Birdo v. Gomez
| Decision Date | 27 July 2016 |
| Docket Number | Case No. 13-CV-6864 |
| Parties | Kevin Birdo, Plaintiff, v. Deputy Director Dave Gomez et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
This case involves claims by Plaintiff Kevin Birdo ("Plaintiff" or "Birdo"), a former inmate at Stateville Correctional Center ("Stateville"), against 11 separate prison personnel for incidents that occurred over the course of Plaintiff's incarceration. Plaintiff's First Amended Complaint [61] alleges nine causes of action that include state law torts of intentional infliction of emotional distress and negligent supervision, as well as 42 U.S.C. § 1983 violations for excessive force, failure to protect, and retaliation. On March 25, 2016, Defendants John Combs ("Combs"), Anthony Egan ("Egan"), David Gomez ("Gomez"), Michael Lemke ("Lemke"), Jenny McGarvey ("McGarvey"), Kenneth Nushardt ("Nushardt"), Nancy Pounovich ("Pounovich"), and Elizabeth Rivera ("Rivera") (collectively, the ) filed a motion for summary judgment as to all counts. State Defs.' Mot. Summ. J. [139]. On March 29, 2016, Defendants Dr. Usha Kartan ("Kartan"), Dr. Catherine Larry ("Larry"), and Susan Wilson ("Wilson") (collectively, the "Mental Health Defendants") filed a separate motion for summary judgment. Mental Health Defs.' Mot. Summ. J. [145]. This Memorandum Opinion and Order addresses both motions, which, for the reasons discussed below, are granted in part and denied in part.
Plaintiff was an inmate incarcerated at Stateville between spring 2011 and March 11, 2013. State Defs.' Rule 56.1 Statement of Facts [141] Attach. 1 at 16:18-17:5. During the timeframe of Plaintiff's First Amended Complaint, Defendant Gomez was employed as Deputy Director of the Northern Division of the Illinois Department of Corrections ("IDOC"). State Defs.' Rule 56.1 Statement of Facts [141] ¶ 2. Defendant Lemke was employed as Warden of Stateville. Id. ¶ 4. Defendant Pounovich was employed as Stateville's Assistant Warden of Programs. Id. ¶ 3.
Defendants Combs, Egan, McGarvey, Nushardt, and Rivera were employed as Correctional Officers at Stateville during various times of Plaintiff's confinement. Id. ¶¶ 5-9. Defendants Kartan, Larry, and Wilson were employed as mental health professionals at Stateville. Mental Health Defs.' Rule 56.1 Statement of Facts [146] ¶¶ 12-14.
Plaintiff claims that in August 2012, Stateville employees placed another inmate who Plaintiff believed to be mentally unstable in the same cell as Plaintiff. Pl.'s Rule 56.1 Statement of Additional Facts [159] ¶ 1. Plaintiff alleges that hisrequests to be removed from his cell were ignored and Plaintiff was ultimately assaulted, resulting in a broken right pinkie finger. Id. ¶ 2. Plaintiff further claims that, due to the altercation and Plaintiff's protests, he was unfairly issued three disciplinary tickets. Id. ¶ 3. Plaintiff asserts that on October 17, 2012, he initiated a hunger strike as a result of the lack of medical attention for his broken finger and his receipt of the three disciplinary tickets.1 Id. ¶ 7; First Am. Compl. [61] ¶ 18.
Inmates on a hunger strike are generally transferred to the infirmary for health reasons. State Defs.' Rule 56.1 Statement of Facts [141] ¶ 16. Therefore, starting on approximately November 14, 2012, Plaintiff was housed in the Stateville infirmary. Id. ¶ 15.
While prisoner hunger strikes are generally short in duration, Plaintiff's hunger strike continued for a significant period of time. Pl.'s Rule 56.1 Statement of Additional Facts [159] ¶ 8. When this occurs, Stateville medical staff force feeds inmates. State Defs.' Rule 56.1 Statement of Facts [141] Attach. 1 105:11-107:4. Plaintiff estimates that, during the duration of his hunger strike, Stateville employees attempted to force feed him approximately 70 times. Id. at 81:10-82:6.
If a prisoner refuses to comply with a force feed, the Stateville tactical team is deployed to assist Stateville medical staff. State Defs.' Rule 56.1 Statement of Facts [141] ¶ 28. Under Stateville's standard operating procedure, the tactical team first orders the inmate to move to his cell door and applies handcuffs. Id. ¶ 27. Tactical team members then place their arms on the inmate's shoulders, place himin a restraint chair, and stand on either side of him. Id. If an inmate refuses the tactical team's orders to "cuff up" at the cell door, the tactical team enters the cell and places restraints on the inmate. Id. ¶ 30. Plaintiff alleges that, during the duration of his hunger strike, the tactical team was called to force feed Plaintiff more than 50 times. Pl.'s Rule 56.1 Statement of Additional Facts [159] Attach. 1 at 89:1-7.
Once the inmate is secure, medical staff enters the cell and performs the force feed. State Defs.' Rule 56.1 Statement of Facts [141] ¶ 27. Stateville medical staff inserts a nasogastric tube into the inmate's nose and feeds the prisoner "Ensure" or "Boost" dietary drink. Id. Following completion of the force feed, prison personnel leave the inmate's cell. Id.
Plaintiff claims that, on February 3, 2012, the tactical team was called to force feed Plaintiff. Pl.'s Rule 56.1 Statement of Additional Facts [159] ¶ 12. Plaintiff further alleges that, during this force feed, the tactical team slammed Plaintiff's head into the wall. Id. Plaintiff claims that he complained of the incident to Internal Affairs, who referred the matter to Defendants Gomez and Lemke. Id. ¶ 13.
Plaintiff alleges that, on February 4, 2012, Defendants Gomez and Lemke spoke to Plaintiff at the infirmary. Id. ¶ 14. Plaintiff claims that he told Defendants Gomez and Lemke that the tactical team had been physically andemotionally abusing him throughout the duration of his hunger strike and that he feared for his safety. Id. Plaintiff alleges that Defendants Gomez and Lemke stated that they would look into the issue. Id.
According to Plaintiff, on February 4, 2012, shortly after his complaint to Defendants Gomez and Lemke, the tactical team returned to Plaintiff's cell. Pl.'s Rule 56.1 Statement of Additional Facts [159] ¶ 15. Members of the tactical team included Defendants Combs and Egan. Id. Plaintiff alleges that the tactical team forced Plaintiff to stand in the corner of his cell while Defendants Combs and Egan "looked at obituaries and pictures of his family, taunted Plaintiff," and impermissibly "threw his personal items in the trash." Id. Plaintiff further alleges that the actions of Defendants Combs and Egan were ordered by Defendants Gomez and Lemke as retaliation against Plaintiff's grievances and ongoing hunger strike. First Am. Compl. [61] ¶¶ 33, 89.
State Defendants present an alternate version of events. State Defendants assert that Stateville inmates on segregation status are allowed limited personal property. State Defs.' Rule 56.1 Statement of Facts [141] ¶ 25. State Defendants claim that, pursuant to this policy, on February 4, 2012, excess property was removed from Plaintiff's cell. Id. According to State Defendants, excess property is sent to the property room, not the trash, where an inmate may retrieve it so long as he remains in cell compliance. Id.
At 10:30 a.m. on March 7, 2013, Defendant McGarvey activated the tactical team to assist medical staff with a force feed of Plaintiff. State Defs.' Rule 56.1 Statement of Facts [141] ¶ 31. Members of the tactical team included Defendants Nushardt and Rivera. Id.
The parties contest the remaining events surrounding Plaintiff's attempted force feed. Plaintiff claims that, upon arrival, rather than ordering Plaintiff to "cuff up" near the cell door, Defendant Nushardt ordered Plaintiff to lie on the bed and put his hands behind his back. Pl.'s Rule 56.1 Statement of Additional Facts [159] ¶¶ 22-23. Plaintiff claims that even though he immediately complied with this order, Defendant Nushardt entered his cell and purposely slammed his shield on Plaintiff's hand and back, intending to harm Plaintiff. Id. ¶ 25. Plaintiff claims that he "screamed out in pain," but that Defendant Nushardt continued pressuring his shield on Plaintiff's hand and back. Id. ¶ 26. Meanwhile, the remaining members of the tactical team taunted, cursed at, and threatened Plaintiff. Id. Plaintiff claims that Defendant Nushardt's action re-broke Plaintiff's right pinkie finger. Id.
According to State Defendants, the tactical team did order Plaintiff to "cuff up" at his cell door. State Defs.' Rule 56.1 Statement of Facts [141] ¶ 33. Defendants claim that when Plaintiff failed to comply, the tactical team ordered Plaintiff to lie on the bed and place his hands behind his back. Id. ¶ 32. Due toPlaintiff's noncompliance with the tactical team's original order to "cuff up" at Plaintiff's cell door, Defendant Nushardt placed his shield on Plaintiff's back until restraints were placed on Plaintiff. Id. ¶¶ 33-34. Defendants maintain that Defendant Nushardt's use of his shield was due to concerns about the "safety of staff and himself and not borne of animus against Plaintiff. Id. ¶ 34.
Mental health professionals at Stateville evaluate inmates on hunger strikes for their mental and emotional wellbeing. Mental Health Defs.' Rule 56.1 Statement of Facts [146] ¶ 16. Plaintiff was a patient on Defendant Wilson's case load, and Defendant Wilson would evaluate Plaintiff every few days. Id. ¶ 17. After the attempted force feed on March 7, 2013, Defendant Wilson interviewed Plaintiff. Id. ¶ 20.
Mental Health Defendants allege that, upon arrival, Defendant Wilson found Plaintiff "punching and kicking the door in his cell and threatening staff." Mental Health Defs.' Rule 56.1 Statement of...
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