Hurt v. Corcoran

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BENAHDAM HURT, )

)

Plaintiff, )

)

v. ) No. 17 C 7909

)

HASINA JAVED, FAIZAL KAREEMI, )

DREW BECK, COLEEN DELANEY, )

and DIANA HOGAN ) Judge Rebecca R. Pallmeyer

)

Defendants. )

MEMORANDUM OPINION AND ORDER

While confined in the Elgin Mental Health Center (“EMHC”) from 2014 to 2017, Plaintiff

Benahdam Hurt was the victim of sexual abuse by an EMHC staff member. The perpetrator has

pleaded guilty to criminal charges. In this lawsuit brought under 42 U.S.C. § 1983, Hurt seeks

damages from other EMHC staff. On September 25, 2023, this court issued an Order [245] on

the parties’ cross-motions for summary judgment [216, 220], denying in part and granting in part

Defendants’ motion and denying Plaintiff Hurt’s motion in its entirety. See Hurt v. Corcoran, No.

17-CV-7909, 2023 WL 6213685 (N.D. Ill. Sept. 25, 2023). What remained following the court’s

summary judgment ruling was Plaintiff Hurt’s failure-to-intervene claim against Defendants

Hasina Javed, Faizal Kareemi, Colleen Delaney, Diana Hogan, and Drew Beck. The court’s ruling

invited Defendants to seek reconsideration, however, because its ruling applied a standard that

neither party had directly addressed, referred to here as the “modified deliberate indifference”

standard. This standard required Plaintiff to show that Defendants had “actual knowledge or

suspicion of a substantial risk” that Hurt was being sexually abused and chose to ignore that risk.

Defendants have taken up the court’s invitation. In their Motion to Reconsider [254] denial

of Defendants’ motion for summary judgment, Defendants argue that the court erred in applying

this standard and, in the alternative, that even if the court was correct in applying the modified

deliberate indifference standard, they are each immune from liability because the standard was

not clearly established with respect to the factual context of Hurt’s case. The Defendants’ motion

also asks the court to reconsider its summary judgment ruling with respect to Defendant Diana

Hogan, arguing that she is entitled to summary judgment regardless of the which standard the

court applies. For the reasons explained below, the Motion to Reconsider is granted with respect

to Defendant Diana Hogan but otherwise denied.

BACKGROUND

The court assumes the parties’ familiarity with the factual and procedural background of

this case, set forth in detail in the court’s previous opinion. See Hurt, 2023 WL 6213685, at *1–

9. A brief summary follows.

Plaintiff Benahdam Hurt was admitted to EMHC, a state-run mental health hospital, as a

patient found not guilty by reason of insanity (“NGRI”) for aggravated battery of a peace officer.

Within months of his admission to EMHC, Hurt found himself entangled in a deeply inappropriate

relationship with his assigned social worker, Christy Lenhardt. Grossly abusing her position of

authority, Lenhardt initiated a sexual relationship with Hurt, conducting illicit encounters within the

confines of EMHC. The sexual affair spanned roughly three years and included Lenhardt’s

performing sex acts on Hurt, including in her own and other staff members’ offices.

Lenhardt’s and Plaintiff’s attempts to conceal the abusive conduct were not entirely

successful—not surprising, as other EMHC staff were often mere steps from the rooms where

Lenhardt performed her sex acts. Indeed, the record contained evidence that on multiple

occasions, Lenhardt was nearly caught in the act by a Defendant who knocked on the door while

she was performing oral sex on Hurt. On another occasion, the two accidentally locked

themselves in another employee’s office while they were involved in sexual misconduct and were

forced to call security staff to unlock the room for them.

The record also contained evidence that Lenhardt had inappropriate relations with other

patients at EMHC years before she began her affair with Hurt. In 2005, Lenhardt was caught

alone with a patient in another employee’s office. A staff member reported that incident to EMHC

administration, which was documented in her employment review as “perceived overinvolvement

with a male patient.” That patient would later escape from EMHC and flee to Europe—where

Lenhardt herself traveled to visit him. In fact, a co-worker (who is not a defendant in this case)

drove Lenhardt to the airport for the trip and picked her up, though she contended she did not

know the purpose of Lenhardt’s travel. A few years later in 2009, another patient openly told staff

and fellow patients that he had developed feelings for Lenhardt, and Lenhardt herself admitted to

staff members that she had feelings for this patient. While the record was not clear whether

Lenhardt had a sexual relationship with this patient, he was eventually transferred out of

Lenhardt’s unit at the hospital.

Notwithstanding the various signs that Lenhardt was having an affair with Hurt or her

reputation for crossing boundaries with previous patients, the record contained no direct evidence

that any EMHC staff members had actual knowledge of Lenhardt’s abuse. The record does,

however, include evidence of numerous instances in which Defendants expressed varying levels

of suspicion regarding Lenhardt’s relationship with Hurt. Suspicion became knowledge in June

2017, when EMHC security staff received a report that Hurt had posted a photo of himself on

social media, taken within the facility. This report led to a search of Hurt’s room by security staff,

a search that uncovered journals and audio recordings saved on USB drives documenting

Lenhardt’s relationship with Hurt and her previous relationships with other patients.

Lenhardt eventually pleaded guilty to a felony count of “sexual misconduct with a person

with disabilities” for her relationship with Hurt. 720 ILCS 5/11-9.5(b)(1).

LEGAL STANDARD

Defendants purport to bring their motion to reconsider under Federal Rule of Civil

Procedure 59(e), but that Rule applies only to final judgments. See Galvan v. Norberg, 678 F.3d

581, 587 n.3 (7th Cir. 2012) (noting that “a traditional Rule 59(e) motion to reconsider . . . can only

follow a ‘judgment’ ”). The court’s denial of Defendants’ motion for summary judgment was an

interlocutory order, not a final judgment. See, e.g., Haze v. Kubicek, 880 F.3d 946, 950 (7th Cir.

2018) (“It is basic procedural law that a denial of summary judgment is an interlocutory ruling.”).

The court therefore construes this motion under Rule 54(b). Galvan, 678 F.3d at 587 n.3 (“Rule

54(b) governs non-final orders and permits revision at any time prior to the entry of judgment,

thereby bestowing sweeping authority upon the district court to reconsider [interlocutory orders].”).

The standard of review for motions to reconsider brought under Rules 54(b) and 59(e) are

virtually identical. See Morningware, Inc. v. Hearthware Home Prods., Inc., No. 09 C 4348, 2011

WL 1376920, at *2 (N.D. Ill. Apr. 12, 2011) (“The standard courts apply in reconsidering their

decisions is generally the same under both Rule 59(e) and Rule 54(b).”); Saccameno v. Ocwen

Loan Servicing, LLC, No. 15 C 1164, 2018 WL 1240347, at *2 (N.D. Ill. Mar. 9, 2018) (same).

Specifically, motions for reconsideration are generally “viewed with disfavor” and are granted “only

in the rarest of circumstances and where there is a compelling reason,” to wit, “to correct manifest

errors of law or fact or to present newly discovered evidence.” See Saccameno, 2018 WL

1240347, at *2 (internal quotation marks omitted) (citing Hicks v. Midwest Transit, Inc., 531 F.3d

467, 474 (7th Cir. 2008)). Plainly, “[a] party moving for reconsideration bears a heavy burden.”

Caine v. Burge, 897 F. Supp. 2d 714, 716–17 (N.D. Ill. 2012) (citing Caisse Nationale de Credit

Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir. 1996)).

DISCUSSION

In their motion to reconsider, Defendants contend that the court’s denial of summary

judgment was a manifest error of law. They present three arguments in their motion. First,

Defendants argue that the court erred in applying the modified deliberate indifference standard to

Hurt’s case. Second, arguing in the alternative, Defendants claim that even if the modified

deliberate indifference standard applied to Hurt’s case, each Defendant is shielded by qualified

immunity because the standard is not clearly established in law. Finally, Defendants single out

Defendant Hogan and, again arguing in the alternative, contend that she is entitled to summary

judgment because there is no evidence that she “knew or suspected” that Lenhardt posed a

substantial risk to Plaintiff Hurt. Before addressing Defendants’ arguments, the court finds it

useful to briefly trace the origins of the modified deliberate indifference standard.

I. The Modified Deliberate Indifference Standard

The Seventh Circuit first articulated the modified deliberate indifference standard in K.H.

v. Morgan, which held that once a state takes custody of a child, that child has a constitutional

right to not be placed with a foster parent “whom the state knows or suspects to be a child abuser.”

914 F.2d 846, 852 (7th Cir. 1990). The case concerned a heartbreaking instance of child abuse

wherein staff of the Illinois Department of Children and Family Services (“IDCFS") removed a

toddler from her parents’ custody due to sexual abuse, only to have the child shuttled for four

years from one foster home to nine others, where various foster parents engaged in further

physical and sexual abuse of the child. Id. at 848. Plaintiff, through her guardian ad litem, brought

a § 1983 action against multiple IDCFS employees in their individual capacities, including the

Department’s Director and guardianship administrator, and two social workers. Id. at 847. The

complaint alleged two theories of liability: that the two social workers knew that K.H.’s foster

placements were unsatisfactory but nevertheless placed her there, and separately, that the

administrator defendants formulated and approved departmental policies that permitted these

placements. Id. at 849. The district court rejected defendants’ qualified immunity defense as to

both theories.

On appeal, the Seventh Circuit held that though K.H. did not have a clearly established

right to not be shuttled among foster homes, she did have a due process right under the

Fourteenth Amendment “not to be handed over by state officers to a foster parent or other

custodian, private or public, whom the state knows or suspects to be a child abuser.” Id. at 852

(emphasis added). That holding, the court explained, followed from Youngberg v. Romeo, 457

U.S. 307, 321 (1982)—where the Supreme Court held that a mentally disabled adult who was

involuntarily committed to a state mental health facility had a due process right to safety and

freedom from bodily restraint. K.H., 914 F.2d at 849 (“Youngberg v. Romeo made clear, years

before the defendants in this case placed K.H. with an abusing foster parent in 1986, that the

Constitution requires the responsible state officials to take steps to prevent children in state

institutions from deteriorating physically or psychologically.”). The K.H. court concluded that the

analogy to Youngberg was so apparent that the constitutional right at issue—to not be placed in

an environment where the state knows or suspects someone would be abused—was clearly

established. Id. at 853 (“Youngberg made the basic duty of the state to children in state custody

clear.”); id. at 852 (“There is, made explicit by this opinion but clearly implicit in Youngberg, a

prima facie right not to be placed with a foster parent who the state’s caseworkers and supervisors

know or suspect is likely to abuse or neglect the foster child.”). Accordingly, the court remanded

for determination of whether the defendants knew or suspected that K.H.’s foster parents were

abusive. Id. at 854.

The Seventh Circuit had occasion to apply the “knows or suspects” standard several years

later in Lewis v. Anderson, 308 F.3d 768 (2002), another case involving foster care. The plaintiffs

in Lewis, five siblings, brought a § 1983 action against several officials of the Wisconsin

Department of Health and Social Services (“DHSS”) in their individual capacities, alleging that the

defendants violated their due process rights by placing them in an abusive foster home. Id. at

770. The defendants in Lewis were the Administrator of the Division of Community Services at

the DHSS, two social workers for DHSS tasked with overseeing the placement of the plaintiffs,

and the DHSS official who supervised the defendant social workers. Id. at 771. To meet the

“knowledge or suspicion” standard, the plaintiffs offered two pieces of evidence: the caseworkers’

awareness that the foster father had previously slapped one of his children and a reference letter

for the foster parents that was “lukewarm” in its recommendation (specifically, the letter expressed

concerns over the parents’ short temper and the size of their home but concluded that they were

fit to adopt the children). Id. at 774. On this record, the district court granted the defendants’

motion for summary judgment and the plaintiffs appealed.

The Seventh Circuit affirmed, but did not abandon the modified deliberate indifference

standard. Applying that standard, the court first clarified that the state’s obligations to the plaintiffs

arose from the “special relationship between the state and the individual” and from the fact that

“the danger to the child [was] state-created.” Id. at 773 (internal quotation marks and citations

omitted). The court went on to explain that the modified deliberate indifference standard

established in K.H. “does not take the next step and impose some kind of duty of inquiry in these

cases,” but rather requires only that the plaintiffs “put forth a case that the . . . defendants actually

knew of or suspected the existence of child abuse in the prospective adoptive family.” Id. The

Lewis plaintiffs’ evidence did not meet that requirement: Evidence of “one instance of child-hitting”

was not indicative of actual abuse, and the reference letter provided no basis to conclude that the

foster parents would be abusive. Id. at 774–75. The plaintiffs had urged that the “stringent”

knowledge or suspicion standard be reconsidered, but the court rejected that request, confirming

that the standard is consistent with Supreme Court and Seventh Circuit case law on deliberate

indifference. Id. at 776 (first citing Estelle v. Gamble, 429 U.S. 97, 104–06 (1976); then citing

Farmer v. Brennan, 511 U.S. 825, 837 (1994); and then citing Jones v. Simek, 193 F.3d 485, 490

(7th Cir.1999)).

The Seventh Circuit has continued to apply this modified deliberate indifference standard

in the foster care context. See, e.g., J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 792 (7th Cir.

2003); Waubanascum v. Shawano Cnty., 416 F.3d 658, 665 (7th Cir. 2005); Xiong v. Wagner,

700 F.3d 282, 293 (7th Cir. 2012). These cases further refine the standard’s contours. In J.H.,

the court explained that “the standard set forth in K.H. and Lewis differs from the ‘deliberate

indifference’ standard only in the sense that it can be satisfied by proof of a state actor's

knowledge or suspicion of the risk of harm, rather than just knowledge. Both standards are

subjective.” J.H. ex rel. Higgin, 346 F.3d at 792 (emphasis in original). That court also held that

in order to hold the defendants liable, the plaintiff “must show a connection between any

knowledge or suspicion of risk that the defendants may have had and the injury that the children

actually suffered.” Id. at 793. In other words, a plaintiff cannot satisfy the standard merely by

proffering evidence of a generalized risk; instead, there must be a nexus between the evidence

of knowledge or suspicion and the abuse suffered. And, in Waubanascum, the court underscored

that for the knowledge-or-suspicion standard to apply, “the state must have custody over the

child.” Waubanascum, 416 F.3d at 665 (emphasis in original) (finding that Shawano County did

not have custody of child by virtue of having issued a foster care license to abusive father because

child was in fact under the supervision and custody of Menominee County).

II. Was this Court’s Application of the Modified Deliberate Indifference Standard a

Manifest Error of Law?

The Defendants’ central argument against this court’s use of the modified deliberate

indifference standard is that the Seventh Circuit has never applied the standard outside the foster

care context. For this reason, they urge, the court should not apply it here. In support of this

argument, Defendants cite a handful of district court opinions dealing with failure-to-intervene

claims in a variety of contexts, including claims of abuse brought against officials in schools,

prisons, and even in mental health facilities, none of which apply the “knowledge or suspicion”

standard.

Defendants are correct that the Seventh Circuit has not explicitly endorsed applying the

modified deliberate indifference standard outside of the foster care context. The Court of Appeals

has not, however, foreclosed application of the standard in analogous contexts. Indeed, some

courts have contemplated the applicability of the standard outside of the foster care context. See

Woods v. Ill. Dep't of Child. & Fam. Servs., 710 F.3d 762, 763 (7th Cir. 2013) (citing K.H. in case

brought by minor who had been sexually abused after the state placed them in residential

treatment facility, but ultimately concluding case was barred by statute of limitations); Golbert v.

Aurora Chi. Lakeshore Hosp., LLC, No. 19-CV-08257, 2021 WL 952560, at *6 (N.D. Ill. Mar. 11,

2021) (acknowledging dispute between parties of whether the “knowledge or suspicion” standard

was applicable in a safe conditions of confinement claim brought by children abused in mental

health facility, but not deciding issue); K.L. v. Edgar, 941 F. Supp. 706, 716 (N.D. Ill. 1996) (citing

K.H. in class action brought by adult patients of mental health facility).

Notably, while Defendants have argued that the modified deliberate indifference standard

should not apply here, they have failed to make a consistent case for what standard should apply.

At some points in their motion, they argue that Plaintiff’s burden is to show that the Defendants

“actually knew about Plaintiff and Lenhardt’s relationship”—the standard often used in failure-to-

intervene cases involving police officers. (Defs.’ Mot. to Recons. Summ. J. Ruling [254] (“Defs.’

Mot. to Recons.”) at 12–13 (emphasis added).) Indeed, this was the standard that the Defendants

initially presented in their motion for summary judgment. (See Defs.’ Joint Mem. in Supp. of

Summ. J. [217] at 7 (quoting Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994), for the legal

standard that “defendant must have actual knowledge of the constitutional violation and a realistic

opportunity to intervene and prevent the harm”).) Then, at other points in their reconsideration

briefing, they argue that “Plaintiff must show that [Defendants] . . . actually knew that there was a

substantial risk that Lenhardt was abusing Plaintiff and failed to take action”—which is the

traditional deliberate indifference standard, often applied in prison conditions cases. (Defs.’ Reply

in Supp. of Their Mot. to Recons. Summ. J. Ruling (“Defs.’ Reply”) at 9 (emphasis added).)

Neither party raised the traditional deliberate indifference standard at summary judgment.

Even the cases that Defendants cite as persuasive authority are not consistent in which

standard they use; some apply the “actual knowledge” test and others apply a deliberate

indifference test. For example, Defendants point to Strong v. Wisconsin, 544 F. Supp. 2d 748,

765 (W.D. Wis. 2008) as a model for the court to follow, which applies the “actual knowledge”

standard to a failure-to-intervene claim brought by a mental health patient that alleged sexual

abuse by hospital staff. (Defs.’ Mot. to Recons. at 8.) Then, in the very next paragraph, the

Defendants invoke Doe v. Macleod, No. 18-3191, 2023 WL 2698672, at *1 (C.D. Ill. Mar. 29,

2023), where the court applied a deliberate indifference standard to a claim brought by a prisoner

that was sexually abused by a prison employee. (Defs.’ Mot. to Recons. at 8–9.) That leaves the

court uncertain about which standard Defendants believe applies here.1

As the court sees it, counsel in this case have referred to at least three potential standards:

“actual knowledge”; “actual knowledge of a substantial risk” (deliberate indifference); and “actual

knowledge or suspicion of a substantial risk” (modified deliberate indifference). Without

identifying which of the first two standards should apply here, Defendants focus their energy on

arguing that the court should not apply the third—that is, the “knowledge or suspicion” standard.

Plaintiff, for his part, argues that the court was correct in applying the “knowledge or suspicion”

standard and, in any event, that Plaintiff would also survive summary judgment under the

traditional deliberate indifference standard. Defendants have not established that the court’s

earlier ruling was a manifest error of law, and the court stands by its view that the foster care

cases are most analogous to Hurt’s case. Several factors guide the court’s reasoning on this

issue. First, Hurt was in the long-term custody of the state when he was abused, like the plaintiffs

in the foster care cases. As the foster care cases point out, the “creation of a special relationship

between the state and the individual,” such as its taking an individual into its custody, creates an

obligation on the state to protect that individual. Lewis, 308 F.3d at 773. Additionally, the “danger”

posed to Hurt was also undoubtedly “state created”—he was sexually abused not by another

detainee from whom the state failed to protect him, but by the social worker EMHC had assigned

to him. Id. Hurt’s case is also analogous to the foster care cases in the sense that by virtue of

1 In the court’s view, Strong, which the Defendants urge is most factually apposite, is

distinguishable. In that case, like Hurt’s, the plaintiff was a forensic patient at a state-run mental

health hospital. 544 F. Supp. 2d at 761. The plaintiff alleged that while he was a patient at the

facility, a staff member engaged in a sexual relationship with him. He also claimed that another

staff member would watch them engage in sex acts and acted as “look out” during the episodes.

Id. at 759. In assessing the lookout-defendant’s motion for summary judgment regarding plaintiff’s

failure-to-intervene claim, the court stated that a reasonable juror could find the lookout had active

involvement in the abuse and could therefore be liable under either an “actual knowledge”

standard or under a conspiracy theory. Id. at 765. In this sense, Strong, unlike Hurt’s case, was

much more analogous to the paradigmatic law enforcement failure-to-intervene claim where the

defendant played an active role in the constitutional violation and was present while it happened.

Put differently, the claim in Strong is less a failure-to-intervene claim than it is conspiracy claim.

being adjudicated insane, he represents an individual of limited mental capacity, similar to a child.

The isolation and vulnerability of these two populations make them not only more susceptible to

abuse, but also less equipped to report the abuse, and if they do report it, less likely to be believed.

Beyond these similarities, it is worth reiterating that the modified deliberate indifference standard

established in K.H. spawned from Youngberg—a case concerning the constitutional rights of a

mentally ill adult who was committed to a state-run mental health facility.

Hurt’s case bears little resemblance to Yang v. Hardin and its progeny, cited by

Defendants, making the “actual knowledge” standard particularly inapplicable. These cases

chiefly involve claims against bystander-policemen who witness their partners using excessive

force on a suspect or detainee and fail to stop it. The alleged constitutional violation in these

cases is typically happening directly in the presence of the bystander-officer, sometimes even on

public streets where others can witness the violation. In contrast, the constitutional violation

suffered by Hurt and the plaintiffs in the foster care cases is sexual abuse, which by its nature

happens behind closed doors—making a liability requirement of “actual knowledge”

unreasonable. Moreover, the critical element of long-term custody, which places a heightened

burden on state officials to protect these individuals, is absent from the police excessive-force

cases. That element is instead present in the prison context, where the traditional deliberate

indifference standard is often applied.

The court nevertheless believes that the foster care cases are more analogous than the

prison cases. As an initial matter, incarcerated individuals bring their failure-to-intervene claims

under the Eighth Amendment, whereas involuntarily committed individuals, like Hurt, bring their

claims under the Due Process Clause of the Fourteenth Amendment. Youngberg, 457 U.S. at

321–22. This distinction is relevant, as the Supreme Court has explained, because “[p]ersons

who have been involuntarily committed are entitled to more considerate treatment and conditions

of confinement than criminals whose conditions of confinement are designed to punish.” Id.

Additionally, the vulnerability and limited-mental-capacity characteristics present in Hurt’s case

and the foster care cases are less acute in both the police and prison contexts. For these reasons,

the court continues to believe that the modified deliberate indifference standard is the most

appropriate standard in this case.

Defendants attempt to distinguish Hurt’s case from the foster care cases by emphasizing

that Hurt was not a child. They argue, for example, that “while Plaintiff was adjudicated NGRI,

that fact alone does not mean that he had such a diminished mental capacity that he should be

considered equivalent to a child.” (Defs.’ Mot. to Recons. at 11.) They note evidence that Hurt

appeared to understand that Lenhardt would go to jail if staff discovered her abuse and that he

concealed the fact that she performed sex acts on him—evidence, in Defendants’ view, of his

competence. (Id. at 12.) Hurt “could have reported the abuse” to numerous people and “could

also have called the OIG hotline” to report the abuse, Defendants insist. (Id. at 9.) Finally,

Defendants make the tenuous argument that as a technical matter, “Illinois law also does not

presume that an adult admitted to a mental health facility is unable to consent to sexual activity.”

(Id. at 10.) To be sure, Defendants do not go so far as to claim that Hurt actually did consent to

Lenhardt’s specific sex acts, nor even that he could have done so. They do, however, gesture at

this by characterizing Hurt as “an adult who was competent enough to understand that Lenhardt’s

activities were illegal, competent enough to understand that if their relationship were discovered,

Lenhardt would lose her job and go to jail, and competent enough to actively work to conceal the

relationship.” (Id. at 12.)

These arguments may well be convincing to a jury, but they do not alter the court’s

conclusion about the appropriate standard here. Certainly the law distinguishes children from

mentally ill adults. The two groups are akin, however, in their isolation and vulnerability, which

make them less able or willing to report abuse and also more susceptible to being coerced into

not reporting abuse. In any event, there is no basis in this record for a finding that Hurt and

Lenhardt were in a lawful and consenting sexual relationship, and Defendants do not contend

otherwise. To the contrary, Lenhardt herself pleaded guilty to a felony count of sexual misconduct

with a person with disabilities, and the parties do not dispute that Hurt suffered a constitutional

harm at Lenhardt’s hands. See Hurt, 2023 WL 6213685, at *13. The suggestion that mentally ill

individuals can consent to sex in some instances does little to support Defendants’ argument in

this case, where there is no question that Lenhardt exploited her position of authority, and Hurt’s

vulnerability, to sexually abuse him.

Finally, it is worth underscoring that the court’s summary judgment ruling is not contingent

on application of the “knowledge or suspicion” standard, and that Plaintiff’s failure-to-intervene

claims against Defendants Javed, Kareemi, Beck, and Delaney would survive summary judgment

under the traditional deliberate indifference standard as well. To satisfy that standard, Plaintiff

need not present direct evidence of “actual knowledge of a substantial risk,” as the Defendants

seem to suggest at points in their briefing. To the contrary, the Seventh Circuit has recognized

that “except in the most egregious cases, plaintiffs generally lack direct evidence of actual

knowledge. Rarely if ever will an official declare, ‘I knew this would probably harm you, and I did

it anyway!’ Most cases turn on circumstantial evidence . . . .” Petties v. Carter, 836 F.3d 722,

728 (7th Cir. 2016), as amended (Aug. 25, 2016). Thus, the Seventh Circuit has

clarif[ied] that proof that the defendant had the requisite knowledge of substantial

risk through circumstantial evidence of the risk’s obviousness does not require

evidence of past injury caused by the same risk or evidence that a defendant had

recognized the risk before . . . . Actual knowledge of a substantial risk of serious

harm can be inferred by the trier of fact from the obviousness of the risk . . . .

Est. of Cole by Pardue v. Fromm, 94 F.3d 254, 260 (7th Cir. 1996) (internal quotation marks and

citations omitted). As articulated by the Seventh Circuit, the two variations of the deliberate

indifference standard vary only slightly, with one requiring “knowledge of a substantial risk” and

the other requiring “knowledge or suspicion of a substantial risk”—both are subjective tests.

Whatever daylight exists between these two standards is even less discernible at the summary

judgment stage, where all reasonable inferences must be drawn in favor of the nonmoving party.

The record in this case, as the court detailed at length in its summary judgment order, depicted a

disturbing picture of abuse by Lenhardt that spanned over a decade and affected multiple

patients. This was not a case of a single incident of abuse that went undetected; there is evidence

from which a reasonable jury could find that there were abundant signs of Lenhardt’s substantial

risk to patient safety. Whether the individual Defendants in this case were put on notice of the

obviousness of that risk is a question that a jury must ultimately decide.

III. Are the Defendants Protected by Qualified Immunity?

Next, Defendants’ claim that they are immune from liability because there is no clearly

established law applying the modified deliberate indifference standard to the fact pattern of this

case. In other words, Defendants argue that while the law is clear that the modified deliberate

indifference standard applies to children subjected to sexual abuse by their foster parents, it is

not clearly established that this standard applies to mentally ill individuals subjected to sexual

abuse by hospital staff.

Whether the qualified immunity defense has merit is a close question. It is true that the

Seventh Circuit has not applied the “knows or suspects” standard outside of the foster care

context. Yet it is also true that this does not in and of itself defeat Plaintiff’s claim, as an

“appropriately defined right is clearly established if there is a closely analogous—though not

necessarily identical—case identifying that right, or if the defendant's conduct was so egregious

and unreasonable that . . . no reasonable [official] could have thought he was acting lawfully.”

Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019) (internal quotation marks and citations

omitted). Hurt’s case parallels the foster care cases in most important aspects, and the underlying

constitutional conduct is sufficiently egregious to raise an argument that, if the Defendants in this

case knew or suspected that a patient was being sexually abused, they should have known they

had a constitutional duty to intervene, given K.H. and its progeny.

Nevertheless, the court need not reach Defendants’ qualified immunity argument at this

juncture. This is because the court’s summary judgment ruling did not rest on a conclusion that

there was evidence that the Defendants merely suspected there was sexual abuse. Rather, the

court held that “there is evidence from which a reasonable jury could find that each Defendant

knew of or suspected that Lenhardt was sexually abusing Hurt for nearly three years and that,

instead of intervening, each chose to bury their heads in the sand.” Hurt, 2023 WL 6213685, at

*14. Simply put, as described above, the Plaintiff’s claims would survive summary judgment

under both the traditional and modified deliberate indifference standard, and there is no dispute

that the traditional deliberate indifference standard is clearly established in law. For this reason,

the Defendants’ qualified immunity argument fails at the summary judgment stage.

Defendants’ qualified immunity claim may well become relevant again at trial, however.

For example, if after scrutinizing the facts at trial, the jury finds that a Defendant lacked

“knowledge” of a substantial risk of sexual abuse, but did have a “suspicion” of that risk,

Defendants’ qualified immunity argument would resurface. One way the court could address this

issue is to provide the jury with a general verdict form with interrogatories that separate the factual

findings related to “knowledge” and “suspicion.” This would preserve Defendants’ ability to re-

assert their qualified immunity argument in the event that the jury finds a Defendant did not meet

the traditional deliberate indifference standard but did meet the modified deliberate indifference

standard. The court will revisit this issue, if appropriate, at a later point in the litigation.

IV. Is Defendant Diana Hogan Entitled to Summary Judgment?

Finally, Defendants argue that even if the modified deliberate indifference standard applies

to Hurt’s case, Defendant Diana Hogan is nevertheless entitled to summary judgment because,

Defendants urge, there is no evidence in the record from which a reasonable juror could conclude

that she actually “knew or suspected” that there was a substantial risk that Lenhardt was sexually

abusing Hurt. Defendant Hogan was the Associate Director of Nursing of the Forensic Treatment

Program at EMHC from 2008 until 2015, and then served as the Director of Nursing. Hurt, 2023

WL 6213685, at *2. In this role, Hogan did not supervise social workers such as Lenhardt and

typically did not work in the hospital unit where Hurt was housed. Id. In fact, Hogan testified that

while she knew who Lenhardt was, she never had more than a “fleeting conversation” with her.

(Hogan Dep. Ex. F to DSOF [218-6] at 85:18–86:3.) She also testified that she “never even met”

Hurt and “couldn’t tell you what he looks like.” (Id. at 43:21–24.)

Notwithstanding Hogan’s apparent separation from both Lenhardt and Hurt, Plaintiff

attempts to connect Hogan to this lawsuit with two pieces of evidence. The first was the fact that

after Lenhardt and Hurt were caught locked in another staff member’s office, Defendant Hogan

received an email from EMHC Chief of Security William Epperson that contained a report of the

incident and stated in the body of the email that he was “[v]ery concerned that a [social worker]

would ask for assistance from a patient, for an office not on her unit.” Hurt, 2023 WL 6213685, at

*8. Plaintiff contends that Epperson’s email and report should have alerted Hogan to the

possibility that Lenhardt was abusing Hurt. The other evidence against Hogan consisted of

reports that EMHC “administration” had suspicions surrounding Lenhardt and Hurt. For example,

Lenhardt testified that Hogan’s co-defendant, Drew Beck, warned Lenhardt that “administration

was watching [her] and [Hurt].” Id. at 6. Plaintiff claims that in light of her role at EMHC as Director

of Nursing, the reference to “administration” here must be read to include Hogan.

Upon a careful reconsideration of Defendant Hogan’s deposition testimony and the record

evidence related to her, the court concludes that Defendants are correct that the evidence is

insufficient to find Hogan liable even under the modified deliberate indifference standard. True,

Chief Epperson’s email and incident report could (perhaps should) have sounded alarm bells; but

Plaintiff provides no evidence that Hogan was in fact at all concerned. Hogan testified that at the

time she was not worried about any potential sexual misconduct, but was instead concerned that

other office doors may too have faulty locks and thus pose a safety risk to hospital staff. (Hogan

Dep. at 54:16–55:11.) This reaction was not unreasonable, given that Hogan had essentially no

familiarity with either Lenhardt or Hurt and the email and report themselves make no reference to

any sexual misconduct.

Likewise, Plaintiff’s “administration” argument is also too tenuous. In essence, Plaintiff

asks the court to construe evidence that EMHC “administration” had suspicions surrounding

Lenhardt as pointing directly to Defendant Hogan. While Hogan does refer to herself as a part of

the hospital’s administration, the record is clear that she was one of many administrators. (See

id. at 56:1-7; 61:12-15.) The fact that some unidentified administrator had concerns about

Lenhardt does not mean that Defendant Hogan did.

In the end, the strongest argument against Hogan is that more hands-on supervision of all

staff might have uncovered Lenhardt’s activities far sooner. But as the court understands the

organizational structure of EMHC, Hogan, who was the Director of Nursing, did not supervise

social workers. In any event, § 1983 does not allow for supervisory liability where the supervisor

was not personally involved in the constitutional violation. Plaintiff's theory of liability against

Defendant Hogan amounts to arguing that she should have known or suspected that Lenhardt

was a danger to patients, without any evidence that she actually knew or suspected that Lenhardt

was a risk. The court therefore grants Defendants’ motion for reconsideration with respect to

Defendant Hogan only.

CONCLUSION

For the reasons provided above, the court grants the Defendants’ Motion to Reconsider

[254] with respect to Defendant Hogan only and denies all other claims in Defendants’ Motion to

Reconsider. Accordingly, Defendants’ Renewed Motion to Stay Expert Discovery [262] is deemed

moot and the parties are instructed to proceed with expert discovery.

ENTERED:

Dated: February 15, 2024 Hpac Herder

REBECCA R. PALLMEYE

United States District Judge

17