Dixon v. Cnty. of Cook

• Decision Date: 08 April 2016
• Docket Number: No. 13–3634.,13–3634.
• Citation: 819 F.3d 343
• Parties: Lula DIXON, Independent Administrator of the Estate of Kevin P. Dixon, Plaintiff–Appellant, v. COUNTY OF COOK, Katina M. Bonaparte, and Newworld Eboigbe, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

819 F.3d 343

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.

No. 13–3634.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 26, 2015.

Decided April 8, 2016.

Michael D. Robbins, Attorney, Law Offices of Michael D. Robbins & Associates, Robert J. Robertson, Attorney, Law Offices of Robert Robertson, Chicago, IL, for Plaintiff–Appellant.

Thomas Cargie, Attorney, Office of the Cook County State's Attorney, Chicago, IL, for Defendants–Appellees.

Before WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

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 revealed 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 Hospital, 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 Newworld 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 asserted claims under 42 U.S.C. § 1983

for deliberate indifference 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.

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 favorable 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) ruling, 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 response to his complaints, he was sent to the jail's Cermak Health Services facility, where he had a chest x-ray

on December 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 December 30, he was experiencing intense abdominal pain, difficulty breathing, difficulty moving his legs, and an inability to use the toilet. As he lay on the floor in partial paralysis after falling from his bunk, a corrections officer informed Nurse Eboigbe of his condition. Eboigbe took no action; instead, the guard scheduled Dixon for "sick call" three days later. Later that day, another nurse relieved Eboigbe of his shift and got Dixon admitted to the Cermak Acute Care Facility. Despite the documentation of his tumors (which because of the records problem we discuss below might have been unknown to the people staffing Acute Care), the physician'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 available 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 malingering. 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 complained 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" and stated, "[f]indings are most indicative of malignant neoplasm

." 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 emphysema 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 Motrin

, but no other pain medication.

Three days later, Dixon was brought back to Cermak with severe weakness in his legs, bladder and bowel incontinence

, and pressure sores on his right buttock. The physician who saw him on his arrival transferred him to Stroger Hospital, 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 contend 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 regular 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 pieces together, figured out what was wrong and how serious 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 informed care. She relies on Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)

, which requires a plaintiff suing a municipality or comparable entity to demonstrate 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 Canton v. Harris, 489 U.S. 378, 379, 109 S.Ct. 1197, 103 L.Ed.2d 412 (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 material 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 official 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 acquiescence on the part of policymakers was apparent and amounted to a policy decision." Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir.2006)

. This requires more than a showing 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, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).

Lula alleges that the County's records policy led inexorably to inadequate medical care for inmates. The problem was twofold: first, there were both a paper record-keeping system and...