument lacks merit. The following sentence from the defendants' motion

for summary judgment is telling: "It is not clear that Plaintiff's HIV status itself was ever

revealed." Defs.' Mot. for Summ. J. at 6. The defendants are entitled to summary

judgment only if no reasonable juror could find in favor of Brooks, a conclusion that can

only be reached in the absence of evidence to the contrary. The proposition that a

particular key fact is unclear comes nowhere near entitling the defendants to summary

judgment. Characterizing the evidence on what Kim said during his altercation with

Brooks as unclear is basically another way of saying that this key factual question is

genuinely disputed. That forecloses summary judgment.

It is undisputed that Brooks went to see Kim in the clinic on the day of the

incident, that the conversation turned heated and both Brooks and Kim began raising

their voices, and that Kim proceeded to make statements regarding Brooks's ability to

work in the jail, based on his health, such that others could hear. It is also undisputed

that there were several witnesses to the altercation. What is certainly disputed, thus

requiring a trial, is whether—or to what extent—Kim disclosed Brooks's HIV status

during the incident.

Indeed, the defendants themselves concede in their statement of material facts

that "[i]t remains disputed whether [Kim stated that Brooks was unable to work] by citing

Plaintiff's HIV-positive status or by referring to Plaintiff as a 'Level 3' or a 'Category 3'—

an administrative classification within the WCADF that indicates a detainee is

disqualified from working on the basis of one or more chronic conditions." Defs.' SOF ¶

8 (emphasis added). There is plenty of evidence that would permit a jury to find in

Brooks's favor on this point. For instance, Brooks testified that Kim told him "[y]ou are a

level 3. You cannot be a fucking pod worker. You have HIV." Brooks Dep. at 18:21-

19:2. And Deputy Baird wrote in her memorandum that "[n]urse C. Jefferson Nurse

Nolan Neef and Deputy Cassello then heard the doctor state 'you have HIV, you can't

be a pod worker.'" Pl.'s SOF, Ex. 1.2 Deputy Baird also testified during her deposition

that Nurse Thompson (formerly Neef) told her that she heard Kim make the just-quoted

statement.

In their Rule 56.1(a) Statement of Material Facts, the defendants state that

Deputy Cassello, Deputy Baird, Nurse Thompson, and Nurse Jefferson all testified

during their depositions that they heard Kim loudly refer to Brooks as a "Level 3." Some

recalled hearing only that term and not any specific reference to Brooks having HIV.

Others testified that they did not recall whether Kim also specifically referenced Brooks's

HIV status. This testimony is contradicted not only by Brooks's own deposition

2 In their reply and in their response to Brooks's Local Rule 56.1(a)(2) statement of

additional material facts, the defendants contend that the memorandum written by

Deputy Baird after the incident is inadmissible hearsay and that the Court should

therefore disregard it. The Court need not adjudicate the admissibility of the Baird

memorandum definitively at this point, as Brooks has shown there is a genuine factual

dispute even if the memorandum is excluded. The Court notes, however, that it may be

admissible under the hearsay exception contained in Federal Rule of Evidence

803(8)(A)(iii), if not otherwise. See generally Mathin v. Kerry, 782 F.3d 804, 809 (7th

Cir. 2015) ("The public records exception of Federal Rule of Evidence 803(8) constitutes

a recognition that information may be passed among multiple public officials before

being recorded in a document, and accordingly a report will not be excluded merely

because the author did not have firsthand knowledge of the reported matters."); see

also, Halloway v. Milwaukee County, 180 F.3d 820, 827 n. 9 (7th Cir.1999) ("[T]he

district court retains significant discretion as to whether [public records that arguably fall

within Rule 803(8)(iii)] ought to be admitted.").

testimony, but by the incident summary drafted just afterwards by Deputy Baird, as well

as the "Final Written Warning" issued to Kim that states Kim was disrespectful to an

inmate and violated HIPAA.

The defendants contend that Brooks's deposition testimony is self-serving and

therefore insufficient to create a genuine issue of material fact. There is no such rule.

Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (stating that "[d]eposition testimony

. . . is by its nature [] self-serving" and that "the term 'self-serving' must not be used to

denigrate perfectly admissible evidence through which a party tries to present its side of

the story at summary judgment."). Brooks described the incident in his deposition

based on his personal knowledge and may therefore use his own testimony to show the

existence of a genuine factual dispute. A reasonable juror could credit Brooks's

testimony even if it is contradicted by the testimony of others.

In sum, Kim's disclosure of Brooks's HIV status—which is the central issue of this

case—is a genuinely disputed fact. The defendants are therefore not entitled to

summary judgment on this basis.

B. Injuries

Regarding all three claims, the defendants contend that Brooks has not offered

any evidence that would permit a finding that he was injured by Kim's conduct.

The Court disagrees. As outlined above, it is undisputed that Brooks was

physically attacked on two separate occasions following the incident with Kim. The

defendants contend that it is unknown why these attacks occurred, but Brooks testified

during his deposition that he was attacked because of his HIV status, and a reasonable

juror could find that fact corroborated by the comments from other inmates referenced

earlier. And though Brooks conceded that he could not definitively say that the incident

when he was sexually harassed was connected to Kim's disclosure, a reasonable juror

could draw such a connection: Kim's disclosure of Brooks's HIV status could have been

interpreted by other inmates as effectively a disclosure of his sexuality that in turn

opened him up to unwanted sexual advances. There is evidence that after this, Brooks

was subjected to unwanted groping by another male inmate.

Deputy Baird also stated in her memorandum that tears were rolling down

Brooks's face after the incident and that he told her he feared for his safety because

Kim had just said his diagnosis out loud. Brooks confirmed this during his deposition,

during which he also testified that his pre-existing anxiety and depression were

considerably worse after Kim revealed his HIV status. The defendants contend that

"[Brooks] readily admitted that contrary to his pleadings, his life was not actually

threatened at any given point." Defs.' Mot. for Summ. J at 5. But Brooks also stated "I

fear for my life all the time. That's what I'm trying to get you to understand. All the

time." Brooks Dep. 62:2–7.

In sum, the evidence would permit a reasonable jury to find a causal connection

between Kim's conduct and Brooks's claimed injuries. The defendants are therefore not

entitled to summary judgment on this basis.

C. Due process claims

Brooks contends that Kim violated his due process rights under the Fourteenth

Amendment in two ways. First, he contends that Kim's open disclosure of his HIV

status invaded his privacy. Second, Brooks contends that Kim's disclosure created a

danger to him that did not otherwise exist. The Court will address each of these claims

in turn.

1. Invasion of privacy

a. Merits

Brooks's first due process claim (count one) is based on the allegation that, by

publicly revealing Brooks's HIV status, Kim invaded his constitutional right to privacy

under the Fourteenth Amendment. Kim has moved for summary judgment on this

claim, contending that "rights to privacy largely sound in state common law and have

not yet been elevated to a constitutional level." Defs.' Mot. for Summ. J. at 3. The

Court disagrees.

The Court reaffirms its decision on this point in Logan v. City of Evanston, No. 20

C 1323, 2020 WL 6020487 (N.D. Ill. Oct. 12, 2020). In Logan, the Court noted that

"[t]he Supreme Court has recognized a right to privacy under the Fourteenth

Amendment that includes the right 'not to have [one's] private affairs made public by the

government.'" Id. at *4 (citing Whalen v. Roe, 429 U.S. 589, 599 n.24 (1977)); The

Court also pointed out that "the Seventh Circuit has stated that the Fourteenth

Amendment confers a fundamental 'right to the privacy of medical, sexual, financial, and

perhaps other categories of highly personal information.'" Id. at *10 (citing Wolfe v.

Schaefer, 619 F.3d 782, 785 (7th Cir. 2010)).

Brooks's HIV status is not only private medical information; it is also highly

sensitive given the connection some draw between HIV-positive status and sexual

orientation, combined with the stigma around homosexuality in correctional

facilities. See Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995) ("A number of

cases in the lower federal courts, including our own, building on Whalen and Nixon,

recognize a qualified constitutional right to the confidentiality of medical records and

medical communications."); see also, Denius v. Dunlap, 209 F.3d 944, 957 (7th Cir.

2000) ("medical information may be a form of protected confidential information

because of its intimate and personal nature."); Wolfe, 619 F.3d at 785 (constitutional

protection of privacy includes medical "information that most people are reluctant to

disclose to strangers."). Brooks himself testified during his deposition that he considers

his HIV status "the worst thing that a person can know about [him] . . . because that's

[his] personal battle … [and his] personal business." Brooks Dep. at 43:6–9.

The Court concludes that Brooks has a viable invasion of privacy claim under the

Fourteenth Amendment. Kim is not entitled to summary judgment on count one on this

basis.

b. Qualified immunity

Kim also seeks summary judgment on Brooks's invasion of privacy claim on the

basis of qualified immunity. Qualified immunity "protects government officials from civil

liability when performing discretionary functions so long as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known." Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001). In

assessing a defense of qualified immunity, the Court considers "(1) whether the

plaintiff's allegations make out a deprivation of a constitutional right, and (2) whether the

right at issue was clearly established at the time of the defendant's alleged misconduct."

Siliven v. Ind. Dep't of Child Servs., 635 F.3d 921, 925-26 (7th Cir. 2011).

Kim's motion is insufficient to invoke qualified immunity as a basis for summary

judgment. His entire discussion of the point consists of one general quote regarding the

law of qualified immunity followed by a single conclusory sentence that states,

"[a]ssuming the Court were to now find that Dr. Kim's action amounted to a

constitutional invasion of privacy claim, there is no precedent such that Dr. Kim

otherwise had notice such that qualified immunity is defeated." Defs.' Mot. for

Summ. J. at 7. That argument is unsupported and entirely conclusory. The Court

concludes that Kim has forfeited the point. Schaefer v. Universal Scaffolding & Equip.,

LLC, 839 F.3d 599, 607 (7th Cir. 2016) ("Perfunctory and undeveloped arguments are

waived, as are arguments unsupported by legal authority.").

Even if it were not forfeited, Kim's qualified immunity defense would fail on the

merits. As just discussed, the Fourteenth Amendment right to privacy of highly personal

medical information is clearly established. See Denius, 209 F.3d at 956 (upholding

Fourteenth Amendment substantive due process claim; "this Circuit has outlined a

clearly established substantial right in the confidentiality of medical information that can

only be overcome by a sufficiently strong state interest"); see also Anderson, 72 F.3d at

522; Schaill v. Tippecanoe Cty. Sch. Corp., 864 F.2d 1309, 1322 n.19 (7th Cir. 1989)

(explaining that there is "a substantial privacy interest in the confidentiality of medical

information"). Regarding the deprivation of this right, there is ample evidence to support

a finding that Kim violated Brooks's privacy by disclosing Brooks's HIV status.

For these reasons, Kim is not entitled to summary judgment on count one on the

basis of qualified immunity.

2. State-created danger

Brooks's second due process claim (count two) is based on the theory of a

"state-created danger exception," which is an exception to the general rule that a

"State's failure to protect an individual against private violence simply does not

constitute a violation of the Due Process Clause" of the Fourteenth Amendment.

Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); see also

DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989).

Under the state-created danger exception, "liability exists when the state

affirmatively places a particular individual in a position of danger the individual would not

otherwise [have] faced." Buchanan-Moore, 570 F.3d at 827. To prevail on such a claim

at trial, a plaintiff must prove by a preponderance of the evidence that: (1) the state, by

its affirmative acts, created an increased danger to the plaintiff, (2) the state's failure to

protect the plaintiff from this danger proximately cause an injury to the plaintiff, and (3)

the state's failure to protect the plaintiff shocks the conscience. King ex rel. King v. E.

St. Louis Sch. Dist. 189, 496 F.3d 812, 817-18 (7th Cir. 2007).

a. Creation of danger and injury

Kim contends that Brooks has failed to offer evidence that would permit a

reasonable jury to find the creation or increase of a danger to him or that he was

harmed by the state's failure to protect him from that danger (the first and second

elements of the claim). As sufficiently addressed above, there is a genuine factual

dispute regarding both of these issues, which are common to all of Brooks's claims.

The first issue essentially involves a repeat of Kim's contention that Brooks has

not offered evidence that would permit a finding that Kim actually disclosed his HIV

status and thus put him in danger. The Court has already overruled that contention.

Regarding the second issue, Brooks does not merely allege that Kim's conduct created

a risk of harm. Again, as previously addressed, Brooks has alleged, and has offered

evidence that would permit a finding, that he suffered actual injuries as a result of Kim's

conduct. See Estate of Her v. Hoeppner, 939 F.3d 872, 876 (7th Cir. 2019) ("A due-

process claim of this kind requires proof … [that] "the government's failure to protect

against the danger caused the plaintiff's injury).

b. Knowledge of risk

Kim next contends that "[i]t cannot be said that Dr. Kim had actual knowledge of

any particular risk to Plaintiff." Defs.' Mot. for Summ. J. at 8. It is not clear that actual

knowledge is a required element of a state-created danger claim. But even if

knowledge is required, there is ample evidence in the record that would permit a finding

that Kim knew that revealing Brooks's HIV status—or any patient's HIV status for that

matter—would expose him to an increased risk of harm. It is undisputed that several

staff members were in close proximity at the time of the incident, and those witnesses

did not dispute the presence of other inmates in the clinic. And Brooks testified during

his deposition that, although he could not recall their names, somewhere between six to

eight inmates were also in the clinic that day. More importantly, the Court agrees with

Brooks that a reasonable jury could find that it would be "apparent to someone who

works in a jail that publicizing a detainee's positive HIV status to other detainees would

place that detainee at risk of harm." Pls.' Resp. at 8.

c. Duty to protect from harm

Next, Kim contends that Brooks cannot show that Dr. Kim has any responsibility

for security functions in the WCADF and thus cannot show that he was responsible for

or had the authority to protect Brooks from any harm. This contention completely

misses the point. Kim may not have had the responsibility to perform security functions,

but he did have the responsibility not to disclose highly sensitive medical information,

particularly the kind that would put Brooks at an increased risk of harm. Kim himself

admitted this during his deposition. See Kim Dep. at 43:19–23 ("Q: And you were

aware as of February 2020 that there were strict limitations on the disclosure of that

information? A. Yes."). That's what the lawsuit is about. As indicated, a reasonable jury

could find that Brooks suffered harm that was proximately caused by Kim's alleged

misconduct.

d. Conscience-shocking conduct

Finally, Kim disputes the existence of any evidence to support the third element

of Brook's state-created danger claim, namely, that Kim's conduct shocks the

conscience. This element requires a culpable state of mind equivalent to deliberate

indifference. King, 496 F.3d at 819. The Court concludes that a reasonable juror could

find, on the present record, that Kim was—at a minimum—deliberately indifferent to the

risk of harm that would follow his revelation of Brooks's HIV status.

In sum, the Court denies Kim's motion for summary judgment on count two.

C. AIDS Confidentiality Act claim

In count three, Brooks asserts a claim under the AIDS Confidentiality Act (ACA)

against Wellpath, for Kim's conduct, on a theory of respondeat superior. Wellpath

raises three challenges to this claim that it contends entitle it to summary judgment.

1. Exception to the ACA

Wellpath first contends that, as a physician, Kim is exempted from the ACA and

was authorized to disclose Brooks's HIV status. Specifically, Wellpath contends that

Kim is "clearly the sort of party that is entitled to make such disclosures, as 410 ILCS

305/9(1)(c), which indicates disclosures may be made by: 'An authorized agent or

employee of a health facility or health care provider. . .'" Def.'s Mot. for Summ. J. at 10.

This is a patent misreading of the ACA's language. Section 9(1)(c) says that

disclosures may be made to health care providers, not by them as Wellpath contends.

Wellpath's argument is frivolous.

2. Preemption

Wellpath next contends that the ACA is preempted by constitutional law. Defs.'

Mot. for Summ. J. at 10. The Court disagrees.

Wellpath's discussion of this point is, again, woefully inadequate. It does not

describe (or even summarize) the law of preemption, which form of preemption it

invokes, or even which "constitutional principles" it contends preempt the ACA. Id. at

11. Instead, Wellpath rests its entire preemption argument on dicta from Anderson v.

Romero, 72 F.3d 518 (7th Cir. 1995) that it takes completely out of context. The quote

Wellpath relies on states:

Nor can the fact that the Illinois AIDS Confidentiality Act, made applicable

to these defendants by Illinois Administrative Rules, Title 20, § 107.310,

forbids the disclosure of the results of an HIV test, be decisive. 410 ILCS

305/5, 305/10. Any duty to protect prisoners from lethal encounters with

their fellows that is derived from the Eighth Amendment would take

precedence over a state law.

Id. at 525. Wellpath then states, in a conclusory fashion, that "any remaining questions

about whether any such disclosures were proper cannot be evaluated under the AIDS

Confidentiality Act, but instead under Constitutional principles." Def.'s Mot. for Summ.

J. at 11.

The quoted language from Anderson has nothing to do with a plaintiff's ability to

pursue a claim under the ACA. Moreover, a violation of the ACA and a violation of the

Eighth Amendment—a claim that Brooks does not assert—involve significantly different

elements, as the two provisions are aimed at protecting different interests.

Wellpath also contends in support of its preemption argument that "the

conversation between Dr. Kim and Plaintiff was not spontaneous and without purpose,

but rather, was directly connected to Plaintiff's ability to work within the jail." Defs.' Mot.

for Summ. J. at 11. Wellpath fails to explain, and the Court cannot figure out, how this

argument bears on preemption. Wellpath has therefore forfeited the point. See

Schaefer, 839 F.3d at 60. If anything, this contention only serves to undercut Wellpath's

contention regarding respondeat superior, discussed in more detail below.

In sum, there is no basis to conclude that the ACA is preempted by the U.S.

Constitution.

3. Respondeat superior

Finally, Wellpath contends that it cannot be held liable for Kim's actions on a

respondeat superior theory. The parties agree that respondeat superior liability

attaches "(1) if the acts are of a type the employee is employed to perform; (2) if the

acts at issue occur substantially within the authorized time and space limits; and (3) if

the acts are done, at least in part, by an intent to serve the employer." Twardy v. Nw.

Airlines, Inc., No. 00 C 6493, 2001 WL 199567, at *3 (N.D. Ill. Feb. 28, 2001) (citing

Hargan v. Sw. Elec. Coop., 311 Ill. App. 3d 1029, 1031, 725 N.E.2d 807, 809 (5th Dist.

2000)). Wellpath contends that the challenged conduct was not of the type Kim was

employed to perform and that, even if it were, it was not done with the intent of serving

Wellpath. The Court disagrees.

A reasonable juror could find that Kim was acting in his capacity as an employee

of Wellpath when interacting with Brooks, a patient, about his medical condition at the

time of the incident. The incident occurred in the WCADF's clinic, while Kim was on

duty, and during and in the course of a medical visit. That's enough to enable a jury to

find Wellpath liable for Kim's alleged actions. Further, Wellpath disciplined Kim for his

actions vis-à-vis Brooks, which further indicates that the actions involved his duties as a

Wellpath employee. The Court also notes that the very justification that Kim and

Wellpath have repeatedly offered for his actions—that "Dr. Kim's statements . . . were

permitted by virtue of public health concerns within a jail like the WCADF"—supports a

finding that Kim was serving his employer at the time of the incident. Defs.' Mot. for

Summ. J. at 11.

Wellpath also contends that it would be "difficult" to infer that someone could be

serving their employer while also "losing their cool." Id. at 13. First, "difficult to infer"

does not translate into legal insufficiency of the evidence; the question is whether a

reasonable inference may be drawn—which it can in this situation. Moreover, it cannot

possibly be the case that whenever an employee loses his or her cool, they are no

longer acting in their capacity as an employee for purposes of respondeat

superior. Wellpath offers no binding or persuasive authority to the contrary and is

therefore not entitled summary judgment on this basis.3

3 Nurse Jefferson's deposition testimony also suggests that Kim was not angry after the

incident and continued working as usual:

Q. And did you see Dr. Kim either expressing anger or being angry after this

incident, like, you know, in the -- in the hour after this incident?

A. I don't think so.

Q. Did -- did you continue to work in the clinic that -- the rest of the

afternoon?

A. I did.

Conclusion

For the foregoing reasons, the Court denies the defendants’ motion for summary

judgment [dkt. no. 97]. The case is set for a telephonic status hearing on May 19, 2023

at 8:55 a.m. to set a trial date and discuss the possibility of settlement. The following

call-in number will be used: 888-684-8852; access code 746-1053.

MATTHEW F. cone

United States District Judg

Date: May 10, 2023

Q. And did Dr. Kim see other patients?

A. Yes.

Q. Okay. And how was he?

A. He was his normal self. There was no raised voices. There was no

mention of Mr. Brooks after that.

Jefferson Dep. at 48:11-49:3.

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