Petition for Writ of Certiorari — Andrew Slabon, Petitioner v. Angelo R. Sanchez, et al.

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NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. Apf. P. 32.1

Ttmfefr jitas Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 12, 2023*

Decided May 15, 2023

Before

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

THOMAS L. KIRSCHII, Circuit Judge

No. 21-2729

ANDREW SLABON,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

v.

No. l:15-cv-8965

ANGELO R. SANCHEZ, et al.,

Defendan ts-Appellees.

Steven C. Seeger,

Judge.

ORDER

Andrew Slabon sued police officers and others under 42 U.S.C. § 1983 and

Illinois law over their treatment of him during events in January 2014 that led to his

criminal conviction for attacking a nurse. The district court dismissed two defendants

and entered summary judgment for the rest. On appeal, Slabon contests the two

’ We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. Fed. R. App. P. 34(a)(2)(C).

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dismissals, but they were justified based on a legally inadequate claim and failure to

serve process. He also challenges the district court's acceptance of the defendants'

version of the facts when ruling on summary judgment, but that decision reasonably

enforced the court's local rules, and summary judgment is otherwise uncontested. Thus,

we affirm.

We describe the events based on the properly submitted facts, viewed in the light

most favorable to Slabon and in accordance with the district court's local rules.

See Lockett v. Bonson, 937 F.3d 1016,1022 (7th Cir. 2019); see N.D. III. L.R. 56.1(e). Slabon

came home one afternoon to find his mother on the floor, unresponsive. Police and

paramedics responded to his call, and as the paramedics attended to her, Slabon

screamed, flailed his arms, and tried to reach his mother. After he learned that his

mother had died, he threatened suicide, and the police took him to a hospital in

Chicago for an evaluation. Hospital staff restrained Slabon's arms and ankles because of

his agitation. He still managed to kick a nurse in the chest, thrusting her backwards to

crash into the cabinetry. For that attack, he was later charged in Illinois state court with

and convicted of aggravated battery and sentenced to 50 months' imprisonment. See

People v. Slabon,, 112 N.E.3d 1019 (Ill. App. Ct. 2018).

Slabon sued everyone involved in this incident. He included police officers,

medical technicians, the hospital, and its staff (including Lauren Benjamin, the nurse he

kicked, and Dr. Kenneth Barrick, the emergency-room physician who admitted him to

the hospital). His operative seventh amended complaint includes federal claims of

violations of the Fourth Amendment and state-law torts.

Years of litigation ensued, and the case ended in three steps relevant here. First,

the court dismissed the claim against Dr. Barrick. After Dr. Barrick did not respond to

the complaint, Slabon moved for a default judgment, and the court ordered Slabon to

justify his request for damages from Dr. Barrick. Slabon argued that Dr. Barrick's

decision to admit him to the hospital against his wishes led to damages arising from his

later conviction and imprisonment for attacking the nurse. After holding a hearing, the

court ruled that Slabon could not recover those alleged damages from Dr. Barrick.

Second, the court dismissed claims against Benjamin because Slabon had not

served her with process. The dismissal came after the court had warned Slabon multiple

times that failure to serve her would result in dismissal. Two years after the dismissal

and over four years after suing Benjamin, Slabon served her with process. But the court

refused to reinstate her, explaining that Slabon had not shown good cause for his delay.

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Third, the district court granted the motions of the remaining defendants for

summary judgment. The court accepted as true the defendants' proposed facts. It

reasoned that it had repeatedly explained to Slabon, who was pro se, how to respond to

the defendants' proposed statements of material facts under Local Rule 56.1 of the

Northern District of Illinois. It also had twice granted him more time to do so. Despite

this help, the court further explained, Slabon's responses to those proposed facts were

inadequate because, among other problems, they impermissibly relied solely on

allegations and denials rather than admissible evidence. The court then proceeded, in a

nearly 60-page order, to dispose of Slabon's claims on the merits.

On appeal, Slabon first challenges the court's decision to enforce Local Rule 56.1,

but it reasonably applied that rule. See F.T.C. v. Bay Area Bus. Council, Inc., 423 F.3d 627,

634 (7th Cir. 2005). "[District judges are entitled to insist on strict compliance with local

rules designed to promote the clarity of summary judgment filings." Stevo v. Frasor,

662 F.3d 880, 887 (7th Cir. 2011). The rule requires that a party opposing summary

judgment respond to each disputed fact with "citations to the supporting evidentiary

materials." N.D. Ill. L.R. 56.1(e). Moreover, a movant's proposed facts "may be deemed

admitted if not controverted with specific citations to evidentiary material." Id. Here,

after the court explained these rules to Slabon and allowed him extra time to comply, he

still violated them; the court therefore properly accepted the defendants' proposed

facts. Slabon responds that the court overlooked evidence that conflicts with the

defendants' version of facts. But he does not point to evidence in the record that

supports his contention. Because Slabon does not otherwise engage with the court's

analysis of the merits, we need not further address the remainder of the district court's

decision. See Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir. 2023) (an

appellant may waive an issue "by failing to present a developed argument on appeal

that engages with the reasoning of the district court"). Thus, summary judgment was

proper.

Next, Slabon challenges the district court's decision refusing to enter a default

judgment against Dr. Barrick. We review a refusal to enter a default judgment for abuse

of discretion. See Arwa Chiropractic, P.C. v. Med-Care Diabetic & Med. Supplies, Inc.,

961 F.3d 942, 946 (7th Cir. 2020); Dimmitt & Owens Fin., Inc. v. United States, 787 F.2d

1186, 1193 (7th Cir. 1986). To receive a default judgment, Slabon had to "establish his

entitlement to the relief he seeks." VLM Food Trading Int'l, Inc. v. III. Trading Co., 811 F.3d

247, 255 (7th Cir. 2016) (citation omitted). But he did not. He argues that the damages

from his conviction and incarceration for attacking the nurse arise from Dr. Barrick's

allegedly wrongful decision to admit him to the hospital. But damages must "naturally

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flow" from an allegedly wrongful act. Wehrs v. Wells, 688 F.3d 886, 893 (7th Cir. 2012)

(citation omitted); see also Domanus v. Lewicki, 742 F.3d 290, 303 (7th Cir. 2014). And

Slabon does not explain how his crime of unjustifiably attacking the nurse (the

conviction for which is intact and valid) naturally flowed from Dr. Barrick's decision to

admit him to the hospital. Therefore, any damages from that conviction and

incarceration are not recoverable from Dr. Barrick, and the district court rightly

dismissed him from that claim.

Finally, Slabon argues that the court erred in dismissing Benjamin and not

entering default judgment against her. But those decisions were proper. Under Federal

Rule of Civil Procedure 4(m), Slabon had 90 days to serve Benjamin after he sued her.

But two years after he launched this suit, he still had not served her. Although he finally

served her more than four years after this suit began, he did not show the district court

good cause for the delay (and does not on appeal offer good cause). Thus, the district

court reasonably declined to extend the time for service. See Fed. R. Civ. P. 4(m); jones v.

Ramos, 12 F.4th 745, 749 (7th Cir. 2021). Because Benjamin was not timely served, the

district court properly dismissed her, and it rightly did not enter a default judgment

against her. See Fed. R. Civ. P. 4(m).

AFFIRMED

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREW SLABON,

Plaintiff,

v.

ANGELO R. SANCHEZ, et al,

Defendants.

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Case No. 15-cv-8965

Hon. Steven C. Seeger

•

MEMORANDUM OPINION AND ORDER

Plaintiff Andrew Slabon called 911 after he arrived home and discovered his mother on

the floor, unresponsive. The police and paramedics answered the call, and did what they could.

But they could not revive her.

Slabon, meanwhile, was having a hard time. While the paramedics attempted to

resuscitate his mother, Slabon was flailing around, screaming uncontrollably. A police officer

had to place him in handcuffs and remove him from the room because he was getting in the way.

When he heard the news of his mother’s passing, he started talking about killing himself. The

police decided that Slabon posed a risk of self harm, so they took him to the hospital

involuntarily.

After arriving in the emergency room, things went from bad to worse. He continued to

make suicidal comments, asking to be euthanized. He wouldn’t lay down. He threatened to spit

on the nurse. And he continued to scream, yelling expletives and racial slurs at the medical staff.

Slabon then kicked the nurse. The blow sent her flying backwards, and she crashed into

the cabinetry. So they arrested him. The blow landed Slabon two years in prison.

Slabon sued the police, the paramedics, and the medical professionals, as well as the City

and the hospital. The sixth amended complaint included a dozen claims against more than a

dozen defendants. Years of discovery followed.

Defendants ultimately moved for summary judgment. They supported their motions with

admissible evidence, but Slabon did not respond with any evidence of his own. They also

pointed out that many of Slabon’s claims are time barred. A personal injury claim against a state

employee has a one-year statute of limitations under Illinois law, but Slabon filed suit more than

18 months after the incident.

For the reasons stated below, the motions for summary judgment are granted.

Non-Compliance with the Rules

Before drilling down into the facts, and summarizing the evidentiary record, the Court

must call attention to Slabon’s failure to comply with the Rules.

Defendants filed motions for summary judgment. At the summary judgment stage,

allegations no longer carry the day. The non-movant must present evidence showing that there is

a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., All U.S. 242,250 (1986).

That is, in response to a properly-supported motion for summary judgment, the non-movant must

come forward with evidence that demonstrates a need for a trial.

The City Defendants - the City of Chicago, plus Officer Sanchez, Officer Cummens,

Officer Adamski, Detective O’Brien, Paramedic Bishop, and Paramedic Strong - supported their

motion for summary judgment by filing a statement of material facts under Local Rule 56.1. See

City Defs.’ Statement of Facts (Dckt. No. 362). Defendant Presence Our Lady of Resurrection

Medical Center (“the Hospital”) also filed a statement of material facts as required by the Local

2

Rules. See Def. Presence Our Lady of Resurrection Medical Center’s Statement of Facts (“Def.

POLR’s Statement of Facts”) (Dckt. No. 355). Defendants submitted supporting evidence, too.

By filing for summary judgment, and offering admissible evidence, Defendants put the

ball in Slabon’s court. Slabon needed to come forward with evidence of his own, and thus

demonstrate that there is a genuine issue of material fact. In other words, when Defendants

offered evidence of “X,” Slabon needed to offer evidence of “not-X.”

In the alternative, Slabon needed to show that Defendants’ evidence was inadequate.

That is, Slabon needed to demonstrate why Defendants’ evidence does not entitle them to

summary judgment. Slabon needed to show why “X” would not entitle Defendants to judgment

as a matter of law, even if “X” is true. Or, Slabon needed to show that the evidence of “X”

offered by Defendants does not support “X” at all.

But an expression of disagreement is not enough. And here, that’s all there is.

Slabon responded, but he did not comply with the Federal Rules or the Local Rules.

Slabon filed a number of different documents in response to each motion. They are difficult to

navigate.

Specifically, in response to the motion filed by the City Defendants, Slabon filed: (1) a

five-page Plaintiffs’ [sic]1 56.1(b) Amended Response Brief to Defendants’ City Motion for

Summary Judgment; (2) a six-page Plaintiffs’ 56.1 (b) Amended Response Statement to

Defendants’ City Motion for Summary Judgment; and (3) a seven-page Plaintiffs’ 56.1(b)

Amended Response to Defendants’ City’s Motion for Summary Judgment. See Dckt. No. 392.

In response to the Hospital’s motion for summary judgment, Slabon filed: (1) a one-page

Plaintiffs’ 56.1 (b) Response Brief to Defendants’ POLR Motion for Summary Judgment; (2) a

1 For readability, the Court will not use “[sic]” in the next few paragraphs. Repeatedly inserting “[sic]” is

distracting. The misplacement of apostrophes is not worth pointing out again and again.

3

three-page Plaintiffs’ 56.1 Response Memorandum of Law to Defendants’ POLR Motion for

Summary Judgment; (3) a four-page Plaintiffs’ 56.1(b) Response to Defendants’ POLR Motion

for Summary Judgment; (4) a four-page Plaintiffs’ 56.1(b) Response Statement to Defendants’

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POLR Motion for Summary Judgment. See Dckt. No. 371.2

From the names of the documents themselves, it may not be obvious which document is

the brief, and which document is the response to the statement of facts. They blur together.

Figuring out what each document is - and what it responds to - takes some doing. The blurring

comes from the similar names^ and from the fact that Slabon filed each collection together (that

is, the three responses to the City Defendants appear in one pdf file, and die same for the

Hospital).

Slabon’s responses to the statements of facts appear near the end of each collection. So'

the document entitled “Plaintiffs’ [sic] 56.1(b) Amended Response to Defendants’ City’s Motion

for Summary Judgment” is Slabon’s response to the City Defendants’ statement of facts. See

PI.’s Resp. to City Defs.’ Statement of Facts (Dckt. No. 392, at 13-19 of 19). And the document

entitled “Plaintiffs’ [sic] 56.1(b) Response to Defendants’ POLR Motion for Summary

Judgment” is Slabon’s response to the Hospital’s statement of facts. See Pi’s Resp. to Def.

POLR’s Statement of Facts (Dckt. No. 371, at 5-8 of 12).

Two problems jump off the page. First, Slabon did not comply with the procedural

requirements for how to respond to a statement of facts. That failure to comply is most glaring

in his response to the City’s statement of facts. He did not give a paragraph-by-paragraph

response. See Pi’s Resp. to City Defs.’ Statement of Facts (Dckt No. 392, at 13-19 of 19).

2 The Local Rules authorize the non-movant to file “a supporting memorandum of law,” singular. See

Local Rule 56.1(a)(1) (emphasis added). But Slabon filed more than one response to each motion.

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The Local Rules require movants to file a statement of facts that “consists] of concise

numbered paragraphs.” See Local Rule 56.1(d)(1). The response by the non-movant “must

consist of numbered paragraphs corresponding to the numbered paragraphs” in the movant’s

Rule 56.1 statement of material facts. See Local Rule 56.1(e)(1). Also, “[e]ach paragraph shall

set forth the text of the asserted fact.. . and then shall set forth the response.” Id. That way, it is

easy for the Court and the parties to see the facts from one side, and the response from the other.

Instead of complying, Slabon went off road. The statement of facts from the City

Defendants includes 68 paragraphs, which appear under six headings. See City Defs.’ Statement

of Facts (Dckt. No. 362). So, for example, the first heading is “Description of the Parties and

" Basis of Jurisdiction,” the second is “Plaintiffs 911 Call to Police,” the third is “Plaintiffs

Transport to the Hospital,” the fourth is “Plaintiffs Battery of Nurse Benjamin and Subsequent

Arrest,” and so on. Id. The paragraphs appear under those headings. So paragraphs one to five

appear under heading one (“Description of the Parties and Basis of Jurisdiction”), paragraphs six

to thirty-two appear under heading two (“Plaintiffs 911 Call to Police”), and so on. Id.

Slabon did not give 68 responses to those 68 paragraphs. Instead, his response includes

17 different paragraphs, or maybe 17 different headings. See Pl.’s Resp. to City Defs.’ Statement

of Facts (Dckt. No. 392, at 13-19 of 19).3 The first four correspond to the headings of the Rule

56.1 statement by the City Defendants (e.g., “Plaintiffs 911 Call to Police”). But under each

heading, a stream of sentences flow, from one to another, without any paragraph numbers. The

text includes no markers tying the sentences to the sentences in the Rule 56.1 statement.

3 Or maybe Slabon responded in 19 paragraphs. On page 18 of the 19-page pdf file, Plaintiff included a

response that ran through paragraph 17, and then the “CONCLUSION” followed: See Pl.’s Resp. to City

Defs.’ Statement of Facts (Dckt. No. 392, at 18 of 19). But the next page of the pdf file (page 19 of 19)

then includes paragraphs 18 and 19. Id. at 19 of 19. But paragraph 19 is a restatement of the standard for

a declaration under the United States Code. Id.

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The sentences lack any mooring to the City Defendant’s statement of facts. Nothing ties

the response to the statements from the Defendants, so it is difficult to see what, exactly, Slabon

is responding to. The sentences just float together, tied to nothing.

By the look of things, the response is incomplete, too. For example, the second section of

the City Defendant’s Rule 56.1 statement includes 27 paragraphs (that is, paragraphs six to

thirty-two appear under heading two, entitled “Plaintiffs 911 Call to Police”). See City Defs.’

Statement of Facts, at

6-32 (Dckt. No. 362). But in response, Slabon gave only eight

responses to those 27 paragraphs. See Pl.’s Resp. to City Defs.’ Statement of Facts (Dckt. No.

392, at 13-14 of 19).

So, Slabon did not respond to everything. And the responses that do appear are

user-unfriendly, because the paragraph numbers do not correspond to die paragraph numbers of

the City Defendants’ statement of facts. It is difficult to line up the facts and the responses, and

find a match. Reviewing a statement of facts under Rule 56.1 should not require a judicial

version of “go fish.”

Slabon’s response to the Hospital’s statement of facts was better, but far from perfect.

The Hospital filed a statement of facts with 27 paragraphs. See Def. POLR’s Statement of Facts

(Dckt. No. 355). Slabon filed a 27-paragraph response. See Pl.’s Resp. to Def. POLR’s

Statement of Facts (Dckt. No. 371, at 5-8 of 12). So the numbers match. But Plaintiff did not

restate the paragraphs from the Hospital’s statement of facts, in violation of the Local Rules. See

Local Rule 56.1(e)(1). That non-compliance required this Court flip back and forth between two

documents at once, to figure what facts the Hospital put forward and what Slabon offered as a

response.

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The Local Rules require non-movants to restate the paragraphs of the movant’s statement

of facts, and then provide a paragraph-by-paragraph response. Id. And for good reason. The

- goal of the exercise is to identify any disputed issues of fact. A user-friendly format is important

for the Court’s review. A scrambled response that is untethered to the statement of facts

interferes with the ability of the Court to see what is at issue, and what is not.

Second, Slabon did not comply with the substantive requirements, either. He did not

respond by submitting admissible evidence.

At the summary judgment stage, a non-movant cannot rely on allegations. Summary

judgment is the time to come forward with evidence. It is not enough for the non-movant to

express disagreement with the movant’s facts, or to predict the evidence that the non-movant will

present someday. The non-movant must cite to evidence, here and now, and must put that

evidence in the record. “To dispute an asserted fact, a party must cite specific evidentiary

material that controverts the fact and must concisely explain how the cited material controverts

the asserted fact.” See Local Rule 56.1(e)(3).

Summary judgment is the time for the parties to put their evidentiary cards on the table.

“Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in

a lawsuit, when a party must show what evidence it has that would convince a trier of fact to

accept its version of the events.” See Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859

(7th Cir. 2005) (cleaned up).

A failure to comply has straightforward consequences. The Court may accept as true any

(properly supported) fact in the movant’s statement of facts if the non-movant fails to come

forward with contrary evidence. See Fed. R. Civ. P. 56(e)(2) (“If a party .. . fails to properly

address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the

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fact undisputed for purposes of the motion.”); Local Rule 56.1 (e)(3) (“Asserted facts may be

deemed admitted if not controverted with specific citations to evidentiary material.”).

Slabon did not comply with those requirements. Instead of coming forward with

admissible evidence, Slabon offers denials. Slabon denies this or that, without offering any

contrary evidence. For example, Slabon “[d]enies ever at any time screaming, thrashing, jerking,

kicking and saying that he didn’t want to live.” See Pl.’s Resp. to City Defs.’ Statement of Facts

(Dckt. No. 392, at 13 of 19). Later, Slabon “disputes that he was arrested for battering nurse

Benjamin,” and “denies any involvement in any attack ....” Id. at 14.

Denials are not evidence. The non-movant cannot respond to a statement of facts by

denying those facts, without more. The non-movant must come forward with evidence, not

expressions of disagreement. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th

Cir. 2004) (“In addition, where a non-moving party denies a factual allegation by the party

moving for summary judgment, that denial must include a specific reference to the affidavit or

other part of the record that supports such a denial.”); see also Bergholz v. John Marshall L. Sch.,

448 F. Supp. 3d 887, 893 (N.D. Ill. 2020) (“Bergholz denies this, but he fails to cite any record

evidence indicating he has such personal knowledge, so the fact is deemed admitted.”); Lorillard

Tobacco Co. v. Amoco & Food Shop 5, Inc., 360 F. Supp. 2d 882, 885 (N.D. III. 2005) (‘To the

extent that defendant’s denials are not supported by citations to evidence in the record, the court

agrees with plaintiff that those denials do not create a dispute of material fact.”).

At other times, Slabon disagrees with the facts offered by Defendants because he doesn’t

find the witnesses credible. For example, the Hospital offered evidence that Slabon was in an

“agitated state” and displayed “disruptive behavior” in the emergency room. See Def. POLR’s

Statement of Facts, atf 10 (Dckt. No. 355). Slabon responded: “Plaintiff disputes as it is based

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entirely on the credibility of defendants who have a vested interest in the outcome of this case as

well as personal involvement of defendants in alleged constitutional deprivations.” See Pi’s

Resp. to Def. POLR’s Statement of Facts, at ^ 10 (Dckt. No. 371, at 6 of 12).

A non-movant cannot create a genuine issue of material fact by calling into question the

credibility of the movant’s witnesses. A plaintiff cannot “defeat a defendant’s properly

supported motion for summary judgment... without offering any concrete evidence from which

a reasonable juror could return a verdict in his favor and by merely asserting that die jury might,

and legally could, disbelieve the defendant’s denial.. ..” See Anderson v. Liberty Lobby, Inc.,

477 U S. 242,256-57 (1986); see also Fletcher v. Hoeppner Wager & Evans, LLP, 775 F. App’x

240,241 (7th Cir. 2019) (“Fletcher’s evidence suggests only that ajury might disbelieve

Golomb’s evidence .... But a plaintiff cannot get to ajury simply by casting doubt on the

defendant’s evidence; ‘[ijnstead, the plaintiff must present affirmative evidence in order to defeat

a properly supported motion for summary judgment.’”) (quoting Anderson, All U.S. at 257);

Trentadue v. Redmon, 619 FL3d 648,652 (7th Cir. 2010) (“Trentadue must show more than

‘some metaphysical doubt as to the material facts,’ and neither speculation nor generic

challenges to a witness’s credibility are sufficient to satisfy this burden.”) (citation omitted);

Springer v. Durflinger, 518 F.3d 479,484 (7th Cir. 2008) (“[W]hen challenges to witness’

credibility are all that a plaintiff relies on, and he has shown no independent facts - no proof - to

support his claims, summary judgment in favor of the defendant is proper.”); Dugan v. Smerwick

Sewerage Co., 142 F.3d 398,406 (7th Cir. 1998) (“[T]he prospect of challenging a witness’

credibility is not alone enough to avoid summaiy judgment.”).

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And in any event, at the summary judgment stage, the Court does not make credibility

determinations. The issue is whether Slabon has offered evidence at all, not whether the

Defendants offered evidence from believable people.

A non-movant also cannot undermine testimony by labeling it “self-serving” See Hill v.

Tangherlini, 724 F3d 965, 967 (7th Cir. 2013) ("Deposition testimony, affidavits, responses to

interrogatories, and other written statements by their nature are self-serving. As we have

repeatedly emphasized over the past decade, the term ‘selfserving’ must not be used to denigrate

perfectly admissible evidence through which a party tries to present its side of the story at

summary judgment”) (citation omitted); Berry v. Chicago Transit Auth., 618 F.3d 688,691 (7th

' Cir. 2010) (“[W]e long ago buried - or at least tried to bury - the misconception that

uncorroborated testimony from the non-movant cannot prevent summary judgment because it is

‘self-serving.’”); Payne v. Pauley, 337 F.3d 767, 771-72 (7th Cir. 2003).

It would shock no one to learn that a witness was self-serving. People tend to be

self-serving, and so does their testimony. But that’s not a reason to keep it out at the summary

judgment stage.

In another document in the collection (separate and apart from the document that appears

to be the response to the Rule 56.1 statement), Slabon repeatedly foreshadowed what he “will

testify” to someday. For example, Slabon stated that he “will testify that he has been a victim of

police misconduct and/or retaliation for decades.” See Pl.’s Resp. to Def. POLR’s Mtn. for

Summ. J., at If 3 (Dckt. No. 371, at 9-12 of 12). As a second example, Slabon “will testify” that

the nurse “was never injured and no such attack ever occurred.” Id. at f 18. Slabon’s responses

are heavy-laden with predictions about what he “will testify” to someday.

10

But from an evidentiary standpoint, the time is now. A non-movant cannot oppose a

motion for summary judgment by promising to come forward with evidence someday.

The punchline is that Slabon did not respond to the two statements of facts as required by

the Federal Rules and the Local Rules. He did not follow the format. He did not respond to all

of the facts. And when he did respond, he did not offer admissible evidence. Denials and

predictions don’t cut it.

As a result, the Court strikes his responses. See Delapaz v. Richardson, 634 F.3d 895,

899 (7th Cir. 2011) (“The obligation set forth in Local Rule 56.1 ‘is not a mere formality.’”)

(citation omitted); Waldridge v. American Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994)

("[Local Rule 56.1] substantially facilitates the district court’s task in deciding whether a trial is

indeed necessary. Ms. Waldridge’s failure to comply with the local rule was, accordingly, not a

harmless technicality, but a mistake that our precedents (for good reason) have deemed fatal.”).

The Court accepts Defendants’ facts as true for purposes of the motions for summary

judgment. See Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405,411 (7th Cir. 2019)

(“According to well-established Seventh Circuit law, [the nonmovant’s] noncompliance [with

Local Rule 56.1 (b)(3)(B)] meant that the district court could exercise its discretion to accept [the

movant’s] statements of fact as undisputed.”); Curtis v. Costco Wholesale Corp., 807 F.3d 215,

218 (7th Cir. 2015) (“When a responding party’s statement fails to dispute the facts set forth in

the moving party’s statement in the manner dictated by the rule, those facts are deemed admitted

for purposes of the motion.”) (internal quotation marks omitted); Olivet Baptist Church v.

Church Mut. Ins. Co., 672 F. App’x 607,607 (7th Cir. 2017) (“The district court treated most of

the [movant’s] factual submissions as unopposed, because the [nonmovant] failed to contest

them in the form required by Local Rule 56.1(b). We have held that the district court is entitled

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to enforce that rule in precisely the way it enforced the rule in this litigation ”) (collecting cases);

Keeton v. Momingstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012).

Slabon’s failure to comply did not come from a failure to know the rules. Each of the

parties notified Slabon about the requirements under the Local Rules. See Notice (Dckt. No.

358); Notice (Dckt. No. 364). This Court did too — twice. See 11/23/20 Order (Dckt. No. 366);

12/11/20 Order (Dckt. No. 370). This Court also gave Slabon extra time - twice. See 12/11/20

Order; 12/29/20 Order (Dckt. No. 375).

It is true the Slabon is pro se. But even pro se litigants must comply with the rules. See

Cady v. Sheahan, 467 F.3d 1057,1061 (7th Cir. 2006) (“[T]he Supreme Court has made clear

that even pro se litigants must follow rules of civil procedure.”) (citing McNeil v. United States,

508 U.S. 106,113 (1993)); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994) (“[P]ro se litigants

are not entitled to general dispensation from the rules of procedure or court imposed

deadlines.”); Harris v. Coppes, 2019 WL 2435847, at *1 (N.D. Ill. 2019) (“Harris’spro se status

does not excuse him from complying with Local Rule 56.1.”) (collecting cases). The Court must

have procedures for an orderly resolution of litigation.

Good fences make good neighbors, and the same can be said of the Federal Rules.

Without boundaries, there is confusion, conflict, and chaos. Pro se litigants must respect those

boundaries, too. Pro se litigants have no right to make their own rules.

The bottom line is that this Court will accept Defendants’ facts as true for purposes of

their motions for summary judgment. With that long wind-up, the Court now turns to the facts

of the case.

12

Facts

On the evening of January 27,2014, Andrew Slabon returned home from the liquor store.

See City Defs.’ Statement of Facts, at^f 6 (Dckt. No. 362). He had been drinking “a lot” of

alcohol that day, and was “pretty drunk.” Id. at % 7.

When he arrived home, he made a terrible discovery. His mother was unresponsive on

the living room floor of the house that they shared. Id. at f 6. Slabon called 911. Id.

Paramedics from the Chicago Fire Department were the first to arrive on the scene. Id. at

f 8. Slabon let them in. Id.

The paramedics called the Chicago Police Department for assistance. Id. at f 9. They

called because it was a possible death investigation, and because Slabon was unruly. Id.

Two police officers, Defendant Angelo Sanchez and his partner, Officer James Mackin (a

non-party), answered that call, dressed in full police uniform. Id. When he arrived at the scene,

Officer Sanchez entered the home and went into the living room. Id. at f 10. He saw Slabon’s

mother lying on the floor, with paramedics attending to her. Id.

Slabon was not well. He was sitting on a nearby couch, screaming hysterically. Id. at

• 111. He was flailing his arms to the point of knocking an item off of a nearby table. Id. Slabon

was moving from a sitting to partially standing position, in an apparent attempt to reach his

mother, but a firefighter blocked his way. Id. at f 12. Slabon does not recall if he was

disobeying the firefighter’s commands or attempting to reach his mother. Id.

13.

Officer Sanchez stepped in. He switched places with the firefighter who was blocking

Slabon from interfering with the paramedics. Id. at If 14. Officer Sanchez attempted to calm

Slabon down, and instructed him to stay on the couch and stay away from the paramedics. Id. at

If 15.

13

Stabon continued to have a hard time. He continued to flail, scream hysterically, and get

up from the couch. Id. at f 16. Based on his observations, Officer Sanchez believed that Slabon

was intoxicated and under the influence of an unknown substance. Id. at 17.

It became apparent that Slabon was not going to calm down. Id. at |18. So Officers

Sanchez and Mackin attempted to lift him off the couch by his arms and move him to another

room. Id. But Slabon did not cooperate. Id. He pulled away and became deadweight. Id.

At that point, Officers Sanchez and Mackin handcuffed Plaintiff’s arms behind his back.

Id. atU 19. They did so in light of his behavior* and for the safety of Slabon and everyone else.

Id. The handcuffing did not injure Slabon. Id.

Once Slabon was handcuffed, the two officers were able to lift him by his arms and

. escort him to a back bedroom, where he sat on a bed. Id. at ^ 20. That’s the first moment that

Slabon recalls. He does not remember anything between the paramedics first arriving and

finding himself on the bed in the bedroom. Id. at f 21.

Officer Sanchez continued speaking with Slabon, trying to calm him down. Id. at f 22.

The officer instructed Slabon to remain on the bed. Id. But Slabon continued screaming, and

kept trying to get up in an apparent attempt to leave the room. Id. Slabon doesn’t recall what

Officer Sanchez said to him at the time. Id. at f 23.

In light of Slabon’s unruly behavior, Officer Sanchez called for more police assistance.

Id. at 24. At that point, both Officer Sanchez and Officer Mackin were with Slabon in the

bedroom. Id. They called for backup so that one of them could check on the paramedics,

without leaving one officer in the room by himself with Slabon. Id.

14

Two officers, Defendants Jerry Adamski and David Cummens,4 answered that call. Id. at

f 25. They arrived on the scene in full police uniform. Id.

They entered the home and joined Officer Sanchez and Slabon in the bedroom. Id. at

f 26. Officer Mackin then went to check with the paramedics in the living room. Id.

Officers Sanchez, Adamski, and Cummens continued to try to calm Slabon down. Id. at

If 27. They instructed Slabon to remain on the bed and to stop trying to leave the room. Id.

Slabon did not cooperate. He continued screaming, and he kept trying to get off the bed. Id.

The officers kept Slabon in the bedroom to prevent him from re-entering the living room

and interfering with the paramedics. Id. at 28. At that point, Officer Mackin returned to the

bedroom and delivered terrible news. Id. at 129. The woman - Slabon’s mother - was dead.

Id.

Slabon’s behavior took a turn for the worse. Id. at <|f 30. He began making suicidal

comments, such as “kill me” and “I don’t want to live.” Id.

At that point, the officer still didn’t know who Slabon was. Id. at ^f 31. He hadn’t given

them his name, or answered any questions. Id. None of the officers knew that the woman was

his mother. Id.

The officers decided that Slabon posed a risk of self-harm. Id. at f 32. They called an

ambulance to transport Slabon to a local hospital for a mental health evaluation. Id.

4 The City Defendants went back and forth on the spelling of the defendant’s name. David “Cummens”

appears on the docket 56 times, but David “Cummins” does not appear once. So the minute entries say

“Cummens.” But the filings themselves often say “Cummins.” So, example, the minute entry for the

motion for summary judgment says “David J. Cummens” {see Dckt. No. 361), but the text of the motion

itself says “David Cummins” {id.) The Court assumes that filings are more likely to be correct than

minute entries. The pleadings are inconsistent, too. Slabon sued “David J. Cummens” in the Sixth

Amended Complaint, and “David Cummins” filed an answer. See Sixth Am. Cplt. (Dckt. No. 247),

Amended Answer (Dckt. No. 322). The Court will stick to what is in the complaint, but maybe there is

some cleanup work to do. If that spelling is incorrect, Defendants should file a motion so that the docket

is correct.

15

Officer Cummens, along with Paramedic Bishop and Paramedic Strong, entered the

ambulance with Slabon. Id. at ^ 37. Officers Sanchez and Mackin stayed outside the vehicle,

but remained on the scene. Id.

One of the paramedics (Strong) tried to take Slabon’s vitals, but he couldn’t Id. at f 38.

Slabon kept screaming and thrashing. Id

Paramedic Strong drove the ambulance to a local hospital, Our Lady of Resurrection

Medical Center, while Paramedic Bishop and Officer Cummens remained in the back with

Slabon. Id. at J 39. While en route, Slabon refused to answer any questions about his medical

history. Id. at 40. He remained combative, and continued to scream, jerk, and kick. Id. But

Slabon was not injured during the ride. Id. at f 41.

Once at the hospital, they placed Slabon in a wheelchair and took him to the intake desk

in the emergency room. Id. at^j 42. At that point, the hospital staff took custody of Slabon. Id.

at f 43. He arrived at around 6:50 p.m., and was in handcuffs. See Def. POLR’s Statement of

Facts, at ^ 4 (Dckt. No. 355).

At that point, Slabon was not under arrest for committing any crime. See City Defs. ’

Statement of Facts, at U 44 (Dckt. No. 362). But Slabon was in distress. He continued to make

suicidal comments, asking to be euthanized. Id. at f 45.

Dr. Kenneth Barrick was one of the physicians working in the emergency room that

night. See Def. POLR’s Statement of Facts, at ^ 6 (Dckt. No. 355). He had eight years of

experience as a physician in emergency rooms. Id. A large part of his practice involved dealing

with people with acute psychiatric issues or acute issues that may involve psychiatric diagnoses.

Id.

16

Based on his observation, Dr. Barrick believed that Sfabon was emotionally distraught.

Id. He was rocking back and forth, weeping, and cursing. Id. He seemed agitated. Id. at f 7.

Dr. Barrick approached, and put his hand on Slabon’s shoulder. Id. He asked him if he

was all right, and he asked what had happened and what he was doing at the hospital. Id.

Slabon, still rocking back and forth, responded with expletives. Id. at ^ 8. He said that

his mother had passed away. Id.

Defendant Lauren Benjamin, a registered nurse, approached Slabon and gave him some

water, holding the cup as he drank (because he was in handcuffs). Id. at ^ 9.

Nurse Benjamin had Slabon moved to a hospital room. See City Defs.’ Statement of

Facts, at ^ 46 (Dckt. No. 362). The staff moved him to an exam room because it had a door, and

Slabon was agitated and disruptive. See Def. POLR’s Statement of Facts, at 10 (Dckt. No.

355).

Officer Cummens, Officer Adamski, and other hospital staff accompanied Nurse

Benjamin, as did at least one security guard. See City Defs.’ Statement of Facts, at U 46 (Dckt.

No. 362). Slabon entered the room with Dr. Barrick, Nurse Benjamin, a hospital security guard,

and two police officers. See Def. POLR’s Statement of Facts, at f 13 (Dckt. No. 355).

Things continued to unravel. Slabon sat on a hospital bed, but refused to lay down. See

City Defs.’ Statement of Facts, at ^ 46 (Dckt. No. 362).

Nurse Benjamin introduced herself as the nurse who would be taking care of him, and

said that she was going to take his vitals. See Def. POLR’s Statement of Facts, at 114 (Dckt.

No. 355). Slabon responded with expletives and racial slurs. Id. He said his name was John

Doe. Id.

17

The nurse asked him about his medical history, and asked if he was taking any

medications. Id. atl15. Slabon refused to answer. Id. He responded with “more expletives

and profanities.” Id.

They transferred Slabon from the wheelchair to the gurney, and then to the bed. Id. at

H1M5-16.

Nurse Benjamin attempted to take Slabon’s vital signs. See City Defs.’ Statement of

Facts, at 147 (Dckt. No. 362). But he was still handcuffed, so she asked Officers Cummens and

Adamski to remove them. Id. They removed the handcuffs, in part. They removed the cuffs

from behind his back, but they cuffed each hand separately to a rail on each side of the bed. Id.

Meanwhile, Slabon looked directly at Nurse Benjamin and made more vulgar and

profane comments. See Def. POLR’s Statement of Facts, atl 16 (Dckt. No. 355). Slabon

continued to move around, so Nurse Benjamin could not get his vital signs, except his pulse. Id.

at 117; City Defs.’ Statement of Facts, at 148 (Dckt. No. 362).

Things continued to deteriorate. Slabon became more combative, and threatened to start

spitting on her. See City Defs.’ Statement of Facts, at 48 (Dckt. No. 362).5

Dr. Barrick determined that de-escalation tactics had failed. He ordered chemical and

physical restraints in light of Slabon’s agitated and combative demeanor. See id. atl 18. The

chemical restraints included 2 mg of Ativan, a benzodiazepine, 5 mg of Haldol, an anti­

psychotic, and 50 mg of Benadryl. Id. He ordered physical restraints because chemical

restraints take some time, and he was concerned about Slabon’s behavior. Id. Those orders were

5 The Hospital’s statement of facts includes a paragraph saying that Slabon actually spat on her. See Def.

POLR’s Statement of Facts, atl) 17 (Dckt. No. 355). But the cited testimony says that Slabon threatened

to spit on her, not that he actually spat on her. Whether a person spits on someone - or only threatens to

spit on someone - makes a big difference to the person on the receiving end. But it doesn’t make much

difference here. Either way, Slabon was threatening the people in the room.

18

consistent with the standard of care for treating a patient in an emergency room that presents an

agitated state. Id.

Nurse Benjamin left the room and returned with “soft restraints,” which are straps made

from a nylon-like material. See City Defs.’ Statement of Facts, at 149 (Dckt. No. 362). She

brought the medication, too. See Def. POLR’s Statement of Facts, at f 19 (Dckt. No. 355). She

injected the medication into Slabon’s left thigh. Id. Slabon responded by telling the nurse to do

it again, using expletives. Id.

The hospital staff then strapped Slabon’s arms to the bed rails with the soft restraints.

See City Defs. ’ Statement of Facts, at J 50 (Dckt. No. 362). But Slabon resisted and remained

aggressive, so the police officers, the security guard, and Dr. Barrick pitched in. See Def.

POLR’s Statement of Facts, at ^ 20 (Dckt. No. 355). According to Slabon, Officer Cummens put

his arm on his neck when they applied the soft restraints, restricting his airway. See City Defs.’

Statement of Facts, at f 52. At that point, they removed the handcuffs. Id. at f 50.

Nurse Benjamin put soft restraints on his ankles as well, but did not secure those

restraints to the bed. 7<£'atf51. So Slabon was still able to move his legs. Id.

At that point, Nurse Benjamin noticed that his oxygen saturation levels started to drop.

See Def POLR’s Statement of Facts, at f 21 (Dckt. No. 355). So she told Slabon that she was

going to place an oxygen mask on his face, and Slabon responded “OK.” Id. at 122; see also

City Defs.’ Statement of Facts, at ^ 55 (Dckt. No. 362).

That’s when Slabon attacked her. Slabon reared his legs back and kicked Nurse

Benjamin in the chest, sending her flying. See City Defs.’ Statement of Facts, at f 55 (Dckt. No.

362); Def. POLR’s Statement of Facts, at 122 (Dckt. No. 355).

19

The City Defendants and the Hospital offer different estimates about how far the nurse

flew. The City Defendants claim that she flew about 12 feet backwards, and the Hospital says

that it was more like eight to ten feet. The distance is less important than the act itself. Slabon

kicked, and the nurse flew.

The nurse struck the cabinets by the wall, and left the room to compose herself. See Def.

POLR’s Statement of Facts, at % 22 (Dckt. No. 355).

At that point, the officers put Slabon under arrest for battery. See City Defs.’ Statement

of Facts, at % 56 (Dckt. No. 362). They re-attached the handcuffs to each arm, and secured them

to the bed rails. Id. When the nurse returned, the police had secured both of Slabon’s feet, and

she was able to get his vitals. See Def. POLR’s Statement of Facts, at ^ 23 (Dckt. No. 355).

Before Slabon left the hospital, Dr. Barrick ordered a catheter for a urinalysis. Id. at U 24.

A urine test can show elevated levels of chemicals that cause acute psychosis. Id. It can show

other chemicals that cause aggressive behavior, like cocaine and amphetamines. Id. Nurse

Benjamin inserted the catheter. Id.

Slabon left the hospital in police custody at 9:50 p.m. Id. at^j 25. After the police placed

him under arrest, non-party officers transported Slabon to the local police station. See City

Defs.’ Statement of Facts, at f 57 (Dckt. No. 362).

In his complaint, Slabon alleged that he was wearing only a nightgown at the time, and he

was cold and hungry. Id. at ^ 58. Slabon claims that he was not given any clothes or food by the

officers, and that they saw him convulsing and unable to walk. Id. at 159.

After his arrest, Slabon interacted with only two of the City Defendants: Detectives

Michael O’Donnell and Timothy O’Brien. Id. at % 60. They investigated his mother’s death, and

they interviewed Slabon at the police station about what had happened. Id.

20

■Mabon chd not answer the officers' questions, fa. at f6t. He also did not convulse from

apparent exposure to cold, or make any comment that he was cold or needed medical care. Id.

Slabon later went to the Cook County Jail Id at ^ 62. Before going there, Slabon went

to West Suburban Hospital. Id. The “heat was turned on to make him more comfortable.” Id.

Slabon was not diagnosed with or treated for hypothermia. Id. at f 63. He suffered no

lasting effects from being cold during police transport and processing. Id.

The state criminally charged Slabon with battery for striking Nurse Benjamin. Id. at f 64.

He was convicted. Id., see People v. Slabon, 2018IL App (1st) 150149,425 Ill. Dec. 354, 112

N.E.3d 1019 (2018); see also Sixth Am. Cplt., at f 76 (Dckt. No. 247) (acknowledging Slabon’s

conviction of aggravated battery).

The state court sentenced Slabon to 50-months’ imprisonment and one year of mandatory

supervised release. See Slabon, 112 N.E.3d at 1027. Slabon was released from prison roughly

25 months after his arrest. See City Defs.’ Statement of Facts, at f 66 (Dckt. No. 362).

Slabon testified that, after returning home, he found that $700 was missing from his

keyboard at his home. Id. Slabon believes that Officers O’Donnell and O’Brien took it. Id. at

f 67. But that claim rests on nothing more than an assumption, based on the notion that those

officers were the last people in his home before the incarceration.

Officers O’Donnell and O’Brien did enter the home as part of their investigation into the

death of Slabon’s mother. Id. at 68. But they did not take any money. Id.

Procedural History

This case has a long and winding procedural history. This Court summarized that history

in its ruling on the motion to dismiss. See 9/28/20 Mem. Opin. and Order, at 8-11 (Dckt. No.

339). The case has over 400 docket entries, and counting.

21

Suffice it to say that Slaton filed this lawsuit in 2015. He brought claims against a

number of different police officers and firefighters, as well as medical staff at Presence Our Lady

of Resurrection Medical Center (again, the “Hospital”). He also sued the Hospital, the City of

Chicago, the Chicago Police Department, and the Independent Police Review Authority. See

Cplt. (Dckt. No. 1).

Years of discovery followed. So did waves of amendments to the complaint. Judge

Kendall presided over the case for most of its history, and carried most of the load. When the

case was reassigned in September 2019, there were already 259 docket entries. By that point,

Slabon had already filed a sixth amended complaint (two of them, actually).

After reassignment, this Court gave Plaintiff a chance to file a seventh amended

complaint, because there were two different versions of the sixth amended complaint on the

docket. See 11/12/19 Order (Dckt. No. 271). Plaintiff did not do so. As result, this Court

confirmed that the later-filed version of the sixth amended complaint is the operative complaint.

See Sixth Am. Cplt. (Dckt. No. 247); 11/27/19 Order (Dckt. No. 279); 12/2/19 Order (Dckt. No.

282).

The sixth amended complaint advanced 12 claims against 11 (or possibly 13 or 15)6

named individuals, plus “John Doe” police officers, the City of Chicago, and Our Lady of the

Resurrection Hospital. See Sixth Am. Cplt. (Dckt. No. 247). Pinning down what claims are

pending against which Defendants takes a bit of work. Some claims are against some

Defendants, and some claims are against all Defendants. Id. atffll 88-174. Oftentimes, Slabon

6 The list of Defendants in the case caption did not match the list of Defendants in the first paragraph of

the complaint For a summary, see 9/28/20 Mem. Opin. and Order, at 12 n.4 (Dckt. No. 339).

22

asserts claims against “Defendants,” without more, which the Court construes as claims against

all Defendants.

Specifically, Slabon filed eight claims against the Hospital, including claims for

unreasonable seizure under the Fourth Amendment (Count I), conspiracy to violate constitutional

rights (Count II), substantive due process (Count III), excessive force (Count IV),

unconstitutional conditions of confinement (Count VII), respondeat superior (Count IX), false

imprisonment (Count XI), and intentional infliction of emotional distress (Count XII). The

Hospital moved to dismiss all of the claims except Count XII.

Slabon also filed six claims against Defendant DiLoreto (the Chief Medical Officer),

including conspiracy to violate constitutional rights (Count H), substantive due process (Count

III), assault and battery (Count VI), unconstitutional conditions of confinement (Count VII),

* false imprisonment (Count XI), and intentional infliction of emotional distress (Count XII).

DiLoreto moved to dismiss all of the claims except Count XII.

Finally, Slabon advanced 11 claims against the City of Chicago and various police

officers and paramedics, including unreasonable seizure under the Fourth Amendment (Count I),

conspiracy to commit constitutional violations (Count II), substantive due process (Count III),

excessive force (Count IV), assault and battery (Count V), medical battery (Count VI),

unconstitutional conditions of confinement (Count VII), a Monell claim (Count VIII),

indemnification (Count X), false imprisonment (Count XI), and intentional infliction of

emotional distress (Count XU).

This Court later ruled on motions to dismiss, which it granted in part and denied in part.

See 9/28/20 Mem. Opin. and Order (Dckt. No. 339). That ruling trimmed the case, but a number

23

of claims remained. The last few pages of that Opinion summarized what claims this Court

granted, and what this Court denied. Id. at 63-66.

In the interest of clarity, this Court ordered the parties to work together cooperatively,

and prepare a chart of the claims that remained pending. See 9/29/20 Order (Dckt. No. 340).

Slabon filed lots of claims against lots of people, and this Court dismissed some of them in its

66-page Opinion. So, this Court thought it would help everyone to have a definitive chart, as a

quick-reference guide.

Defendants complied, but Slabon did not. On the due date, Defendants filed the Courtordered chart. But Defendants reported that Slabon had refused to participate. See Statement of

Pending Claims (Dckt. No. 343). Defendants attached emails where Slabon stated that he had

“limited time.” See Emails (Dckt. No. 343-1). “As a Pro Se litigant, Im [sic] sure you are well

aware of the limited time I have at my disposal, I cant [sic] focus on drawing charts with brian

wilson or playing make believe with the U.S [sic] District Court.” Id.

Slabon’s non-participation was unacceptable, as this Court explained in a subsequent

Order. See 10/13/20 Order (Dckt. No. 344).

As things stand, the following claims remain pending: (1) an unreasonable seizure claim

(Count I) against Officer Sanchez, Officer Cummens, Officer Adamski, Detective O’Brien,

Paramedic Bishop, and Paramedic Strong; (2) an excessive force claim (Count IV) against

Officer Sanchez, Officer Cummens, Officer Adamski, Paramedic Bishop, and Paramedic Strong;

(3) an assault and battery claim (Count V) against Officer Sanchez, Officer Cummens, and

Officer Adamski, plus the City (under respondeat superior), (4) a medical battery claim (Count

VI) against the Hospital (under respondeat superior); (5) an unconstitutional conditions of

confinement claim (Count VII) against Detective O’Brien; (6) an respondeat superior claim

24

(Count IX) against the Hospital for the actions of Nurse Benjamin; (7) an indemnification claim

(Count X) against the City and the Hospital; (8) a false imprisonment claim (Count XI) against

Officer Sanchez, Officer Cummens, Officer Adamski, Paramedic Bishop, and Paramedic Strong,

plus the Hospital; and (9) an intentional infliction of emotional distress claim (Count XII) against

Officer Sanchez, Officer Cummens, Officer Adamski, Detective O’Brien, Paramedic Bishop,

and Paramedic Strong, plus the Hospital.

To make things easy for the reader, the Court will re-sort that list, and summarize the

pending claims by party. The following claims remain pending against the City Defendants:

(1) an unreasonable seizure claim (Count I) against Officer Sanchez, Officer Cummens, Officer

Adamski, Detective O’Brien, Paramedic Bishop, and Paramedic Strong; (2) an excessive force

claim (Count IV) against Officer Sanchez, Officer Cummens, Officer Adamski, Paramedic

Bishop, and Paramedic Strong; (3) an assault and battery claim (Count V) against Officer

Sanchez, Officer Cummens, and Officer Adamski, plus the City (under respondeat superior)-,

(4) an unconstitutional conditions of confinement claim (Count VII) against Detective O’Brien;

(5) an indemnification claim (Count X) against the City; (6) a false imprisonment claim (Count

XI) against Officer Sanchez, Officer Cummens, Officer Adamski, Paramedic Bishop, and

Paramedic Strong; and (7) an intentional infliction of emotional distress claim (Count XII)

against Officer Sanchez, Officer Cummens, Officer Adamski, Detective O’Brien, Paramedic

Bishop, and Paramedic Strong.

The following claims remain pending against the Hospital: (1) a medical battery claim

(Count VI) (under respondeat superior), (2) an respondeat superior claim (Count IX) for the

actions of Nurse Benjamin; (3) an indemnification claim (Count X); (4) a false imprisonment

claim (Count XI); and (5) an intentional infliction of emotional distress claim (Count XII).

25

Detective O’Donnell is not a defendant. He passed away after the filing of the lawsuit,

but Slabon did not substitute the estate in a timely manner. So this Court dismissed him. See

11/12/20 Suggestion of Death (Dckt. No. 351); 11/16/20 Order (Dckt. No. 353); 3/1/21 Order

(Dckt. No. 388).

Dr. Barrick is not a defendant. Slabon asserted claims against him in the sixth amended

complaint, alleging that he witnessed the conduct of others. This Court dismissed those claims at

the motion-to-dismiss stage. See 9/28/20 Mem. Opinion and Order, at 61-63 (Dckt. No. 339).

Nurse Benjamin is not a defendant. Slabon named her in the complaints, but never

served her with process. So the Court dismissed her. See 2/26/18 Order (Dckt. No. 138); 7/2/19

Order (Dckt. No. 233); 11/12/19 Order (Dckt. No. 271).

Defendant DiLoreto is not a defendant. He was the Chief Medical Officer of the

Hospital. But the complaint did not allege that he played any role in the events in question. So

the Court dismissed him. See 9/28/20 Mem. Opinion and Order, at 35-36,42-44 (Dckt. No.

339).

To make things easy to follow, the Court will address the claims against the City

Defendants, and then will turn to the claim against the Hospital.

In recent months, Slabon has filed repeated motions, accusing the Clerk’s Office of

deliberately altering his electronic filings. He also accused this Court’s Courtroom Deputy of

“gaslighting” him.7

7 SeeMtn., at ffif 7-10 (Dckt. No. 391) (stating that Dckt. No. 381 “is not the original filing,” that it was

somehow “damaged and/or deliberately altered,” and that “[i]t is impossible for [Slabon] to have

committed such an error”); Mtn. (Dckt. No. 401) (stating that Slabon “discovered that once again his

electronic filing had been altered,” and that the “incident was the second consecutive alternation” to his

“electrically [sic] filed response[s]”); 5/14/21 Order (Dckt. No. 396); 6/8/21 Order (Dckt. No. 402);

7/16/21 Order (Dckt. No. 411); see also 7/16/21 Order (Dckt. No. 411) (“Plaintiff has surrendered the

privilege of communicating by email with the Courtroom Deputy.”).

26

Legal Standard

A district court “shall grant” summary judgment “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.” See Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., All U.S. 242,248 (1986).

The party seeking summary judgment has the burden of establishing that there is no

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, All U.S. 317, 323 (1986).

To survive summary judgment, the opposing party must go beyond the pleadings and identify

specific facts showing the existence of a genuine issue for trial. See Anderson, All U.S. at 256;

Siegel v. Shell Oil Co., 612 F.3d 932,937 (7th Cir. 2010) (“Once a party has made a properlysupported motion for summary judgment, the nonmoving party may not simply rest upon the

pleadings but must instead submit evidentiary materials that ‘set forth specific facts showing that

there is a genuine issue for trial. ’”) (quoting Fed. R. Civ. P. 56(e)).

Summary judgment is the time for evidence, not allegations. “At summary judgment, the

nonmovant plaintiff must provide evidence that when viewed in the light most favorable to him,

suffices to prove every element of his claim for which he bears the burden of proof.” Pulera v.

Sarzant, 966 F.3d 540, 549 (7th Cir. 2020). A district court will enter summary judgment for the

defendants “[i]f the plaintiff fails to show at least a triable issue on each element.” Id.; see also

Burton v. Kohn Law Firm. S.C., 934 F.3d 572, 578-79 (7th Cir. 2019)

The Court construes all facts and reasonable inferences in the light most favorable to the

nonmoving party. See Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). The Court

does not weigh the evidence, judge credibility, or determine the truth of the matter, but rather

27

determines only whether a genuine issue of triable fact exists. See Nat’l Athletic Sportswear,

Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Summary judgment is appropriate

if, on the evidence provided, no reasonable jury could return a verdict in favor of the non­

movant. See Celotex Corp., All U.S. at 322; Gordon v. FedEx Freight, Inc., 674 F.3d 769,11273 (7th Cir. 2012).

I.

The Claims Against the City Defendants.

In response to the City Defendants’ motion for summary judgment, Slabon lobbed all

sorts of complaints about the Chicago Police Department. He called the police “profiteers of

crime.” See Pi’s. 56.1(b) Am. Resp. Statement, at 1 (Dckt. No. 392, at 7 of 19). He complained

about the failure of the police to wear body cams. Id. at 2. He added that the police “routinely

torture suspects into false confessions,” and follow a “code of silence.” Id. at 1-2. He pointed to

the DOJ’s civil rights investigation into the Chicago Police Department, and submitted a copy of

the DOJ report. Id. at 1; see also Dep’t of Justice, Investigation ofthe Chicago Police

Department (Dckt. No. 392-4); Pi ’s 56.1(b) Am. Resp. Brf., at 1 (Dckt. No. 392, at 1 of 19).

That’s not the issue. The issue here is whether Slabon has come forward with evidence

sufficient to support a verdict in his favor by a reasonable jury. The topic at hand is the

sufficiency of the evidence in the record before this Court, not reasonableness of the conduct of

the Chicago Police Department more generally.

The question is whether there is any need for a trial, based on the record before this

Court. After reviewing the evidence submitted by Defendants, and the lack of evidence

submitted by Plaintiff, the answer is straightforward. There is no genuine issue about any

material facts, so there is no need for a trial.

28

A.

Unlawful Seizure (Count I).

The first remaining claim against the City Defendants is unlawful seizure. Slabon brings

an unreasonable seizure claim under the Fourth Amendment (Count I) against Officer Sanchez,

Officer Cummens, Officer Adamski, Detective O’Brien, Paramedic Bishop, and Paramedic

Strong. See Sixth Am. Cplt., at

88-109 (Dckt. No. 247).

Part of the claim involves a seizure of property. And part of the claim involves a seizure

of Slabon himself.

The claim about the seizure of property cannot survive. In the sixth amended complaint,

Slabon alleged that Detective O’Brien entered his home and “removed $2,100 in hidden cash

without any justification.” Id. at-f 72. He complained about missing keys, too. Id. at f 73.

At deposition, Slabon testified that he came home after 25 months in prison, and found

money missing. See Slabon Dep., at 166:22 — 171:8 (Dckt. No. 362-1). Slabon admitted that he

was simply making an assumption about who took it. Id. at 170:13 - 171:8. “But, yes, I would

say that’s an assumption because there’s no proof of it.” Id. at 170:24- 171:1.

Detective O’Brien submitted a declaration, and he stated that he did not take any money

or other property from Slabon’s home. See O’Brien Decl., at *[fl[ 5-9 (Dckt. No. 362-9). Slabon

did not respond to that fact, and did not offer any facts of his own. So it is deemed admitted.

The only evidence in the record is that Detective O’Brien did not take any money or

belongings from Slabon’s home. So the Court grants summary judgment to Detective O’Brien

on the claim about the alleged seizure of funds.

The other part of the seizure claim involves Slabon himself. The exact parameters of the

claim are not perfectly clear. The sixth amended complaint includes a factual narrative that

29

outlines what happened. Count I is the unlawful seizure claim, and it refers obliquely to the

“conduct” and “actions” of the defendants, without pinning down what Slabon was referring to.

Reading the complaint in Slabon’s favor, the seizure claim appears to involve removing

Slabon from the living room, taking him to the hospital, and placing him under arrest at the

hospital. So the claim involves three alleged seizures: (1) in the house; (2) out of the house;

(3) off to jail.

The first part of the seizure claim involves removing Slabon from the living room and

taking him to the bedroom. The undisputed facts show that Slabon has no claim. The

paramedics were attending to Slabon’s mother, who was laying the floor, unresponsive. Slabon

was screaming hysterically, and flailing his arms. See City Defs.’ Statement of Facts, at ^ 11

(Dckt. No. 362).

He attempted to reach his mother, and a firefighter had to block him. Id. at ^ 12. And

then, Officer Sanchez had to step in and block Slabon from interfering with the paramedics. Id.

at U 14. Officer Sanchez attempted to calm Slabon down, and instructed him to stay on the couch

and stay away from the paramedics. Id. at^j 15. But Slabon continued to flail, scream

hysterically, and get up from the couch. Id. atf 16. He seemed intoxicated. Id. at^j 17. Slabon

did not follow directives to calm down, and he did not cooperate when officers attempted to

move him. Id. at f 18. At that point, Officers Sanchez and Mackin placed him in cuffs and took

him to another room. Id. at 19.

Nothing about that encounter could give rise to a claim. Paramedics were attempting to

revive a woman, and Slabon was interfering with that effort. So officers removed him from the

area. Officer Cummens set the scene during his testimony in the criminal case: “What 1 do

believe is that you were, for some reason, trying to get to the victim, okay, but, at that point, the

30

-*x

fire personnel needed to do their job. They needed that area to work on the victim. And by you

trying to get into that area, they weren’t able to do that, okay?” See 9/30/14 Tr., at 49:23 - 50:4

(Dckt. No. 392-3, at 49-50 of 55).

The failure to follow directions - by getting in the way, getting off the couch, failing to

cooperate, and requiring a firefighter and then an officer to restrain him - obstructed the ability

of the team to provide care. See 720ILCS 5/31-1 (A) (providing that a party commits obstruction

when he “knowingly resists or obstructs the performance by one known to the person to be a

peace officer [or] firefighter... of any authorized act within his or her official capacity”). Based

on the undisputed facts, no reasonable jury could conclude that restraining Slabon and removing

him from the room was unreasonable.

The second part of the seizure claim involves removing Slabon from the home and taking

him to the hospital. The undisputed facts preclude that claim, too.

The Fourth Amendment governs seizures, including civil seizures. “[SJeizures made to

effectuate an involuntary mental health commitment are analyzed under the Fourth

Amendment’s ‘probable cause’ standard.” Fitzgerald v. Santoro, 707 F.3d 725, 732 (7th Cir.

2013). Probable cause exists where there are “reasonable grounds for believing that the person

seized is subject to seizure under the governing legal standard.” Villanova v. Abrams, 972 F.2d

792, 795 (7th Cir. 1992).

The police can take a person into custody for mental health treatment when the officer

has “reasonable grounds to believe that the person is subject to involuntary admission on an

inpatient basis and in need of immediate hospitalization to protect such person or others from

physical harm.” See 405 ILCS 5/3-606. “The probable cause inquiry is an objective one; the

subjective motivations of the officer do not invalidate a [Fourth Amendment action] otherwise

31

supported by probable cause.” Carmichael v. Vill. ofPalatine, 605 F.3d 451,457 (7th Cir. 2010)

(emphasis in original).

Based on the undisputed facts, the police had more than ample reason to take Slabon to

the hospital. Slabon continued to scream uncontrollably after he left the living room. See City

Defs. ’ Statement of Facts, at ^ 27 (Dckt. No. 362). Slabon appeared to be under the influence of

some unknown substance. Id. at 17. When he heard the news that his mother had died, Slabon

made suicidal comments, such as “kill me” and “I don’t want to live.” Id. at 30. The officers

decided that Slabon posed a risk of self-harm. Id. at ]J 32. Based on the record - uncontrollable

screaming, a failure to cooperate, apparent intoxication, and statements about killing himself the police had an objectively reasonable basis for sending him to the hospital.

The third part of the seizure claim involves placing Slabon under arrest. That claim

cannot survive, either. The undisputed facts reveal that the police arrested Slabon after he kicked

a nurse. Id. at f 55; Def. POLR’s Statement of Facts, at 22 (Dckt. No. 355). Slabon was later

charged and convicted of battery. The conviction stands, and he cannot bring a civil claim that

challenges the facts underlying that conviction. See Heck v. Humphrey, 512 U.S. 477,489

(1994).

Slabon argues that he was “arrested for a crime he did not commit.” See Pl.’s 56.1(b)

Am. Resp., at 1 (Dckt. No. 392, at 13 of 19). That ship has sailed. He was found guilty in the

criminal case, and this civil case is not a forum to challenge that state court judgment.

The Court grants summary judgment to Officer Sanchez, Officer Cummens, Officer

Adamski, Detective O’Brien, Paramedic Bishop, and Paramedic Strong on the unreasonable

seizure claim (Count I).

32

B.

Excessive Force (Count IV)

The second remaining claim against the City Defendants is excessive force. Slabon

brings an excessive force claim (Count IV) against Officer Sanchez, Officer Cummens, Officer

Adamski, Paramedic Bishop, and Paramedic Strong. See Sixth Am. Cplt., at

121-33 (Dckt.

No. 247).

The Fourth Amendment governs excessive force claims leading up to an arrest. See

Graham v. Connor, 490 U.S. 386, 388 (1989). A “claim that law-enforcement officers used

excessive force to effect a seizure is governed by the Fourth Amendment’s ‘reasonableness’

standard.” Plumhojfv. Rickard, 572 U.S. 765,774 (2014); Taylor v. City ofMilford, 2021 WL

3673235, at *3 (7th Cir. Aug. 19,2021). To bring an excessive force claim, a plaintiff must

show that (1) there was a seizure; and (2) the seizure was objectively unreasonable. See

Campbell v. White, 916 F.2d421,423 (7th Cir. 1990).

When evaluating objective unreasonableness, courts look from the “perspective ^of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Plumhoff, 572

U.S. at 775 (quoting Graham, 490 U.S. at 396-97).

“Determining whether the force used to effect a particular seizure is ‘reasonable’ under

the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on

the individual’s Fourth Amendment interests’ against the countervailing governmental interests

at stake.” Graham, 490 U.S. at 396 (cleaned up). The test is “not capable of precise definition

or mechanical application,” but “its proper application requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

33

actively resisting arrest or attempting to evade arrest by flight.” Id. (cleaned up); Williams v. Ind.

State Police Dep’t, 797 F.3d 468,472-73 (7th Cir. 2015).

Viewing the facts in the light most favorable to Slabon (as the non-movant), the Court

concludes that no reasonable jury could conclude that the officers and paramedics used excessive

force against him.

The record is simply barren of any evidence that the force was unreasonable and thus

crossed a constitutional line. The officers did place Slabon in handcuffs. In certain

circumstances, the act of placing a person in handcuffs can give rise to a claim (for example, if

they are too tight, and cause an injury). See Payne v. Pauley, 337 F.3d 767, 779-80 (7th Cir.

2003). But that’s not this case. The undisputed evidence confirms that Slabon was not injured in

,

that process. See City Defs.5 Statement of Facts, at ^ 19 (Dckt. No. 362).

The police did remove him from the home, and the paramedics took him to the hospital.

But there is no evidence that Slabon was injured when he was en route. Id. at J 41; see also

Sixth Am. Cplt., at f 15 (Dckt. No. 247) (admitting that he was “not... injured” when the police

took him to the hospital); id. at J 35 (admitting that he told Dr. Barrick that “he was not injured

in any way”). The police did place him in handcuffs after he kicked the nurse, but there is no

evidence that that force was excessive, either.

In sum, there is no evidence that the police and the paramedics used excessive force.

They did restrain him, but that’s riot enough. To bring a claim, Slabon needed to come forward

with evidence that Defendants used force against him that was objectively unreasonable. He

offered no such evidence, so he cannot get to a jury.

Slabon also brought a claim against Officer Cummens for conduct that allegedly took

place when Slabon was in the hospital. According to the sixth amended complaint, Officer

34

Cummens pulled on the catheter tube, and did so to inflict pain. “Plaintiff observed Defendant

CUMMENS was holding in his hand a tube that lead into Plaintiffs [sic] bladder, Defendant

CUMMENS began tugging and pulling this tube deliberately causing excruciating pain and

suffering while asking ‘how does this feel tough guy.’” See Sixth Am. Cplt., at ^ 40 (Dckt. No.

247).

That claim is a personal injury claim against a state employee, which means that a

one-year statute of limitations applies. See 745ILCS 10/8-101 (a); see also Herrera v.

Cleveland, 8 F.4th 493,495 n.2 (7th Cir. 2021) (“Section 1983 provides a federal cause of

action, but the forum state’s personal injury law determines the length of the statute of

limitations.”). Slabon was hospitalized on January 27,2014. See City Defs.’ Statement of Facts,

at ^ 6 (Dckt. No. 362). He filed the complaint on October 8,2015, more than one year later. So

his claim is time barred.

It is true that Illinois applies a two-year statute of limitations, not a one-year statute of

limitations, for injuries “arising out of patient care.” See 745 ILCS 10/8-101(b). That provision

basically ensures that a medical malpractice claim has a two-year limitations period, regardless

of Whether the medical care takes place in a private or public facility. See Kaufmann v.

Schroeder, 241 Ill. 2d 194, 349 Ill. Dec. 151, 946N.E.2d 345, 349 (2011) (“[B]y adding

subsection (b), a person who suffers injuries arising out of patient care would not be

disadvantaged by a shortened limitations period simply because he or she happened to obtain

treatment at a public facility rather than a private one.”).

It is true that the catheter incident took place while Slabon was receiving medical care.

But the claim does not “aris[e] out of patient care.” See 745 ILCS 10/8-101(b). Officer

35

Cummens is not a doctor. He’s a police officer. And he wasn’t providing patient care. The

claim does not involve an allegation that Officer Cummens botched medical care.

The claim involves an allegation that Officer Cummens inflicted gratuitous pain while

Slabon was in the hospital. That’s a personal injury claim, but not a claim about patient care. So

a one-year statute of limitations applies. See Kaufmann, 946 N.E.2d at 349-50 (holding that a

sexual abuse claim did not arise from patient care, and thus the one-year statute of limitations

applied); Holliman v. CookCounty, 2016 WL 4678312, at *2-3 (N.D. Ill. 2016) (“As

in Kaujmann, plaintiff does not allege that he suffered harm from any medical treatment he

received. Instead, plaintiff alleges that his damages arise from the sexual abuse that he suffered

at the hands of Thompson.”) (concluding that the one-year statute of limitations applied).

The same conclusion applies to the related allegation that Officer Cummens put his

elbow on Slabon’s throat when he was restrained in the hospital. See Sixth Am. Cplt, at f37

(Dckt. No. 247). An elbow to the throat may be an injury, but it isn’t medical care. So it’s time

barred.8

The Court grants summary judgment to Officer Sanchez, Officer Cummens, Officer

Adamski, Paramedic Bishop, and Paramedic Strong on the excessive force claim (Count IV).

C.

Assault and Battery (Count V)

The third remaining claim against the City Defendants is assault and battery. Slabon

brings an assault and battery claim (Count V) against Officer Sanchez, Officer Cummens, and

Officer Adamski, plus the City (under respondeat superior). Id. at fflj 134-39.

Under Illinois law, a person commits an assault when “he or she knowingly engages in

conduct which places another in reasonable apprehension of receiving a battery .” See 720ILCS

8 In the alternative, in this particular incident, Slabon offers no evidence that it took place, let alone that

the force was excessive.

36

5/12-1. And a battery occurs when someone “knowingly without legal justification by any

means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or

provoking nature with an individual.” See 720ILCS 5/12-3. Battery involves “offensive

touching.” Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir. 2003).

An assault is a gesture, and a battery is a touch. “The common law, both civil and

criminal, distinguishes between ‘assault’ and ‘battery.’ Assault is an intentional threatening

gesture (such as pointing a gun at a person or trying but failing to strike him with one’s fist) that

does not, however, result in physical contact with the victim. Battery is an intentional,

unconsented-to, injurious or otherwise offensive physical contact with the victim (a completed

assault, so to speak).” United States v. Watts, 798 F.3d 650,652 (7th Cir. 2015).

The complaint alleges a different theory of assault and battery for the three defendants.

Officer Sanchez put Slabon in handcuffs. See Sixth Am. Cplt., at 113 (Dckt. No. 247). Officer

Cummens and Officer Adamski physically restrained him in the hospital room. Id. at % 37.

Slabon’s claim of assault and battery is time barred. “Under Illinois law, a plaintiff may

sue a defendant for assault and battery within two years of the occurrence of the alleged injury.”

See Thompson v. Vill. ofMonee, 2013 WL 3337801, at *24 (N.D. Ill. 2013) (citing 735 ILCS

5/13-202). But when the defendant is a public employee, the statute of limitations is cut in half a plaintiff must “bring the suit... within one year of the occurrence of the alleged assault or

battery.” Id. (citing 745 ILCS 10/8-101); see also Hudson v. Ne. Illinois RegionalR.R. Corp.,

2019 WL 4261581, at *5 (N.D. Ill. 2019) (“Although Illinois generally applies a two-year statute

of limitations to personal injury claims, see 735 ILCS 5/13-202, a personal injury suit against a

government entity ... must be brought within one year.”).

37

The statute in question applies to government entities themselves, as well as their

employees. See 745 ILCS 10/8-101 (a) (“No civil action other than an action described in

subsection (b) may be commenced in any court against a local entity or any of its employees for

any injury unless it is commenced within one year from the date that the injury was received or

the cause of action accrued.”); see also Holliman, 2016 WL 4678312, at *2 (“Illinois law

generally requires a civil action against a local entity or any of its employees for an injury to be

filed within one year from the date of the injury ”).

In sum, assault and battery claims against a state employee have a one-year statute of

limitations. See, e.g., Holliman, 2016 WL 4678312, at *3; Moore v. Phillips, 2018 WL 1071717,

at *5 (S.D. Ill. 2018) (holding that the “applicable statute of limitations is 1 year under the

Illinois Local Government Employees Tort Immunity Act” for an assault and battery claim

against police officers); Thompson, 2013 WL 3337801, at *24; Grzanecki v. Cook Cty. Sheriffs

PoliceDep% 2011 WL 3610087, at *2 (N.D. Ill. 2011).

Under Illinois law, a cause of action for assault and battery accrues on the day that the

injury occurred. See, e.g., Atwater v. Bd. ofEduc. of City of Chicago, 2012 WL 13059088, at *3

(N.D. Ill. 2012) (“Under Illinois law, a cause of action ‘for assault and battery accrues at the

moment of injury.5”) (citation omitted); see also Vandenburgh v. Bannockburn Police Officer

Robert Ogden, 2016 WL 403663, at *3 (N.D. Ill. 2016) (“VanDenburgh’s negligence and assault

and battery claims accrued on the date of the incident....”); Thompson, 2013 WL 3337801, at

*24; Grzanecki, 2011 WL 3610087, at *2 (“Plaintiff’s claim for ‘assault and battery’ is an

Illinois state-law claim against a state employee; therefore it is governed by the Tort Immunity

Act. That claim accrued on November 15,2008 - the day of the incident”).

38

Here, incident in question took place on January 27,2014. See City Defs. ’ Statement of

Facts, at % 6 (Dckt. No. 362). Slabon filed the original complaint on October 8,2015, more than

one year later. See Cplt. (Dckt. No. 1). He makes no argument for the application of any tolling

doctrine. Slabon filed suit more than one year after the incident, so he filed too late to bring a

claim for assault and battery.,

The Court grants summary judgment to Officer Sanchez, Officer Cummens, Officer

Adamski, and the City on the assault and battery claim (Count V).9

D.

Conditions of Confinement (Count VII)

The fourth remaining claim against the City Defendants is about his conditions of

confinement. Slabon brings an unconstitutional conditions of confinement claim under the

Fourth Amendment (Count VII) against Detective O’Brien. See Sixth Am. Cplt., at

144-56

(Dckt. No. 247).

Count VII involves the treatment of Slabon after his arrest (for kicking the nurse), but

before he had a probable cause hearing. So he was an arrestee, not a pretrial detainee. As a

result, the Court analyzes Slabon’s claim under the Fourth Amendment. See Pulera v. Sarzant,

966 F.3d 540, 550 (7th Cir. 2020) (“Before a finding of probable cause, the Fourth Amendment

protects an arrestee; after such a finding, the Fourteenth Amendment protects a pretrial

detainee.”); Currie v. Chhabra, 728 F.3d 626,.629-30 (7th Cir. 2013) (holding that the Fourth

Amendment governs “the period of confinement between arrest without a warrant and the

[probable cause determination]”) (quoting Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.

1992)).

9 In addition, the Illinois Tort Immunity Act requires proof ofwillful and wanton conduct when the claim

is against a public employee for an “act or omission in the execution or enforcement of any law.” See 745

ILCS 10/2-202. Slabon provided no such evidence. That failure of proof is an independent ground for

summary judgment on all of the state law claims against the City Defendants.

39

There are two possible theories of liability for an arrestee in this situation: a claim about

a failure to provide medical care, and a claim about conditions of confinement. See Currie, 728

F.3d at 629-30 (collecting cases); Bradford v. City of Chicago, 2021 WL 1208958, at *4 (N.D.

Ill. 2021); Alcorn v. City of Chicago, 2018 WL 3614010, at *12 (N.D. Ill. 2018); Saucedo v. City

of Chicago, 2015 WL 3643417, at *4 (N.D. III. 2015). The same “objective reasonableness”

standard under the Fourth Amendment applies to each theory. But when courts articulate each

standard, they put it a bit differently.

It is unclear which theory Slabon asserts. The claim against Detective O’Brien involves

exposure to the cold, but Slabon doesn’t specify if he is alleging an unconstitutional failure to

provide medical care or unconstitutional conditions of confinement.10 The sixth amended

complaint alleges that Slabon suffered from “extreme cold” and sleep deprivation. See Sixth

Am. Cplt., at 165 (Dckt. No. 247) (“After transport, a [sic] interview followed conducted by

O’DONNELL AND O’BRIEN, Plaintiff was in extreme anguish from the extreme cold and

sleep depravation [sic].”); id. at % 75 (“Plaintiff was transported to hospital after 48 hours in

police custody en route to county jail at which time Plaintiff was taken to a near by [sic] hospital

and was treated for exposure to cold and malnourishment.”); see also id. at |70.(alleging that

Slabon needed “additional protection from the extreme cold” at “all times” during police

10 Slabori’s heading for Count VII is “Unconstitutional Conditions and Treatment During Warrantless

Detention.” See Sixth Am. Cplt., at H 144 (Dckt. No. 247). As discussed, though, the core of his claim is

that Detective O’Brien ignored his pain from extreme cold and sleep deprivation. Id. at 65. The line

between a claim about a failure to provide medical care (on the one hand) and a claim about conditions of

confinement (on the other) is blurry here. At what point does the temperature of an arrestee’s

confinement create a medical need, and not merely involve the conditions of confinement? A cold cell is

uncomfortable, but at some point, as temperatures continue to fall, the situation presumably would change

from a condition of confinement to a medical need (for warmth). The City Defendants didn’t interpret

Slabon’s claim under either theory, relying on older case law before the distinction arose. See Mem. in

Supp. of Defs.’ Mtn. for Summ. J., at 14-15 (Dckt. No. 363). This Court’s prior ruling also didn’t take a

position on which theory applied. See 9/28/20 Mem. Opin. and Order, at 47-49 (Dckt. No. 339).

40

custody). But in the end, it does not matter. Slabon does not present enough evidence to support

either theory.

This Court starts by viewing the claim as alleging a failure to provide medical care. To

determine whether Detective O’Brien’s response to Slabon’s medical need was objectively

unreasonable, the Court looks at four factors: (1) whether the detective had notice ofthe

conditions; (2) the seriousness of the conditions; (3) the scope of the requested solution; and

(4) police interests, including “administrative, penological, or investigatory concerns.” Ortiz v.

City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011).

The case is now at the summary judgment stage, which means that Slabon needed to

come forward with evidence in response to a properly supported motion for summary judgment.

And here, Slabon has not offered evidence that could support a jury verdict in his favor.

Indeed, Slabon’s claim fails at step one. He has not come forward with any evidence that

the police exposed him to cold, let alone that Detective O’Brien knew about it. See Saucedo,

2015 WL 3643417, at *4 (“Objective reasonableness is not, however, measured by whether an

officer should have had notice of a medical condition, but whether an officer having actual

notice of an arrestee’s medical condition acted reasonably.”). Based on the facts in the record,

Slabon did not make any comment that he was cold or needed medical care. See City Defs.’

Statement of Facts, at 161 (Dckt. No. 362). He did not convulse from apparent exposure to cold,

either. Id. Slabon was not diagnosed with or treated for hypothermia, and he suffered no lasting

effects from being cold during police transport and processing. Id. at 63.

Slabon has failed to provide evidence that Detective O’Brien had notice of his condition,

which is enough to grant summary judgment against him. See Bradford, 2021 WL 1208958, at

*4 (granting summary judgement because “[t]here is no evidence that [Plaintiff] suffered from

41

mental health issues, threatened or engaged in self-harm in the past, or had suicidal ideations

prior to his suicide, let alone that any of the Individual Defendants knew that he had”); Alcorn,

2018 WL 3614010, at * 12 (dismissing the complaint because it “simply fails to allege sufficient

notice [of medical need] as to several of the Individual CPD”).

Slabon fails on the other prongs, too. He provides no evidence that his condition was

serious, or that he requested a solution. So, viewing Count VII as a claim about the failure to

provide medical care, Slabon has failed to come forward with evidence in his favor.

In the alternative, if the Court views Count VII as alleging a claim about the conditions of

confinement, a separate test applies (or, at least, courts phrase it differently). To succeed under

that standard (which is, again, the same Fourth Amendment “objective reasonableness” analysis),

Slabon needed to show that “the totality of the defendant’s conduct in detaining the arrestee was

objectively unreasonable under the circumstances.” Bradford, 2021 WL 1208958, at *7 (cleaned

up).

“Unlike a medical care claim, a conditions of confinement claim does not require that the

defendant have notice of the arrestee’s medical need.” Id. Rather, “[i]n assessing the totality of

a defendant’s conduct, courts consider several factors, including the duration of confinement, the

nature and seriousness of the alleged constitutional violation, and the police rationale for the

alleged deprivation of an arrestee’s rights.” Alcorn, 2018 WL 3614010, at *13 (citation omitted).

The Court utilizes “common sense and ordinary human experience” in evaluating whether the

detention was unreasonable. Saucedo, 2015 WL 3643417, at *5.

A different standard applies, but it ends in the same place. It is undisputed that Slabon

was not harmed during his confinement, and he made no comments that he needed medical care.

There is no evidence in the record about the extent of the cold, or the length of the exposure. A

42

L

reasonable jury, applying common sense and ordinary human experience, could not conclude

that his confinement was unreasonable. See Bradford, 2021 WL 1208958, at *8 (granting

summary judgment after Plaintiff committed suicide in his cell, despite officers not removing

harmful clothing, because officers abided by the required 15-minute cell checks and provided

him with food and water). Applying a more wholistic analysis of the facts, Slabon’s claim still

fails. .

The Court grants summary judgment to Detective O’Brien on Count VII.

E.

Indemnification (Count X)

The fifth remaining claim is an indemnification claim (Count X) against the City. See

Sixth Am. Cplt., at fH 165-66 (Dckt. No. 247). But this Court is granting summary judgment to

the City Defendants on all of Slabon’s claims, so there is nothing to indemnify them for. The

Court grants summary judgment to the City on the indemnification claim.

F.

False Imprisonment (Count XI)

The sixth remaining claim against the City Defendants is false imprisonment. Slabon

brings a false imprisonment claim (Count XI) against Officer Sanchez, Officer Cummens,

Officer Adamski, Paramedic Bishop, and Paramedic Strong. See Sixth Am. Cplt., at

167-70

(Dckt. No. 247).

To state a claim for false imprisonment under Illinois law, “the plaintiff must allege that

his personal liberty was unreasonably or unlawfully restrained against his will and that

defendant(s) caused or procured the restraint.” Rusinowski v. Vill. ofHillside, 19F. Supp. 3d

798, 813 (N.D. Ill. 2014) (quoting Arthur v. Lutheran Gen. Hosp., 295 Ill. App. 3d 818,230 Ill.

Dec. 72, 692 N.E.2d 1238,1243 (1998)). “Probable cause is an absolute bar to a claim for false

imprisonment.” Makowski v. United States, 27 F. Supp. 3d 901, 917 (N.D. Ill. 2014) (quoting

43

Porisv. Lake Holiday Prop. Owners Ass

2013IL 113907,368 III. Dec. 189, 983N.E.2d 993,

1007 (2013)).

“[Ijmprisonment under legal authority is not false imprisonment.” Mayorov v. United

States, 84 F. Supp. 3d 678,704 (N.D. Ill. 2015) (quoting Arthur, 692 N.E.2d at 1243). “False

imprisonment claims do not lie for a detention made by virtue of legal process issued by a court

or an official with jurisdiction to issue such process.” Id; see also Brown v. Dart, 876 F.3d 939,

941 (7th Cir. 2017) (“False imprisonment, for purposes of a § 1983 claim, is defined as detention

without legal process.”).

This Court previously dismissed the false imprisonment claim against Detective O’Brien

and Detective O’Donnell. See 9/28/20 Mem. Opin. and Order, at 58 (Dckt. No. 339). Slabon

cannot challenge his detention after kicking the nurse, because he was found guilty of kicking the

nurse in the criminal case. The remaining part of the claim involves the individuals who arrived

at Slabon’s house - Officer Sanchez, Officer Cummens, Officer Adamski, Paramedic Bishop,

and Paramedic Strong.

Slabon’s claim fails, for two reasons. First, it is time barred. Under Illinois law, a false

imprisonment claim against a state employee has a one-year statute of limitations. See 745 ILCS

10/8-101 (a); Brown v. Dart, 2016 WL 6948382, at *2 (N.D. III. 2016). A threshold question is

when a false imprisonment claim accrues. At common law, the tort of false imprisonment

accrued “when the plaintiff was brought before a judge at the start of legal process . . .” Smith

v. City ofChicago, 3 F.4th 332, 337 (7th Cir. 2021).

Some cases suggest that a false imprisonment claim accrues when the party is released on

bond. See, e.g., Harrellv. Sheahan,931 F. Supp. 754,758 (N.D. Ill. 1996). Others suggest that

a false imprisonment claim accrues when the plaintiff was first imprisoned. See, e.g., Kitchen v.

44

Burge, 781 F. Supp. 2d 721,739 (N.D. Ill. 2011) (providing that a state-law false imprisonment

claim accrued when the plaintiff “knew that he had been falsely imprisoned” - that is, “when he

was first imprisoned”); Pierce v. Pawelski, 2000 WL 1847778, at *2 (N.D. Ill. 2000); see

generally Brown, 2016 WL 6948382, at *4 (discussing the accrual of a false imprisonment

claim).

This case includes an added wrinkle. Slabon was detained civilly (at his home) and then

criminally (at the hospital, for kicking the nurse). The remaining claim involves his civil

detention (only), not his criminal detention. Appearing before a judge cannot be the starting

point for the accrual of the claim about civil detention, because he didn’t appear before a judge

for the acts that gave rise to civil detention. The “start of legal process” cannot start the clock

ticking for a false imprisonment claim about civil detention when there is no legal process about

the civil detention. See Smith, 3 F.4th at 337.

Put another way, Slabon was detained for his civil conduct until he was arrested for

kicking the nurse. At that point, he was detained for his criminal conduct. The moment of his

transformation from civil detention to criminal detention is the last possible moment when a

claim for civil detention can accrue. From that moment forward, he was detained criminally, not

civilly, so the clock on any claim for his civil detention was ticking.

This Court concludes that a false imprisonment claim for civil detention accrues when the

plaintiff knows about the detention (that is, on the day it happens). Here, Slabon knew that the

police took him to another room in his home, and then took him to the hospital, on the day that it

happened. That’s January 27,2014. He filed suit on October 8,2015, more than ayear later, so

he filed suit too late.

45

Second, the undisputed facts demonstrate that Slabon’s civil detention was justified. As

discussed above, the record shows that the officers removed Slabon from the living room, and

placed him in a bedroom, because he was causing commotion and disruption while paramedics

attempted to revive his mother. And the officers detained him and took him to the hospital after

he talked about killing himself. In light of those undisputed facts, no reasonable jury could

return a verdict of false imprisonment.

The Court grants summary judgment to Officer Sanchez, Officer Cummens, Officer

Adamski, Paramedic Bishop, and Paramedic Strong on the false imprisonment claim (Count XI).

G.

Intentional Infliction of Emotional Distress (Count XII)

The seventh and final remaining claim against the City Defendants is an intentional

infliction of emotional distress claim (Count XII) against Officer Sanchez, Officer Cummens,

Officer Adamski, Detective O’Brien, Paramedic Bishop, and Paramedic Strong. See Sixth Am.

Cplt., at fl 171-74 (Dckt. No. 247).

‘TJnder Illinois law, a plaintiff may recover damages for intentional infliction of

emotional distress only if she establishes that (1) the defendant’s conduct was truly extreme and

outrageous; (2) the defendant intended to inflict severe emotional distress (or knew that there

was at least a high probability that its conduct would cause severe emotional distress); and (3)

the defendant’s conduct did in fact cause severe emotional distress.” Richards v. US. Steel, 869

F.3d 557, 566 (7th Cir. 2017) (citing Feltmeier v. Feltmeier, 207 Ill.2d 263,278 Ill. Dec. 228,

798 N.E.2d 75, 80 (2003)); see also Ulm v. Mem’l Med. Ctr., 2012IL App (4th) 110421, 357 Ill.

Dec. 953, 964N.E.2d 632,641 (2012).

“[T]o qualify as outrageous, the nature of the defendant’s conduct must be so extreme as

to go beyond all possible bounds of decency and be regarded as intolerable in a civilized

46

community.” Feltmeier, 798 N.E.2d at 83. Courts conduct an objective, fact-based inquiry and

“often consider the degree of power or authority which a defendant has over a plaintiff; whether

the defendant reasonably believed that his objective was legitimate; and whether the plaintiff is

particularly susceptible to emotional distress.” Gross v. Chapman, 475 F. Supp. 3d 858, 864

(N.D. Ill. 2020) (cleaned up).

Slabon’s claim fails, for two now-familiar reasons. First, he filed it too late. A claim of

intentional infliction of emotional distress against a public employee has a one-year statute of

limitations. See Davenport v. Dovgin, 545 F. App’x 535, 538-39 (7th Cir. 2013); Stoller v.

Costco Wholesale Corp2020 WL 247459, at *5 (N.D. Ill. 2020); 745 ILCS 10/8-101(a).

Slabon’s claim is about the conduct of the three officers and the two paramedics at his home, and

the claim accrued on the day of the incident. See Bridewell v. Eberle, 730 F.3d 672, 678 (7th

Cir. 2013); Stoller, 2020 WL 247459, at *5; Grayson v. City ofAurora, 157 F, Supp. 3d 725, 747

(N.D. Ill. 2016). Slabon filed suit more than a year after the incident, so he filed suit too late.

Second, there is nothing in the record that could support a jury verdict in favor of

Plaintiff. The undisputed facts reveal that Slabon was disruptive when the officers and

paramedics responded to a medical emergency. They moved him to another room, and then took

him to the hospital when he threatened suicide.

The record does not include any evidence of any extreme or outrageous conduct (by the

Defendants, anyway). And there is no evidence that the officers and paramedics intended to

inflict any emotional distress, let alone severe emotional distress.

The Court grants summary judgment to Officer Sanchez, Officer Cummens, Officer

Adamski, Detective O’Brien, Paramedic Bishop, and Paramedic Strong on the intentional

infliction of emotional distress claim (Count XII).

47

II.

The Claims Against the Hospital.

The other defendant, Presence Our Lady Resurrection Medical Center, filed for summary

judgment as well. There are five remaining claim against the Hospital: (1) medical battery

(Count VI); (2) respondeat superior (Count IX) for the actions of Nurse Benjamin;

(3)

indemnification (Count X); (4) false imprisonment (Count XI); and (5) intentional infliction of

emotional distress (Count XQ).

A.

Medical Battery (Count VI)

The first remaining claim against the Hospital is medical battery (Count VI). See Sixth

Am. Cplt., at

140-43 (Dckt. No. 247). The sixth amended complaint alleges that Dr. Barrick

and Nurse Benjamin “committed medical battery by ... physically and chemically restraining

Slabon [] without his consent or medical justification.” Id. at H 141. He further alleges that they

committed medical battery “by providing medical treatment, without consent, and despite

specific and clear communication of refusal, thus intentionally creating an unwanted and

offensive touching of Slabon.” Id. at^| 142.

The medical treatment includes the chemical restraints, as well as the catheter. Id. at

38-39. Slabon attempts to hold the Hospital responsible for the unwanted medical treatment

under the doctrine of respondeat superior.

Again, a battery “is the unauthorized touching of the person of another.” Fiala v.

Bicfford Senior Living Grp., LLC, 2015IL App (2d) 150067, 398 Ill. Dec. 324,43 N.E.3d 1234,

1240 (2015). “The gist of an action for battery is the absence of consent on the plaintiffs part.”

Seibert v. Lee, 2015 IL App (2d) 140945-U, f 34 (2015) (citation omitted).

“The elements of a medical battery claim are: (1) an intentional act on the part of the

defendant; (2) a resulting offensive contact with the plaintiff’s person; and (3) a lack of consent

48

to the defendant’s conduct.” See Sekerezv. Rush Univ. Med Ctr., 2011 HI App (1st) 090889,

^ 43, 352 Ill. Dec. 523, 954 N.E.2d 383, 394 (2011). “A plaintiff claiming medical battery in

Illinois may recover if he shows ‘a total lack of consent to the procedure performed, that the

treatment was contrary to the patient’s will, or that the treatment was at substantial variance with

the consent granted.’” See Parker v. United States, 721 F. App’x 531,532 (7th Cir. 2018)

(quoting Fiala, 43 N.E.3d at 1240).

But there is an exception for emergencies. The Mental Health and Developmental

Disabilities Code authorizes medical care - even if there is no consent - to prevent serious,

imminent harm when there is no other option: “If such [generally accepted mental health or

developmental disability] services are refused, they shall not be given unless such services are

necessary to prevent the recipient from causing serious and imminent physical harm to the

recipient or others and no less restrictive alternative is available.” See 405 ILCS 5/2-107(a). An

exception for emergencies existed under the common law, too. See Pantaleo v. Hayes, 2013 WL

5311450, at *18 (N.D. Ill. 2013) (“Both common law and statutory exceptions to the need for

consent exist.”); Sekerez, 954 N.E.2d at 395-96 (discussing the emergency exception under the

common law); Restatement (Second) of Torts § 892D (1979) (discussing emergency action

without consent); see also Riggins v Nevada, 504 U.S. 127, 134—35 (1992) (“[D]ue process

allows a mentally ill inmate to be treated involuntarily with antipsychotic drugs where there is a

determination that ‘the inmate is dangerous to himself or others and the treatment is in the

inmate’s medical interest.’”) (citation omitted).

The existence of a medical emergency under the statute is an affirmative defense, so the

Hospital bears the burden of proof. See Pantaleo, 2013 WL 5311450, at *18. The statute sets a

high bar. Not any physical harm will do. The physical harm must be “serious and imminent.”

49

See 405ILCS 5/2-107(a). And the medical treatment must be a last resort, meaning that “no less

restrictive alternative is available.” Id. To make that showing, a defendant must offer testimony

from a medical professional with knowledge of the standard of care. See Pantaleo, 2013 WL

5311450, at *18; In re Estate ofAllen, 365 Ill. App. 3d 378, 302 III. Dec. 202, 848 N.E.2d 202,

212 (2006) (“The existence of a medical emergency involves the assessment of the patient’s

medical condition and, therefore, must be established by expert testimony.”).

Based on the undisputed evidence, the Hospital has satisfied the elements for the

affirmative defense.

Slabon arrived at the Hospital in handcuffs, and he was not well. In the criminal trial,

Nurse Benjamin testified about how Slabon appeared when he arrived in the emergency room:

“He appeared extremely agitated. He was screaming, yelling profanities. Was just yelling at

everyone, being very disruptive to the emergency department.” See 9/30/14 Tr., at 42:24 - 43:3

(Dckt. No. 235-6) (testimony of Nurse Benjamin).

Dr. Barrick saw Slabon rocking back and forth, weeping, and cursing. See Def. POLR’s

Statement of Facts, at 6 (Dckt. No. 355). He seemed agitated and emotionally distraught. Id.

at 1H 6-1.

Dr. Barrick had significant expertise dealing with patients with psychiatric issues. Id. at

6. He stepped in to lend a hand. Id. at ^ 7. When the doctor asked Slabon why he was there,

Slabon responded with expletives, and told him that his mother had passed away. Id. at f 8. The

staff moved Slabon to a hospital room because he was agitated and disruptive. Id. at % 10.

At the criminal trial, Nurse Benjamin testified about the commotion that Slabon was

causing: “The defendant was being extremely disruptive and screaming and yelling, so we

wanted to put him somewhere where he would not be disruptive to other patients in the

50

emergency department.” See 9/30/14 Tr., at 45:9-12 (Dckt. No. 235-6) (testimony of Nurse

Benjamin). Dr. Barrick also testified about their concerns that Slabon was a threat to everyone’s

safety: “With the language that he was speaking and the curse words and the - how loud he was

and how aggressive he was acting, our concern was both for his safety, the safety of our staff, as

well as to keep that kind of isolated and away from other patients.” See 10/1/14 Tr., at 13:7-12

(Dckt. No. 235-8) (testimony of Dr. Barrick).

Things continued to go downhill. Slabon refused to lay down. See City Defs.’ Statement

of Facts, at f 46 (Dckt. No. 362). When Nurse Benjamin told him that she was going to take his

vital signs, Slabon responded with expletives and racial slurs. See Def. POLR’s Statement of

Facts, at f 14 (Dckt. No. 355). He refused to answer questions, responding with “more

expletives and profanities.” Id. at 15.

The word “profanities” probably doesn’t do it justice. See 9/30/14 Tr., at 46:24 - 47:1

j (Dckt. No. 235-6) (testimony ofNurse Benjamin) (“He responded by calling me a stupid Jew

and a dirty b**ch.”); id. at 47:12-13 (testimony ofNurse Benjamin) (“He called me a f***ing fat

b**ch and that nobody would ever want to f*** me.”).

The police cuffed Slabon to the bed while the nurse attempted to take his vital signs. See

City Defs.’ Statement of Facts, at f 47 (Dckt. No. 362). But he continued to move around, so the

nurse could only take his pulse. See Def. POLR’s Statement of Facts, at 17 (Dckt. No. 355);

see also City Defs.’ Statement of Facts, at U 48. “He was fighting. He was moving his arm

around. He was refusing to enable her to do just about anything.” See 10/1/14 Tr., at 20:14-16

(Dckt. No. 235-8) (testimony of Dr. Barrick).

Dr. Barrick tried to defuse the situation, without success. Id. at 12:4-11,21:8-22:15.

“As we were transferring him over, I kept say, hey, listen. We need to think about your mom

51

right now. How would your mom be if she was standing right here? What would she think

about? I was trying to identify with him so he can hopefully prioritize his actions a little

different than what he was doing.” Id. at 22:2-8. Instead of calming down, Slabon “target[edj

his aggressions” toward the nurse. Id. at 22:12.

Slabon looked directly at Nurse Benjamin and made more vulgar and profane comments.

See Def. POLR’s Statement of Facts, at % 16 (Dckt. No. 355); see also 9/30/14 Tr., at 48:6-7

(Dckt. No. 235-6) (testimony ofNurse Benjamin) (“Continued to yell profanities at me saying

f*** you, you stupid b**ch, you fat whore.”); id. at 49:2-4 (“He looked at me and said don’t

touch me you dirty Jew. You’re a f***ing Jew. I know you’re a Jew because your eyes are

close together.”); id. at 50:5-8 (“He continued to use verbal assault against me. He told me I was

a fat c**t whore and that nobody would ever love me, nobody would ever f**k me and he called

me a dirty k*ke ”).

In the criminal trial, Dr. Barrick described Slabon as “agitated, angered. He was moving

around, didn’t want us to touch him, didn’t want us to move him into the bed. Very aggressive.”

See 10/1/14 Tr., at 17:8-10 (Dckt. No. 235-8) (testimony of Dr. Barrick). “He told us to go f***

off.” Id. at 18:2. “Get your f***ing hands off me. Don’t touch me, you c**t b**ch, type of

thing.” Id. at 18:20-21.

Slabon became increasingly combative, and threatened to start spitting on Nurse

Benjamin.11 See City Defs.’ Statement of Facts, at f 48 (Dckt. No. 362).

11 Slabon may have actually spit on Nurse Benjamin, too. But the record is not perfectly dear on this

point. In its statement of facts, the Hospital included the following statement: “Plaintiff then started

spitting at Nurse Benjamin.” See Def. POLR’s Statement of Facts, atlj 17 (Dckt. No. 355). The Hospital

cited page 50 of the transcript from the criminal trial. Id. But in the passage in question, Nurse Benjamin

testified that he threatened to spit at everyone, not that he actually did spit at everyone. See 9/30/14 Tr.,

at 50:16-8 (Dckt. No. 235-6) (testimony ofNurse Benjamin) (“At that time he was starting to make

spitting sounds and threating to spit at everyone in the room ”). For purposes of this ruling, the Court

finds that there is evidence that Slabon threatened to spit on everyone, not that he actually did so. Still,

52

That’s when Dr. Barrick determined that de-escalation tactics had failed. He ordered

chemical and physical restraints in light of Slabon’s agitated and combative demeanor. See Def.

POLR’s Statement of Facts, at ^118 (Dckt. No. 355). He ordered both forms of restraint, for

safety reasons. See 10/1/14 Tr., at 22:9 - 28:24 (Dckt. No. 235-8) (testimony of Dr. Barrick).

After Nurse Benjamin injected Slabon with medication, he responded: “do it again, b**ch.” See

9/30/14 Tr., at 54:4 (Dckt. No. 235-6) (testimony of Nurse Benjamin).

The decision to restrain Slabon proved prescient. But it did not prevent an attack. Not

much later, Slabon kicked Nurse Benjamin, sending her flying across the room.

Based on the undisputed facts, the Hospital has satisfied the requirements for the

emergency aid exception under the statute. Slabon was highly disruptive, and refused to

cooperate. He didn’t lay down. He didn’t answer questions. When he did respond, he spewed

profanities and racial slurs. He used highly threatening speech. Everything about his behavior

was threatening, in word and deed.

He threatened to spit at the nurse. Spitting on someone is a threatening act, and is a

reliable predictor of future violence. In fact, “deliberately spitting in a person’s face” is

“criminal assault.” See Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672,676 (7th Cir. 2003);

see also id. (observing the connection between spitting and violence). Threatening to spit on

someone is an unmistakable sign that things are spinning out of control.

The Hospital carried its burden by presenting evidence satisfying all of the elements of

the defense. The record shows a dangerous situation. And all other attempts to calm Slabon and

defuse the situation had failed. Put yourself in their position. What else were they supposed to

do?

threatening to spit on everyone - including medical professionals, police officers, and paramedics - is a

good sign that things are trending in a bad direction.

53

On the flipside, Slabon offers nothing. He did not offer any evidence that he was not

posing a danger to anyone. He also does not offer any evidence that the hospital staff had other

alternatives. Cf. Pantaleo, 2013 WL 5311450, at *19 (denying summary judgment on the

emergency exception to medical battery because the plaintiff offered testimony from a medical

professional about other alternatives).

In sum, the Hospital gave medical treatment (an injection, and later a catheter) to Slabon

without his consent. But based on the undisputed facts, this case fits comfortably within the

emergency aid exception, so Slabon has no claim for medical battery. See Mims v. Hoffman,

2013 WL 5423851, at *7 (N;D. Ill. 2013) (granting summary judgment to a doctor on a medical

battery claim based on the emergency aid exception when the patient was “suffering from some

sort of psychosis and needed to be stabilized so that she could be evaluated”); see also Banks v.

Mills, 2013 WL 1438104, at *9 (N.D. Ill. 2013) (granting summary judgment to a doctor on an

Eighth Amendment claim about the involuntary use of anti-psychotic drugs, given the inmate’s

aggressive behavior, and given the lack of “evidence of any alternative treatment plan”). No

reasonable jury could conclude otherwise.

The Court grants summary judgment to the Hospital on the medical battery claim (Count

VI).

B.

Respondeat Superior (Count IX)

The second remaining claim against the Hospital is respondeat superior (Count IX). See

Sixth Am. Cplt., at

161-64 (Dckt. No. 247). Slabon seeks to hold the Hospital responsible for

the actions of Dr. Barrick and Nurse Benjamin.

Respondeat superior is not an independent cause of action. See Simon v. Northwestern

Unix., 183 F. Supp. 3d 908, 919 (N.D. Ill. 2016) (“[Rjespondeat superior is not an independent

54

cause of action, and must be predicated on an underlying tortious act by the accused’s employee

or agent. .. ”);Rossv. Univ. ofChi., 2018 WL 6448464, at *10 (N.D. Ill. 2018); Cole v. Meeks,

2018 WL 4682297, at *9 (C D. Ill. 2018); Wilson v. Edward Hosp:, 2012IL 112898, 367 Ill.

Dec. 243, 981.N.E.2d 971, 980 (2012) (“[Vicarious liability is not itself a claim or cause of

action ”). That is, respondeat superior is not a claim that can stand on its own two feet. It is a

theory of vicarious liability. Respondeat superior is a basis for holding one person responsible

for someone else’s acts.

Without a surviving claim, there is nothing to hold the Hospital vicariously liable for.

There is no liability by the servants, so there is no vicarious liability for the master. See

Bachenski v. Malnati, 11 F.3d 1371,1377-78 (7th Cir. 1993) (“[W]hen respondeat superior is

the sole asserted basis of liability against a master for the tort of his servant an adjudication on

the merits in favor of either the master or servant precludes suit against the other .... If the

master is vicariously liable, the servant must be directly liable (and vice versa); if the master is

not vicariously liable, the servant cannot be directly liable (and vice versa).”); Moy v. County of

Cook, 159 Ill. 2d 519,203 Ill. Dec. 776,640N.E.2d 926, 928 (1994) (“When an action is

brought against a master based on allegedly negligent acts of the servant and no independent

wrong is charged on behalf of the master, liability is entirely derivative, being founded upon the

doctrine of respondeat superior”).

The Court grants summary judgment to the Hospital on the respondeat superior claim

(Count IX).

C.

Indemnification (Count X)

The third remaining claim against the Hospital is an indemnification claim (Count X).

See Sixth Am. Cplt., at til 165-66 (Dckt. No. 247). This Court is granting summary judgment to

55

the Hospital on the other claims, so the indemnification claim falls by the wayside, too. The

Court grants summary judgment to the Hospital on the indemnification claim.

D.

False Imprisonment (Count XI)

The fourth remaining claim against the Hospital is false imprisonment. See Sixth Am.

Cplt., atfflf 167-70 (Dckt. No. 247). Slabon alleges that the Hospital “unlawfully restrained”

him, and did so “without Slabon’s consent.” Id. at |^f 168-69.

Again, under Illinois law, ‘“[tjhe elements of a cause of action for false imprisonment are

that the plaintiff was restrained or arrested by the defendant, and the defendant

acted without reasonable grounds to believe that an offense was committed by the

plaintiff.”’ Molina v. Latronico, 430 F. Supp. 3d 420,438 (N.D. Ill. 2019) (quoting Ports v.

Lake Holiday Prop. Owners Ass’n, 2013 IL 113907,368 Ill. Dec. 189, 983 N.E.2d 993, 1007

(2013)). That phraseology fits when the claim is against police officers, but is ill-fitting when

the claim is against a medical provider. The reference to “an offense” suggests that a criminal

setting is the norm for this type of claim. See Mims v. Hoffman, 2013 WL 5423851, at *7 (N.D.

Ill. 2013) (‘These elements, and the fact that ‘probable cause is an absolute bar to a claim of

false imprisonment,’... suggest that despite its assertion against all defendants, Count IV is

most aptly directed at the police officers ... not the Masonic Hospital defendants.”) (citation

omitted).

Slabon’s complaint fails, for two reasons.

First, Slabon did not come forward with an affidavit from a medical professional to

support his claim. “In any action, whether in tort, contract, or otherwise, in which the plaintiff

seeks damages for injuries or death by reason of medical, hospital, or other healing art

56

malpractice,” the plaintiff must “file an affidavit” from a medial professional showing that there

is a “reasonable and meritorious cause for filing of such action.” See 735 ILCS 5/2-622(a)(l).

Illinois courts give a broad reading to the statutory phrase “healing art malpractice.” See

Woodardv. Krans, 234 Ill. App. 3d 690, 175 Ill. Dec. 546, 600N.E.2d 477,486 (1992). The

statute applies ifthe claim involves the exercise of medical judgment, even if it is not a medical

malpractice claim. See Campolattarav. Feliciano, 2016IL App (3d) 141005-U, f 20 (2016)

(“Here, plaintiffs amended complaint alleged claims of false imprisonment against each of the

defendants. Although he does not allege medical malpractice, his claims concern issues of

medical judgment, and therefore, fall under the purview of section 2-622(a) of die Code.”);

McDonald v. Obaisi, 2018 WL 1156243, at *2 (N.D. Ill. 2018) (“If the conduct at issue ‘is

inherently one of medical judgment,’ then a Section 2-622 report is required.”) (citation

omitted); Thomas ex rel. Smith v. CookCty. Sheriff, 401 F. Supp. 2d 867, 877 (N.D. Ill. 2005)

(“An affidavit may be required under the Healing Art Malpractice Act even where a complaint

does not allege medical malpractice on its face, if the determination at issue ‘is inherently one of

medical judgment.’”) (quoting Lyon v. Hasbro Indus., Inc., 156111. App. 3d 649,109 Ill. Dec.41,

509 N.E.2d 702,706(1987)).

That rule applies to the decision to restrain a patient. “Whether a hospital patient should

be restrained involves the exercise of medical judgment ” Heastie v. Roberts, 226 Ill. 2d 515,

315 Ill. Dec. 735, 877 N.E.2d 1064,1087 (2007); see also Eads v. Heritage Enters., Inc., 204 Ill.

2d 92,272 Ill. Dec. 585, 787 N.E.2d 771, 776 (2003) (“There is no question that the decision to

physically restrain a hospital patient requires the exercise of medical judgment.”).

Faced with an unruly patient in an emergency room, Dr. Barrick made the judgment call

that there was a need to restrain Slabon. Under Illinois law, that decision involved medical

57

judgment, so siabon needed to come torward witn an affidavit trom a medical professional

supporting his claim. He didn’t. He has no evidence, so he has no claim.

Second, no reasonable jury could conclude that the decision to restrain Siabon was

unreasonable. Siabon was screaming, yelling, and spewing profanities. Threats rained down on

the medical staff, and spit almost did, too. He was out of control, and the doctor decided to put

restraints on him to get him under control. Based on the undisputed facts, that decision was not

only reasonable - it was unavoidable.

The Court grants summary judgment to the Hospital on the false imprisonment claim

(Count XI).

E.

Intentional Infliction of Emotional Distress (Count XII)

The fifth and final remaining claim against the Hospital is intentional infliction of

emotional distress (Count XII). See Sixth Am. Cplt, at

171-74 (Dckt. No. 247).

Again, a claim of intentional infliction of emotional distress requires a showing that

“(1) the defendant’s conduct was truly extreme and outrageous; (2) the defendant intended to

inflict severe emotional distress (or knew that there was at least a high probability that its

conduct would cause severe emotional distress); and (3) the defendant’s conduct did in fact cause

severe emotional distress.” Richards v. U.S. Steel, 869 F.3d 557,566 (7th Cir. 2017)

There is plenty of evidence in the record about extreme and outrageous conduct. But all

of it was by Siabon. He was on the delivering end, not the receiving end. Based on the

undisputed facts, no reasonable jury could conclude that the Hospital or any of its employees

engaged in extreme and outrageous conduct, let alone did so intentionally.

The Court grants summary judgment to the Hospital on the claim of intentional infliction

of emotional distress (Count XII).

58

•p

Siabon has pursued this case with vigor for over five years. He has actively participated

irom aay one. we sincerely neneves mat ne was mistreated oy me ponce, me nre department.

and medical professionals on that coid wintry day in 2014,

out mere comes a time, in every case, wnen a party must put its evioenuary cards on tne

table, and show that there is evidence to back up a claim. That time is summary judgment.

wvioence mat creates a genuine issue or material tact is me ticicet to trial - witnout it, me

courtroom's doors are closed. There is no need to impanel a jury if there is no factual dispute for

mem to aeciae.

Here, Defendants moved for summary judgment and supported their motions with

admissible evidence. At mat point, siaoon needed to come rorwaro wim evidence oi ms own,

meaning sufficient evidence that could support a verdict in his favor. He didn't, so this case has

- at long last - reacneo me end or me line.

Conclusion

Por me reasons stated above, me motion tor summary judgment by me uity uerendants is

hereby granted. The Court grants summary judgment to the City Defendants on all remaining

claims. 1 he motion tor summary judgment by the Hospital is hereby granted. The Court grants

summary judgment to the Hospital on all remaining claims.

i

Date: September 13,2021

/

\

59

Steven C. Seeger

united States District judge

Case: 21-2729

Document: 59

Filed: 06/13/2023

Pages: 1

Mnxfab States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 13, 2023

! Wl

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

THOMAS L. KIRSCHII, Circuit Judge

No. 21-2729

ANDREW SLABON,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

v.

No. l:15-cv-8965

ANGELO R. SANCHEZ, et al.,

Defendants-Appel lees.

Steven C. Seeger,

Judge

ORDER

On consideration of the petition for rehearing and for rehearing en banc filed by

Plaintiff-Appellant on May 26, 2023, no judge in active service has requested a vote on

the petition for rehearing en banc, and the judges on the original panel have voted to

deny rehearing.

Accordingly, the petition for rehearing is DENIED.