GRASSE v. MELLINGER

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

AMBER GRASSE, )

)

Plaintiff, )

)

v. ) No. 1:18-cv-00021-JPH-MJD

)

SCOTT MELLINGER Sheriff, )

JENNIFER SIMMONS COMMANDER, )

TYLER JUGG COMMANDER, )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Amber Grasse alleges that she missed two doses of her prescription

medication while incarcerated in the Madison County Jail, causing her to

suffer a miscarriage. She has sued the Madison County Sheriff and two of his

employees for denial of adequate medical care and violation of the Americans

with Disabilities Act ("ADA") and Rehabilitation Act ("RA"). Dkt. 1-2.

Defendants have moved for summary judgment. Dkt. [39]. For the reasons

that follow, that motion is GRANTED.

I.

Facts and Background

Because Defendants have moved for summary judgment under Rule

56(a), the Court views and recites the evidence "in the light most favorable to

the non-moving party and draw[s] all reasonable inferences in that party's

favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

On November 28, 2015, Madison County sheriff deputies arrested Ms.

Grasse at her home. Dkt. 42-1 at 1–2. She arrived at the Madison County Jail

(the "Jail") just after midnight. Dkt. 40-1 at 3–4 (Grasse Dep. at 92–93). At the

time, Ms. Grasse was taking prescribed anticoagulant injections twice a day

because she was pregnant. Dkt. 42-1 at 1. She had not yet taken her second

injection when she was arrested. Id. at 2.

Before arriving at the Jail, Ms. Grasse asked an arresting officer if she

could have her injection, explaining that she believed she would suffer a

miscarriage if she didn't take it. Id. at 2–3. The officer—who is not a defendant

in this case—told her that she "would have to talk to Medical" when she arrived

at the jail. Dkt. 40-1 at 3 (Grasse Dep. at 92). At the jail, Ms. Grasse told the

book-in officer that she was pregnant, was taking anticoagulant injections, and

"needed to talk to Medical." Id. at 5 (Grasse Dep. at 96). She again explained

that she believed she would suffer a miscarriage without the injections. Dkt.

42-1 at 3. The officer—who also is not a defendant in this case—did not let her

have the injection and told her that medical staff would not be at the jail until

morning. Dkt. 40-1 at 5 (Grasse Dep. at 96).

Ms. Grasse spent about 11 hours at the Jail and was released just after

11:00 a.m. Id. at 4 (Grasse Dep. at 93). During that time, she tried to follow

up with officers to ask them for medical care, but they would not respond.

Dkt. 42-1 at 4; id. at 6–7 (Grasse Dep. at 99–100). Those officers also are not

defendants in this case. Ms. Grasse did not speak to medical staff or receive

her injections while at the Jail. Dkt. 42-1 at 4. She missed two injections—

one for the evening of November 28 and one for the morning of November 29—

and the following month suffered a miscarriage. Id.

At the time Ms. Grasse was at the Jail, medical staff were on-site from

7:00 a.m. through 11:00 p.m. every day. Dkt. 40-2 at 2. If an inmate needed

medical care, an appointment would be made; if it were an emergency, Jail

policy required officers to contact medical staff. Id. at 2–3. The medical staff

would evaluate the situation and "give direction to Jail personnel accordingly."

Id. at 3. All Jail personnel were trained on these policies. Id.

Ms. Grasse brings claims against Defendants for constitutional and

statutory violations related to the lack of medical care she received at the Jail.

Dkt. 1-2; dkt. 30. Defendants have moved for summary judgment. Dkt. 39.

II.

Applicable Law

Summary judgment shall be granted "if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party must

inform the court "of the basis for its motion" and specify evidence

demonstrating "the absence of a genuine issue of material fact." Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this

burden, the nonmoving party must "go beyond the pleadings" and identify

"specific facts showing that there is a genuine issue for trial." Id. at 324.

In ruling on a motion for summary judgment, the Court views the

evidence "in the light most favorable to the non-moving party and draw[s] all

reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d at

584 (citation omitted).

III.

Analysis

A. Abandoned Claims

Defendants argue that they are entitled to summary judgment on the

individual-capacity claims against them and on Ms. Grasse's Emergency

Medical Treatment and Active Labor Act claim. Dkt. 41 at 6–7, 20–21. Ms.

Grasse's response does not address those arguments, see dkt. 43, so she has

"abandoned the claim[s]," Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir.

2008). Defendants' motion for summary judgment on those claims is granted.

Ms. Grasse's only remaining claims are therefore her Section 1983 Monell

claims and her ADA and RA claim.

B. Monell Liability Under Section 1983

Ms. Grasse's claim against the Madison County Sheriff in his official

policymaking capacity is a Monell municipal-liability claim. Miranda v. County

of Lake, 900 F.3d 335, 344 (7th Cir. 2018) (citing Monell v. Dept. of Soc. Servs.,

436 U.S. 658 (1978)). A municipality cannot be held vicariously liable under

section 1983 for the actions of its agent or employee. Los Angeles Cty. v.

Humphries, 562 U.S. 29, 35–36 (2010) (explaining Monell, 436 U.S. 658).

Rather, a municipality can be liable for only its own actions and corresponding

harm. Id.

"The critical question under Monell remains this: is the action about

which the plaintiff is complaining one of the institution itself, or is it merely one

untaken by a subordinate actor?" Glisson v. Ind. Dept. of Corr., 849 F.3d 372,

381 (7th Cir. 2017) (en banc). An action is one of the "institution itself," id.,

when the municipality's "official policy, widespread custom, or action by an

official with policy-making authority was the 'moving force' behind [the]

constitutional injury," Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016)

(citing Monell, 436 U.S. at 658; City of Canton v. Harris, 489 U.S. 378, 379

(1989)); see Humphries, 562 U.S. at 36 (reciting the "list of types of municipal

action" that can lead to liability).

The "stringent" and precise grounds for Monell liability are required by

section 1983. Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 402–404, 415

(1997); see Humphries, 562 U.S. at 36. Courts must apply "rigorous standards

of culpability and causation" to prevent municipal liability from collapsing into

respondeat superior liability, which section 1983 prohibits. Brown, 520 U.S. at

405, 415.

1. Express Policy

Monell liability under an express-policy theory applies when "a policy

explicitly violates a constitutional right when enforced." Calhoun v. Ramsey,

408 F.3d 375, 379 (7th Cir. 2005). In other words, the "policy in and of itself"

must cause constitutional violations. City of Okla. City v. Tuttle, 471 U.S. 808,

822 (1985); accord J.K.J. v. Polk County, 960 F.3d 367, 377–78 (7th Cir. 2020)

(en banc).

The Sheriff argues that Ms. Grasse cannot establish Monell liability

because no express policy violated Ms. Grasse's constitutional rights. Dkt. 41

at 11–12. Ms. Grasse responds that the Sheriff's policy triggers Monell liability

because she did not receive required immediate treatment and because medical

staff were not present on-site. Dkt. 43 at 14, 16.

Here, the Sheriff's policy is undisputed. See dkt. 43 at 7–8. At the time

of Ms. Grasse's detention, medical staff were at the jail from 7:00 a.m. through

11:00 p.m. every day. Dkt. 40-2 at 2. If at book-in an inmate "expressed or

demonstrated a need for medical care," a medical appointment would be

scheduled. Id. at 2. And if there was an emergency medical need, jail staff

would contact the medical providers immediately. Id. Similarly, if an inmate

needed care when no medical staff were on-site, jail officers would page the

medical providers, who would give direction to jail staff. Id. at 2–3.

The policy therefore provided an avenue for immediate care—if medical

providers were not on-site, jail staff were to contact them immediately and

follow their directions. Id. That is enough to defeat Monell liability under an

express-policy theory, because that policy "in and of itself" does not cause

constitutional violations. Tuttle, 471 U.S. at 822; accord J.K.J., 960 F.3d at

377–78. Indeed, there "can be little doubt that on its face" the policy is

constitutional because—if followed—it would have provided Ms. Grasse

immediate medical care if she identified an emergency need. Harris, 489 U.S.

at 386–87 (finding the same for a jail's policy to take inmates who need medical

care to a hospital). That is far different than, for example, an unconstitutional

"policy requiring jail staff to throw away all prescription medications without

implementing an appropriate mechanism for providing alternative treatment."

King v. Kramer, 680 F.3d 1013, 1021 (7th Cir. 2012).

Ortiz v. City of Chicago, which Ms. Grasse relies on, does not teach

otherwise. 656 F.3d 523, 530 (7th Cir. 2011). That case applied the duty to

"reasonably respond to medical complaints" under a policy "prohibiting

detainees from taking medicine in lockup unless . . . transported to [the]

hospital." Id. at 531. But Ortiz did not "comment on whether that policy is

wise as a general matter"—much less whether it is constitutional—and did not

address Monell liability. Id. Instead, it examined whether "each officer" acted

reasonably. Id. at 531–32. This case is the opposite, as Ms. Grasse pursues

Monell liability and not individual liability. Dkt. 43 at 14–18.

Because Ms. Grasse pursues only Monell liability, the Court does not

address whether jail staff followed the express policy, or whether Ms. Grasse's

constitutional rights were violated during her detention. Those questions are

separate from the express-policy theory that Ms. Grasse relies on. See dkt. 43

at 14–18; Glisson, 849 F.3d at 379 (Under Monell, the "critical question . . . is

whether a municipal . . . policy or custom gave rise to the harm (that is, caused

it), or if instead the harm resulted from the acts of the entity's agents.").

Moreover, Ms. Grasse does not argue that jail staff had a custom of violating

medical-care policies. See dkt. 43 at 14–18; Glisson, 849 F.3d at 379.

Because the Sheriff's express policy itself does not violate constitutional

rights when enforced, there is no triable issue of fact on whether the policy

injured Ms. Grasse. Defendants are therefore entitled to summary judgment

on this Monell theory.

2. Failure to Train

The Sheriff argues that no designated evidence shows a triable issue of

fact on Ms. Grasse's failure-to-train Monell theory. Dkt. 47 at 10–12. Ms.

Grasse contends that jail staff should have been trained to provide urgent

medical care, and that whether any training was adequate should be for a jury

to decide. Dkt. 43 at 18.

"In limited circumstances, a local government's decision not to train

certain employees about their legal duty to avoid violating citizens' rights may

rise to the level of an official government policy for purposes of § 1983."

Connick v. Thompson, 563 U.S. 51, 61 (2011). But failure to train is the "most

tenuous" Monell theory. Id. "A pattern of similar constitutional violations" is

"ordinarily necessary" to establish the claim. Id. at 62. A single incident can

be enough only when a "'highly predictable' constitutional danger"

demonstrates the "obvious need for specific legal training." Id. at 64–68.

Here, Ms. Grasse argues that the "need for medical care, including

urgent medical care, is certainly a 'recurring situation' for a county sheriff's

department." Id. at 18. But she has designated no evidence of similar

constitutional violations. See dkt. 43 at 2–9. There is therefore no triable issue

of fact about whether the Sheriff had a pattern of failing to provide

constitutionally sufficient medical care—"Monell claims require evidence, but

[Ms. Grasse] has offered none." Barnes v. City of Centralia, Ill., 943 F.3d 826,

832 (7th Cir. 2019).

The Sheriff also cannot be liable under a failure-to-train theory based on

a single incident. The undisputed designated evidence shows that "[a]ll jail

personnel were trained" on the policy that emergency needs should be raised to

medical staff immediately, even if medical staff are not present at the time.

Dkt. 40-2 at 2–3. Ms. Grasse therefore has not shown that the Sheriff's

training was insufficient, much less that it shows a "conscious choice" to

provide constitutionally deficient medical care. Rice v. Correctional Med. Servs.,

675 F.3d 650, 675 (7th Cir. 2012); see Jenkins v. Bartlett, 487 F.3d 482, 492

(7th Cir. 2007) ("A municipality will be held liable for the violation of an

individual's constitutional rights for failure to train its officers only when the

inadequacy in training amounts to deliberate indifference to the rights of the

individuals with whom the officers come into contact.").

There is therefore no triable issue of fact on Ms. Grasse's failure-to-train

claim, and Defendants are also entitled to summary judgment on this theory of

Monell liability.1

C. Americans with Disabilities Act and Rehabilitation Act

The ADA and RA generally prohibit public entities, including prisons,

from discriminating against disabled individuals. See Pennsylvania Dep't of

Corrections v. Yeskey, 524 U.S. 206, 210 (1998). "To prove a prima facie case

of discrimination," Ms. Grasse "must show: (1) that [s]he is a qualified

individual with a disability; (2) that [s]he was denied the benefits of the

1 Because Ms. Grasse cannot establish Monell liability for the reasons above, the Court

does not address Defendants' qualified-immunity argument or whether the standard

for medical care is deliberate indifference or objective reasonableness.

services, programs, programs, or activities of a public entity or otherwise

subjected to discrimination by such an entity; and (3) that the denial or

discrimination was 'by reason of' [her] disability." Lacy v. Cook County, Ill., 897

F.3d 847, 853 (7th Cir. 2018) (citation and quotations omitted).2

Defendants argue that Ms. Grasse has not designated evidence

supporting the third element—that her medical care was delayed or denied

because of a disability. Dkt. 47 at 13–14. Ms. Grasse contends that a

reasonable jury could find that she was denied care based on her disability

because Defendants can provide medical care to inmates but did not provide

care to her. Dkt. 43 at 24.

It is not enough that Ms. Grasse was disabled and did not receive

medical care. Rowling v. Ill. Dept. of Corrections, No. 3:16-cv-459-NJR-MAB,

2019 WL 3628741 at *5 (S.D. Ill. May 10, 2019) (quoting Bryant v. Madigan, 84

F.3d 246, 249 (7th Cir. 1996) ("The ADA does not create a remedy for medical

malpractice.")). Instead, to succeed on her claim, she must "show[ ]that the

reason for [her] deprivation is [her] disability." See Wisc. Comm. Servs., Inc. v.

City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006). However, Ms. Grasse

has not designated evidence to support a reasonable inference that she did not

receive medical care because of her disability.

Ms. Grasse points only to the Jail's medical-care policy which, as

explained above, allowed inmates to receive emergency medical care even when

2 The same analysis governs the ADA and RA, so the Court considers them together.

See Jaros v. Ill. Dept. of Corrections, 684 F.3d 667, 671–71 (7th Cir. 2012).

no medical staff were on-site. Dkt. 43 at 22. But that policy cannot create a

triable issue of fact. Nothing in the policy, when enforced consistently, would

delay or deny treatment for inmates with disabilities as compared to other

inmates. See Wisc. Comm. Servs., 465 F.3d at 753. And Ms. Grasse has not

designated any evidence that the policy was enforced inconsistently—much

less inconsistently in a way that denied her care based on her disability. See

id.; accord Beaver v. Melotte, No. 08-C-187, 2008 WL 4610317 at *1 (E.D. Wisc.

Oct. 15, 2008) ("The ADA does not protect against every injury suffered by

disabled persons—it merely guards against injuries they suffer because they

are disabled.").

Corbin v. Indiana, which Ms. Grasse relies on, does not hold otherwise.

No. 3:16-cv-602-PPS/MGG, 2018 WL 1920711 (N.D. Ind. Apr. 23, 2018).

There, the court held that an ADA and RA claim survived a motion for

judgment on the pleadings based on allegations that the plaintiff was placed in

solitary confinement "only because of his disability," preventing him from

accessing mental health services. Id. at *4. At that judgment-on-the-pleadings

stage, allegations were enough. Here, on summary judgment, evidence of

causation is required, and Ms. Grasse has provided none. See Sommerfield v.

City of Chicago, 863 F.3d 645, 649 (7th Cir. 2017) (explaining that on summary

judgment, "conclusory statements not grounded in specific facts are not

enough" and the "parties are required to put their evidentiary cards on the

table").

A reasonable jury therefore could not find that Ms. Grasse was denied

medical care because of a disability, so Defendants are entitled to summary

judgment on this claim.

IV.

Conclusion

Defendants' motion for summary judgment is GRANTED. Dkt. [39].

Final judgment will issue by separate entry.

SO ORDERED.

Date: 9/28/2020

S\amnu Patruck lbanlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

Paul Thomas Belch

TRAVELERS STAFF COUNSEL

pbelch@travelers.com

Robert Francis Dolack

TRAVELERS STAFF COUNSEL OFFICE (Indianapolis)

rdolack@travelers.com

Christopher Carson Myers

CHRISTOPHER C. MYERS & ASSOCIATES

cmyers@myers-law.com

3 Because no reasonable jury could find that Ms. Grasse was denied medical care

because of a disability, the Court does not address whether Ms. Grasse had a

disability and OVERRULES as moot Defendants’ objections to portions of Ms.

Grasse's designated evidences. Dkt. 47 at 3-5. For the same reason, the Court does

not address whether Ms. Grasse could receive compensatory damages under the ADA

or RA.

12