Davis, Deidre v. Cook County ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1695
DEIDRE DAVIS,
Plaintiff-Appellant,
v.
YOLANDA CARTER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-C-5309—Amy J. St. Eve, Judge.
____________
ARGUED NOVEMBER 29, 2005—DECIDED JUNE 28, 2006
____________
Before MANION, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Plaintiff Deidre Davis, on
behalf of her deceased husband James Davis’s estate, sued
defendant Cook County and various individuals employed
by Cook County, alleging that they failed to provide ade-
quate medical assistance to James Davis during his six-day
incarceration at the Cook County Jail. Specifically, the
plaintiff claimed that despite numerous indications that her
husband was in excruciating pain due to sudden withdrawal
from methadone medication, no one provided him metha-
done during his incarceration. The district court granted
summary judgment in favor of the defendants, holding that
plaintiff had waived any Monell claims against Cook
County and that the undisputed facts demonstrated none of
2 No. 05-1695
the individual defendants were deliberately indifferent to
James Davis’s medical needs as a matter of law. We
reverse, holding that plaintiff has not waived any claims
against Cook County, and has presented enough evidence
from which a reasonable jury could conclude that Cook
County1 had a widespread custom or practice of failing to
provide timely methadone treatment and that individual
defendants Officer Collier, social worker Bowers, and
Sergeant Martin were deliberately indifferent to James
Davis’s medical needs. We affirm summary judgment with
regard to the other individual defendants.
I. BACKGROUND
The facts in this case are complicated because of the
numerous parties involved. Consistent with summary
judgment standards, we will present all facts in the light
most favorable to the plaintiff, the non-movant, although,
as shown below, many of the facts that the plaintiff relies
upon are undisputed.
On Friday, September 27, 2002, James Davis reported to
Cook County Jail (“Cook County”) to serve a ten-day
1
Defendant Cook County is a unit of local government that
finances the Cook County Jail. Cermak Health Services is
subcontracted to provide medical care to detainees. The Office of
the Sheriff of Cook County employed defendants Officer Gregory
Collier, Officer Yolanda Carter, Lieutenant Anita Mackey, and
Sergeant Grant Martin as correctional officers at the Cook County
Jail, as well as defendant Regina Bowers as a correctional
rehabilitation worker. Cermak Health Services employed defen-
dants Peggy Westbrook, Richard Patton, Dalfanita Moore and
Alfonso Hill as paramedics. For purposes of clarity, we shall refer
solely to Cook County, whose policies and procedures the plaintiff
challenges, throughout this opinion.
No. 05-1695 3
sentence for a traffic violation. Davis2 had a history of drug
and alcohol addiction and was on a methadone maintenance
program at the time he was incarcerated.3 Davis had
received his last dose of methadone on September 27 before
reporting to jail. Despite his repeated requests for metha-
done during his incarceration from September 27, 2002,
through October 2, 2002, Davis never received any metha-
done. On October 2, 2002, Davis suffered a cerebral aneu-
rysm and died the next day.4
A. Cook County’s General Operating Procedures
In the normal course, a correctional medical technician
(“CMT”) conducts a medical examination of an inmate upon
intake. If an inmate informs the CMT that he or she is
taking methadone, the CMT will, among other things, fill
out a methadone referral card and customarily will refer
the inmate to a physician’s assistant (PA) or to a physician.
(Brittman Dep. at 12.) The PA will then complete a clinical
assessment of the inmate. (Brittman Dep. at 17.) At the end
of the shift, a CMT typically brings completed methadone
referral cards to the pharmacy in the emergency room so
that the pharmacist can verify the inmate’s participation in
a community-based methadone program prior to dispensing
2
For purposes of clarity, all references to “Davis” shall refer to
decedent James Davis.
3
Methadone is a synthetic narcotic that is used to treat narcotic
withdrawal and dependence. It is typically taken orally once
per day and suppresses narcotic withdrawal symptoms between
24 and 36 hours.
4
Plaintiff does not contend that Davis’s aneurysm was related to
the failure to administer methadone and therefore her Sec-
tion 1983 claim is limited to the alleged suffering that Davis
experienced during the five days he was incarcerated without
methadone treatment.
4 No. 05-1695
methadone medication to the inmate in the jail. (Brittman
Dep. at 27; 29.) When the referral cards are brought to the
pharmacy, they are date- and time-stamped. (Singh Dep. at
11.) Cook County, however, has no set standard for who is
responsible for bringing the completed referral cards to the
pharmacy: correctional officers, nurses, or paramedics may
bring them, but no one has an assigned responsibility for
transporting the referral cards. (Singh Dep. at 10.)
Once the pharmacy department receives an inmate’s
methadone referral card, the practice is for a pharmacist to
call the inmate’s outpatient methadone clinic to verify
participation in a methadone program. After confirming
an inmate’s participation in a methadone program, the
pharmacy department must then call the security desk at
the jail so that a security officer can bring the inmate to the
pharmacy for dispensation of medication. (Singh Dep. at 37,
40.) Cook County’s pharmacy has no written procedures
that provide time limits within which pharmacists must
make calls to an outpatient clinic and/or a security officer,
nor does it have an established system of recording or
follow-up monitoring regarding whether such calls were in
fact made. (Singh Dep. at 22, 37-38.) The pharmacy does
not maintain records to ensure that an inmate is brought to
the pharmacy department by the security office, nor is there
any practice of reporting security officers who fail to bring
inmates for methadone. (Singh Dep. at 39.)
During the weekdays, there are two shifts in the phar-
macy, staffed with two pharmacists per shift. (Singh Dep.
at 25.) On Saturdays and Sundays, the pharmacy is staffed
with one pharmacist, who works a 7:00 a.m. to 3:00 p.m.
shift. The pharmacy dispenses fewer prescriptions during
the weekend, in part because there are fewer doctors
writing prescriptions during the weekend and in part
because there are fewer pharmacists on staff to dispense
them. (Singh Dep. at 24-25, 33.)
No. 05-1695 5
B. Davis’s Incarceration at Cook County
When he arrived at the jail on Friday, September 27,
2002, Davis received the customary intake medical screen-
ing. During this screening, Davis reported to the CMT that
he was receiving methadone treatment. After Davis com-
pleted his medical intake, his methadone referral card was
transferred to the pharmacy and date- and time-stamped on
Friday, September 27, 2002 at 8:25 p.m. (Singh Dep. at 15.)
The CMT did not refer Davis to a PA and no clinical
assessment was conducted. (Brittman Dep. at 26.)
On Friday night, Saturday, September 28 and Sunday,
September 29, 2002, no one from the pharmacy department
called Davis’s methadone clinic to verify his prescription.
(Singh Dep. 35.) On Monday, September 30, 2002, three
days after Davis was admitted to the jail, pharmacist
Satnam Singh verified Davis’s participation in a methadone
program. (Singh Dep. at 15-17.) That same day, Singh
contacted a security officer in the division of the jail where
Davis was being held, but did not record the name of the
officer with whom he spoke. Davis was not brought to the
pharmacy to receive methadone medication on September
30, 2002. (Singh Dep. at 46.)
Davis did not receive methadone medication the next day,
Tuesday, October 1, 2002. That morning, inmate workers
approached Officer Gregory Collier and reported to him that
James Davis was “dope sick” and in need of medical
attention. (Collier Dep. at 12-14.) Collier visited Davis and
heard him complaining to another inmate that his “stomach
felt like somebody was ripping his insides out.” (Collier Dep.
at 15.) Officer Collier brought Davis to social/rehabilitation
worker Regina Bowers and explained to her that Davis
needed medical attention. (Collier Dep. at 23.) Officer
Collier observed Davis explain to Bowers that he was “dope
sick” and that he was not feeling well. (Collier Dep. at 23.)
Bowers testified that it was clear that Davis needed medical
6 No. 05-1695
attention, and that he looked “terrible,” “real bad,” and “ill”
when she first saw him. (Bowers Dep. at 37-39.) According
to Bowers, she called the paramedics’ station to get help for
Davis, but the unidentified person who answered the phone
told her that it “takes three days for the Methadone to clear
[i.e., obtain verification of an outpatient program] for
[Davis] or for anyone in general.” (Bowers Dep. at 48-49.)
Bowers stated that in her experience as a social worker for
the jail, it takes three days to verify that a person was on
methadone. (Bowers Dep. at 51.) Following her alleged
telephone conversation with an unidentified person in the
paramedics’ station (Mrs. Davis contests whether this
conversation occurred), Bowers wrote in her log entry, “Ofc.
Collier and I tried to get medical attention but no para-
medic had been in building at this time” and “it takes
according to paramedics 3 days to verify methadone for
him.” (Bowers Dep. at Ex. 1.) Bowers recommended that
Davis not be sent to his jail work assignment that day;
Davis did not work that day. There is nothing in the record
indicating that Bowers called the 24-hour emergency room
available for emergency treatment of jail inmates.
Officer Collier saw Bowers make a telephone call and
assumed that she spoke to the paramedics, although he
could not be sure she actually did. (Collier Dep. at 32, 34.)
He then heard Bowers explain to Davis that it would take
three days to get confirmation that he was on a methadone
program. (Collier Dep. at 24.) Officer Collier called his
supervisor, Sergeant Grant Martin, to advise him that
Davis needed medical attention (either the correctional
officer or an on-duty sergeant has the direct responsibility
to contact the paramedics if an inmate was in need of
medical attention). (Collier Dep. at 36-37.) Officer Collier
did not call the paramedics himself, and did not verify
whether Martin ever obtained medical attention for Davis.
(Collier Dep. at 37.) Also, Officer Collier failed to call the
24-hour emergency room.
No. 05-1695 7
Sergeant Martin testified that if an inmate is seriously ill,
an individual officer has a duty to report that to a para-
medic or medical personnel directly and also carries a duty
to report that to the sergeant on duty. (Martin Dep. at 21-
22.) Sergeant Martin explained that if a social worker
informed him that an inmate was too ill to work, his policy
was to talk personally with that inmate. (Martin Dep. at
39.) He also testified that his practice was to write up an
Unusual Incident Report for an inmate who was unable to
work. (Martin Dep. at 39-40.) Martin did not recall ever
speaking with Davis, and there is no indication that he
wrote an Unusual Incident Report. (Martin Dep. at 39.)
There is also no indication that Martin called the paramed-
ics, any emergency personnel or the 24-hour emergency
room.
Later in the day, after speaking to Bowers and Officer
Collier, Davis called his wife, Deidre. (D. Davis Dep. at
110.) According to Mrs. Davis, her husband told her that he
had not received any medication, was in severe pain, and
could not keep anything in his stomach. (D. Davis Dep. at
110.) He also complained that the jail guards were ignoring
his repeated requests for medical treatment. (D. Davis Dep.
at 110.) Following this conversation with her husband, Mrs.
Davis called the jail and spoke with a female employee that
she remembered as Sergeant Carter. (D. Davis Dep. at 119.)
Mrs. Davis explained that her husband was on a methadone
program, had not received treatment, and was in excruciat-
ing pain. (D. Davis Dep. at 119.) According to Mrs. Davis,
Sergeant Carter responded that “Cook County don’t work
that fast. It don’t work that fast for me, and I work here.
Maybe he’ll get something tomorrow.” (D. Davis Dep. at
119.) Officer Yolanda Carter testified in her deposition that
she did not recall receiving such a call from Deidre Davis or
any other member of James Davis’s family. (Carter Dep. at
40.) Carter stated that if she received such a call, she would
direct the caller to the inmate’s sergeant. (Carter Dep. at
8 No. 05-1695
39.) Carter explained that, in such a case, she would not
make any record of the call nor would she contact medical
personnel. (Carter Dep. at 39-40.)
By the following day, Wednesday, October 2, 2002, James
Davis had spent nearly five days in the Cook County Jail
and had not received any methadone medication. That day,
he approached Lieutenant Anita Mackey, requested metha-
done treatment, and explained to her that he had filled out
a methadone referral card several days earlier. (Mackey
Dep. at 16-17.) Lieutenant Mackey was not aware that
Davis had been at the jail—and without methadone— since
September 27th. (Mackey Dep. at 17). Lieutenant Mackey
explained to Davis that he would receive medication once
his outside program was confirmed. (Mackey Dep. at 16-17.)
She then called the paramedics to ask if Davis had been
approved for methadone. (Mackey Dep. at 19-20.) Lieuten-
ant Mackey recalled speaking with a paramedic with the
last name of Furlow, who purportedly told Lieutenant
Mackey that Davis had not been approved (even though
Davis had in fact been approved for methadone on Septem-
ber 30, 2002, two days earlier). (Mackey Dep. at 20.)
Lieutenant Mackey did not call the pharmacy to ask if
Davis had been approved for methadone, nor did she call
the emergency room.
Lieutenant Mackey then called a nurse to administer
a medication called “Routine A” to Davis. (Mackey Dep. at
21). Routine A is typically prescribed along with the drugs
Compazine and Loperamide to inmates suffering from
withdrawal while awaiting methadone confirmation.
(B. Davis Dep. at 9, 11.) Routine A helps to alleviate some
of a patient’s methadone withdrawal symptoms, but does
not address all of them, nor is it a substitute for methadone
treatment. (Singh Dep. at 63; 65).
Later that day, Lieutenant Mackey received a telephone
call from Deidre Davis. Lieutenant Mackey recalled that a
No. 05-1695 9
woman who identified herself as Sergeant Carter from
Division 8 transferred an “irate” person who had asked to
talk to whomever was in charge of Dorm 4, where Davis
was held. (Mackey Dep. at 14). Lieutenant Mackey stated
that Mrs. Davis told her that she was concerned about her
husband and that he needed his methadone medication.
(Mackey Dep. at 24). According to Lieutenant Mackey, she
told Mrs. Davis that her husband would get his medication
once he had been confirmed, but that it would take any-
where from two to three days, or maybe a week to get
methadone. (Mackey Dep. at 25). After hanging up with
Mrs. Davis, Lieutenant Mackey told Davis to lie down until
the paramedics arrived. (Mackey Dep. at 31). There is no
indication that Davis was ever seen by the paramedics for
the purpose of alleviating his methadone withdrawal, and
he was not seen by paramedics until later that day, after he
suffered a seizure in connection with his cerebral aneurysm,
and died shortly thereafter. (Mackey Dep. at 32).
II. ANALYSIS
A. Plaintiff did not waive her Monell claims.
To establish Cook County’s liability under 42 U.S.C.
§ 1983, the plaintiff was required to show that Davis was
deprived of a federal right, as a result of an express munici-
pal policy, widespread custom, or deliberate act of a
decision-maker for Cook County, which proximately caused
his injury. Monell v. Dep’t of Soc. Servs. of New York, 436
U.S. 658, 690-91 (1978). The plaintiff here alleged that Cook
County was deliberately indifferent to Davis’s serious
medical needs in violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). The district court held
that the plaintiff had waived her Monell claim against Cook
County by providing only “cursory allegations and argu-
ments” and failing to cite legal authority in her response
10 No. 05-1695
memorandum to the defendants’ motion for summary
judgment. See Davis v. Carter, No. 03-C-5309, 2005 U.S.
Dist. LEXIS 7478, at *33 (N.D. Ill. Feb. 25, 2005). Although
the district court was correct in noting that we have
“repeatedly recognized that perfunctory and undeveloped
arguments, that are not supported by pertinent authority,
are waived.” Davis, 2005 U.S. Dist. LEXIS 7478, at *34, the
plaintiff here did not present merely cursory allegations.
As an initial matter, in their brief supporting their motion
for summary judgment, the defendants set forth the proper
Monell standard for municipal liability, and we see no
reason why the plaintiff need cite additional legal authority
in her response brief, provided that her argument depended
entirely on the application of facts to the well-established
Monell legal standard already presented in the defendants’
brief. Under these circumstances, the plaintiff was merely
required to document sufficient evidence to allow a jury to
make a reasonable inference that Cook County had a
widespread custom or practice that caused a cognizable
injury to Davis. And this was done, without requiring the
district court to “scour a record to locate evidence support-
ing a party’s legal argument” nor “research and construct
the parties’ arguments.” See, e.g., Estate of Moreland v.
Dieter, 395 F.3d 747, 759 (7th Cir. 2005); LINC Fin. Corp.
v. Onwuteaka, 129 F.3d 917, 921-22 (7th Cir. 1997). As
shown below, the plaintiff here provided a wide range of
competent evidence that would allow a jury to find both
county and individual liability.
Indeed, this case is distinguishable from instances in
which we have held that a party has waived a claim for
failing to cite both legal authority and supporting factual
evidence. See, e.g., Estate of Moreland, 395 F.3d at 759(where plaintiffs “failed to discuss the facts relevant to their
claim,” the court noted that “[p]erfunctory or undeveloped
arguments are waived”); Bratton v. Roadway Package Sys.,
Inc., 77 F.3d 168, 173 n.1 (7th Cir. 1996) (finding argument
No. 05-1695 11
waived because appellants neither identified specific
evidence objected to nor cited authority for their position).
While the plaintiff’s arguments here would have been more
artful (and perhaps more persuasive to the district court) if
she had cited relevant legal authority and fully developed
her factual bases, she provided well-reasoned factual
arguments supported by citations to the record. This is
more than mere perfunctory argument and, as a result, a
finding of waiver under such circumstances is not war-
ranted.
B. There is a disputed issue of material fact as to
whether Cook County had a widespread prac-
tice of failing to provide timely methadone
treatment.
The plaintiff provided sufficient evidence to create a
disputed issue of material fact as to whether Cook County
had a widespread practice or custom of inordinate delay
in providing methadone treatment to inmates, which caused
proximate harm to Davis. For instance, in his deposition,
pharmacist Singh’s testimony, read in the light most
favorable to the plaintiff, establishes that there
are essentially no policies or procedures in place at Cook
County to ensure that the verification of an inmate’s
outpatient methadone treatment program is conducted in
a timely fashion. Similarly, Singh’s testimony established
that there is an absence of policies or procedures to ensure
that once such verification is obtained, security personnel
are informed in a timely fashion and inmates are brought
to the pharmacy within a reasonable time period. Indeed,
Singh testified that there is essentially no established
checks-and-balances system to make sure that patients who
suffer from methadone withdrawal—which the parties do
not dispute is a significant medical issue—do not fall
through the cracks for several days (or more). As a result,
12 No. 05-1695
according to Singh, it can routinely take one or two days for
the pharmacy to confirm an inmate’s participation in
a methadone program, and perhaps much longer to bring
the inmate to the pharmacy as there is no “hard and fast
rule” as to when security officers bring inmates to the
pharmacy. (Singh Dep. at 39-43, 80.) Moreover, these
customary delays may be exacerbated when an inmate’s
admission occurs during the weekend, where there is very
limited staffing in the pharmacy.
In addition to Singh’s testimony, Cook County personnel
working directly with the inmates confirmed a wide-
spread practice of at least three days’ delay simply to verify
the inmate’s outpatient methadone treatment regimen (and
all indications in the record are that the process of confirm-
ing an inmate’s methadone program is no more than a
confirmatory telephone call). For instance, Officer Collier
confirmed that, based on his extensive fourteen years of
experience working at the jails, it can take up to three days
to verify methadone treatment:
Just by working in there for as long as I have,
I know that’s what it takes. It takes about that
much time if you are on a methadone program
before you got incarcerated. It takes about three
days . . . . When they come in, they are instantly
withdrawn when they come in. They are sick when
they come in. Some of them take it better than
others. It depends on that individual. Most of them
are sick for at least three to five days unless they
were on a methadone program when fill [sic] the
cards, they approve it. They get on methadone. It’s
not so bad on them.
(Collier Dep. at 24-26.) In addition, social worker Bowers
also testified that it routinely took three days to verify that
a person was on methadone. (Bowers Dep. at 51). Indeed,
Bowers claimed that the paramedics that she purportedly
No. 05-1695 13
contacted also confirmed that it took at least three days to
verify methadone treatment and Bowers memorialized this
understanding in her October 1, 2002, log entry.5 (Bowers
Dep. at 48-49, Ex. 1). Mrs. Davis testified that Cook County
personnel told her that “Cook County don’t work that fast,”
suggesting that the delays that Mr. Davis was experiencing
were customary. (D. Davis Dep. at 119). Finally, physician
assistant Barbara Davis confirmed that she often provided
medications other than methadone for periods of several
days in an attempt to limit withdrawal symptoms until the
jail received confirmation from the inmate’s outpatient
program. (B. Davis Dep. at 9). This indirectly confirms that
Cook County’s custom and practice routinely involved
delays of at least three days in obtaining confirmation, and,
coupled with Singh’s testimony above, suggests that it may
be significantly longer before an inmate actually receives
methadone.
Cook County’s contrary arguments are unpersuasive. The
thrust of Cook County’s argument, at least with respect to
the evidence cited above, is that the testimony of Bowers is
entirely inadmissible hearsay and Officer Collier’s testi-
mony is too conclusory and void of requisite specific facts to
defeat summary judgment. With regard to Bowers, Cook
County focuses exclusively on Bowers’s purported conversa-
tion with an unidentified paramedic, which indeed is
inadmissible hearsay if offered solely to prove that Cook
County routinely had three-day delays. But Cook County
ignores that Bowers also testified as to the delays based on
5
Defendants contend that Bowers’s testimony and log entry
are inadmissible hearsay and therefore cannot be considered at
the summary judgment stage. This evidence, however, is admissi-
ble for the purpose of establishing Bowers’s notice and awareness
of at least alleged routine delays in verifying methadone treat-
ment, although it is certainly inadmissible for establishing the
truth of what the paramedic personnel purportedly told Bowers.
14 No. 05-1695
her personal experience as a social worker. Bowers had
twelve years of experience as a social worker, and she
attended to various requests from inmates on a daily basis.
(Bowers Dep. at 49). During her deposition, Bowers was
asked whether it was her prior understanding as a social
worker for the jail that it takes three days for the jail to
verify that an inmate is on a methadone program outside of
the jail, and she responded in the affirmative. (Bowers Dep.
at 51). This, of course, is plaintiff’s stronger evidence, and
it would indeed be odd if a social worker with experience at
Cook County jail lacked any personal knowledge of the
general delays in receiving treatment. In any event, to the
extent that Bowers’s personal experiences are not represen-
tative or otherwise lack a firm foundation, that is a fruitful
avenue for cross-examination, but is not a good basis for
granting summary judgment.
Cook County also argues that Officer Collier’s testimony
is insufficient because it is nothing more than “generalized
evidence,” lacking specific facts (such as “the percentage or
numbers of inmates who had to wait for three days, two
days, or for only a day” and whether those inmates also had
serious medical needs). Instead, Cook County contends,
Officer Collier’s testimony shows—at most—nothing more
than “isolated instances where an unknown number of
inmates, for unknown reasons, experienced a delay in
receiving methadone.” Cook County supports this argument
by relying on our decision in Jones v. City of Chicago, 787
F.2d 200 (7th Cir. 1986). But Jones is readily distinguish-
able. At issue in Jones was whether a municipality custom-
arily ignored complaints of sexual misconduct by gynecolo-
gists performing pelvic examinations. Id. at 205. The
plaintiffs contended that sexual misconduct by city-em-
ployed physicians was not rare and attempted to support
this contention by relying on a broad comment by the
Department’s Director of Women’s Health, who essentially
stated that such complaints may not be rare in general
No. 05-1695 15
medical practice, whether in public or private clinics.6 Id. at
206. Because this single statement was merely a general
conclusion (and one not targeted at the specific circum-
stances of the plaintiffs’ claims), we held that this “state-
ment amount[ed] to little more than a bald and conclusory
statement.” Id. In contrast, here the testimony from Bowers
and Officer Collier about routine delays in providing
methadone directly targeted the jail facility at issue in this
case and was much more than a single “bald and conclusory
statement” about correctional facilities in general. Cf.
Jones, 787 F.2d at 206.
Cook County also contends that plaintiff’s claims here fail
because she has not presented enough evidence showing a
series of past bad acts by Cook County. But to survive
summary judgment, a plaintiff need not present a full
panoply of statistical evidence showing the entire gamut of
a defendant’s past bad acts to establish a widespread
practice or custom. Instead, it is enough that a plaintiff
present competent evidence tending to show a general
pattern of repeated behavior (i.e., something greater than
a mere isolated event). See, e.g., Cosby v. Ward, 843 F.2d
967, 983 (7th Cir. 1988) (explaining that “[t]here is no clear
consensus among the courts as to what level of frequency of
the challenged conduct evidences a custom, except that it
must be more than one instance”).
Cook County misinterprets our decision in Jackson v.
Marion County, 66 F.3d 151, 152 (7th Cir. 1995), where we
explained that “[t]he usual way in which an unconstitu-
tional policy is inferred, in the absence of direct evidence, is
6
The Director’s initial statement appeared to more directly
target the plaintiffs’ claims of what occurred with the municipal-
ity’s public clinics, but, he subsequently clarified that he was
only “talking in general in the medical practice,” and this court
appears to have credited that clarification. Jones, 787 F.2d at 206.
16 No. 05-1695
by showing a series of bad acts and inviting the court
to infer from them that the policymaking level of govern-
ment was bound to have noticed what was going on and by
failing to do anything must have encouraged or at least
condoned, thus in either event adopting, the misconduct
of subordinate officers.” Id. And as we indicated, “[w]hen
this method of proof is used, proof of a single act of miscon-
duct will not suffice; for it is the series that lays the premise
of the system of inference.” Id. But here, the plaintiff does
not point to just one instance of delay without more and ask
the court to infer an unconstitutional custom or practice on
that basis alone. Rather, the plaintiff points to the delay in
the instant case, delays inherent in the methadone verifica-
tion procedures as related by pharmacist Singh, and the
widespread delays attested to by Collier and Bowers based
on their experiences as a correctional officer and social
worker, respectively, among other circumstantial evidence
supporting the existence of a general custom or practice.
Cook County also argues that the plaintiff cannot estab-
lish a widespread custom or practice because she failed to
identify any other incarcerated individuals who had
suffered from lack of methadone treatment. This argument,
however, fails to appreciate the difference between showing
repeated past bad acts versus repeated past injuries. See
Woodward v. Correctional Med. Servs. of Ill., Inc., 368 F.3d
917, 929 (7th Cir. 2004). To establish a widespread custom
or policy, the plaintiff here was not required to show that
Cook County’s alleged repeated pattern of delay (i.e., its
alleged past “bad acts”) actually caused pain and suffering
to other inmates in need of medical intervention (i.e.,
repeated past injuries). See id. Instead, it was enough to
provide competent evidence tending to show that Cook
County routinely failed to provide methadone to inmates for
several days. See id. (holding that “the plaintiff’s failure to
introduce evidence of any suicide at the Lake County jail
besides [the plaintiff]” did not “doom[] plaintiff’s efforts to
No. 05-1695 17
prove a custom or practice.” “[Defendant] does not get a ‘one
free suicide’ pass”); see also Estate of Moreland v. Dieter,
395 F.3d 747, 760-61 (7th Cir. 2005) (citing Woodward for
the proposition that “the plaintiff need not show that the
policy practice, or custom resulted in past deprivations of
rights”).
Now, whether Cook County in fact routinely had several
days’ delay, of course, is a disputed material fact at the
heart of this case. Thus, Cook County’s persistent argument
that any delays were isolated and due to factors outside of
its control may well carry the day with the fact-finder—but
these are not arguments amenable to summary judgment.
See, e.g., Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992)
(affirming the denial of defendants’ motion for summary
judgment and explaining that “[a]t trial the defendants may
be able to adduce various defenses, but they may not now
avoid suit under the qualified immunity doctrine on the
record as it now exists”).
C. There are disputed issues of material fact as to
whether any of the individual defendants were
deliberately indifferent to Davis.
The plaintiff has also presented enough evidence to create
triable issues of fact regarding whether certain individual
defendants were deliberately indifferent by failing to ensure
that Davis received timely methadone treatment. To
establish a claim for violation of Davis’s Eighth Amendment
rights, the plaintiff was required to make two showings.
Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d
525, 529 (7th Cir. 2000). “First, the danger to the inmate
must be objectively serious, posing a substantial risk of
serious harm.” Id., citing Haley v. Gross, 86 F.3d 630,
640-41 (7th Cir. 1996). The parties do not dispute that the
plaintiff established this element. “Second, the prison
official must have a sufficiently culpable state of mind—one
of ‘deliberate indifference’ to inmate health or safety.” Id.18 No. 05-1695
Deliberate indifference requires something more than
negligence, but need not be a purposeful or knowing
infliction of harm. Id. Deliberate indifference requires that
a prison official subjectively know of and disregard a
substantial risk of harm. Id. “ ‘Deliberate indifference’ is
simply a synonym for intentional or reckless conduct,” and
can be established indirectly through circumstantial
evidence. Foelker v. Outagamie County, 394 F.3d 510, 513
(7th Cir. 2005). As discussed more fully below, the plaintiff
has succeeded in providing sufficient competent evidence to
allow a jury to make the decision of whether certain
individual defendants engaged in reckless conduct with
regard to Davis’s lack of medical care.
1. Officer Collier and Sergeant Martin
There are disputed issues of material fact as to whether
Officer Collier and/or Sergeant Martin were deliberately
indifferent. Specifically, Officer Collier admitted that a
correctional officer or sergeant has the direct responsibility
to contact the paramedics if an inmate is in need of medical
attention. Yet in this case, there is a disputed issue of
material fact regarding whether Officer Collier recklessly
disregarded Davis’s medical needs when he failed to contact
the paramedics or the 24-hour emergency room directly
after he learned that Davis was “dope sick,” observed that
Davis was suffering, and heard that “it felt like somebody
was ripping [Davis’s] insides out.” See Foelker, 394 F.3d at
513 (holding that a reasonable jury could conclude that
defendant was recklessly or maliciously ignoring the
plaintiff’s signs of methadone withdrawal). In addition,
there are disputed facts about whether Officer Collier acted
reasonably when he delegated responsibility to Bowers to
contact the paramedics and ensure that Davis received
prompt medical attention. As a result, a reasonable jury
could conclude that Officer Collier intentionally or reck-
No. 05-1695 19
lessly ignored Davis’s need for timely medical attention.
Similar triable issues of fact apply to Sergeant Martin,
since there is a disputed issue of material fact over whether
Sergeant Martin held the ultimate responsibility for
contacting the paramedics or the hospital to ensure that
Davis received prompt medical attention. Officer Collier
testified that he informed Sergeant Martin of Davis’s
serious medical condition, but it is undisputed that Ser-
geant Martin failed to file an Unusual Incident Report or
take any action to obtain medical treatment for Davis (or
otherwise supervise and confirm that Davis’s medical needs
were attended). In addition, Sergeant Martin claimed to
follow a uniform policy of speaking directly with inmates
who reported ill, but there is nothing in the record indicat-
ing that he spoke with Davis. Thus, taken together, the
plaintiff has presented sufficient evidence to allow a
reasonable jury to determine whether Officer Collier and/or
Sergeant Martin were deliberately indifferent. See, e.g.,
Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000) (revers-
ing summary judgment, where plaintiff “presented evidence
which might prove that the prison staff knew of and
disregarded a serious risk to his health”).
2. Social worker Bowers
Plaintiff has also presented sufficient evidence for a jury
to determine whether social worker Bowers was deliber-
ately indifferent. At the outset, there is a heated factual
dispute as to whether Bowers actually contacted and spoke
with the paramedics on Davis’s behalf. Bowers claims to
have called the paramedics and to have spoken with
someone at the paramedics station. Her log entry appears
to support her claim. The paramedics and other emergency
medical personnel deposed in this matter, however, either
deny receiving such a call or have no recollection of it. In
addition, there is no dispute that no paramedics or ERTs
attended to James Davis on October 1, 2002. Thus, a
20 No. 05-1695
reasonable jury could find that Bowers failed to contact the
paramedics as she claims to have done and failed to conduct
the requisite follow-up with either Davis, the paramedics,
or other correctional or medical personnel. These purported
failures could constitute deliberate indifference to the
substantial risk of harm that Davis faced. See Foelker, 394
F.3d at 513.
3. Lieutenant Mackey
Plaintiff failed to raise any argument in her briefs
pertaining to Lieutenant Mackey, and, as a result, has
waived any challenge to the district court’s grant of sum-
mary judgment in favor of Lieutenant Mackey. See, e.g.,
Weinstein v. Schwartz, 422 F.3d 476, 477 (7th Cir. 2005)
(failure to develop arguments constitutes waiver).
4. Paramedics Westbrook, Patton, Moore and
Hill
The evidence raised by the plaintiff with respect to
paramedics Westbrook, Patton, Moore and Hill is insuffi-
cient to survive summary judgment. Although there is a
factual dispute over whether Bowers placed a telephone call
to the paramedics, the plaintiff presents no evidence that
could allow a jury to determine which of the paramedics—if
any—received Bowers’s purported telephone call. The
paramedics either deny or cannot recall receiving a call
from Bowers, and Bowers cannot identify who answered the
call, nor is there testimony from anyone else that could
allow the jury to make a reasonable inference as to the
identity of whomever answered Bowers’s alleged telephone
call. Thus, although there is an evidentiary conflict over
whether Bowers placed a telephone call, there is simply an
evidentiary vacuum pertaining to the identity of the
paramedic. And when the evidence provides for only
No. 05-1695 21
speculation or guessing, summary judgment is appropriate.
See Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d
928, 931-32 (7th Cir. 1995) (holding that evidence leading
only to speculation cannot be a defense to summary judg-
ment); Morfin v. City of East Chicago, 349 F.3d 989, 1002
(7th Cir. 2003) (same).
5. Officer Carter
The evidence presented with respect to Officer Yolanda
Carter is also insufficient to create a jury question with
respect to whether Officer Carter was deliberately indif-
ferent. The plaintiff’s sole evidence was that Officer Carter
purportedly received a telephone call from Mrs. Davis
and that, after being informed that Davis had not yet
received methadone treatment and was in excruciating
pain, Officer Carter allegedly responded that “Cook County
don’t work that fast. It don’t work that fast for me, and
I work here. Maybe he’ll get something tomorrow.” Officer
Carter then appropriately transferred Mrs. Davis’s call to
a person responsible for Davis’s medical care, Lieutenant
Mackey. There is no evidence in the record indicating that
Officer Carter’s job duties included anything more than
answering the telephones, and the plaintiff does not point
to any evidence indicating that Officer Carter’s position
included follow-up responsibility regarding Davis’s medical
needs. As a result, even when viewing the evidence in the
light most favorable to Mrs. Davis, the most that can be
shown is that Officer Carter made an insensitive comment
to Mrs. Davis, but that otherwise is not enough for a jury to
find that she was deliberately indifferent to Davis’s medical
needs, particularly in light of the undisputed evidence that
she promptly transferred Mrs. Davis’s call to the appropri-
ate personnel.
22 No. 05-1695
III. CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment is REVERSED with regard to Cook
County and individual defendants Collier, Bowers, and
Martin, and is AFFIRMED with regard to individual defen-
dants Mackey, Westbrook, Patton, Moore, Hill, and Carter.
We REMAND for further proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-06