Patrick Hahn v. Daniel Walsh , 762 F.3d 617 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1766
PATRICK HAHN AND ERIK REDWOOD,
Administrator of the Estate of Janet
Louise Hahn, Deceased,
Plaintiffs-Appellants,
v.
DANIEL WALSH, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:09-cv-02145-MPM-DGB — Michael P. McCuskey, District Judge.
ARGUED APRIL 15, 2014 — DECIDED AUGUST 12, 2014
Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE,
District Judge.*
*
The Honorable Amy J. St. Eve, of the United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 13-1766
RIPPLE, Circuit Judge. Janet Hahn was a pretrial detainee at
the Champaign County Correctional Center (“CCCC”)
immediately before she died as a result of diabetic
ketoacidosis.1 Patrick Hahn, Mrs. Hahn’s husband, and
Erik Redwood, the administrator of her estate, brought this
action, alleging that various government officials and private
contractors failed to provide adequate medical treatment, in
violation of Mrs. Hahn’s rights under the Fourteenth Amend-
ment, the Americans with Disabilities Act, the Rehabilitation
Act and Illinois state law. The district court dismissed some of
the plaintiffs’ claims under Federal Rule of Civil Procedure
12(b)(6) and granted summary judgment in favor of the
defendants on the remaining claims.
The plaintiffs now appeal, raising three issues. First, the
plaintiffs submit that the district court erred in dismissing their
state law wrongful death claim. The district court faulted the
plaintiffs for failing to comply with an Illinois statute that
requires plaintiffs who allege medical malpractice to submit
1
Diabetic ketoacidosis is a serious complication of diabetes. Individuals
with Type-1 diabetes, like Mrs. Hahn, have little or no insulin in their
bodies. Diabetes, Mayo Clinic, http://www.mayoclinic.org/diseases-
conditions/diabetes/basics/definition/con-20033091 (last visited July 31,
2014). Insulin transports glucose to cells for use as energy; the absence of
insulin leads to a buildup of glucose in the bloodstream. Id. Many diabetics
modulate this buildup by administering injections of insulin. Id. Diabetic
ketoacidosis occurs when an individual’s body does not break down this
glucose; rather, the body begins to break down fat for fuel. Diabetic
Ketoacidosis, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/
diabetic-ketoacidosis/basics/definition/con-20026470 (last visited July 31,
2014). This situation causes “a buildup of toxic acids in the bloodstream,”
which can, as in this instance, be fatal. Id.
No. 13-1766 3
with their complaints (1) an affidavit confirming that a medical
professional has verified the claim’s merit and (2) a written
report from that medical professional. Second, the plaintiffs
contend that the district court abused its discretion by dismiss-
ing their wrongful death claim with prejudice instead of
granting them leave to amend in order to cure the deficiency.
Finally, they submit that the district court erred in granting
summary judgment to two of the defendants.
We affirm in part and reverse in part the judgment of the
district court. The district court correctly dismissed the plain-
tiffs’ wrongful death claim but erred by dismissing it with
prejudice. The plaintiffs produced insufficient evidence to
permit their claims against Sheriff Walsh and Health Profes-
sionals Ltd. (“HPL”), the jail’s medical services contractor, to
survive summary judgment. Accordingly, we reverse the
district court’s judgment insofar as it dismissed the wrongful
death claim with prejudice. We affirm the remainder of its
decisions.
I
BACKGROUND
A.
We recount the facts in the light most favorable to the
plaintiffs. See Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.
2013).
On the evening of June 15, 2007, Mrs. Hahn was arrested
for aggravated domestic battery and transported to the satellite
location of the CCCC. The Champaign County Sheriff’s Office,
4 No. 13-1766
headed by Sheriff Daniel Walsh, operates the CCCC. Upon her
arrival, Officer Chad Schweighart processed Mrs. Hahn into
the CCCC as a detainee.2 She was angry and uncooperative
during booking. Mrs. Hahn told Officer Schweighart that she
was diabetic and suicidal, but she refused to provide any
additional information, such as the type of insulin she had been
prescribed. She also refused to sign a release so that the CCCC
could obtain her medical records. Officer Schweighart reported
this information to his supervisor.
Mrs. Hahn was placed on suicide watch pursuant to a
CCCC policy for handling detainees who are identified as
mentally ill, who demonstrate unusual behavior or who
indicate that they are experiencing suicidal ideations. Accord-
ingly, Mrs. Hahn was given a gown and blanket made from a
material that prevents detainees from fashioning them into
instruments of self-harm. Further, correctional officers were
required to observe Mrs. Hahn every fifteen minutes for signs
of physical or mental distress and to report any such signs to
their supervisors.
Beyond the fifteen-minute checks, the CCCC had additional
policies in place relevant to Mrs. Hahn’s physical and mental
conditions. First, the CCCC contracted with a private company,
HPL, to provide medical and mental health services to detain-
ees in its custody.3 All medical issues were referred to HPL’s
2
This was not Mrs. Hahn’s first detention at the CCCC. In May 2007, she
also had been arrested and detained there.
3
It appears that the CCCC houses both pretrial detainees and sentenced
(continued...)
No. 13-1766 5
medical staff and mental health issues were referred to its
counselors. CCCC officers deferred to the judgment of HPL
professionals on issues of medical and mental health. Second,
the CCCC had a policy of not forcing medical care on a
resisting detainee. For example, if a diabetic detainee refused
to have her blood sugar checked or to take insulin, CCCC
officers were not supposed to force care on the detainee; the
officers should have reported the refusal to a supervisor or to
both a supervisor and medical staff. The CCCC also would not
force patients to eat if they refused to do so. If a detainee
refused a meal, the correctional officer on duty should have
notified a supervisor; if the detainee refused more than one
meal, it was “normal practice” for the correctional officer to
notify both a supervisor and medical staff.4 Medical or mental
health staff then decided what to do about a detainee who
refused to eat. Finally, if a detainee was suffering from an
“obvious/life-threatening acute/emergency situation,” CCCC
officers were to call for emergency medical assistance.5
In order to provide the necessary medical and mental
health care, HPL staffed the CCCC with a physician (who
visited once per week), registered nurses and mental health
personnel. Correctional officers could contact an on-call nurse
at any time. HPL provided training on an annual basis to
3
(...continued)
inmates. For simplicity’s sake, we use the word “detainee” generically, to
refer to all individuals housed in the CCCC.
4
R.165 at 9.
5
Id. (internal quotation marks omitted).
6 No. 13-1766
correctional officers about the care and monitoring of diabetic
patients. This training included instruction on how to recog-
nize hypoglycemia and hyperglycemia (low and high blood
sugar, respectively).
In addition to the CCCC’s policies and practices, HPL had
its own policies for identifying and handling detainees suffer-
ing from serious medical conditions, including mental illness
and diabetes. For diabetic detainees whose treatment protocol
was unknown, HPL’s policy called for blood sugar to be
checked twice each day using an Accu-Chek glucose meter, for
insulin to be delivered based on a particular dosage scale6 and
for an evening snack to be provided to the detainee. Insulin
could be administered by a nurse, without consulting a
physician. If a diabetic detainee refused treatment, medical
staff would attempt to have the detainee sign a refusal-of-care
form. HPL did not have a specific policy for checking the blood
sugar of diabetic inmates who refused to use the Accu-Chek
machine.
When Mrs. Hahn was first processed into the jail,
Officer Joanne Lewis and a supervisor, Sergeant Michael
Johnson, were among the officers on duty. Officer Lewis gave
Mrs. Hahn a meal on the evening of June 15, 2007. When she
returned to retrieve the tray, Officer Lewis noted that some of
6
At the time of Mrs. Hahn’s death, HPL had in place a “sliding scale”
policy that called for the administration of a particular amount of insulin
based on the individual’s blood sugar reading. See R.133-7 at 36, 46–47, 166.
For example, if an individual’s blood sugar reading was higher than 201 but
lower than 250, he received five units of regular insulin. If it was higher
than 251 but lower than 300, he received eight units of regular insulin.
No. 13-1766 7
the food was gone, but she did not know whether Mrs. Hahn
had eaten it. At some point that evening, Mrs. Hahn took off
her gown and stuffed her gown and blanket into the toilet in
her cell. The cell then flooded. Accordingly, the water to
Mrs. Hahn’s cell was shut off. After the water was shut off,
correctional officers brought Mrs. Hahn water upon request.
Officer Lewis assisted Mrs. Hahn in putting on a new gown.
Sergeant Johnson also interacted with Mrs. Hahn that
evening. He spoke with Mrs. Hahn about her diabetes and
discussed checking her blood sugar. Mrs. Hahn initially
resisted but eventually agreed to have her blood sugar
checked. After contacting the on-call HPL nurse,
Kendra Adams, Sergeant Johnson checked Mrs. Hahn’s blood
sugar and, at 9:40 p.m., her blood sugar reading was 160.
Adams advised Sergeant Johnson that this reading was within
an acceptable range, and no insulin was provided to
Mrs. Hahn.7 The reading was recorded on a form called the
“Blood Sugar and Insulin Tracking Sheet.”
After his interaction with Mrs. Hahn, Sergeant Johnson
wrote an e-mail to HPL staff. He stated that Mrs. Hahn was a
“psych patient,” that she had a cut and stitches on her left arm
(and that the bandage had been removed for safety purposes
because she had made statements about hurting herself), that
she was unpredictable and had flooded her cell, and that her
blood sugar was 160 and she was not given insulin.
7
The district court noted, however, that a normal blood sugar reading was
80–120. The plaintiffs’ expert testified that a reading of 160 is “above what
you’d like in an insulin dependent diabetic, but it is not life-threatening.”
R.165 at 11 n.4.
8 No. 13-1766
Sergeant Johnson also left a message for officers assigned to
subsequent shifts. That message included most of the informa-
tion given to HPL, as well as a note that Mrs. Hahn had been
very uncooperative and that the water in her cell had been
turned off. CCCC staff started a “segregation log” for
Mrs. Hahn, which noted various information, including her
refusal of meals.
On that same evening, according to the testimony of
Donald MacFarlane, a detainee at the CCCC, Mrs. Hahn stood
at her cell window for more than an hour, yelling that she
needed help and asking that her doctor be called. MacFarlane
testified that this episode began after about 9:00 p.m.
Officer Karee Voges was on duty from 11:45 p.m. on June
15, 2007, to 8:15 a.m. on June 16, 2007. She testified that because
she had interacted with Mrs. Hahn during her prior detention,
she knew that Mrs. Hahn was a Type-1 diabetic and that she
had a history of being angry and uncooperative. Officer Voges
said that throughout that night, she brought Mrs. Hahn cups
of water when requested. She offered breakfast to Mrs. Hahn
around 6:30 a.m., but she documented on the log that
Mrs. Hahn refused the meal.
On the morning of June 16, Mrs. Hahn was seen by both
Alyson Morris, a mental health clinician with HPL,8 and by
8
Morris had a master’s degree in counseling and received additional
training from HPL, which covered suicide prevention and, in particular,
suicide prevention in a correctional environment.
No. 13-1766 9
Susan Swain, a nurse with HPL.9 Morris’s interaction with
Mrs. Hahn was brief; at its conclusion, she wrote an e-mail to
Sergeant Johnson, on which she copied her supervisor. Morris
wrote that Mrs. Hahn was still uncooperative and angry.
Swain arrived at the CCCC around 9:30 a.m. on June 16.
She reviewed Officer Schweighart’s paperwork regarding
Mrs. Hahn. Swain recalled from a prior experience with
Mrs. Hahn and from looking at Mrs. Hahn’s records that
Mrs. Hahn was an insulin-dependent diabetic and that she
previously had refused insulin and blood sugar checks. She
also was aware of the possibility that Mrs. Hahn suffered from
a mental disability. Swain was called to Mrs. Hahn’s cell at
9
While Mrs. Hahn was detained at the CCCC in May 2007, she had been
treated by Swain. At that time, Swain sent an e-mail to an account called
“Corrections” regarding her difficulties with Mrs. Hahn. The e-mail read:
Hi there! This young lady is quite a challenge to work
with. She refuses to disclose any of her medical history or
conditions except for the fact that she is insulin dependant
[sic] diabetic. She also refuses to sign any release of
information and told me that she will not tell me who her
doctor is or where she seeks treatment at. She will be
leaving tomorrow (05-07-07) and she states that she will
not eat while she is here. She has pretty much tied my
hands as far as helping her goes. Please bring her to the
infirmary to test her blood sugar tonight and tomorrow
morning BUT I am not at all sure that she will cooperate
with the test. She can give herself insulin per sliding scale
however I am pretty sure that she will not do that either!
Thanks for your assistance in this matter!!!!
Id. at 3–4.
10 No. 13-1766
around 10:00 a.m. because a correctional officer had tested
Mrs. Hahn’s blood sugar and found it to be 396.10 The reading
was documented on the tracking sheet. When Swain arrived at
Mrs. Hahn’s cell, she attempted to take vital signs and get a
medical history, but Mrs. Hahn resisted providing information.
Mrs. Hahn also refused to sign a release that would allow
Swain to obtain her medical information from her usual
physician. Swain testified that, at this point in time, Mrs. Hahn
was “oriented to time and place” and did not complain of
feeling poorly.11 Mrs. Hahn refused to go to the infirmary with
Swain. Instead, Swain brought twenty units of insulin to
Mrs. Hahn and administered it in her cell.12 This was recorded
on the tracking sheet. Swain placed Mrs. Hahn on the diabetes
treatment protocol described above. Later that morning,
Mrs. Hahn was taken to bond court.
On the afternoon of June 16, Morris conducted a more
in-depth assessment of Mrs. Hahn. She completed an “Initial
Mental Health Screening and Assessment Form,” which noted
10
The plaintiffs cite testimonial evidence that a reading of 396 was
“extremely high” and that a doctor should have been contacted at this
point. Appellants’ Br. 8 n.13 (internal quotation marks omitted).
11
R.165 at 14; see also R.133-7 at 45–46.
12
Swain testified that according to HPL’s scale, an individual with a blood
sugar reading of 396 is to be given fifteen units of insulin. However, she
also testified that a doctor had advised her that when the reading is close
to a limit on the scale, she should administer the dosage of insulin
corresponding with the next increment on the scale. Therefore, she
administered twenty units of insulin to Mrs. Hahn.
No. 13-1766 11
Mrs. Hahn’s antidepressant medication13 and primary mental
health clinician. She e-mailed CCCC staff, stating that
Mrs. Hahn was “mentally retarded and a poor historian,” and
that she should remain on suicide watch for at least seventy-
two hours.14 She stated that mental health staff would reevalu-
ate Mrs. Hahn’s condition in twenty-four to forty-eight hours.
Morris also told Swain that Mrs. Hahn was uncooperative and
that she was trying to convince Mrs. Hahn about the impor-
tance of working with the medical staff to treat her diabetes.
Around 4:00 p.m. on June 16, Mrs. Hahn was escorted to
the infirmary by Officer Jenna Thode for a blood sugar check.
Officer Thode initially wrote down 320 on the tracking sheet as
Mrs. Hahn’s blood sugar level. She then crossed it out and
wrote 107. Officer Thode’s explanation is that 320 is her badge
number, and she had written it accidentally. Mrs. Hahn
refused dinner on the evening of June 16. MacFarlane testified
that Mrs. Hahn looked sick and pale that evening.
Officer Voges worked overnight again from June 16 to June
17. She brought Mrs. Hahn water on several occasions. In the
morning on June 17, Mrs. Hahn refused breakfast.
Officer Voges tried to test Mrs. Hahn’s blood sugar. The Accu-
Chek machine read “E” on two attempts. An “E” reading could
13
Morris noted that Mrs. Hahn had been prescribed Seroquel. Seroquel is
prescribed “as an antipsychotic in the treatment of schizophrenia and other
psychotic disorders,” Dorland’s Illustrated Medical Dictionary 1566, 1698
(32d ed. 2012), but Morris believed that Mrs. Hahn took Seroquel primarily
as a sleep aid.
14
R.165 at 14 (internal quotation marks omitted).
12 No. 13-1766
indicate that there was not enough blood used or that the stick
containing blood was not inserted properly into the Accu-Chek
machine. According to the plaintiffs, it also could mean that
there was “some problem with the machine.”15 These error
readings were not recorded on the tracking sheet. Around 9:00
a.m., Mrs. Hahn asked a different officer to have her blood
sugar checked. When Swain arrived at the CCCC, that officer
told her that Mrs. Hahn had not eaten breakfast and that
attempts to check her blood sugar were unsuccessful. Swain
checked on Mrs. Hahn and, at this point, Mrs. Hahn refused to
allow staff to try to use the Accu-Chek machine again. Swain
told Mrs. Hahn that the failure to check her blood sugar could
compromise her health, but there is no evidence as to whether
anyone asked Mrs. Hahn to sign a refusal-of-treatment form.
At approximately 11:00 a.m. that same morning, a correc-
tional officer told Swain that Mrs. Hahn had reported vomiting
in her cell. Swain immediately went to check on Mrs. Hahn,
but she did not observe any signs of vomiting. Swain said that
she spoke with Mrs. Hahn at this point and observed her for
any signs or symptoms of illness. Throughout the day on June
17, Officer Terrance Alexander had repeated contacts with
Mrs. Hahn. He did not observe any signs of medical or mental
distress. He asked Mrs. Hahn multiple times if she would have
her blood sugar tested, and she refused. Mrs. Hahn refused
lunch that afternoon. At 3:00 p.m., Swain returned to
Mrs. Hahn’s cell. Swain testified that she did not observe any
signs of diabetic ketoacidosis and that Mrs. Hahn spoke to her
15
Appellants’ Br. 10.
No. 13-1766 13
coherently. She also testified that she offered to test
Mrs. Hahn’s blood sugar, but she refused.
Later that evening, Officer Thode tried to test Mrs. Hahn’s
blood sugar but Mrs. Hahn again refused. Mrs. Hahn also
refused dinner that evening. Mrs. Hahn told Officer Thode that
she had been throwing up for the last few days. Officer Thode
told the officers whose shift followed hers about her interac-
tions with Mrs. Hahn, but Mrs. Hahn’s refusals to have her
blood sugar checked were not documented on the tracking
sheet or segregation log.
Sixty-one cell checks, conducted by multiple correctional
officers, were performed from 3:00 p.m. on June 17 to 6:30 a.m.
on June 18. One officer testified that when he checked on
Mrs. Hahn throughout his overnight shift, she was making
sounds and moving around a lot and that he heard her hitting
the door. Another officer, Matthew McCallister, testified that
sometime between 2:00 a.m. and 4:00 a.m., he opened the door
to Mrs. Hahn’s cell to check on her because she was so close to
the door that he could not see her from the outside, but that
she was responsive and moved away from the door when he
opened it. Two detainees testified that, during the night, they
heard a female detainee stating that she did not feel well, that
she wanted to see the nurse and that she needed insulin.
Early in the morning on June 18, CCCC staff began to treat
Mrs. Hahn’s condition as acute. MacFarlane testified that,
around 6:00 a.m., a correctional officer looked into Mrs. Hahn’s
14 No. 13-1766
cell and said, “This one’s not looking so good.”16 Approxi-
mately twenty-five minutes later, Officer Arnold Mathews
observed Mrs. Hahn and found her to be in medical distress.
He called for medical assistance, and emergency medical
services were contacted. Mrs. Hahn was taken to the hospital,
where tests showed that Mrs. Hahn had a blood sugar reading
of 966, a blood urea nitrogen reading of 62, a creatinine reading
of 3–4 and swelling in the brain as a result of diabetic
ketoacidosis. The plaintiffs’ expert testified that this data
indicated that Mrs. Hahn had been suffering from diabetic
ketoacidosis for hours. Mrs. Hahn died in the hospital later that
day.
B.
In June 2009, Mr. Hahn and Mr. Redwood filed an eight-
count complaint in the United States District Court for the
Central District of Illinois. The Amended Complaint, filed
shortly after the original complaint, named as defendants the
County of Champaign, Sheriff Walsh, Officer McCallister and
other unnamed Champaign County correctional officers. It also
named HPL and unnamed “jail nurse(s).”17 Lastly, it named the
City of Urbana and the Urbana police officers who had
arrested Mrs. Hahn on June 15. Only some of the counts in the
16
R.165 at 18 (internal quotation marks omitted).
17
R.3 at 1.
No. 13-1766 15
Amended Complaint are relevant here.18 Count II of the
18
Count I and some of the other counts in the Amended Complaint relate
to defendants or claims that are not part of this appeal. Count I of the
Amended Complaint alleged that the individual defendants exhibited
deliberate indifference to Mrs. Hahn’s serious medical needs, in violation
of her Fourteenth Amendment rights, when they refused to take her to a
hospital or provide necessary medical or psychiatric care. Count I was
terminated as to all of the CCCC defendants except for Sheriff Walsh
because those defendants were never served. The police officers were
granted summary judgment on Count I. Sheriff Walsh also was granted
summary judgment on Count I because the plaintiffs could not produce any
evidence establishing his personal knowledge of or involvement in
Mrs. Hahn’s treatment. The plaintiffs do not appeal this portion of the
district court’s summary judgment ruling.
Count III alleged that the City of Urbana exhibited deliberate indiffer-
ence by failing to implement adequate policies and procedures for handling
arrestees with serious medical and mental health conditions. The district
court granted summary judgment to the City on this count, and the
plaintiffs do not appeal this part of the district court’s decision.
Count VI alleged that Champaign County and HPL violated the
Americans with Disabilities Act and the Rehabilitation Act by failing to
accommodate Mrs. Hahn’s mental health and medical conditions and by
denying her adequate treatment. The district court granted summary
judgment to the defendants on this count. The plaintiffs do not appeal this
determination.
Count VII alleged a claim against all of the defendants by Mr. Hahn for
loss of consortium. The district court dismissed this count, holding that loss
of consortium was not a separate cause of action. It ordered that the
plaintiffs be given leave to amend their complaint to include with their
constitutional claims a demand for damages for loss of consortium. The
plaintiffs therefore filed a Second Amended Complaint that incorporated
(continued...)
16 No. 13-1766
Amended Complaint alleged that Sheriff Walsh had exhibited
deliberate indifference to Mrs. Hahn’s medical needs by failing
to implement policies and procedures necessary to prevent
deaths as a result of inadequate medical and mental health
treatment. Count IV alleged that HPL had exhibited deliberate
indifference by failing to implement adequate policies and
procedures for providing detainees with medical and mental
health care. Count V alleged that Sheriff Walsh’s failure to train
and supervise jail employees constituted deliberate indiffer-
ence because it had created an atmosphere where “unconstitu-
tional behavior [wa]s ratified, tolerated, acquiesced or con-
doned.”19 Finally, Count VIII alleged that HPL and its nurses
had violated Illinois’s Wrongful Death Act, 740 ILCS 180/1 to
/2.2. The plaintiffs requested compensatory and punitive
damages, attorney’s fees and litigation expenses.
The defendants moved to dismiss the complaint on various
grounds. Relevant to this appeal, the County of Champaign,
Sheriff Walsh and HPL moved to dismiss Count VIII, the state
law wrongful death action. Specifically, the defendants
contended that the plaintiffs had failed to comply with an
Illinois state law, 735 ILCS 5/2-622, that required them to
include with their complaint “an affidavit of merit and a
18
(...continued)
the loss of consortium claims into each of the other, remaining counts. The
plaintiffs make no arguments on appeal about the loss of consortium claim.
19
R.3 at 7.
No. 13-1766 17
written report from a health professional.”20 The magistrate
judge recommended dismissing this count for failure to include
the required affidavit and report.21 Notably, he further wrote
that he took “no position as to whether the dismissal should be
with or without prejudice, leaving that [decision] to the
discretion of the District Court.”22 The district court dismissed
Count VIII for failure to include the affidavit and report and
ordered that the dismissal be with prejudice because the
20
R.17 at 5.
21
In reaching this conclusion, the magistrate judge rejected the plaintiffs’
contention that they had satisfied the requirements of section 2-622 by
including in their complaint a paragraph stating:
50. Plaintiff has been unable to secure the affidavit of
a medical professional in support of the Complaint
because Defendant Daniel Walsh failed and refused to
respond to a duly served Freedom of Information Act
Request for all records, including jail medical records,
concerning Janet Louise Hahn and plaintiff does not have
independent access to these medical records which are
necessary for the review of a medical professional and the
affidavit required.
R.3 at 11. The magistrate judge wrote that even where records cannot be
obtained and, therefore, a report cannot be prepared by a medical profes-
sional, section 2-622 requires the plaintiffs’ attorney to submit an affidavit
containing certain information about the attempt to obtain the necessary
records. R.34 at 16. An allegation in the complaint, the magistrate judge
recommended, could not be substituted for the required affidavit. Id.
22
R.34 at 17.
18 No. 13-1766
“[p]laintiffs clearly failed to comply with the requirements of
§ 2-622 and the statute of limitations has passed.”23
The plaintiffs then filed a Second Amended Complaint that
addressed the rulings made by the district court on the motions
to dismiss. Counts II, IV and V remained substantially un-
changed in the Second Amended Complaint. The plaintiffs did
not include a wrongful death claim in the Second Amended
Complaint. They did, however, file a motion under Federal
Rule of Civil Procedure 59(e) to amend the judgment dismiss-
ing Count VIII. They made two arguments: (1) that no affidavit
or report needed to be provided because Federal Rule of Civil
Procedure 8, not Illinois state pleading rules, governed the
sufficiency of their complaint; and (2) that, in the alternative,
they should have been permitted to amend their complaint
under the relation-back doctrine, despite the expiration of the
relevant limitations period. The district court denied the Rule
59(e) motion; it held that section 2-622 applies in federal court
and that dismissal with prejudice was proper because plain-
tiffs’ counsel knew of the affidavit requirement and failed to
attempt to comply with it before the statute of limitations had
expired.
The case proceeded through discovery, and, in February
2012, the defendants moved for summary judgment. The
district court granted summary judgment in favor of the
defendants. With respect to the claims against Sheriff Walsh in
his official capacity (Counts II and V), the district court held
that the plaintiffs had “not identified evidence sufficient for the
23
R.40 at 1–2.
No. 13-1766 19
factfinder to conclude that Walsh maintained a policy or
custom evincing deliberate indifference to the needs of
mentally ill or diabetic inmates that resulted in harm to
Janet.”24 With respect to the claims against HPL, the district
court held that, “based upon the evidence in this case, the
medical protocol Janet was prescribed was not the moving
force behind any constitutional violation.”25
II
DISCUSSION
The plaintiffs timely appealed and now challenge three of
the district court’s rulings. First, they submit that the district
court erred in dismissing the state law wrongful death claim
(Count VIII). Specifically, they contend that Illinois’s statutory
requirement that a claim alleging medical malpractice—as the
wrongful death claim against HPL does—be accompanied by
an affidavit and written report confirming the claim’s merit, see
735 ILCS 5/2-622, conflicts with Rule 8 or Rule 11 of the Federal
Rules of Civil Procedure and, therefore, should not be enforced
in federal court under the Erie doctrine. Second, they argue
that the district court’s dismissal with prejudice of the wrong-
ful death claim constituted an abuse of discretion. Finally, they
submit that the district court improperly granted summary
judgment to Sheriff Walsh and HPL on the § 1983 claims.
24
R.165 at 42–43.
25
Id. at 54.
20 No. 13-1766
The jurisdiction of this court and of the district court is
secure.26 We review de novo the district court’s decision to
grant the defendants’ motion to dismiss the plaintiffs’ wrong-
ful death claim. See Windy City Metal Fabricators & Supply, Inc.
v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).
We review for abuse of discretion the district court’s decision
to dismiss that claim with prejudice. See Sherrod v. Lingle, 223
F.3d 605, 614 (7th Cir. 2000). Finally, we review de novo the
district court’s grant of summary judgment in favor of the
defendants. Mullin v. Temco Mach., Inc., 732 F.3d 772, 776 (7th
Cir. 2013). In doing so, we construe all facts and draw all
reasonable inferences in the light most favorable to the
plaintiffs. Id.
A.
We first turn to the dismissal of the defendants’ wrongful
death claim. Count VIII of the plaintiffs’ Amended Complaint
alleged that HPL had failed to provide adequate medical
treatment to Mrs. Hahn, in violation of the state’s Wrongful
Death Act, 740 ILCS 180/1 to /2.2. Under Illinois law, a plaintiff
seeking damages for “medical, hospital, or other healing art
malpractice” must attach to his complaint either (1) an affidavit
confirming that he has reviewed the facts of the case with a
health care professional and that the professional believes that
there is a “reasonable and meritorious cause for the filing of
such action,” as well as a copy of the professional’s written
26
We have jurisdiction under 28 U.S.C. § 1291. The district court had
jurisdiction under 28 U.S.C. §§ 1331, 1343 and 1367.
No. 13-1766 21
report on the case, or (2) an affidavit stating an acceptable
reason why such an opinion and report could not be obtained.
735 ILCS 5/2-622(a).27 The statute goes on to state that “[t]he
27
Section 2-622 reads, in pertinent part:
(a) 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 malprac-
tice, the plaintiff’s attorney … shall file an affidavit,
attached to the original and all copies of the complaint,
declaring one of the following:
1. That the affiant has consulted and re-
viewed the facts of the case with a health
professional … ; that the reviewing health
professional has determined in a written
report, after a review of the medical re-
cord and other relevant material involved
in the particular action that there is a
reasonable and meritorious cause for the
filing of such action; and that the affiant
has concluded on the basis of the review-
ing health professional’s review and
consultation that there is a reasonable and
meritorious cause for filing of such action.
… A copy of the written report, clearly
identifying the plaintiff and the reasons
for the reviewing health professional’s
determination that a reasonable and meri-
torious cause for the filing of the action
exists, must be attached to the
affidavit … .
(continued...)
22 No. 13-1766
failure to file a certificate required by this Section shall be
grounds for dismissal.” Id. § 5/2-622(g).
The parties do not dispute that if this claim had been
brought in state court, this provision would have required the
plaintiffs to file an affidavit and report conforming to the
statutory requirements. They disagree solely as to whether the
affidavit and report must be attached when the state law claim
is brought in federal court. The district court held that they
must comply with the provisions of state law.
27
(...continued)
2. That the affiant was unable to obtain a
consultation required by paragraph 1
because a statute of limitations would
impair the action and the consultation
required could not be obtained before the
expiration of the statute of limitations. …
3. That a request has been made by the
plaintiff or his attorney for examination
and copying of records pursuant to Part
20 of Article VIII of this Code and the
party required to comply under those
Sections has failed to produce such re-
cords within 60 days of the receipt of the
request.
735 ILCS 5/2-622(a). Thus, the statute requires the filing of either an
affidavit and a report or, if those preferred items cannot be obtained, an
affidavit explaining the deficiency. Throughout this opinion, we frequently
refer to this provision as a requirement to submit an “affidavit and report,”
with the understanding that, occasionally, only an affidavit is necessary.
No. 13-1766 23
The plaintiffs now seek a reversal of that ruling. They
submit that section 2-622 is a state procedural rule that conflicts
with either Rule 8 or Rule 11 of the Federal Rules of Civil
Procedure.28 Therefore, in their view, section 2-622 does not
apply in federal court under the terms of the Erie doctrine. The
defendants reply that section 2-622 is state substantive law that
must be applied in federal court.
The district court was correct. The basic doctrine governing
this area stems from Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938). There, the Supreme Court addressed the question of
whether state law or federal law controls when the two conflict
in diversity cases.29 Stated in the broadest of strokes, the Erie
doctrine provides that “federal courts sitting in diversity apply
state substantive law and federal procedural law.” Gasperini v.
Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). But analysis of
particular applications of this broad doctrine is more nuanced
than simply labeling a state law “substantive” or “procedural.”
See Lux v. McDonnell Douglas Corp. (In re Air Crash Disaster), 803
28
The plaintiffs did not argue to the district court that section 2-622
conflicts with Federal Rule of Civil Procedure 11. Thus, the issue was
waived. See, e.g., Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012)
(“It is a well-established rule that arguments not raised to the district court
are waived on appeal.”). Nevertheless, we address the possible conflict with
Rule 11 because the defendants did not argue that the issue was waived,
thereby waiving the waiver argument. See, e.g., Riemer v. Illinois Dep’t of
Transp., 148 F.3d 800, 804 n.4 (7th Cir. 1998).
29
This body of law applies not only to diversity cases, but also where, as
here, federal courts hear state law claims pursuant to their exercise of
supplemental jurisdiction. See Houben v. Telular Corp., 309 F.3d 1028, 1032
(7th Cir. 2002).
24 No. 13-1766
F.2d 304, 313 (7th Cir. 1986) (observing that the Erie doctrine is
not a “monolithic legal principle” that is applied the same way
in all situations (internal quotation marks omitted)).
In this case, the analytical path set out in the Supreme
Court’s later decision in Hanna v. Plumer, 380 U.S. 460 (1965),
provides us with more precise guidance. There, the Court
addressed specifically how we ought to proceed when a state
law is alleged to conflict with a Federal Rule of Civil Proce-
dure. See Windy City, 536 F.3d at 670–71. Under Hanna, “if a
duly promulgated federal rule of procedure conflicts with state
law, the Rules Enabling Act, 28 U.S.C. § 2072, commands a
federal court to apply [the federal] rule of procedure unless to
do so would abridge a substantive right under state law.” In re
Air Crash Disaster, 803 F.2d at 313–14 (footnote omitted). In
applying Hanna, we first consider whether there is a conflict
between 735 ILCS 5/2-622 and either Rule 8 or Rule 11, or
whether the state and federal laws may be reconciled. Windy
City, 536 F.3d at 671 (citing Burlington N. R.R. Co. v . Woods, 480
U.S. 1 (1987) and Walker v. Armco Steel Corp., 446 U.S. 740
(1980)). If there is no conflict, then our inquiry ends because
there is no need to displace any rule.
In this case, we conclude that there is no conflict between
section 2-622 and either Rule 8 or Rule 11 and, therefore, we
only need to conduct the first step of the Hanna analysis. See
Shady Grove, 559 U.S. at 398 (“We do not wade into Erie’s
murky waters unless the federal rule is inapplicable or in-
valid.”). The Supreme Court has held in a number of instances
that a Federal Rule controlled in the face of a conflicting state
No. 13-1766 25
law,30 but the case before us is more similar to Walker, 446 U.S.
30
For example, in Hanna v. Plumer, 380 U.S. 460, 461 (1965), the plaintiff
served a defendant by leaving a summons and complaint at the defendant’s
home with his wife, in compliance with Federal Rule of Civil Procedure
4(d)(1). The defendant contended that service was improper under a
Massachusetts law requiring in-hand service. Id. at 461–62. The Court held
that Rule 4(d)(1) “with unmistakable clarity [said] that in-hand service is
not required in federal courts.” Id. at 470. Therefore, Rule 4(d)(1)
“unavoidabl[y]” conflicted with the Massachusetts rule. Id. In the face of
this conflict, the Court concluded that because Rule 4(d)(1) was valid under
the Rules Enabling Act and the Constitution, it controlled in that case. Id.
at 463–64, 474.
In Burlington Northern Railroad Co. v. Woods, 480 U.S. 1, 2 (1987), the
plaintiffs brought tort claims in Alabama state court against a defendant
who removed those claims to federal court on diversity grounds. The
plaintiffs won a monetary judgment at trial. Id. The defendant posted bond
to stay the judgment pending appeal, and the court of appeals affirmed the
judgment. Id. Under Federal Rule of Appellate Procedure 38, federal
appellate courts have discretion to award damages or costs to appellees in
frivolous appeals. Alabama law, however, mandates that if a monetary
judgment for which the appellant posted bond pending appeal is affirmed
without modification, the Alabama courts must award a penalty to the
appellee in the amount of ten percent of the damages award. Burlington N.,
480 U.S. at 3–4. The Supreme Court held that Rule 38 and Alabama law
directly conflicted because the Alabama law interfered with Rule 38’s
“discretionary mode of operation” and because “the purposes underlying
the Rule are sufficiently coextensive with the asserted purposes of the
Alabama statute to indicate that the Rule occupies the statute’s field of
operation so as to preclude its application in federal diversity actions.” Id.
at 7. Thus, because there was a conflict and because Rule 38 was valid under
the Constitution and the Rules Enabling Act, Rule 38 displaced the Alabama
statute in federal diversity cases. Id. at 8.
(continued...)
26 No. 13-1766
740, where the Court held that there was no conflict between
the relevant federal and state rules. In Walker, the plaintiff was
injured while hammering an allegedly defective nail on August
22, 1975. Id. at 741. He filed a diversity suit against the nail’s
manufacturer on August 19, 1977. Id. at 742. However, the
plaintiff did not serve the defendant with process until
December 1, 1977. Id. Under Federal Rule of Civil Procedure 3,
“[a] civil action is commenced by filing a complaint with the
court.” Fed. R. Civ. P. 3; see also Walker, 446 U.S. at 743. Under
Oklahoma state law, however, an action generally is com-
menced upon service. Walker, 446 U.S. at 742–43. The applica-
ble statute of limitations was two years, so the plaintiff’s suit
was timely under Rule 3 but barred under Oklahoma law. Id.
at 742–43, 748. The Court held that, in diversity cases, Rule 3
30
(...continued)
In Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559
U.S. 393, 397 (2010), the plaintiff filed a diversity suit on its own behalf and
on behalf of a class of plaintiffs who it alleged were owed interest on late
benefits payments received from the defendant. Federal Rule of Civil
Procedure 23 sets out the procedures for pursuing a class action in federal
court; notably, there is no limitation based on the type of relief sought. See
Fed. R. Civ. P. 23. New York law, by contrast, prohibits class action suits
seeking to recover a “penalty,” such as the statutory interest sought by the
plaintiffs. Shady Grove, 559 U.S. at 397. The Court held that both Rule 23 and
the New York law at issue governed when plaintiffs may maintain a class
action and, therefore, there was a direct conflict between them. Id. at 398–99.
A plurality of the Court held that Rule 23 was valid under the Rules
Enabling Act, id. at 407–08 (opinion of Scalia, J.), and five Justices agreed
that Rule 23, not the New York law at issue, should be applied in federal
court. Id. at 416; id. at 416 (Stevens, J., concurring in part and concurring in
the judgment).
No. 13-1766 27
does not displace state tolling rules; rather, it simply “governs
the date from which various timing requirements of the
Federal Rules begin to run.” Id. at 750–51 (internal quotation
marks omitted). Thus, the Court concluded that Rule 3 and the
Oklahoma law “can exist side by side, … each controlling its
own intended sphere of coverage without conflict.” Id. at 752.
As with the rules in Walker, Rules 8 and 11 and section 2-622
comfortably “can exist side by side” in diversity cases. Nothing
in the operative provisions of Rule 8, Rule 11 or section 2-622
prevents us from simultaneously applying them. Rule 8
governs the content and form of a complaint. It requires, in
pertinent part, that a complaint include a jurisdictional
statement, a statement of the claim and a demand for relief.31
31
Rule 8(a) provides:
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the
grounds for the court’s jurisdiction, un-
less the court already has jurisdiction and
the claim needs no new jurisdictional
support;
(2) a short and plain statement of the
claim showing that the pleader is entitled
to relief; and
(3) a demand for the relief sought, which
may include relief in the alternative or
different types of relief.
(continued...)
28 No. 13-1766
Section 2-622 says nothing about the contents of the actual
complaint; it is only concerned with a pre-suit consultation and
related attachments to the complaint. Illinois courts have held
specifically that the affidavit and report required by section
2-622 are not to be considered parts of a plaintiff’s complaint.
Garrison v. Choh, 719 N.E.2d 237, 240, 243–44 (Ill. App. Ct.
1999). Rule 8 and section 2-622 govern different aspects of
commencing an action and may be enforced simultaneously
without conflict.
Rule 11 may be enforced consistently with section 2-622 as
well. The relevant portion of Rule 11 provides:
By presenting to the court a pleading, written
motion, or other paper … an attorney … certifies
that to the best of the person’s knowledge, informa-
tion, and belief, … :
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litiga-
tion;
(2) the claims, defenses, and other legal conten-
tions are warranted by existing law or by a
nonfrivolous argument for extending, modify-
ing, or reversing existing law or for establishing
new law; [and]
31
(...continued)
Fed. R. Civ. P. 8(a).
No. 13-1766 29
(3) the factual contentions have evidentiary
support or, if specifically so identified, will
likely have evidentiary support after a reason-
able opportunity for further investigation or
discovery … .
Fed. R. Civ. P. 11(b)(1)–(3). Section 2-622’s requirement that an
attorney attach an affidavit and report to the complaint does
not interfere with the ability of the attorney to certify the
accuracy and legitimacy of that complaint. Accordingly,
section 2-622 and Rule 11 may be applied simultaneously.
Further, given the respective purposes of Rule 8, Rule 11
and section 2-622, it cannot be said that one of the Federal
Rules occupies the field that section 2-622 aims to regulate and,
therefore, must trump the state law. See Burlington N., 480 U.S.
at 7. The purpose of section 2-622 is “to reduce the number of
frivolous medical malpractice lawsuits that are filed and to
eliminate such actions at an early stage.” Apa v. Rotman, 680
N.E.2d 801, 804 (Ill. App. Ct. 1997).32 It is designed to ensure
that a complaint has “factual validity” and “reasonable merit.”
Garrison, 719 N.E.2d at 243 (internal quotation marks omitted).
By contrast, the purpose of Rule 8 is to provide a defendant
with fair notice of the claims against him. Vicom, Inc. v.
Harbridge Merch. Servs., Inc., 20 F.3d 771, 775 (7th Cir. 1994); see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Even
after Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which
clarified that a complaint must state a claim for relief that is
32
See also Avakian v. Chulengarian, 766 N.E.2d 283, 294 (Ill. App. Ct. 2002);
Tucker v. St. James Hosp., 665 N.E.2d 392, 396 (Ill. App. Ct. 1996).
30 No. 13-1766
“plausible” on its face, we have emphasized that plausibility is
required “in order to assure that a pleading suffices to give
effective notice to the opposing party,” not in order to evaluate
the veracity of the pleaded facts or the ultimate merits of the
plaintiff’s claim. Alexander v. United States, 721 F.3d 418, 422
(7th Cir. 2013); cf. Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011)
(noting that a complaint need not show whether a plaintiff will
ultimately prevail). Thus the purposes of Rule 8 (fair notice)
and section 2-622 (eliminating frivolous claims) are different
enough that the rules comfortably may coexist in diversity
cases.
With respect to Rule 11, the Supreme Court has stated that
its “central purpose … is to deter baseless filings in district
court and thus, consistent with the Rules Enabling Act’s grant
of authority, streamline the administration and procedure of
the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 393 (1990). “Rule 11 imposes a duty on attorneys to certify
that they have conducted a reasonable inquiry and have
determined that any papers filed with the court are well
grounded in fact, legally tenable, and ‘not interposed for any
improper purpose.’” Id. (quoting Fed. R. Civ. P. 11 (1989)).
Because Rule 11 is about attorney conduct—not about (or only
incidentally about) the merits of a plaintiff’s case—it has a
sufficiently separate purpose from section 2-622 that no conflict
exists between them.
Our prior cases support the conclusion that Rules 8 and 11
and section 2-622 may be enforced simultaneously in diversity
No. 13-1766 31
cases.33 In Hines v. Elkhart General Hospital, 603 F.2d 646, 647
(7th Cir. 1979), we held that an Indiana law requiring a medical
malpractice plaintiff to obtain the opinion of a medical review
panel prior to initiating a court action did not conflict with any
federal rules and should be enforced in federal courts sitting in
diversity. Indeed, we have noted that, in diversity actions,
application of state law is usually indicated where the state
rule may seem procedural but “is limited to a particular
substantive area.” S.A. Healy Co. v. Milwaukee Metro. Sewerage
Dist., 60 F.3d 305, 310 (7th Cir. 1995) (collecting cases). Such a
limitation, we have said, indicates a “state’s intention to
influence substantive outcomes.” Id. Here, Illinois has limited
section 2-622 to cases involving medical or other healing art
malpractice. We therefore may infer that Illinois’s “goals are
substantive” and would be thwarted if parties having access to
a federal court under diversity jurisdiction could thereby
exempt themselves from the compulsory requirement. See id.
Together, Hines and Healy require the result we reach today:
that section 2-622 must be applied by federal courts sitting in
diversity.
33
This conclusion also is consistent with the few of our sister circuits that
have addressed this precise issue. See, e.g., Liggon-Redding v. Estate of
Sugarman, 659 F.3d 258, 261–65 (3d Cir. 2011) (finding no conflict between
Rule 8 or Rule 11 and a Pennsylvania statute requiring a “certificate of
merit” to be filed in professional malpractice claims); Chamberlain v.
Giampapa, 210 F.3d 154, 158–61 (3d Cir. 2000) (finding no conflict between
Rule 8 or Rule 9 and a similar New Jersey law); cf. Littlepaige v. United States,
528 F. App’x 289, 292–93 (4th Cir. 2013) (holding that a North Carolina rule
requiring an expert certification in a medical malpractice case applied in a
Federal Tort Claims Act case sounding in medical malpractice brought in
federal court).
32 No. 13-1766
In sum, section 2-622 may be applied in diversity cases
without running afoul of either Rule 8 or Rule 11. Therefore,
the district court properly dismissed the plaintiffs’ wrongful
death claim against HPL because the plaintiffs had failed to
attach the required affidavit and report.
B.
Having determined that the district court properly granted
the defendants’ motion to dismiss the plaintiffs’ state law
wrongful death claim, we now examine the district court’s
decision to dismiss that claim with prejudice. In dismissing the
claim initially, the district court wrote, “Plaintiffs clearly failed
to comply with the requirements of § 2-622 and the statute of
limitations has passed. Therefore, this court concludes that
dismissal of Count VIII with prejudice is proper in this case.”34
In denying the plaintiffs’ Rule 59(e) motion, the district court
emphasized that plaintiffs’ counsel was aware from a prior
case before the same district court that the court enforced
section 2-622.35 The district court also distinguished between
cases where plaintiffs had filed defective affidavits or reports
(where dismissal without prejudice was appropriate) and cases
where they had failed to file an affidavit and report altogether
(where dismissal with prejudice was appropriate).
34
R.40 at 2 (citation omitted).
35
R.49 at 6 (citing Winfrey v. Walsh, No. 07-CV-2093, 2007 WL 4556701, at
*1 (C.D. Ill. Dec. 21, 2007)).
No. 13-1766 33
We are mindful of the discretion accorded to district courts
in deciding whether to grant a motion to dismiss with or
without prejudice. We are especially cautious about interfering
with that discretion here because the district court believed
that counsel knew that the district court required compliance
with section 2-622 and deliberately had failed to respect the
court’s prior holdings. Nevertheless, we think that several
considerations require that the district court reconsider this
issue.
First, our cases and Illinois cases suggest that when a claim
is dismissed for failure to include a section 2-622 affidavit and
report, the dismissal should be without prejudice. The Appel-
late Court of Illinois has held expressly that when a plaintiff
raises a claim that implicates section 2-622 but fails to include
an affidavit and report, the plaintiff should have the opportu-
nity to amend her complaint before it is dismissed with
prejudice:
Section 2-622 is a pleading requirement designed
to reduce frivolous lawsuits, not a substantive
defense which may be employed to bar plaintiffs
who fail to meet its terms. Accordingly, the statute
should be liberally construed and not mechanically
applied to deprive a plaintiff of her substantive
rights. The plaintiff in a medical malpractice action
should be allowed every reasonable opportunity to
establish her case.
The decision as to whether an action should be
dismissed by reason of the plaintiff’s failure to
comply with the requirements of section 2-622 is a
34 No. 13-1766
matter committed to the discretion of the trial court.
When, as in this case, a plaintiff fails to attach the
requisite affidavit and health care professional’s
report to a complaint based on medical malpractice,
a sound exercise of discretion mandates that she be at
least afforded an opportunity to amend her complaint to
comply with section 2-622 before her action is dismissed
with prejudice.
Cammon v. W. Suburban Hosp. Med. Ctr., 704 N.E.2d 731, 738–39
(Ill. App. Ct. 1998) (emphasis added) (citations omitted)
(internal quotation marks omitted). We quoted Cammon and
echoed its sentiment in Sherrod v. Lingle, 223 F.3d 605, 614 (7th
Cir. 2000), where we held that a district court’s failure to
permit a plaintiff to amend his complaint in order to comply
with section 2-622 was an abuse of discretion.36
Second, although the district court believed that plaintiffs’
counsel should have known to submit an affidavit and report
in accordance with section 2-622, it made no specific finding
that the failure to do so was in bad faith or an attempt to delay
36
The district court distinguished Sherrod v. Lingle, 223 F.3d 605 (7th Cir.
2000), from this case because, in Sherrod, the plaintiff had filed a defective
affidavit and report and, in this case, the plaintiffs had failed to file an
affidavit and report at all. We cannot accept this reading of Sherrod. We
reasoned there that, under Illinois law, if a trial court is supposed to give a
plaintiff leave to amend when she fails to file any affidavit and report, then
certainly a trial court should grant a plaintiff leave to amend when she files
a flawed affidavit and report. See id. at 614; cf. Cookson v. Price, 914 N.E.2d
229, 232 (Ill. App. Ct. 2009) (noting that there is no difference between
amending an existing report and submitting a new report in lieu of an old
one).
No. 13-1766 35
litigation. See Cookson v. Price, 914 N.E.2d 229, 232 (Ill. App. Ct.
2009) (holding that it was error for the trial court to refuse to
permit plaintiff to amend his complaint to include a new
affidavit and report complying with section 2-622 where there
was no indication that the plaintiff’s failure to file the report
earlier in the litigation was in bad faith). Further, it did not
explain whether or in what manner the defendants might be
prejudiced by permitting the plaintiffs to replead. See Christmas
v. Dr. Donald W. Hugar, Ltd., 949 N.E.2d 675, 684 (Ill. App. Ct.
2011) (listing prejudice to the other party as one of the factors
that a trial court should consider in determining whether to
grant leave to amend a complaint that did not comply with
section 2-622). On this record, we decline to affirm the district
court’s decision to dismiss the claim with prejudice. Cf. Apa,
680 N.E.2d at 805 (overturning for abuse of discretion a trial
court’s decision to dismiss a claim with prejudice for failure to
comply with section 2-622 because “the trial court failed to take
into consideration the particular facts and unique circum-
stances of this case,” where there was no indication that the
plaintiff was bringing a frivolous claim and no suggestion of
bad faith or abuse of process).
Finally, the district court’s conclusion that the plaintiffs
could not timely file an amended complaint—attaching a
proper affidavit and report—because the statute of limitations
had lapsed on their wrongful death claim fails to take into
account the possibility that the amendment would relate back
to the plaintiffs’ initial, timely complaint. Cf. Fed. R. Civ. P.
15(c) (explaining the doctrine of relation back). We take no
position on whether relation back would permit amendment
36 No. 13-1766
under the specific circumstances of this case;37 we only note
37
On remand, the district court may be guided by both federal and state
relation back rules. Federal Rule of Civil Procedure 15(c)(1) provides in
relevant part:
An amendment to a pleading relates back to the date of the
original pleading when:
(A) the law that provides the applicable
statute of limitations allows relation back;
[or]
(B) the amendment asserts a claim or
defense that arose out of the conduct,
transaction, or occurrence set out—or
attempted to be set out—in the original
pleading … .
Thus, either Illinois law (which supplies the statute of limitations for the
plaintiffs’ wrongful death claim here) or Federal Rule of Civil Procedure
15(c)(1)(B) could determine whether an amended pleading relates back to
the plaintiffs’ initial pleading. See Fed. R. Civ. P. 15 advisory committee’s
note to the 1991 amendment (“Whatever may be the controlling body of
limitations law, if that law affords a more forgiving principle of relation
back than the one provided in this rule, it should be available to save the
claim.”); Arendt v. Vetta Sports, Inc., 99 F.3d 231, 236 (7th Cir. 1996).
There is no meaningful distinction, however, between Illinois law on
relation back and Federal Rule of Civil Procedure 15(c)(1)(B). See Henderson
v. Bolanda, 253 F.3d 928, 932–33 (7th Cir. 2001) (“Illinois law on relation back
is not more forgiving [than federal law].”). Illinois permits relation back
when the same two requirements are met: “(1) the original complaint was
timely filed, and (2) the amended complaint grew out of the same transac-
tion or occurrence set forth in the original pleading.” Id.; see also Porter v.
(continued...)
No. 13-1766 37
that the district court’s failure to address the plaintiffs’ prop-
erly raised argument,38 combined with our preference for
permitting amendment in this type of case and the lack of
factual findings described above, constituted an abuse of
discretion.39
37
(...continued)
Decatur Mem’l Hosp., 882 N.E.2d 583, 591–92 (Ill. 2008) (recognizing
similarities between Illinois and federal law on relation back).
38
See R.46 at 3.
39
There are several reasons for requiring the plaintiffs to amend their
complaint, rather than allowing them simply to file the required affidavit
and report upon remand. First, the operative pleading in the district court
at the time the final judgment was entered was the Second Amended
Complaint, which did not include a wrongful death claim. If this claim is
to be reinstated, it needs to be repleaded.
Second, the Illinois courts that have been confronted with a defective
affidavit and report have required amendment, not just the filing of a new
affidavit and report once the deficiency has been uncovered. See, e.g., Apa
v. Rotman, 680 N.E.2d 801, 804 (Ill. App. Ct. 1997). The Illinois courts
liberally permit amendments in order to prevent technical filing rules from
cutting off a plaintiff’s ability to pursue a meritorious claim. See Cammon v.
W. Suburban Hosp. Med. Ctr., 704 N.E.2d 731, 738–39 (Ill. App. Ct. 1998).
That policy is furthered by requiring amendment here. The plaintiffs never
satisfied all of the requirements for bringing a wrongful death claim;
because the statute of limitations on that claim has expired, they are unable
to bring the claim unless amendment is permitted. If their claim has merit,
then not permitting amendment would cut off a claim because of a technical
filing rule.
Finally, this approach appears to be consistent with the statute, which
(continued...)
38 No. 13-1766
C.
We now turn to the district court’s summary judgment
decision. As previously discussed, the district court granted
summary judgment to the defendants on all claims that
remained after their respective motions to dismiss were
denied. The plaintiffs confine their appeal, however, to the
district court’s grant of summary judgment (1) to
Sheriff Walsh, on the plaintiffs’ § 1983 claims against him in his
official capacity; and (2) to HPL, on the plaintiffs’ § 1983 claim
against the organization.
Our standard of review is clear. We shall affirm the district
court’s grant of summary judgment if, exercising de novo
review and construing all facts and inferences in favor of the
plaintiffs, there is no genuine issue of material fact and the
defendants are entitled to judgment as a matter of law. Guzman
39
(...continued)
identifies specific situations—not including the one presented here—where
a plaintiff may file an affidavit and report late and without amending his
complaint. For example, 735 ILCS 5/2-622(a)(2) provides that where an
affidavit and report cannot be obtained in a timely fashion and the
limitations period is about to expire, the plaintiff may submit with the
complaint only an affidavit explaining the situation, and the required
affidavit and report confirming the claim’s merit may be filed within ninety
days. Subsection 5/2-622(a)(3) similarly states that if a plaintiff cannot
obtain the required affidavit and report because a party has failed to
produce necessary records as required by statute, the plaintiff may submit
with the complaint only an affidavit explaining the situation, and the
required affidavit and report confirming the claim’s merit may be filed
within ninety days. If the legislature wanted litigants in the plaintiffs’
situation to proceed without filing an amended complaint, it could have
included a specific subsection authorizing such a course of action.
No. 13-1766 39
v. Sheahan, 495 F.3d 852, 856 (7th Cir. 2007); see also Fed. R. Civ.
P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
1.
The plaintiffs submit that Sheriff Walsh was deliberately
indifferent primarily for failing to ensure that medical staff had
a “written policy or procedure for diabetic detainees whose
blood sugar was not being measured and who refused to
eat.”40 Because the plaintiffs have sued Sheriff Walsh in his
official capacity, they must show (1) that a genuine issue of
material fact exists as to whether he “maintains a policy or
custom that infringes upon the rights protected” by the
Fourteenth Amendment’s Due Process Clause; and (2) that “a
genuine issue of material fact exists as to whether [the death]
was proximately caused by either an official policy of the
municipality or from a governmental custom or usage.”
Pittman ex rel. Hamilton v. Cnty. of Madison, Illinois, 746 F.3d 766,
780 (7th Cir. 2014) (internal quotation marks omitted); see also
Estate of Novack ex rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 530
(7th Cir. 2000) (holding that the “policy or practice must be the
‘direct cause’ or ‘moving force’ behind the constitutional
violation”). A plaintiff can show that a municipality has caused
a constitutional injury either “by demonstrating that [the
municipality’s] policy itself is unconstitutional,” or “by
showing a series of bad acts and inviting the court to infer from
them that the policymaking level of government was bound to
40
Appellants’ Br. 27.
40 No. 13-1766
have noticed what was going on and by failing to do anything
must have encouraged or at least condoned … the misconduct
of subordinate officers.” Estate of Novack, 226 F.3d at 531
(internal quotation marks omitted).
If a plaintiff’s allegation is that an express municipal policy
violates the constitution when enforced, then a single incident
may be sufficient to sustain liability for the municipality under
§ 1983. See Calhoun v. Ramsey, 408 F.3d 375, 379–80 (7th Cir.
2005). However, where, as here, the plaintiffs are concerned
with a lack of policies, we look for “more evidence than a single
incident to establish liability.” Id. at 380. Without evidence that
a series of incidents brought the risk at issue to the attention of
the policymaker, we cannot infer that the lack of a policy is the
result of deliberate indifference because “[t]he absence of a
policy might … mean only that the government sees no need
to address the point at all, or that it believes that case-by-case
decisions are best, or that it wants to accumulate some experi-
ence before selecting a regular course of action.” Id.
In this case, the plaintiffs have not shown that there was a
“series of unconstitutional acts from which it may be inferred
that the [sheriff] knew [CCCC] officers were violating the
constitutional rights of [CCCC] inmates and did nothing.”
Estate of Novack, 226 F.3d at 531. Before the district court, the
plaintiffs alleged that the following put Sheriff Walsh on notice
of the unconstitutional practices in the jail:
(1) [S]even inmates previously died in the jail,
including Quentin Larry, who Plaintiffs contend
died because of deficiencies in the intake process at
the jail; (2) Swain’s email regarding the problems
No. 13-1766 41
with Janet during her May 2007 incarceration was
sent to “Corrections” so Walsh should have received
it; (3) Walsh was personally notified by letter, fax
and a telephone conversation with Plaintiffs’ counsel
in May 2006 about complaints a diabetic inmate,
Joey Morrissey, had about how treatment for his
diabetes was handled at the jail, to which Walsh
responded following an investigation … .[41]
The problem with these contentions is that none of them
support the conclusion that the sheriff was on notice that the
custom of which the plaintiffs complain on appeal—the
sheriff’s lack of policies for treating a diabetic detainee who
refuses to participate in her own care—could cause death as a
result of diabetic ketoacidosis. Although seven individuals had
died in the CCCC, none had died because of complications
from diabetes. In Pittman, 746 F.3d at 780, we held that thirty-
six failed suicide attempts and three suicides were not
enough—standing alone—to show that a sheriff’s suicide-
prevention policies were inadequate because the fact that other
inmates attempted suicide did not necessarily show a defi-
ciency in those policies. Similarly, in this case, the seven deaths
referenced by the plaintiffs—notably, deaths from different
causes than Mrs. Hahn’s—do not show that Sheriff Walsh was
“aware of any … risk posed by [his] policies or that
[Sheriff Walsh] failed to take appropriate steps to protect
[Mrs. Hahn].” Id.
41
R.165 at 39–40. The additional reasons raised to the district court by the
plaintiffs are unrelated to the specific policy they allege on appeal is
lacking.
42 No. 13-1766
Swain’s e-mail dealt with a single incident, not a “series,”
and it did not describe any adverse effects on Mrs. Hahn’s
health caused by the policies in place. At best, it showed that
one member of HPL’s nursing staff experienced a temporary
difficulty with one detainee. See Calhoun, 408 F.3d at 380
(noting that the same problem needs to have come up multiple
times to put a municipality on notice that a policy may need to
be implemented to address the situation). The complaint by
counsel on behalf of the earlier detainee, Morrissey, is similarly
flawed. It does not show that detainees suffered a serious risk
of harm, only that one detainee was dissatisfied with his
treatment. Moreover, Morrissey’s situation would not have put
Sheriff Walsh on notice that he might need a policy for han-
dling diabetic inmates who refuse to participate in their own
care, because those circumstances were not presented in
Morrissey’s situation.
We contrast this case with King v. Kramer, 680 F.3d 1013,
1021 (7th Cir. 2012), where we held that summary judgment
was inappropriate for a municipality where there was evidence
that officials were on notice that the municipality’s medical
policies were causing serious problems at the jail. There, the
plaintiff challenged the jail’s policy of taking detainees off of
their prescribed medications and transitioning them to pre-
ferred medications absent proper supervision by a physician.
Id. at 1020–21. We held that there was a triable issue of fact as
to whether the municipality was aware of the problem because
several newspaper articles had addressed it and the sheriff had
publicly acknowledged his awareness of the problem. Id. at
1021. Unlike in King, the plaintiffs here do not point to any
evidence that Sheriff Walsh knew that there was a problem
No. 13-1766 43
with diabetic detainees refusing to participate in their own care
and, as a consequence, suffering serious medical ramifications.
The record before us suggests that any deliberate indiffer-
ence that may have occurred in this case was at the hands of the
individual correctional officers or HPL employees who
interacted with Mrs. Hahn.42 Such evidence is legally insuffi-
cient to impose liability under § 1983 on the CCCC’s
policymakers. See Holmes v. Sheahan, 930 F.2d 1196, 1201–02
(7th Cir. 1991) (“[W]ithout more evidence pointing to deficien-
cies in these procedures, [the plaintiff’s] story suggests a
problem with personnel and the implementation of policy, …
but not a problem with County policy itself.”). We must
conclude that the district court properly granted summary
judgment on the official capacity claim against Sheriff Walsh.
2.
The plaintiffs next submit that the district court erred in
granting summary judgment to HPL. They first contend that,
contrary to established precedent set forth in Iskander v. Village
of Forest Park, 690 F.2d 126 (7th Cir. 1982), and subsequent
cases, HPL should be liable for the actions of its employees
under a respondeat superior theory of liability. Second, they
submit that even if HPL is not liable under a respondeat
42
Cf. Egebergh v. Nicholson, 272 F.3d 925, 927–28 (7th Cir. 2001) (holding
that there was a genuine issue for trial regarding whether individual
officers who withheld insulin from a diabetic detainee were deliberately
indifferent); Estate of Gee ex rel. Beeman v. Johnson, 365 F. App’x 679, 683–84
(7th Cir. 2010) (same).
44 No. 13-1766
superior theory of liability, the company is liable under a direct
theory of liability because its policies and procedures for
treating diabetic detainees were deliberately indifferent to the
needs of those individuals. We shall address each of these
contentions.
a.
The plaintiffs submit that they should be able to pursue a
claim under § 1983 against HPL for its employees’ misconduct.
In their view, we have erred in extending the limitation on
municipal liability established in Monell v. Department of Social
Services, 436 U.S. 658 (1978), to private actors. Monell permits
suits against municipal entities under § 1983, but only when a
governmental policy or custom caused the constitutional
deprivation; municipal entities cannot be liable for their
employees’ actions under a respondeat superior theory. Id. at
691. Our cases have extended this limitation to private entities.
See, e.g., Iskander, 690 F.2d at 128 (“Moreover, just as a munici-
pal corporation is not vicariously liable upon a theory of
respondeat superior for the constitutional torts of its employees,
a private corporation is not vicariously liable under § 1983 for
its employees’ deprivations of others’ civil rights.” (citation
omitted)); see also Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir.
2010) (noting that “a corporation that contract[s] with [a] jail to
provide medical services … is treated the same as a municipal-
ity for liability purposes under § 1983”). The plaintiffs ask us to
“revisit these holdings” because they are based on “historical
No. 13-1766 45
misreadings” and we are “free to revisit and reject [our]
extension of Monell to private corporations.”43
As a preliminary matter, the plaintiffs have waived the
issue of HPL’s respondeat superior liability because they failed
to raise it before the district court. Puffer v. Allstate Ins. Co., 675
F.3d 709, 718 (7th Cir. 2012). In their appellate brief, the
plaintiffs state, “The district court granted summary judgment
to defendant Health Professionals Ltd. (‘HPL’) by applying the
rule that respondeat superior does not apply to Section 1983
claims brought against private corporations.”44 The district
court made no mention of any such contention. Furthermore,
the plaintiffs have identified no part of the district court record
in which a respondeat superior claim was raised or otherwise
discussed.
We raised the matter of waiver at oral argument, and
plaintiffs’ counsel subsequently submitted a letter pursuant to
Federal Rule of Appellate Procedure 28(j) contending that the
respondeat superior argument was not waived because a court
of appeals may review “‘the merits of each and every theory
the district judge relied upon in deciding the case.’”45 Essen-
tially, the plaintiffs now argue that the district court impliedly
43
Appellants’ Br. 32–35 (internal quotation marks omitted).
44
Id. at 15.
45
App. R. 50 (Letter from Kenneth N. Flaxman to Gino J. Agnello, Clerk,
United States Court of Appeals for the Seventh Circuit (Apr. 15, 2014)
(quoting United States v. City of Chicago, 869 F.2d 1033, 1036 (7th Cir. 1989))
(citing Pittman v. Warden, Pontiac Corr. Ctr., 960 F.2d 688, 690–91 (7th Cir.
1992))).
46 No. 13-1766
rejected a theory of respondeat superior liability by granting
summary judgment to HPL. This assertion cannot prevail. The
plaintiffs’ complaint raised only direct claims against HPL.46 In
their opposition to HPL’s motion for summary judgment, the
plaintiffs again discussed only direct claims against HPL.47 We
simply have no basis upon which to infer that the district court
had even considered, much less had relied upon, the rule that
private corporations cannot be held liable in § 1983 actions
under a respondeat superior theory of liability.
Even if we were to reach the respondeat superior issue, we
would not take the position urged by the plaintiffs. The
plaintiffs point to no “intervening on-point Supreme Court
decision” that would permit us to overrule our prior cases.
De Leon Castellanos v. Holder, 652 F.3d 762, 765 (7th Cir. 2011).
Our considered decision in Iskander is compatible with the
holding of every circuit to have addressed the issue. See Shields
v. Illinois Dep’t of Corr., 746 F.3d 782, 790 & n.2 (7th Cir. 2014)
(collecting cases).
46
See R.42 at 8 (“[T]his defendant, acting with deliberate indifference
and/or negligence, among other things, failed to develop and implement
adequate policies and procedures with the foreseeable result that pretrial
detainees like Janet would not be identified and would not receive
appropriate treatment and monitoring.”).
47
See R.144 at 88 (discussing how a supervisory defendant may be liable
under § 1983 for failing to establish customs or policies to ensure that
unconstitutional practices do not occur or for establishing customs or
policies that lead to unconstitutional practices); id. at 89 (arguing that HPL
unlawfully took no action in response to knowledge that its policy for
treating diabetes was inadequate).
No. 13-1766 47
Because the issue was waived or, alternatively, because it
fails on the merits, we conclude that the plaintiffs’ argument
for holding HPL liable on a respondeat superior theory is
unavailing.
b.
We next assess the plaintiffs’ direct claims against HPL.
“Private corporations acting under color of state law may, like
municipalities, be held liable for injuries resulting from their
policies and practices.” Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 675 (7th Cir. 2012). As with municipal defendants
(like Sheriff Walsh, in his official capacity), the plaintiff “must
show that his injury was the result of the … corporation’s
official policy or custom.” Id. The plaintiff must identify a
policy:
An official policy or custom may be established by
means of an express policy, a widespread practice
which, although unwritten, is so entrenched and
well-known as to carry the force of policy, or
through the actions of an individual who possesses
the authority to make final policy decisions on
behalf of the municipality or corporation.
Id. The plaintiff also must establish a causal link between the
corporation’s policy (or lack of policy) and the plaintiff’s
injury. Id.
The plaintiffs here submit that three of HPL’s policies
caused constitutional violations: (1) the policy of not requiring
HPL employees to obtain detainees’ medical records; (2) the
48 No. 13-1766
policy of administering insulin according to a generic sliding
scale; and (3) the policy of ignoring erroneous readings from
the blood sugar monitoring machines.
The first two of these arguments fail because the plaintiffs
cannot demonstrate the requisite causation. The plaintiffs
present no evidence that obtaining Mrs. Hahn’s medical
records would have saved her life. HPL and CCCC personnel
already knew that Mrs. Hahn was an insulin-dependent
diabetic who was irresponsible with her medications. Indeed,
the plaintiffs do not argue that having Mrs. Hahn’s records
would have prevented her death. Nor do the plaintiffs argue
that HPL’s insulin-dosage policy caused her death. They argue
that the policy was problematic in the abstract but concede that
it did not cause Mrs. Hahn’s death here. If it had, the cause of
death would have been hypoglycemia (low blood sugar), not
diabetic ketoacidosis.48
The plaintiffs’ third contention deserves independent
examination. Unlike their other contentions, there is a link here
between the failure to provide an alternative method of
checking a detainee’s blood sugar and Mrs. Hahn’s death: On
the day before her death, she consented on one occasion to
having her blood sugar checked, only to have that option taken
48
Specifically, the plaintiffs’ expert found fault in Swain’s administration
of twenty units of insulin based on HPL’s sliding scale, which he believed
“could have killed her in a different manner—with hypoglycemia, or low
blood sugar.” Appellants’ Br. 36–37. This is because some Type-1 diabetics
are particularly sensitive to insulin; therefore, twenty units might have been
much more than needed and could have caused Mrs. Hahn’s blood sugar
to plummet. See id. at 37.
No. 13-1766 49
away from her when the machine would not work. It is
possible that if CCCC or HPL staff had been able to obtain a
reading from Mrs. Hahn at the time she consented to be
checked, that reading might have indicated that she was in
need of immediate treatment. In the plaintiffs’ view, it was
constitutionally actionable for HPL to have failed to provide a
method for monitoring the blood sugar levels of diabetic
detainees when an Accu-Chek machine fails to produce a
reading.
HPL had a policy in place for rechecking an individual’s
blood sugar when the Accu-Chek machine returned an error
message; the existence of that policy indicates that HPL was
aware that, on occasion, the Accu-Chek machine would not
render an accurate reading. The record shows, however, that
such a malfunction could have been due to a variety of causes,
such as the use of an insufficient amount of blood, improper
insertion of the stick containing blood into the Accu-Chek
machine or a broken machine. Some of these causes are due to
operator error or other circumstances not necessarily linked to
a defect in the machine itself and therefore do not result in
§ 1983 liability. Cf. Rice, 675 F.3d at 676 (noting that where
“most of the errors and omissions” cited by the plaintiffs were
about how staff handled the detainee’s medical condition,
there could be no liability for the policymaker). Absent
evidence that the machine was inoperable a significant number
of times and that its predicable failure to operate was due to a
malfunction of the machine itself, a jury could not find that the
company’s failure to maintain an alternate testing device to
check diabetics’ blood sugar levels on a regular basis was
deliberately indifferent. See Shields, 746 F.3d at 796 (observing
50 No. 13-1766
that isolated incidents do not “support an inference of a custom
or policy,” as is required to find a corporation liable for
deliberate indifference under § 1983).
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court with respect to the applicability of 735 ILCS
5/2-622 in federal district courts. We reverse the district court’s
decision to dismiss the plaintiffs’ wrongful death claim with
prejudice. We affirm the district court’s grant of summary
judgment to Sheriff Walsh and to HPL. The case is remanded
to the district court for further proceedings consistent with this
opinion. Each party will bear its own costs in this appeal.
AFFIRMED in part, REVERSED and REMANDED in part
NO COSTS IN THIS COURT