Davis, Deidre v. Cook County

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1695

DEIDRE DAVIS,

Plaintiff-Appellant,

v.

YOLANDA CARTER, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03-C-5309—Amy J. St. Eve, Judge.

____________

ARGUED NOVEMBER 29, 2005—DECIDED JUNE 28, 2006

____________

Before MANION, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Plaintiff Deidre Davis, on

behalf of her deceased husband James Davis’s estate, sued

defendant Cook County and various individuals employed

by Cook County, alleging that they failed to provide ade-

quate medical assistance to James Davis during his six-day

incarceration at the Cook County Jail. Specifically, the

plaintiff claimed that despite numerous indications that her

husband was in excruciating pain due to sudden withdrawal

from methadone medication, no one provided him metha-

done during his incarceration. The district court granted

summary judgment in favor of the defendants, holding that

plaintiff had waived any Monell claims against Cook

County and that the undisputed facts demonstrated none of

2 No. 05-1695

the individual defendants were deliberately indifferent to

James Davis’s medical needs as a matter of law. We

reverse, holding that plaintiff has not waived any claims

against Cook County, and has presented enough evidence

from which a reasonable jury could conclude that Cook

County1 had a widespread custom or practice of failing to

provide timely methadone treatment and that individual

defendants Officer Collier, social worker Bowers, and

Sergeant Martin were deliberately indifferent to James

Davis’s medical needs. We affirm summary judgment with

regard to the other individual defendants.

I. BACKGROUND

The facts in this case are complicated because of the

numerous parties involved. Consistent with summary

judgment standards, we will present all facts in the light

most favorable to the plaintiff, the non-movant, although,

as shown below, many of the facts that the plaintiff relies

upon are undisputed.

On Friday, September 27, 2002, James Davis reported to

Cook County Jail (“Cook County”) to serve a ten-day

1

Defendant Cook County is a unit of local government that

finances the Cook County Jail. Cermak Health Services is

subcontracted to provide medical care to detainees. The Office of

the Sheriff of Cook County employed defendants Officer Gregory

Collier, Officer Yolanda Carter, Lieutenant Anita Mackey, and

Sergeant Grant Martin as correctional officers at the Cook County

Jail, as well as defendant Regina Bowers as a correctional

rehabilitation worker. Cermak Health Services employed defen-

dants Peggy Westbrook, Richard Patton, Dalfanita Moore and

Alfonso Hill as paramedics. For purposes of clarity, we shall refer

solely to Cook County, whose policies and procedures the plaintiff

challenges, throughout this opinion.

No. 05-1695 3

sentence for a traffic violation. Davis2 had a history of drug

and alcohol addiction and was on a methadone maintenance

program at the time he was incarcerated.3 Davis had

received his last dose of methadone on September 27 before

reporting to jail. Despite his repeated requests for metha-

done during his incarceration from September 27, 2002,

through October 2, 2002, Davis never received any metha-

done. On October 2, 2002, Davis suffered a cerebral aneu-

rysm and died the next day.4

A. Cook County’s General Operating Procedures

In the normal course, a correctional medical technician

(“CMT”) conducts a medical examination of an inmate upon

intake. If an inmate informs the CMT that he or she is

taking methadone, the CMT will, among other things, fill

out a methadone referral card and customarily will refer

the inmate to a physician’s assistant (PA) or to a physician.

(Brittman Dep. at 12.) The PA will then complete a clinical

assessment of the inmate. (Brittman Dep. at 17.) At the end

of the shift, a CMT typically brings completed methadone

referral cards to the pharmacy in the emergency room so

that the pharmacist can verify the inmate’s participation in

a community-based methadone program prior to dispensing

2

For purposes of clarity, all references to “Davis” shall refer to

decedent James Davis.

3

Methadone is a synthetic narcotic that is used to treat narcotic

withdrawal and dependence. It is typically taken orally once

per day and suppresses narcotic withdrawal symptoms between

24 and 36 hours.

4

Plaintiff does not contend that Davis’s aneurysm was related to

the failure to administer methadone and therefore her Sec-

tion 1983 claim is limited to the alleged suffering that Davis

experienced during the five days he was incarcerated without

methadone treatment.

4 No. 05-1695

methadone medication to the inmate in the jail. (Brittman

Dep. at 27; 29.) When the referral cards are brought to the

pharmacy, they are date- and time-stamped. (Singh Dep. at

11.) Cook County, however, has no set standard for who is

responsible for bringing the completed referral cards to the

pharmacy: correctional officers, nurses, or paramedics may

bring them, but no one has an assigned responsibility for

transporting the referral cards. (Singh Dep. at 10.)

Once the pharmacy department receives an inmate’s

methadone referral card, the practice is for a pharmacist to

call the inmate’s outpatient methadone clinic to verify

participation in a methadone program. After confirming

an inmate’s participation in a methadone program, the

pharmacy department must then call the security desk at

the jail so that a security officer can bring the inmate to the

pharmacy for dispensation of medication. (Singh Dep. at 37,

40.) Cook County’s pharmacy has no written procedures

that provide time limits within which pharmacists must

make calls to an outpatient clinic and/or a security officer,

nor does it have an established system of recording or

follow-up monitoring regarding whether such calls were in

fact made. (Singh Dep. at 22, 37-38.) The pharmacy does

not maintain records to ensure that an inmate is brought to

the pharmacy department by the security office, nor is there

any practice of reporting security officers who fail to bring

inmates for methadone. (Singh Dep. at 39.)

During the weekdays, there are two shifts in the phar-

macy, staffed with two pharmacists per shift. (Singh Dep.

at 25.) On Saturdays and Sundays, the pharmacy is staffed

with one pharmacist, who works a 7:00 a.m. to 3:00 p.m.

shift. The pharmacy dispenses fewer prescriptions during

the weekend, in part because there are fewer doctors

writing prescriptions during the weekend and in part

because there are fewer pharmacists on staff to dispense

them. (Singh Dep. at 24-25, 33.)

No. 05-1695 5

B. Davis’s Incarceration at Cook County

When he arrived at the jail on Friday, September 27,

2002, Davis received the customary intake medical screen-

ing. During this screening, Davis reported to the CMT that

he was receiving methadone treatment. After Davis com-

pleted his medical intake, his methadone referral card was

transferred to the pharmacy and date- and time-stamped on

Friday, September 27, 2002 at 8:25 p.m. (Singh Dep. at 15.)

The CMT did not refer Davis to a PA and no clinical

assessment was conducted. (Brittman Dep. at 26.)

On Friday night, Saturday, September 28 and Sunday,

September 29, 2002, no one from the pharmacy department

called Davis’s methadone clinic to verify his prescription.

(Singh Dep. 35.) On Monday, September 30, 2002, three

days after Davis was admitted to the jail, pharmacist

Satnam Singh verified Davis’s participation in a methadone

program. (Singh Dep. at 15-17.) That same day, Singh

contacted a security officer in the division of the jail where

Davis was being held, but did not record the name of the

officer with whom he spoke. Davis was not brought to the

pharmacy to receive methadone medication on September

30, 2002. (Singh Dep. at 46.)

Davis did not receive methadone medication the next day,

Tuesday, October 1, 2002. That morning, inmate workers

approached Officer Gregory Collier and reported to him that

James Davis was “dope sick” and in need of medical

attention. (Collier Dep. at 12-14.) Collier visited Davis and

heard him complaining to another inmate that his “stomach

felt like somebody was ripping his insides out.” (Collier Dep.

at 15.) Officer Collier brought Davis to social/rehabilitation

worker Regina Bowers and explained to her that Davis

needed medical attention. (Collier Dep. at 23.) Officer

Collier observed Davis explain to Bowers that he was “dope

sick” and that he was not feeling well. (Collier Dep. at 23.)

Bowers testified that it was clear that Davis needed medical

6 No. 05-1695

attention, and that he looked “terrible,” “real bad,” and “ill”

when she first saw him. (Bowers Dep. at 37-39.) According

to Bowers, she called the paramedics’ station to get help for

Davis, but the unidentified person who answered the phone

told her that it “takes three days for the Methadone to clear

[i.e., obtain verification of an outpatient program] for

[Davis] or for anyone in general.” (Bowers Dep. at 48-49.)

Bowers stated that in her experience as a social worker for

the jail, it takes three days to verify that a person was on

methadone. (Bowers Dep. at 51.) Following her alleged

telephone conversation with an unidentified person in the

paramedics’ station (Mrs. Davis contests whether this

conversation occurred), Bowers wrote in her log entry, “Ofc.

Collier and I tried to get medical attention but no para-

medic had been in building at this time” and “it takes

according to paramedics 3 days to verify methadone for

him.” (Bowers Dep. at Ex. 1.) Bowers recommended that

Davis not be sent to his jail work assignment that day;

Davis did not work that day. There is nothing in the record

indicating that Bowers called the 24-hour emergency room

available for emergency treatment of jail inmates.

Officer Collier saw Bowers make a telephone call and

assumed that she spoke to the paramedics, although he

could not be sure she actually did. (Collier Dep. at 32, 34.)

He then heard Bowers explain to Davis that it would take

three days to get confirmation that he was on a methadone

program. (Collier Dep. at 24.) Officer Collier called his

supervisor, Sergeant Grant Martin, to advise him that

Davis needed medical attention (either the correctional

officer or an on-duty sergeant has the direct responsibility

to contact the paramedics if an inmate was in need of

medical attention). (Collier Dep. at 36-37.) Officer Collier

did not call the paramedics himself, and did not verify

whether Martin ever obtained medical attention for Davis.

(Collier Dep. at 37.) Also, Officer Collier failed to call the

24-hour emergency room.

No. 05-1695 7

Sergeant Martin testified that if an inmate is seriously ill,

an individual officer has a duty to report that to a para-

medic or medical personnel directly and also carries a duty

to report that to the sergeant on duty. (Martin Dep. at 21-

22.) Sergeant Martin explained that if a social worker

informed him that an inmate was too ill to work, his policy

was to talk personally with that inmate. (Martin Dep. at

39.) He also testified that his practice was to write up an

Unusual Incident Report for an inmate who was unable to

work. (Martin Dep. at 39-40.) Martin did not recall ever

speaking with Davis, and there is no indication that he

wrote an Unusual Incident Report. (Martin Dep. at 39.)

There is also no indication that Martin called the paramed-

ics, any emergency personnel or the 24-hour emergency

room.

Later in the day, after speaking to Bowers and Officer

Collier, Davis called his wife, Deidre. (D. Davis Dep. at

110.) According to Mrs. Davis, her husband told her that he

had not received any medication, was in severe pain, and

could not keep anything in his stomach. (D. Davis Dep. at

110.) He also complained that the jail guards were ignoring

his repeated requests for medical treatment. (D. Davis Dep.

at 110.) Following this conversation with her husband, Mrs.

Davis called the jail and spoke with a female employee that

she remembered as Sergeant Carter. (D. Davis Dep. at 119.)

Mrs. Davis explained that her husband was on a methadone

program, had not received treatment, and was in excruciat-

ing pain. (D. Davis Dep. at 119.) According to Mrs. Davis,

Sergeant Carter responded that “Cook County don’t work

that fast. It don’t work that fast for me, and I work here.

Maybe he’ll get something tomorrow.” (D. Davis Dep. at

119.) Officer Yolanda Carter testified in her deposition that

she did not recall receiving such a call from Deidre Davis or

any other member of James Davis’s family. (Carter Dep. at

40.) Carter stated that if she received such a call, she would

direct the caller to the inmate’s sergeant. (Carter Dep. at

8 No. 05-1695

39.) Carter explained that, in such a case, she would not

make any record of the call nor would she contact medical

personnel. (Carter Dep. at 39-40.)

By the following day, Wednesday, October 2, 2002, James

Davis had spent nearly five days in the Cook County Jail

and had not received any methadone medication. That day,

he approached Lieutenant Anita Mackey, requested metha-

done treatment, and explained to her that he had filled out

a methadone referral card several days earlier. (Mackey

Dep. at 16-17.) Lieutenant Mackey was not aware that

Davis had been at the jail—and without methadone— since

September 27th. (Mackey Dep. at 17). Lieutenant Mackey

explained to Davis that he would receive medication once

his outside program was confirmed. (Mackey Dep. at 16-17.)

She then called the paramedics to ask if Davis had been

approved for methadone. (Mackey Dep. at 19-20.) Lieuten-

ant Mackey recalled speaking with a paramedic with the

last name of Furlow, who purportedly told Lieutenant

Mackey that Davis had not been approved (even though

Davis had in fact been approved for methadone on Septem-

ber 30, 2002, two days earlier). (Mackey Dep. at 20.)

Lieutenant Mackey did not call the pharmacy to ask if

Davis had been approved for methadone, nor did she call

the emergency room.

Lieutenant Mackey then called a nurse to administer

a medication called “Routine A” to Davis. (Mackey Dep. at

21). Routine A is typically prescribed along with the drugs

Compazine and Loperamide to inmates suffering from

withdrawal while awaiting methadone confirmation.

(B. Davis Dep. at 9, 11.) Routine A helps to alleviate some

of a patient’s methadone withdrawal symptoms, but does

not address all of them, nor is it a substitute for methadone

treatment. (Singh Dep. at 63; 65).

Later that day, Lieutenant Mackey received a telephone

call from Deidre Davis. Lieutenant Mackey recalled that a

No. 05-1695 9

woman who identified herself as Sergeant Carter from

Division 8 transferred an “irate” person who had asked to

talk to whomever was in charge of Dorm 4, where Davis

was held. (Mackey Dep. at 14). Lieutenant Mackey stated

that Mrs. Davis told her that she was concerned about her

husband and that he needed his methadone medication.

(Mackey Dep. at 24). According to Lieutenant Mackey, she

told Mrs. Davis that her husband would get his medication

once he had been confirmed, but that it would take any-

where from two to three days, or maybe a week to get

methadone. (Mackey Dep. at 25). After hanging up with

Mrs. Davis, Lieutenant Mackey told Davis to lie down until

the paramedics arrived. (Mackey Dep. at 31). There is no

indication that Davis was ever seen by the paramedics for

the purpose of alleviating his methadone withdrawal, and

he was not seen by paramedics until later that day, after he

suffered a seizure in connection with his cerebral aneurysm,

and died shortly thereafter. (Mackey Dep. at 32).

II. ANALYSIS

A. Plaintiff did not waive her Monell claims.

To establish Cook County’s liability under 42 U.S.C.

§ 1983, the plaintiff was required to show that Davis was

deprived of a federal right, as a result of an express munici-

pal policy, widespread custom, or deliberate act of a

decision-maker for Cook County, which proximately caused

his injury. Monell v. Dep’t of Soc. Servs. of New York, 436

U.S. 658, 690-91 (1978). The plaintiff here alleged that Cook

County was deliberately indifferent to Davis’s serious

medical needs in violation of the Eighth Amendment’s

prohibition against cruel and unusual punishment. Estelle

v. Gamble, 429 U.S. 97, 104 (1976). The district court held

that the plaintiff had waived her Monell claim against Cook

County by providing only “cursory allegations and argu-

ments” and failing to cite legal authority in her response

10 No. 05-1695

memorandum to the defendants’ motion for summary

judgment. See Davis v. Carter, No. 03-C-5309, 2005 U.S.

Dist. LEXIS 7478, at *33 (N.D. Ill. Feb. 25, 2005). Although

the district court was correct in noting that we have

“repeatedly recognized that perfunctory and undeveloped

arguments, that are not supported by pertinent authority,

are waived.” Davis, 2005 U.S. Dist. LEXIS 7478, at *34, the

plaintiff here did not present merely cursory allegations.

As an initial matter, in their brief supporting their motion

for summary judgment, the defendants set forth the proper

Monell standard for municipal liability, and we see no

reason why the plaintiff need cite additional legal authority

in her response brief, provided that her argument depended

entirely on the application of facts to the well-established

Monell legal standard already presented in the defendants’

brief. Under these circumstances, the plaintiff was merely

required to document sufficient evidence to allow a jury to

make a reasonable inference that Cook County had a

widespread custom or practice that caused a cognizable

injury to Davis. And this was done, without requiring the

district court to “scour a record to locate evidence support-

ing a party’s legal argument” nor “research and construct

the parties’ arguments.” See, e.g., Estate of Moreland v.

Dieter, 395 F.3d 747, 759 (7th Cir. 2005); LINC Fin. Corp.

v. Onwuteaka, 129 F.3d 917, 921-22 (7th Cir. 1997). As

shown below, the plaintiff here provided a wide range of

competent evidence that would allow a jury to find both

county and individual liability.

Indeed, this case is distinguishable from instances in

which we have held that a party has waived a claim for

failing to cite both legal authority and supporting factual

evidence. See, e.g., Estate of Moreland, 395 F.3d at 759

(where plaintiffs “failed to discuss the facts relevant to their

claim,” the court noted that “[p]erfunctory or undeveloped

arguments are waived”); Bratton v. Roadway Package Sys.,

Inc., 77 F.3d 168, 173 n.1 (7th Cir. 1996) (finding argument

No. 05-1695 11

waived because appellants neither identified specific

evidence objected to nor cited authority for their position).

While the plaintiff’s arguments here would have been more

artful (and perhaps more persuasive to the district court) if

she had cited relevant legal authority and fully developed

her factual bases, she provided well-reasoned factual

arguments supported by citations to the record. This is

more than mere perfunctory argument and, as a result, a

finding of waiver under such circumstances is not war-

ranted.

B. There is a disputed issue of material fact as to

whether Cook County had a widespread prac-

tice of failing to provide timely methadone

treatment.

The plaintiff provided sufficient evidence to create a

disputed issue of material fact as to whether Cook County

had a widespread practice or custom of inordinate delay

in providing methadone treatment to inmates, which caused

proximate harm to Davis. For instance, in his deposition,

pharmacist Singh’s testimony, read in the light most

favorable to the plaintiff, establishes that there

are essentially no policies or procedures in place at Cook

County to ensure that the verification of an inmate’s

outpatient methadone treatment program is conducted in

a timely fashion. Similarly, Singh’s testimony established

that there is an absence of policies or procedures to ensure

that once such verification is obtained, security personnel

are informed in a timely fashion and inmates are brought

to the pharmacy within a reasonable time period. Indeed,

Singh testified that there is essentially no established

checks-and-balances system to make sure that patients who

suffer from methadone withdrawal—which the parties do

not dispute is a significant medical issue—do not fall

through the cracks for several days (or more). As a result,

12 No. 05-1695

according to Singh, it can routinely take one or two days for

the pharmacy to confirm an inmate’s participation in

a methadone program, and perhaps much longer to bring

the inmate to the pharmacy as there is no “hard and fast

rule” as to when security officers bring inmates to the

pharmacy. (Singh Dep. at 39-43, 80.) Moreover, these

customary delays may be exacerbated when an inmate’s

admission occurs during the weekend, where there is very

limited staffing in the pharmacy.

In addition to Singh’s testimony, Cook County personnel

working directly with the inmates confirmed a wide-

spread practice of at least three days’ delay simply to verify

the inmate’s outpatient methadone treatment regimen (and

all indications in the record are that the process of confirm-

ing an inmate’s methadone program is no more than a

confirmatory telephone call). For instance, Officer Collier

confirmed that, based on his extensive fourteen years of

experience working at the jails, it can take up to three days

to verify methadone treatment:

Just by working in there for as long as I have,

I know that’s what it takes. It takes about that

much time if you are on a methadone program

before you got incarcerated. It takes about three

days . . . . When they come in, they are instantly

withdrawn when they come in. They are sick when

they come in. Some of them take it better than

others. It depends on that individual. Most of them

are sick for at least three to five days unless they

were on a methadone program when fill [sic] the

cards, they approve it. They get on methadone. It’s

not so bad on them.

(Collier Dep. at 24-26.) In addition, social worker Bowers

also testified that it routinely took three days to verify that

a person was on methadone. (Bowers Dep. at 51). Indeed,

Bowers claimed that the paramedics that she purportedly

No. 05-1695 13

contacted also confirmed that it took at least three days to

verify methadone treatment and Bowers memorialized this

understanding in her October 1, 2002, log entry.5 (Bowers

Dep. at 48-49, Ex. 1). Mrs. Davis testified that Cook County

personnel told her that “Cook County don’t work that fast,”

suggesting that the delays that Mr. Davis was experiencing

were customary. (D. Davis Dep. at 119). Finally, physician

assistant Barbara Davis confirmed that she often provided

medications other than methadone for periods of several

days in an attempt to limit withdrawal symptoms until the

jail received confirmation from the inmate’s outpatient

program. (B. Davis Dep. at 9). This indirectly confirms that

Cook County’s custom and practice routinely involved

delays of at least three days in obtaining confirmation, and,

coupled with Singh’s testimony above, suggests that it may

be significantly longer before an inmate actually receives

methadone.

Cook County’s contrary arguments are unpersuasive. The

thrust of Cook County’s argument, at least with respect to

the evidence cited above, is that the testimony of Bowers is

entirely inadmissible hearsay and Officer Collier’s testi-

mony is too conclusory and void of requisite specific facts to

defeat summary judgment. With regard to Bowers, Cook

County focuses exclusively on Bowers’s purported conversa-

tion with an unidentified paramedic, which indeed is

inadmissible hearsay if offered solely to prove that Cook

County routinely had three-day delays. But Cook County

ignores that Bowers also testified as to the delays based on

5

Defendants contend that Bowers’s testimony and log entry

are inadmissible hearsay and therefore cannot be considered at

the summary judgment stage. This evidence, however, is admissi-

ble for the purpose of establishing Bowers’s notice and awareness

of at least alleged routine delays in verifying methadone treat-

ment, although it is certainly inadmissible for establishing the

truth of what the paramedic personnel purportedly told Bowers.

14 No. 05-1695

her personal experience as a social worker. Bowers had

twelve years of experience as a social worker, and she

attended to various requests from inmates on a daily basis.

(Bowers Dep. at 49). During her deposition, Bowers was

asked whether it was her prior understanding as a social

worker for the jail that it takes three days for the jail to

verify that an inmate is on a methadone program outside of

the jail, and she responded in the affirmative. (Bowers Dep.

at 51). This, of course, is plaintiff’s stronger evidence, and

it would indeed be odd if a social worker with experience at

Cook County jail lacked any personal knowledge of the

general delays in receiving treatment. In any event, to the

extent that Bowers’s personal experiences are not represen-

tative or otherwise lack a firm foundation, that is a fruitful

avenue for cross-examination, but is not a good basis for

granting summary judgment.

Cook County also argues that Officer Collier’s testimony

is insufficient because it is nothing more than “generalized

evidence,” lacking specific facts (such as “the percentage or

numbers of inmates who had to wait for three days, two

days, or for only a day” and whether those inmates also had

serious medical needs). Instead, Cook County contends,

Officer Collier’s testimony shows—at most—nothing more

than “isolated instances where an unknown number of

inmates, for unknown reasons, experienced a delay in

receiving methadone.” Cook County supports this argument

by relying on our decision in Jones v. City of Chicago, 787

F.2d 200 (7th Cir. 1986). But Jones is readily distinguish-

able. At issue in Jones was whether a municipality custom-

arily ignored complaints of sexual misconduct by gynecolo-

gists performing pelvic examinations. Id. at 205. The

plaintiffs contended that sexual misconduct by city-em-

ployed physicians was not rare and attempted to support

this contention by relying on a broad comment by the

Department’s Director of Women’s Health, who essentially

stated that such complaints may not be rare in general

No. 05-1695 15

medical practice, whether in public or private clinics.6 Id. at

206. Because this single statement was merely a general

conclusion (and one not targeted at the specific circum-

stances of the plaintiffs’ claims), we held that this “state-

ment amount[ed] to little more than a bald and conclusory

statement.” Id. In contrast, here the testimony from Bowers

and Officer Collier about routine delays in providing

methadone directly targeted the jail facility at issue in this

case and was much more than a single “bald and conclusory

statement” about correctional facilities in general. Cf.

Jones, 787 F.2d at 206.

Cook County also contends that plaintiff’s claims here fail

because she has not presented enough evidence showing a

series of past bad acts by Cook County. But to survive

summary judgment, a plaintiff need not present a full

panoply of statistical evidence showing the entire gamut of

a defendant’s past bad acts to establish a widespread

practice or custom. Instead, it is enough that a plaintiff

present competent evidence tending to show a general

pattern of repeated behavior (i.e., something greater than

a mere isolated event). See, e.g., Cosby v. Ward, 843 F.2d

967, 983 (7th Cir. 1988) (explaining that “[t]here is no clear

consensus among the courts as to what level of frequency of

the challenged conduct evidences a custom, except that it

must be more than one instance”).

Cook County misinterprets our decision in Jackson v.

Marion County, 66 F.3d 151, 152 (7th Cir. 1995), where we

explained that “[t]he usual way in which an unconstitu-

tional policy is inferred, in the absence of direct evidence, is

6

The Director’s initial statement appeared to more directly

target the plaintiffs’ claims of what occurred with the municipal-

ity’s public clinics, but, he subsequently clarified that he was

only “talking in general in the medical practice,” and this court

appears to have credited that clarification. Jones, 787 F.2d at 206.

16 No. 05-1695

by showing a series of bad acts and inviting the court

to infer from them that the policymaking level of govern-

ment was bound to have noticed what was going on and by

failing to do anything must have encouraged or at least

condoned, thus in either event adopting, the misconduct

of subordinate officers.” Id. And as we indicated, “[w]hen

this method of proof is used, proof of a single act of miscon-

duct will not suffice; for it is the series that lays the premise

of the system of inference.” Id. But here, the plaintiff does

not point to just one instance of delay without more and ask

the court to infer an unconstitutional custom or practice on

that basis alone. Rather, the plaintiff points to the delay in

the instant case, delays inherent in the methadone verifica-

tion procedures as related by pharmacist Singh, and the

widespread delays attested to by Collier and Bowers based

on their experiences as a correctional officer and social

worker, respectively, among other circumstantial evidence

supporting the existence of a general custom or practice.

Cook County also argues that the plaintiff cannot estab-

lish a widespread custom or practice because she failed to

identify any other incarcerated individuals who had

suffered from lack of methadone treatment. This argument,

however, fails to appreciate the difference between showing

repeated past bad acts versus repeated past injuries. See

Woodward v. Correctional Med. Servs. of Ill., Inc., 368 F.3d

917, 929 (7th Cir. 2004). To establish a widespread custom

or policy, the plaintiff here was not required to show that

Cook County’s alleged repeated pattern of delay (i.e., its

alleged past “bad acts”) actually caused pain and suffering

to other inmates in need of medical intervention (i.e.,

repeated past injuries). See id. Instead, it was enough to

provide competent evidence tending to show that Cook

County routinely failed to provide methadone to inmates for

several days. See id. (holding that “the plaintiff’s failure to

introduce evidence of any suicide at the Lake County jail

besides [the plaintiff]” did not “doom[] plaintiff’s efforts to

No. 05-1695 17

prove a custom or practice.” “[Defendant] does not get a ‘one

free suicide’ pass”); see also Estate of Moreland v. Dieter,

395 F.3d 747, 760-61 (7th Cir. 2005) (citing Woodward for

the proposition that “the plaintiff need not show that the

policy practice, or custom resulted in past deprivations of

rights”).

Now, whether Cook County in fact routinely had several

days’ delay, of course, is a disputed material fact at the

heart of this case. Thus, Cook County’s persistent argument

that any delays were isolated and due to factors outside of

its control may well carry the day with the fact-finder—but

these are not arguments amenable to summary judgment.

See, e.g., Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992)

(affirming the denial of defendants’ motion for summary

judgment and explaining that “[a]t trial the defendants may

be able to adduce various defenses, but they may not now

avoid suit under the qualified immunity doctrine on the

record as it now exists”).

C. There are disputed issues of material fact as to

whether any of the individual defendants were

deliberately indifferent to Davis.

The plaintiff has also presented enough evidence to create

triable issues of fact regarding whether certain individual

defendants were deliberately indifferent by failing to ensure

that Davis received timely methadone treatment. To

establish a claim for violation of Davis’s Eighth Amendment

rights, the plaintiff was required to make two showings.

Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d

525, 529 (7th Cir. 2000). “First, the danger to the inmate

must be objectively serious, posing a substantial risk of

serious harm.” Id., citing Haley v. Gross, 86 F.3d 630,

640-41 (7th Cir. 1996). The parties do not dispute that the

plaintiff established this element. “Second, the prison

official must have a sufficiently culpable state of mind—one

of ‘deliberate indifference’ to inmate health or safety.” Id.

18 No. 05-1695

Deliberate indifference requires something more than

negligence, but need not be a purposeful or knowing

infliction of harm. Id. Deliberate indifference requires that

a prison official subjectively know of and disregard a

substantial risk of harm. Id. “ ‘Deliberate indifference’ is

simply a synonym for intentional or reckless conduct,” and

can be established indirectly through circumstantial

evidence. Foelker v. Outagamie County, 394 F.3d 510, 513

(7th Cir. 2005). As discussed more fully below, the plaintiff

has succeeded in providing sufficient competent evidence to

allow a jury to make the decision of whether certain

individual defendants engaged in reckless conduct with

regard to Davis’s lack of medical care.

1. Officer Collier and Sergeant Martin

There are disputed issues of material fact as to whether

Officer Collier and/or Sergeant Martin were deliberately

indifferent. Specifically, Officer Collier admitted that a

correctional officer or sergeant has the direct responsibility

to contact the paramedics if an inmate is in need of medical

attention. Yet in this case, there is a disputed issue of

material fact regarding whether Officer Collier recklessly

disregarded Davis’s medical needs when he failed to contact

the paramedics or the 24-hour emergency room directly

after he learned that Davis was “dope sick,” observed that

Davis was suffering, and heard that “it felt like somebody

was ripping [Davis’s] insides out.” See Foelker, 394 F.3d at

513 (holding that a reasonable jury could conclude that

defendant was recklessly or maliciously ignoring the

plaintiff’s signs of methadone withdrawal). In addition,

there are disputed facts about whether Officer Collier acted

reasonably when he delegated responsibility to Bowers to

contact the paramedics and ensure that Davis received

prompt medical attention. As a result, a reasonable jury

could conclude that Officer Collier intentionally or reck-

No. 05-1695 19

lessly ignored Davis’s need for timely medical attention.

Similar triable issues of fact apply to Sergeant Martin,

since there is a disputed issue of material fact over whether

Sergeant Martin held the ultimate responsibility for

contacting the paramedics or the hospital to ensure that

Davis received prompt medical attention. Officer Collier

testified that he informed Sergeant Martin of Davis’s

serious medical condition, but it is undisputed that Ser-

geant Martin failed to file an Unusual Incident Report or

take any action to obtain medical treatment for Davis (or

otherwise supervise and confirm that Davis’s medical needs

were attended). In addition, Sergeant Martin claimed to

follow a uniform policy of speaking directly with inmates

who reported ill, but there is nothing in the record indicat-

ing that he spoke with Davis. Thus, taken together, the

plaintiff has presented sufficient evidence to allow a

reasonable jury to determine whether Officer Collier and/or

Sergeant Martin were deliberately indifferent. See, e.g.,

Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000) (revers-

ing summary judgment, where plaintiff “presented evidence

which might prove that the prison staff knew of and

disregarded a serious risk to his health”).

2. Social worker Bowers

Plaintiff has also presented sufficient evidence for a jury

to determine whether social worker Bowers was deliber-

ately indifferent. At the outset, there is a heated factual

dispute as to whether Bowers actually contacted and spoke

with the paramedics on Davis’s behalf. Bowers claims to

have called the paramedics and to have spoken with

someone at the paramedics station. Her log entry appears

to support her claim. The paramedics and other emergency

medical personnel deposed in this matter, however, either

deny receiving such a call or have no recollection of it. In

addition, there is no dispute that no paramedics or ERTs

attended to James Davis on October 1, 2002. Thus, a

20 No. 05-1695

reasonable jury could find that Bowers failed to contact the

paramedics as she claims to have done and failed to conduct

the requisite follow-up with either Davis, the paramedics,

or other correctional or medical personnel. These purported

failures could constitute deliberate indifference to the

substantial risk of harm that Davis faced. See Foelker, 394

F.3d at 513.

3. Lieutenant Mackey

Plaintiff failed to raise any argument in her briefs

pertaining to Lieutenant Mackey, and, as a result, has

waived any challenge to the district court’s grant of sum-

mary judgment in favor of Lieutenant Mackey. See, e.g.,

Weinstein v. Schwartz, 422 F.3d 476, 477 (7th Cir. 2005)

(failure to develop arguments constitutes waiver).

4. Paramedics Westbrook, Patton, Moore and

Hill

The evidence raised by the plaintiff with respect to

paramedics Westbrook, Patton, Moore and Hill is insuffi-

cient to survive summary judgment. Although there is a

factual dispute over whether Bowers placed a telephone call

to the paramedics, the plaintiff presents no evidence that

could allow a jury to determine which of the paramedics—if

any—received Bowers’s purported telephone call. The

paramedics either deny or cannot recall receiving a call

from Bowers, and Bowers cannot identify who answered the

call, nor is there testimony from anyone else that could

allow the jury to make a reasonable inference as to the

identity of whomever answered Bowers’s alleged telephone

call. Thus, although there is an evidentiary conflict over

whether Bowers placed a telephone call, there is simply an

evidentiary vacuum pertaining to the identity of the

paramedic. And when the evidence provides for only

No. 05-1695 21

speculation or guessing, summary judgment is appropriate.

See Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d

928, 931-32 (7th Cir. 1995) (holding that evidence leading

only to speculation cannot be a defense to summary judg-

ment); Morfin v. City of East Chicago, 349 F.3d 989, 1002

(7th Cir. 2003) (same).

5. Officer Carter

The evidence presented with respect to Officer Yolanda

Carter is also insufficient to create a jury question with

respect to whether Officer Carter was deliberately indif-

ferent. The plaintiff’s sole evidence was that Officer Carter

purportedly received a telephone call from Mrs. Davis

and that, after being informed that Davis had not yet

received methadone treatment and was in excruciating

pain, Officer Carter allegedly responded that “Cook County

don’t work that fast. It don’t work that fast for me, and

I work here. Maybe he’ll get something tomorrow.” Officer

Carter then appropriately transferred Mrs. Davis’s call to

a person responsible for Davis’s medical care, Lieutenant

Mackey. There is no evidence in the record indicating that

Officer Carter’s job duties included anything more than

answering the telephones, and the plaintiff does not point

to any evidence indicating that Officer Carter’s position

included follow-up responsibility regarding Davis’s medical

needs. As a result, even when viewing the evidence in the

light most favorable to Mrs. Davis, the most that can be

shown is that Officer Carter made an insensitive comment

to Mrs. Davis, but that otherwise is not enough for a jury to

find that she was deliberately indifferent to Davis’s medical

needs, particularly in light of the undisputed evidence that

she promptly transferred Mrs. Davis’s call to the appropri-

ate personnel.

22 No. 05-1695

III. CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment is REVERSED with regard to Cook

County and individual defendants Collier, Bowers, and

Martin, and is AFFIRMED with regard to individual defen-

dants Mackey, Westbrook, Patton, Moore, Hill, and Carter.

We REMAND for further proceedings consistent with this

opinion.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-28-06