833 F.3d 728 (7th Cir. 2016), 15-2832, Daniel v. Cook County

Docket Nº:15-2832
Citation:833 F.3d 728
Opinion Judge:Hamilton, Circuit Judge.
Party Name:Alex Daniel, Plaintiff-Appellant, v. Cook County, et al., Defendants-Appellees.
Attorney:John S. Vishneski, III, Attorney, Reed Smith LLP, Chicago, IL, for Plaintiff-Appellant. Anthony E. Zecchin, Attorney, Office of the Cook County State’s Attorney, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
Case Date:August 12, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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833 F.3d 728 (7th Cir. 2016)

Alex Daniel, Plaintiff-Appellant,


Cook County, et al., Defendants-Appellees.

No. 15-2832

United States Court of Appeals, Seventh Circuit

August 12, 2016

Argued May 26, 2016

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 2030— Jorge L. Alonso, Judge.

John S. Vishneski, III, Attorney, Reed Smith LLP, Chicago, IL, for Plaintiff-Appellant.

Anthony E. Zecchin, Attorney, Office of the Cook County State’s Attorney, Chicago, IL, for Defendants-Appellees.

Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.


Hamilton, Circuit Judge.

In this appeal we address a specific piece of evidence that has divided the judges of the Northern District of Illinois. In a number of cases, including this one, plaintiffs have asserted that medical care at the Cook County Jail falls below constitutional standards as a matter of official policy, custom, or practice. The evidence question is whether such plaintiffs may use as evidence the 2008 findings from a U.S. Department of Justice investigation of health care at the Jail. The investigation found systemic flaws in the Jail’s scheduling, record-keeping, and grievance procedures that produced health care below the

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minimal requirements of the United States Constitution.

If those findings are admissible for the truth of the matters asserted, they go a long way toward meeting a plaintiff’s burden of proving an unconstitutional custom, policy, or practice under Monell v. Department of Social Services, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Department of Justice Report is hearsay if used to assert the truth of its contents, and the district court held that the Report was not admissible to prove the truth of its findings. But we conclude it should be admitted under the hearsay exception for civil cases in Federal Rule of Evidence 803(8)(A)(iii) for factual findings from legally authorized investigations.

The district court granted summary judgment for defendants because the plaintiff had not offered evidence of an unconstitutional official custom, policy, or practice. We determine that he has offered sufficient evidence on summary judgment, and we therefore reverse and remand.

I. Factual and Procedural Background

Because we are reviewing a grant of summary judgment for defendants, we present the evidence in the record in the light reasonably most favorable to the non-moving party, plaintiff Alex Daniel, who in 2010 was a pretrial detainee at the Cook County Jail. Rahn v. Board of Trustees of Northern Illinois Univ., 803 F.3d 285, 287 (7th Cir. 2015). On April 24, 2010, Daniel fell and injured his wrist while playing basketball. The bone in his wrist suffered multiple fractures.

Daniel asserts, and an orthopedic specialist agrees with him, that the treatment of his wrist was disrupted by avoidable delays that caused permanent damage to Daniel’s hand and wrist. There were delays at first, but the principal concern is that the Jail and its health care staff failed to ensure that Daniel’s second cast was removed on time. Leaving the second cast on too long caused permanent damage to his hand and wrist that was aggravated by a further failure to provide physical therapy.

On April 24, the day Daniel was injured, on-duty general practitioner Dr. Gawo used an elastic bandage and a sling to stabilize his wrist. This was a temporary solution, of course, and Dr. Gawo asked for Daniel to see an orthopedic specialist as soon as possible. On April 30, Daniel had yet to see an orthopedist. Accordingly, he filed a grievance with the Jail.

While Daniel waited for a response, he finally saw an orthopedist on May 10, sixteen days after his injury. The specialist, Dr. Mejia, put Daniel in a long arm cast extending from his wrist to just above his elbow. The cast was the standard treatment for Daniel’s fracture, and Dr. Mejia did not think that the delay in putting on the cast was improper. Dr. Mejia wanted Daniel to return in two to three weeks for transition to a short arm cast. On June 1— the three week mark— Daniel was placed in the short arm cast. He was instructed to return in another three weeks. That did not happen; Daniel did not see an orthopedist for removal of that cast until ten weeks later, on August 12. That delay is the principal focus of this lawsuit.

In the meantime, on June 11, Daniel received the Jail’s reply to his grievance. The reply said that he had been cared for properly, and Daniel appealed. “ I have swelling in my fingers and I can barely move them,” he wrote. The Jail referred the matter to health administrators.

On June 22, three weeks after the short arm cast was put on, Daniel saw an unidentified practitioner. That doctor simply noted that Daniel was awaiting treatment from an orthopedist. Daniel did not see another doctor until August 3, nine weeks after his last appointment with an orthopedist.

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He saw Dr. Baker, a family practitioner, who wrote that Daniel was still in the cast and still needed to see an orthopedist. On August 10, Daniel again saw Dr. Baker. Daniel was “ scheduled for ortho last night,” Baker wrote, “ but apparently not taken by security.” The doctor expressed alarm that the cast had not come off yet.

In the meantime, Daniel had raised his own concerns about the delay. On July 26, he filed a second grievance: “ It’s been 3 months [since I broke my wrist] and I have very limited movement in fingers.... I am not receiving proper medical care or treatment....” And on August 10, after a perfunctory reply by the Jail, Daniel appealed again. “ They still haven’t removed my cast,” he wrote, “ and I still can’t move [my] fingers properly.”

Finally, on August 12, nearly ten weeks after receiving his short arm cast, Daniel’s cast was finally removed by orthopedist Dr. Kapotas. In Dr. Kapotas’s view, the immobilization had gone beyond the proper six to eight week window for a short arm cast. He recommended that Daniel see an occupational therapist to recuperate and return in a month for a check-up. That did not happen either. Daniel was scheduled for a therapy appointment on August 27 but was not seen by a therapist. He filed a third grievance that day, saying he could barely move his fingers, could not make a fist or turn his palm upright, and was experiencing continued wrist pain. His therapy appointment was rescheduled for August 30, but that day came and went without Daniel able to visit the therapist. He was rescheduled for September 6, and again officials did not take Daniel to therapy.

Starting in late September, the Jail responded to several of Daniel’s grievances. On September 30, in accepting Daniel’s second grievance, the Jail asked its health administrators to address his issues. On October 4, the Jail responded to Daniel’s third grievance: “ patient will be rescheduled for therapy.” He was not, and Daniel appealed the response to his August 27 grievance to alert the Jail. On November 9, the Jail denied the appeal, responding incorrectly: “ Per CHS Admin seen/therapy 9/13— 10/25— 10/27.”

A few days before that response, on November 3, Daniel saw Dr. Kapotas again. At their last appointment on August 12, Dr. Kapotas had recommended occupational therapy and a check-up in a month. No therapy had occurred, and the follow-up was nearly three months after their first meeting. A November 3 x-ray showed that Daniel’s wrist had suffered a loss in density, the onset of arthritis, and abnormal joint spacing. Daniel would later enlist an orthopedic expert, Dr. Fetter, to examine his injury in 2013. Dr. Fetter concluded that Daniel had suffered “ residual and permanent stiffness of his left hand and wrist,” more likely than not caused by the unduly long cast immobilization.

On March 24, 2011, Daniel filed a pro se complaint, though the district court later recruited counsel for him. In the operative version of the complaint, Daniel has sued the Cook County Sheriff’s Office, Cook County Sheriff Dart in his individual capacity, and Cook County under 42 U.S.C. § 1983 alleging violations of his Fourteenth Amendment due process rights that parallel, for pretrial detainees, the Eighth Amendment rights of prisoners to adequate health care. In support of his claim, he offered evidence from his own experience, as recounted above. He also presented extensive testimony from Jail medical staff. And finally, he offered three additional documents: the 2008 Department of Justice Report detailing systemic health care problems at the Jail, a subsequent Agreed Order that incorporated the Report’s findings, and a 2010 Monitor Report

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that provided a detailed account of the Jail’s progress in remedying the problems.

The district court granted summary judgment for the defendants. This appeal followed. We begin with the merits of Daniel’s Monell claims under § 1983 on our review of summary judgment, without relying on the three additional documents arising from the Department of Justice investigation to prove the truth of their contents. We then address these additional documents in more detail to determine if they were incorrectly excluded as hearsay.

II. Daniel’s Monell Claims

A. The Monell Claim for Inadequate Health Care

The individual rights in our Bill of Rights have long been understood as negative rights, meaning that the Constitution protects individuals from some forms of government intrusions upon their liberty, without imposing affirmative duties on governments to care for their citizens. See DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). One broad...

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