Kevin Dixon v. Cook County, Illinois , 819 F.3d 343 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3634
LULA DIXON, Independent Administrator of the Estate of
Kevin P. Dixon,
Plaintiff-Appellant,
v.
COUNTY OF COOK, KATINA M. BONAPARTE, and NEWWORLD
EBOIGBE, 1
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 6976 — Thomas M. Durkin, Judge.
____________________
ARGUED OCTOBER 26, 2015 — DECIDED APRIL 8, 2016
____________________
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
1 When this suit began, Mr. Eboigbe was known as Nathan Omeke.
He changed his name to Newworld Eboigbe, and so we use that name in
this opinion. Some of the filings spell his last name with an initial “A,”
but it appears that this was in error.
2 No. 13-3634
WOOD, Chief Judge. In September 2008 Kevin Dixon was
sent to the Cook County jail as a pretrial detainee. A month
later, he developed severe and persistent pain in his back
and abdomen. In early December, he had a CT scan that re-
vealed a paratracheal mass. Over the next few weeks, the
mass grew rapidly. Medical personnel at the jail were aware
of the problem, but they accused Dixon of malingering, gave
him over-the-counter analgesics, and ordered him to seek
psychiatric care. By January 5, 2009, Dixon’s condition had
deteriorated severely. He was finally taken to Stroger Hospi-
tal, where he was diagnosed with lung cancer. He died two
months later.
Acting in her capacity as the Independent Administrator
of Dixon’s Estate, Lula Dixon (Dixon’s mother) sued Cook
County, as well as Dr. Katina Bonaparte and Nurse New-
world Eboigbe, who had overseen Dixon’s care at the jail’s
Cermak Acute Care Facility. (We refer to plaintiff as Lula,
and to her son as Dixon. Lula also sued several corrections
officers, but the district court dismissed her claims against
them and she has not appealed from that ruling.) Lula as-
serted claims under 42 U.S.C. § 1983 for deliberate indiffer-
ence to Dixon’s serious medical condition in violation of the
Eighth and Fourteenth Amendments to the Constitution,
and state-law claims for intentional infliction of emotional
distress. In response to the defendants’ motions, the district
court dismissed the claims against defendants Bonaparte
and Eboigbe under Federal Rule of Civil Procedure 12(b)(6);
it later granted summary judgment in Cook County’s favor,
and this appeal followed.
No. 13-3634 3
I
For purposes of both Rule 12(b)(6) and Rule 56, we take
the facts as alleged and view them in the light most favora-
ble to Lula. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008); Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 786
(7th Cir. 2014). The only difference is that the facts before us
are limited to those in the complaint for the Rule 12(b)(6) rul-
ing, and they include the full summary judgment record for
the Rule 56 ruling.
Dixon was arrested and taken to the jail on September 5,
2008. His symptoms began to bother him in October. In re-
sponse to his complaints, he was sent to the jail’s Cermak
Health Services facility, where he had a chest x-ray on De-
cember 10 and a follow-up CT scan the next day. The tests
revealed a paratracheal tumor (that is, a tumor next to his
trachea). On December 15, a Cermak physician’s assistant
referred Dixon for an “urgent” pulmonary consultation. The
word “urgent” did not have much force: eight days later,
Dixon met with a pulmonologist. He reported intermittent
pain for the past two months, which he rated at 10 out of 10
for severity. The pulmonologist reviewed the December 11
scan, ordered another CT for January 2, 2009, and scheduled
a follow-up appointment for January 6.
But Dixon could not wait that long for treatment. By De-
cember 30, he was experiencing intense abdominal pain, dif-
ficulty breathing, difficulty moving his legs, and an inability
to use the toilet. As he lay on the floor in partial paralysis af-
ter falling from his bunk, a corrections officer informed
Nurse Eboigbe of his condition. Eboigbe took no action; in-
stead, the guard scheduled Dixon for “sick call” three days
later. Later that day, another nurse relieved Eboigbe of his
4 No. 13-3634
shift and got Dixon admitted to the Cermak Acute Care Fa-
cility. Despite the documentation of his tumors (which be-
cause of the records problem we discuss below might have
been unknown to the people staffing Acute Care), the physi-
cian’s assistant at the Acute Care facility thought that Dixon
was malingering and so ordered a psychiatric consultation.
On December 30 and 31, Dixon received additional CT
scans, which revealed growth of the tumor and fecal matter
in his colon. At that point Dr. Bonaparte, the supervisor of
the hospital ward, first saw him. Dr. Bonaparte did not have
instant access to Dixon’s medical records and previous CT
and x-ray results, because there was a backlog in the system
for scanning medical records into the Cook County system.
Nor did she have Dixon’s paper medical records in front of
her. She knew about his tumor, but she did not recall making
any effort to find out about the results of the December 30
tests. Critically, she knew that more information was availa-
ble but proceeded without collecting it. She agreed with the
physician’s assistant (based on the incomplete records before
her) that a psychiatric consult was in order to rule out ma-
lingering. She ordered that, as well as a second consultation
with a pulmonologist; she marked the latter request
“RUSH.” She noted that she would see him again three days
later.
The next day, January 1, Cermak nurses reported that
Dixon was on the floor and had soiled himself. He com-
plained that he could not walk. On January 2, he was taken
for the follow-up CT ordered by the first pulmonologist. The
notes from that scan described the tumor as “6 x 4 cm in the
left upper lung lobe which extends to the level of the aortic
arch and invades the mediastinum and posterior chest wall”
No. 13-3634 5
and stated, “[f]indings are most indicative of malignant ne-
oplasm.” The scan also identified a 12 x 9 mm nodule in the
right upper lobe that was likely metastatic and appeared to
extend into the spinal canal. The notes also mentioned em-
physema and bullous changes in both lungs.
Less than two hours after these words were written, Dr.
Bonaparte discharged Dixon from Cermak. She ordered that
Dixon be allowed to use his wheelchair only for transport; he
was not permitted to use it inside the jail. He was given Mo-
trin, but no other pain medication.
Three days later, Dixon was brought back to Cermak
with severe weakness in his legs, bladder and bowel inconti-
nence, and pressure sores on his right buttock. The physician
who saw him on his arrival transferred him to Stroger Hos-
pital, where he remained until he received compassionate
release from Cook County custody and went home, where
he died on March 4, 2009, officially from lung cancer. This
suit followed.
II
Lula’s lawsuit focuses on the fact that it took 26 days for
Dixon to receive palliative care from the time when the jail
personnel first became aware of his tumor; she does not con-
tend that he could have been cured with faster or better
treatment. But he suffered during the period when, rather
than receiving treatment for his pain, he was transferred
back and forth between the county jail infirmary and a regu-
lar cell and treated as if he were faking his illness. Lula fixes
the blame in several places. First, she argues that County
policy resulted in such poor communication among the
medical providers who saw Dixon that nobody put all the
6 No. 13-3634
pieces together, figured out what was wrong and how seri-
ous it was, and took appropriate steps. Second, she asserts
that the individual defendants knew about (or had reason to
know of) Dixon’s condition and were deliberately indifferent
in the face of that knowledge. We address the institutional
claim first, and then the individual claims.
A
The essence of Lula’s claim against the County is that it
implemented a records policy that created barriers to in-
formed care. She relies on Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658 (1978), which requires a plain-
tiff suing a municipality or comparable entity to demon-
strate that the entity’s official policy, widespread custom, or
action by an official with policy-making authority was the
“moving force” behind his constitutional injury. City of Can-
ton v. Harris, 489 U.S. 378, 379 (1989). An unconstitutional
municipal policy can “take the form of an implicit policy or a
gap in expressed policies.” Thomas v. Cook Cnty. Sheriff’s
Dep’t, 604 F.3d 293, 303 (7th Cir. 2009). This part of the case
was resolved on summary judgment, and so the question
before us is whether Lula presented enough in response to
Cook County’s motion to demonstrate genuine issues of ma-
terial fact requiring a trial.
Lula relies primarily on Cook County’s official policy
with respect to medical records in the jail; to a certain extent,
she also relies on “widespread custom” and action by an of-
ficial with final authority. In order to prove the policy, she
looks both to written records and to indirect proof. For the
latter, a “plaintiff must introduce evidence demonstrating
that the unlawful practice was so pervasive that acquies-
cence on the part of policymakers was apparent and
No. 13-3634 7
amounted to a policy decision.” Phelan v. Cook County, 463
F.3d 773, 790 (7th Cir. 2006). This requires more than a show-
ing of one or two missteps. Id. As applied to a case such as
this one, we look to see if a trier of fact could find “systemic
and gross deficiencies in staffing, facilities, equipment, or
procedures” in a detention center’s medical care system.
And even if there are such deficiencies, a Monell claim can
prevail only if a policy-making official knows about them
and fails to correct them. Wellman v. Faulkner, 715 F.2d 269,
272 (7th Cir. 1983); City of St. Louis v. Praprotnik, 485 U.S. 112,
130 (1988).
Lula alleges that the County’s records policy led inexora-
bly to inadequate medical care for inmates. The problem was
twofold: first, there were both a paper record-keeping sys-
tem and an electronic record-keeping system, and the two
were not coordinated; second, to the extent the County for
whatever reason was still relying primarily on paper rec-
ords, access to them was haphazard. The predictable result
was that its medical providers were hamstrung in their abil-
ity to reach a proper diagnosis and treatment. Lula argues
that if all the doctors involved in treating Dixon had access
to all his records, he would not have experienced such a de-
lay in diagnosis and thus his pain would have been ad-
dressed much sooner.
The evidence she provided includes a Department of Jus-
tice (DOJ) report condemning the inadequacy of Cook Coun-
ty medical care system for detainees, as well as a statement
by Dr. Avery Hart, who became Chief Medical Officer at
Cermak in July 2008, that new policies to correct the failures
outlined in the DOJ report were not implemented until 2009,
after Dixon’s death. Importantly, Dr. Hart was the highest-
8 No. 13-3634
level County official at Cermak during Dixon’s entire stay at
the jail, and Dr. Hart had received direct notice from DOJ
that the policies in place were highly likely to cause serious
injury to the inmates. Nevertheless, no changes were made
until after the events in this lawsuit occurred.
Lula also presented testimony from Dr. Cruz, the physi-
cian who ultimately transferred Dixon to Stroger Hospital.
Dr. Cruz reported that he was sometimes unable to obtain
access to a patient’s medical records because the records had
not been scanned into the electronic records database and
were not otherwise readily available. In addition, Lula of-
fered expert testimony from Dr. Robert Greifinger, the pri-
mary DOJ investigator during its 17-month investigation in-
to the Cook County jail’s healthcare system. Dr. Greifinger
opined that systemic inadequacies in the County’s detainee
healthcare policy, including the failure to coordinate health
information, caused the delay in palliative care and pro-
longed suffering that Dixon experienced. Although the dis-
trict court struck the portion of Dr. Greifinger’s Rule 26(a)(2)
report in which he concluded that Dixon’s care fell below the
prevailing standard of care and that defendants displayed
deliberate indifference (both of which the court deemed to
be too conclusory), it found that Dr. Greifinger is qualified as
an expert and considered the remainder of the report.
Taking the County’s records policy, the evidence from Dr.
Hart, the evidence from Dr. Cruz, the DOJ report, and the
additional testimony from Dr. Greifinger together, we con-
clude that a reasonable jury could find that pervasive sys-
temic deficiencies in the detention center’s healthcare system
were the moving force behind Dixon’s injury. It was there-
No. 13-3634 9
fore error to grant summary judgment in the County’s favor
on the Monell claim.
B
1
Before we address Lula’s argument that it was error to
dismiss her claims against the individual defendants under
Rule 12(b)(6), we must address a preliminary procedural
point. The defendants argue that Lula improperly relies on
facts from the summary judgment record that were not al-
leged in the original complaint. They have not specified,
however, what exactly is new, and it is not obvious to us. In
any event, a plaintiff attacking a dismissal under Rule
12(b)(6) is entitled to rely on new facts on appeal, as long as
they are “consistent with the well-pleaded complaint.” Reyn-
olds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010).
Our own review of the amended complaint satisfies us that
any additional facts Lula has mentioned on appeal are con-
sistent with it. The amended complaint lays out the basis for
Dixon’s claims against both Dr. Bonaparte and Nurse
Eboigbe: that each was aware of the seriousness of Dixon’s
condition, yet each was not just negligent, but deliberately
indifferent to his needs. We therefore turn to the merits.
2
To state a claim for relief based on inadequate medical
care while in detention, a plaintiff must demonstrate (1) an
objectively serious medical condition and (2) that the de-
fendant subjectively “acted with a ‘sufficiently culpable state
of mind’” in failing to provide adequate care or treatment for
that condition. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005). The parties here agree that Dixon’s metastatic lung
10 No. 13-3634
cancer was an objectively serious medical condition. As is
often the case, the debate is over the subjective element of
the plaintiff’s claim. That element requires the plaintiff to be
able to prove facts from which something more than negli-
gence or even medical malpractice can be inferred; the plain-
tiff need not, however, shoulder the burden of proving that
the defendant acted or failed to act with the purpose of caus-
ing harm. Farmer v. Brennan, 511 U.S. 825, 835 (1994) (delib-
erate indifference “is satisfied by something less than acts or
omissions for the very purpose of causing harm”).
The amended complaint alleged that Dr. Bonaparte knew
about Dixon’s chest tumor no later than December 31, 2008,
and yet she offered him only non-prescription pain medica-
tion, discharged him from the jail’s hospital, ordered a psy-
chiatric consult to determine if he was malingering, and or-
dered that his wheelchair be removed upon his arrival back
at the regular jail. A jury could find, based on these facts,
that her behavior was “so plainly inappropriate as to permit
the inference that [she] intentionally or recklessly disregard-
ed his needs.” Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir.
2008). It might also draw the opposite inference, if it thought
that she was unable to learn about the results of Dixon’s ear-
lier tests through no fault of her own. Dixon’s claim is not,
however, defeated by the possibility that the most Dr. Bona-
parte might have been able to do differently was to provide
Dixon with six additional days of palliative care (from De-
cember 31 through January 5 when he was transferred to
Stroger Hospital). Six days of intense pain cannot be consid-
ered to be de minimis for Eighth Amendment purposes. Fur-
thermore, a plaintiff can state a claim of deliberate indiffer-
ence even if he has a condition that may not be curable. Wil-
liams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007).
No. 13-3634 11
We make no prediction about the way this part of the
case might turn out. We conclude only that Lula’s amended
complaint plausibly alleged enough to survive a motion to
dismiss for failure to state a claim.
3
Lula’s case against Nurse Eboigbe presents a closer ques-
tion. In the end, however, we conclude that it is one that de-
serves at least the development that summary judgment
would permit. Eboigbe first learned of Dixon’s condition on
December 30, when he was told that Dixon was experiencing
intense abdominal pain, difficulty breathing, difficulty with
leg movement, and incontinence. Eboigbe heard that Dixon
had fallen out of his bunk and was lying on the floor of his
cell, partially paralyzed. A jury could find that this was an
obvious enough problem that even a layperson who discov-
ered it would have at least consulted a doctor for instruc-
tions, and failing that would have called 911 for emergency
help. Eboigbe did neither, according to the amended com-
plaint. He did nothing: it was the guard who scheduled Dix-
on for “sick call” three days later. A different nurse later on
December 30 was the one who took steps to get Dixon ad-
mitted immediately to the Acute Care Facility. Again, we
stress that these are allegations; the facts are yet to be deter-
mined. But they are enough to state a claim against Nurse
Eboigbe for deliberate indifference to Dixon’s serious medi-
cal condition.
4
Finally, the district court dismissed Lula’s state-law
claims against Dr. Bonaparte and Nurse Eboigbe for inten-
tional infliction of emotional distress because the standards
12 No. 13-3634
for such a claim are higher than deliberate indifference, and
the court had found the latter claim insufficient. In Illinois,
this tort requires a showing of (1) extreme and outrageous
conduct by the defendant, (2) either intent to cause distress
or knowledge that there was a high probability that the de-
fendant’s conduct would cause severe emotional distress,
and (3) severe emotional distress that actually resulted. Felt-
meier v. Feltmeier, 798 N.E.2d 75, 83 (Ill. 2003); see also Wilson
v. Norfolk & W. Ry. Co., 718 N.E.2d 172, 180 (Ill. 1999). The
conduct must “be so extreme as to go beyond all possible
bounds of decency and be regarded as intolerable in a civi-
lized community.” Feltmeier, 798 N.E.2d at 83. Behavior that
is otherwise rude, abrasive, or inconsiderate can be inten-
tional infliction of emotional distress if the plaintiff is partic-
ularly susceptible to emotional distress and the defendant is
aware of plaintiff’s susceptibility. McGrath v. Fahey, 533
N.E.2d 806, 811 (Ill. 1988).
We think it best for the district court to take another look
at these allegations, which rely on the court’s supplemental
jurisdiction. See 28 U.S.C. § 1367(a). The requirement of find-
ing “extreme and outrageous” conduct is a demanding one,
and it will not be met in every instance where a plaintiff has
stated a claim under the Eighth Amendment (which itself
sets a high bar). The adequacy of the complaint will depend
on Lula’s ability to allege that the individual defendants
knew that Dixon was not malingering and was in severe pain,
and nonetheless provided no immediate respite. Without
prejudging the result, we thus vacate this part of the district
court’s judgment as well and return it for a second look.
No. 13-3634 13
III
The judgment of the district court is therefore REVERSED
and the case is remanded for further proceedings consistent
with this opinion.