Saiger v. Dart

JOHN SAIGER, Plaintiff, v. THOMAS DART, Sheriff of Cook County,and COOK COUNTY, ILLINOIS, Defendants.

No. 13 C 5495

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 10, 2017

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER

Plaintiff, John Saiger, sues Cook County and Thomas Dart, the Sheriff of Cook County, under 42 U.S.C. § 1983 for deliberate indifference to his medical needs in violation of the Fourteenth Amendment. Before the Court are defendants' motions for summary judgment. For the reasons explained below, the County's motion is denied and Dart's motion is granted.

FACTS

At all times relevant to this suit, the Sheriff has operated the Cook County Jail (the "Jail"), and the Cook County Health and Hospitals System ("CCHHS"), which operates Cermak Health Services ("Cermak") at the Jail, has provided healthcare services to Jail inmates. In January 2011, the Sheriff and CCHHS entered into an Inter-Agency Agreement (the "Agreement") in which they acknowledged their "mutual responsibility and interdependence in meeting the health care needs of detainees consistent with the safety and security of detainees and staff." (ECF No. 89, Pl.'s L.R. 56.1(b)(3)(C) Stmt., Ex. 1, Inter-Agency Agreement at 1.) The Agreement requires the Sheriff to participate with Cermak in a coordinated approach to deliver healthcare to detainees; make readily available to detainees forms provided by Cermak for use in making healthcare service requests ("HSR forms"); and accommodate secure locked boxes in each detainee living unit for depositing HSR forms.

It is Cermak's written policy that 1) for non-emergency healthcare requests and services, detainees are to fill out a written HSR form and place it in the HSR deposit box in their living unit; 2) Cermak health staff are to retrieve the HSR forms from the deposit boxes each day and "promptly" deliver them to the divisional dispensary; and 3) a Cermak nurse or other qualified healthcare professional will review each HSR form within twenty-four hours of its arrival at the dispensary and triage HSRs that contain requests for clinical services. For healthcare requests that warrant urgent or same-day evaluation, the healthcare professional is to make the corresponding arrangements, and for other healthcare requests involving medical or dental symptoms, schedule a face-to-face evaluation by a nurse or other qualified healthcare professional, in a clinical setting, within one business day. (ECF No. 82-4.)

Saiger entered the Jail as a pretrial detainee on March 13, 2013 and remained there until he was transferred elsewhere in June or July 2014.¹ Plaintiff says that on March 23, 2013, while he was a detainee in Division II of the Jail, one of his teeth "broke,"² resulting in severe pain. According to plaintiff, he told a security officer what had happened and said he was in pain, and the officer told him there was nobody in the dispensary and that plaintiff needed to fill out an HSR form. Plaintiff says that then he completed an HSR form requesting dental care and put it in the HSR drop box the next morning. He also says that because the medical staff did notrespond to that form, about two weeks later he submitted a second HSR form requesting dental care. According to defendants, there are no such HSR forms regarding dental care in plaintiff's Cermak medical chart.³

Plaintiff was moved to the Jail's Division III Annex on May 31, 2013. Because he did not receive a response to his two HSR forms, he says, on June 5, 2013, he submitted a grievance in in which he requested "immediate dental treatment" and further stated:

On Saturday March 23rd 2013 I was eating my dinner meal when a piece of my lower right wisdom tooth broke off. I have been experiencing severe dental pain since that time. I have submitted multiple medical request slips and have informed the medical staff at the dispensary as to the nature of my problem. I have received no relief yet and I am still experiencing severe pain. It has been over 70 days and I have received no treatment.

(ECF No. 82-6, 6/5/13 Inmate Grievance Form.)⁴ The grievance was picked up by the Sheriff's staff on June 6, 2013, and referred to Cermak on June 7. On June 11, 2013, plaintiff was given a response to this grievance indicating that a dental appointment was scheduled for June 25, 2013. Plaintiff appealed the grievance on June 19, 2013, stating that the appointment was "not soon enough" because he was "in severe pain and need[ed] immediate treatment." (Id., Inmate Grievance Response/Appeal Form.) Cermak staff received that appeal on June 21, 2013. (Id., Grievance Appeal Notation.)

On June 22, 2013, plaintiff was moved to Division VIII of the Jail. He was not taken to his June 25 appointment. Through a response to his appeal of the grievance, he was informed that he had a dental appointment on July 5, 2013. (The corresponding notation also says "Moved divisions.") But plaintiff was not taken to that appointment either. According to plaintiff, his dental injury caused him "serious pain" and occasional swelling. (Saiger Dep. 118.)

On September 13, 2013, Dr. Thomas Prozorovsky, a dentist, saw plaintiff. Dr. Prozorovsky examined plaintiff and took an x-ray, and he diagnosed plaintiff with "irreversible caries" (extensive decay, also known as a cavity) in tooth number 32—a wisdom tooth—with an abscess. Dr. Prozorovsky concluded that the tooth should be surgically extracted in two weeks, and he prescribed plaintiff Motrin for pain and amoxicillin for the abscess. He alsorecommended "gross debridement."⁵ Dr. Prozorovsky's order included a follow-up date of September 27, 2013, and indicated that a follow-up appointment was a "priority."⁶ (ECF No. 82-8 at 31.) It is not the dentists' responsibility to schedule patients for appointments; rather, the Cermak Patient Scheduling department is responsible for making and confirming appointments. That department was staffed by four clerks who had little formal training.

It is unclear from the record whether a September follow-up appointment was scheduled, but plaintiff was not taken to the dentist again that month, nor in October or November.⁷ On December 1, 2013, plaintiff filed a grievance requesting "immediate dental care," in which he complained that he had been seen by the dentist on September 13; the dentist had confirmed that plaintiff's right rear wisdom tooth needed to be extracted; plaintiff was prescribed a week's worth of pain medication and antibiotics and told he would be scheduled to return on September 20 for the extraction and soon thereafter for a cleaning; he was never "called for either;" he had been in pain for nine months; and he believed that in the meantime, he had developed a "brand new serious and painful cavity on a different tooth." (ECF No. 82-7, 12/1/13 Inmate Grievance Form.) The grievance was received by the Sheriff's staff on December 5, 2013, and referred to Cermak on December 9. Cermak responded that plaintiff had a dental appointment scheduled for December 20, 2013.

On December 20, plaintiff saw a second dentist, Dr. Randy Rabin. Dr. Rabin examined plaintiff, took an x-ray, and concluded that plaintiff had caries in teeth 32 and 29. He recommended that both teeth be extracted, and he prescribed plaintiff Motrin and amoxicillin. Dr. Rabin planned to remove tooth 29 in two weeks. As for tooth 32, he referred plaintiff to an oral surgeon for an extraction.⁸ He also referred plaintiff to a hygienist for gross debridement.

On December 29, 2013, plaintiff appealed the response to the grievance he had filed on December 1 and stated: "As of 12-29-13 my two broken and infected teeth have not been removed and I am still in severe pain and suffering on a daily basis." (Id., 12/1/13 Inmate Grievance Response/Appeal Form.) Cermak responded on January 10, 2014 that plaintiff had an appointment for oral surgery scheduled for "early Feb 2014." (Id., Grievance Appeal Notation.)

On January 14, 2014, plaintiff saw Dr. Liu. Instead of extracting teeth 32 and 29, Dr. Liu filled them. Dr. Liu explained at his deposition that he chose to fill the teeth so that plaintiff would have some pain relief. (Liu Dep. 95, 99-100.) In Dr. Liu's opinion, the treatment he provided was a temporary solution that would yield only partial relief, because two dentists had already decided that the teeth required extraction and had prescribed antibiotics. (Id. at 100.) As of the date plaintiff was deposed in July 2015, he still had both teeth.

With respect to unrelated healthcare matters (prescription refill requests and requests to see an eye doctor), plaintiff submitted HSR forms on May 31, 2013; June 30, 2013; July 18, 2013; September 25, 2013; and November 25, 2013, in which he did not include any complaints about dental problems. Plaintiff saw Cermak medical staff for unrelated healthcare matters onApril 22, 2013; June 21, 2013; and December 12, 2013, and the corresponding records do not indicate that plaintiff complained about dental problems during these visits. The physician assistants ("PAs") who saw plaintiff on those dates state in affidavits that it is their practice to record any complaints about pain, including dental pain, in a patient's chart, and the fact that they included no notes regarding dental pain "indicates that" plaintiff did not complain to them about dental pain. (ECF Nos. 82-12, 82-13 & 82-14, Affs. of Claudette Cohen, Salvador Martinez, & Kevin Sims ¶¶ 4-5.) On the other hand, plaintiff testified that he is certain he mentioned his dental pain to the respective physician assistant at each visit and that he mentioned the pain to every medical professional he could speak to. (Saiger Dep. 51-53, 63-64, 78-79.) According to plaintiff, he got "the same answer from every PA, and that is, we don't care about dental. Fill out a form." (Id. at 64.)

DISCUSSION

A. Legal Standards

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as...