HUNT EX REL. CHIOVARI v. DART

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In [such a] case, one can still argue that the . . . policies caused the harm, even if the officer was not individually culpable." Thomas v. Cook County Sheriff's Dept., 604 F.3d 293, 304 (7 ^th Cir. 2010).

In Thomas, which was a failure-to-provide-medical-treatment case, the jury found the County liable even though it found the medical technicians were not. The court supposed that:

the jury could have found that the CMTs were not deliberately indifferent to Smith's medical needs, but simply could not respond adequately because of the well-documented breakdowns in the County's policies for retrieving medical request forms. It is not difficult to reconcile the verdicts in this instance, and we see nothing amiss in holding the County liable even though none of the CMTs were individually responsible.

604 F.3d at 305. The Seventh Circuit rejected the County's championing of a rule that would require individual liability before there could be municipal liability in light of just such potentialities. Id. F.3d at 305. The actual rule to be derived from Heller, the court explained, was "much narrower: a municipality can be held liable under Monell, even when its officers are not, unless such a finding would create an inconsistent verdict." Id. at 305 (emphasis in original).

C.

The question then becomes whether there was a constitutional injury — or more accurately, whether plaintiff can prove Mr. Hunt suffered a constitutional injury — even though there is no evidence of who, if anyone, caused Mr. Hunt to collapse. We begin with the plaintiff's excessive force claim. The first step in the analysis is identifying the specific constitutional right allegedly infringed by the challenged application of force. Graham v. Connor, 490 U.S. 386, 394 (1989). Mr. Hunt was a pretrial detainee — he had already been arrested, but was not yet a prisoner in the sense that his guilt had not been adjudicated. Payne for Hicks v. Churchich, 161 F.3d 1030, 1040 (7^th Cir. 1998). Prisoners' rights are guaranteed by the Eighth Amendment; they are protected only from the infliction of cruel and usual punishment. Lewis v. Downey, 581 F.3d 467, 473 (7^th Cir. 2009); Payne, 161 F.3d at 1040 (7^th Cir. 1998). Pretrial detainee are not "punishable"; their rights are guaranteed by the Fourteenth Amendment. Lewis, 581 F.3d at 473; Payne, 161 F.3d at 1040. Beyond the fact that this protection is at least as strong as that provided by the Eighth Amendment, Payne, 161 F.3d at 1040, just what that means in terms of an excessive force claim, the Seventh Circuit has not explained.

In the context of a medical needs claim, the court has said that the Fourteenth Amendment analysis is identical to the Eighth Amendment analysis. Lewis, 581 F.3d at 473; Williams v. Rodriguez, 509 F.3d 392, 401 (7^th Cir. 2007); Guzman v. Sheahan, 495 F.3d 852, 856-57 (7^th Cir. 2007). But in the case of an excessive force claim, things get dicey. Lewis explained that "the Due Process Clause, which prohibits all "punishment," affords broader protection than the Eighth Amendment's protection against only punishment that is `cruel and unusual.'" 581 F.3d at 474. The court conceded that the contours of this broader protection remain undefined, but said that the appropriate source of the constitutional right at issue had to be identified anyway under Graham. Id. at 474. The court found it unnecessary to go further because the pro se plaintiff argued that Eighth Amendment protection applied:

As we have made clear, anything that would violate the Eighth Amendment would also violate the Fourteenth Amendment. Thus, we conclude that although we must evaluate [plaintiff's] claims under what we believe is the proper basis-here, the Fourteenth Amendment-we will do so only insofar as the alleged conduct would have violated the Eighth Amendment as well; we will not consider any safeguards the Fourteenth Amendment provides beyond those it shares with the Eighth Amendment. [Plaintiff] has argued only for these more limited protections.

Id. at 475.

In the instant case, the plaintiff's submission does not attempt to define the appropriate standard. Indeed, the supporting memorandum cites no case law on the subject. The Sheriff's brief relies on cases applying the Eighth Amendment standard in the prisoner context, citing Hudson v. McMillian, 503 U.S. 1 (1992) and Harper v. Albert, 400 F.3d 1052 (7^th Cir. 2005), but does not mention the distinction between prisoners and pretrial detainees. In Estate of Moreland v. Dieter, 395 F.3d 747 (7^th Cir. 2005), a case that arose out of the death of a pretrial detainee at the hands of sheriff's deputies at a county jail, the court simply said since the decedent "was a pretrial detainee in the jail at the time of his death in custody, the plaintiffs' claim falls within the Fourteenth Amendment." The court went on to say that it had previously noted that in this context "a Fourteenth Amendment claim is evaluated by the same legal standards as an Eighth Amendment claim." Id. at 758.

More recently, in Forrest v. Prine, 620 F.3d 739 (7^th Cir. 2010), the court followed a tack similar to its approach in Lewis, but eschewed the niceties of the distinction between prisoners and pretrial detainees and Eighth and Fourteenth Amendment protections. Like the court in Lewis, it placed the burden on the plaintiff to demonstrate that a greater protection than the Eighth Amendment provided was warranted:

The Fourteenth Amendment right to due process provides at least as much, and probably more, protection against punishment as does the Eighth Amendment's ban on cruel and unusual punishment. [Plaintiff] has not explained, however, how any protections guaranteed by the Fourteenth Amendment provide him with more protection than he would receive under traditional Eighth Amendment standards. We therefore shall borrow Eighth Amendment standards to analyze [plaintiff's] Fourteenth Amendment section 1983 claim.

Id. at 744 (citations omitted).

Since the plaintiff does not argue otherwise or explain what the extended protections might be, we shall follow Forrests and borrow Eighth Amendment standards to analyze plaintiff's Fourteenth Amendment § 1983 claim. Consequently, for the plaintiff to succeed on the excessive force claim, he must demonstrate that the unidentified Cook County Correctional officers acted "maliciously and sadistically" to cause Mr. Hunt harm. Wilkins v. Gaddy, ___ U.S. ___, ___, 130 S.Ct. 1175, 1178 (2010); Forrest, supra; Hendrickson v. Cooper, 589 F.3d 887, 890 (7^th Cir. 2009). Several factors guide the inquiry of whether an officer's use of force was legitimate or malicious, including "the need for an application of force, the relationship between that need and the force applied, the threat reasonably perceived by the responsible officers, the efforts made to temper the severity of the force employed, and the extent of the injury suffered by the prisoner." Hudson, 503 U.S. at 7; Forrest, supra; Hendrickson, 589 F.3d at 890; Lewis, 581 F.3d at 478. The accused officer's mental state during the incident, of course, is a key factor in the calculus. Lewis, 581 F.3d at 477-78. As the court said in Santiago v. Walls, 599 F.3d 749, 762 (7^th Cir. 2010), an excessive force claim "require[s] that [plaintiff] present relevant and probative evidence about the state of mind of the defendants."

Without identifying any responsible officer, or providing any admissible evidence regarding what happened to Mr. Hunt or what Mr. Hunt or any officers in the vicinity were doing at the time of Mr. Hunt's collapse, the plaintiff cannot possibly stave off summary judgment on the excessive force claim. There is no way to assess the phantom officer's mental state or the circumstances of the purported use of excessive force. Plaintiff was earlier able to withstand a motion to dismiss premised on this very basis, simply because the time had not yet come to present evidence. It has now. Steen v. Myers, 486 F.3d 1017, 1022 (7^th Cir. 2007) (". . . we have consistently held that summary judgment is . . . the put up or shut up moment in a lawsuit. . . ."). The plaintiff's failure is fatal to his claim, as the court in Harper made clear:

The problem [plaintiff] faces, and has faced throughout the factual and legal presentation of the case, is that he has failed to identify any individual guards that violated his constitutional rights with the use of excessive force at any point during the transfer. More importantly, as to this appeal he has likewise failed to identify any particular officer who harmed him as he was being transferred from the strip-search area to the segregation unit in the North Cellhouse. In order for courts to satisfy the mandate to inquire into the state of mind of prison officials who have allegedly caused a constitutional violation, . . . it is most imperative that we are provided with "identified culprits"; for "[w]ithout minds to examine, we cannot conduct an individualized inquiry." It was [plaintiff's] burden to identify, . . . through discovery, . . . those guards that allegedly violated his constitutional rights during the time frame in question. . . .

400 F.3d at 1065-66.

Plaintiff's argument seems to go like this: Mr. Hunt died while he was in the custody of the Sheriff of Cook County. Plaintiff's experts disagree with the County's medical examiner and say his death was not due to natural causes, but due to multiple blunt force traumas. Based on this, it is argued, "there is overwhelming evidence from which it can be reasonably inferred that Hunt suffered a fatal blow to the head in the course of an assault perpetrated either by a correctional officer or another detainee." ( Plaintiff's Brief in Opposition, at 9). As the Sheriff points out, in essence, this is a res ipsa loquitur theory of liability. Under that ancient doctrine — "the thing speaks for itself" — the manner in which an incident occurred permits an inference that it was caused by the defendant's negligence. Sweeney v. Erving, 228 U.S. 233, 238-39 (1913); Aguirre v. Turner Const. Co., 582 F.3d 808, 810-11 (7^th Cir. 2009). But the doctrine is confined to negligence cases, Aguirre, 582 F.3d at 810-11 (7^th Cir. 2009), and this is a constitutional tort case in which the plaintiff must prove intent. County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."). "[T]he mere fact that an injury occurred while an individual was in . . . custody is not sufficient to avoid summary judgment — a plaintiff must identify the specific unreasonable conduct that caused his or her injuries." Abdullahi v. City of Madison, 423 F.3d 763, 770-71 (7^th Cir. 2005).

The opinions of the plaintiff's medical experts that death did not come from natural causes but from trauma to the head resulting from an assault does not create a material issue of fact. An expert's role in our adversary system requires evaluation of all relevant and significant data. Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C. Cir. 1977) (excluding expert testimony for failure to consider important factors).; MDG International, Inc. v. Australian Gold, Inc., 2009 WL 1916728, 4 (S.D.Ind. 2009); In re Brand Name Prescription Drugs Antitrust Litigation,, 1996 WL 351178 (N.D.Ill. 1996). Indeed in some (but by no means all) cases, an expert's failure to consider other potential causes of plaintiff's injury before offering an opinion renders his testimony unreliable and inadmissible. McNabney v. Lab. Corp. of Am., 153 F. App'x 293, 295 (5th Cir. 2005); Holloway v. Ameristar Casino St. Charles, Inc. 2009 WL 5169535, 4 (E.D.Mo. 2009). That is the situation here.

Despite its obvious significance, the plaintiff's experts did not consider the fact that five months before he died, the plaintiff had fallen while drunk. That fall had resulted in extremely serious injuries to the plaintiff's brain and skull and face: he suffered a skull fracture, traumatic brain injury, facial fracture, aphasia, and impaired cognition. (Shf.St. ¶ 59; Pl. Rsp. ¶ 59). He spent two

Aphasia is a disorder that results from damage to portions of the brain that are responsible for language. For most people, these are areas on the left side (hemisphere) of the brain. Aphasia usually occurs suddenly, often as the result of a stroke or head injury. The disorder impairs the expression and understanding of language as well as reading and writing.

weeks in the rehabilitation unit at Advocate Christ Medical Center and was discharged May 11^th. (Sheriff's Ex. 25). Following his release from the hospital, he suffered intermittent fainting spells. (Shf.St. ¶ 61; Pl. Rsp. ¶ 61). Yet, none of this was considered by the plaintiff's experts in concluding that his injuries could only have come from an assault. (Dr. Kaufman opined that the "only reasonable explanation as to the cause and manner of death of Mr. Hunt would be as a result of a homicide."). Nor did they consider the heightened probability of bruising given the plaintiff's blood values, which showed significantly lowered anticoagulation capacity, which in turn would result in bruising from falls — either the fall in the Jail or perhaps other falls that had occurred before the arrest. After all, Plaintiff had had spells of intermittent fainting from his fall a few months earlier. Had the experts considered these critical factors and rejected their possible causal relationship to death, bruising etc., a different situation might be presented. But that did not occur. Here, the experts' conclusion that the plaintiff's injuries could only have come from an assault at the jail is hopelessly speculative, and of course, expert opinion must have an analytically sound basis so that it is not speculation in disguise. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000).

Mr. Hunt was hospitalized from April 27^th to May 11^th. That is two weeks, not "several weeks" as the Sheriff asserts and plaintiff, for whatever reason, concedes. (Shf.St. ¶ 60; Pl. Rsp. ¶ 60).

D.

The same line of reasoning applies to plaintiff's claim that the Sheriff's officers stood idly by while Mr. Hunt was beaten by one or more detainees. There is no direct or circumstantial evidence that this occurred. Plaintiff had the opportunity to depose literally hundreds of witnesses (Dkt. #105). She was unable to find anyone who claimed to have witnessed Mr. Hunt being attacked. Indeed, perusing the depositions of the only two witnesses to Mr. Hunt's collapse in the record — Ms. Colon and Ms. Maxwell — it doesn't appear that plaintiff's counsel even asked them whether they witnessed an attack or the aftermath of one, such as detainees standing over Mr. Hunt or perhaps dispersing hurriedly from the scene — and that would have to have occurred if a detainee had been the assailant. Plaintiff certainly does not point to any such line of questioning in her brief or Local Rule 56.1 submissions. As already noted, the plaintiff can't employ res ipsa loquitur to prove her case, because negligence is not enough. The level of culpability that plaintiff has to show is deliberate indifference toward a substantial risk of serious injury to Mr. Hunt, along with a subsequent failure to take appropriate steps to protect him from that danger. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Klebanowski v. Sheahan, 540 F.3d 633, 637 (7^th Cir. 2008); Guzman v. Sheahan, 495 F.3d 852, 857 (7^th Cir. 2007).

At a motion hearing on May 1, 2009, "plaintiff's counsel stated candidly that even as of [that] date and having taken the discover[y] of the individual officers and other personnel who may have had knowledge of plaintiff's son's death, the plaintiff still did not know who might have been responsible. . . ." Defendant's counsel informed the court that "the names of approximately 300 individuals at the jail who might have had knowledge of the circumstances surrounding Mr. Hunt's death had been provided to the plaintiff in discovery." [Dkt. #105].

Here, there is no evidence of a threat to which the guards or anyone else could have responded. Had the plaintiff been assaulted, only mere seconds would have elapsed from the time of the assault and the loud thud resulting from his head striking the floor. Had a detainee been responsible for the plaintiff's situation, there would not have been enough any time for him to have gotten back into line without Ms. Maxwell and Ms. Colon noticing something was amiss since they looked up immediately upon hearing the thud. The evidence is undisputed, however, that there was nothing amiss other than Mr. Hunt having struck the ground. Hence, if the plaintiff had in fact been assaulted by another detainee, it is a reasonable inference — perhaps the only inference — that the assailant must have been standing in line next to the plaintiff. But in that case, there is nothing to support the contention that the guards were in any position to have prevented what occurred or were indifferent to the plaintiff's safety. Phrased differently, there is no evidence that the guards were forewarned of danger to the plaintiff and were indifferent to it.

Given the testimony, it is a reasonable inference that the sound was made when the plaintiff's head struck the floor. That would be consistent with the medical evidence of the subdural hematomas, which the plaintiff's physician said could not have been the result of a hypertensive episode.

The ultimate measure of the adequacy of a response, or lack thereof, to an attack, is reasonableness in light of the surrounding circumstances. Dale v. Poston, 548 F.3d 563, 569 (7^th Cir. 2008). Compare ("[T]he character of every act depends on the circumstances in which it is done."). Schenck v. United States, 249 U.S. 47 (1919) (Holmes, J.). If there is no evidence of any attack at all, the reasonableness of a correctional officer's response — or lack thereof — cannot be gauged. Indeed, the inquiry about reasonableness becomes irrelevant. Perhaps the attack simply happened too quickly — and that is the only conclusion that the evidence allows even assuming that an attack by a detainee occurred. In that event, the first possible intervention was that of the medical technician immediately after Mr.Hunt collapsed.

The plaintiff's submission fails to address any of these insufficiencies. Instead, it relies entirely on a single paragraph from the DOJ's ninety-eight-page report on conditions at Cook County Jail:

Insufficient inmate supervision has been a serious problem at CCJ for decades. Inmate supervision is seriously compromised by chronic overcrowding and understaffing. The federal district court monitoring the Durall Consent Decree has repeatedly cited CCJ for failing to provide adequate security staff to ensure safe and secure conditions at the facility. In September 2006, then-Sheriff Michael Sheehan [sic] admitted that the Jail is `severely understaffed.'

( Plaintiff's Brief In Opposition, at 13). The first difficulty with reliance on the DOJ's report is that the plaintiff's brief cites to paragraph 42 of its Local Rule 56.1 submission, which in turn directs the court to page 3 of plaintiff's exhibit 6. The above paragraph does not appear anywhere on page 3. As already noted, the exhibit is ninety-eight pages long. An inaccurate citation to a lengthy exhibit is no better than no citation at all. The Seventh Circuit has made clear over and over that a district court does not have to review a lengthy exhibit in order to find something that lends support to a plaintiff's case. Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 818 (7^th Cir. 2004).

"Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). See also Gates v. Caterpillar, Inc., 513 F.3d 680, 688 n. 4 (7th Cir. 2008); Corley v. Rosewood Care Center, Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004); Roger Whitmore's Auto. Services, Inc. v. Lake County, Illinois, 424 F.3d 659, 664 (7th Cir. 2005); Albrechtsen v. Board of Regents of University of Wisconsin System, 309 F.3d 433, 436 (7th Cir. 2002); DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) ("A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record."). It is simply not a district judge's job in summary judgment cases to sift through the record and make the case for a party. United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7^th Cir. 2010).

Even assuming the paragraph does appear somewhere in the report, and the jail was understaffed, the plaintiff's argument — that because there was understaffing at the jail at the time the report referred to — the Sheriff condoned a policy of inadequate detainee protection is not enough to stave off summary judgment. It is a theory of liability that the Seventh Circuit has recently rejected in Thomas — a case involving a death at the Cook County Jail:

The theory that understaffing may have also caused [decedent's] death, on the other hand, is too remote to support a verdict against the Sheriff. A governmental body's policies must be the moving force behind the constitutional violation before we can impose liability under Monell. In § 1983 actions, the Supreme Court has been especially concerned with the broad application of causation principles in a way that would render municipalities vicariously liable for their officers' actions. That is why some courts distinguish between the acts that caused the injury and those that were merely contributing factors.

604 F.3d at 306 (emphasis in original) (citations omitted). The court went on to say that it did not need to make such a distinction in Thomas because the plaintiff there presented no evidence that demonstrated that the actions — or inactions — of the officers in that case had anything to do with understaffing. Id. at 306. There is no such evidence here, either.

The court also rejected a similar jail understaffing theory of liability against a correctional center warden in an unpublished opinion, Hannah v. Gilmore, 1996 WL 637674 (7^th Cir. 1996). The court explained that, while a policy adopted by prison officials could violate the Eighth Amendment, the policy would had to have been adopted with the subjective intent to inflict harm. 1996 WL 637674, *2.

As in Thomas, "[n]o one testified or even argued that the officers would [or could] have acted differently if more of them were on duty." All the plaintiff presents is the paragraph purportedly from the DOJ report, and the report of her expert, Victor Lofgreen. Forgetting for the moment that Mr. Lofgreen's report is inadmissible under Daubert, it is nevertheless clear that, at least in the portions upon which plaintiff relies, Mr. Lofgreen never opines that understaffing caused Mr. Hunt's death. Instead, he speculates that Cook County correctional officers were inadequately trained and supervised, and this caused injuries to Mr. Hunt. (Pl.St., ¶¶ 47-50; Plaintiff's Ex. 27, ¶¶ 4, 5, 7). Whether admissible or not, that says nothing about whether understaffing was the moving force behind Mr. Hunt's death.

But even accepting that unsupported premise that Mr. Hunt was, indeed, beaten by a fellow detainee or detainees, and this led to his death, it is still quite a jump to the conclusion that the tragedy was a direct result of some policy on the part of the Sheriff or even purported understaffing. Let's further assume that there was an officer or officers in the vicinity. The plaintiff would still have to come up with some evidence as to whether and when they were alerted to the attack, how many guards were in the vicinity, and how long they had to respond before the attack was over. In such circumstances, an immediate intervention is not necessary, and a guard need not act alone. In Guzman v. Sheahan, 495 F.3d 852, 857-59 (7^th Cir. 2007), the corrections officer saw the plaintiff, a pretrial detainee, being punched and hit in the head with a broom by a fellow detainee. The Seventh Circuit upheld summary judgment for the defendant, finding that the officer was not deliberately indifferent to the detainee's safety when she did not intervene immediately, but left her post for about three minutes in search of backup. Id. at 853-54, 858-59.

Or, one could suppose that there was a guard or two in the vicinity, but that they deliberately determined not to intervene. They could have done so regardless of any policy of understaffing on the Sheriff's part. The plaintiff has no evidence that would allow a fact-finder to make a conclusion either way that was anything more than a guess. Understaffing wouldn't even enter into the calculus if a corrections officer or officers acted on their own. The plaintiff here has no evidence as to where any officers were, what they did or might or could have done, and what their motivation might have been. As the court asked in Thomas, "[h]ow many officers would the Sheriff need to hire to ensure that no one deliberately ignores a [situation]?" 604 F.3d at 306-307. The jail could be understaffed or overstaffed, and if an officer decided on his own not to intervene in an attack, the attack would not be the direct result of any policy.

Simply put, without any evidence from the plaintiff as to what actually did happen, her case is all hypotheticals, speculation, and conjecture, and those are inadequate to defeat a motion for summary judgment. Trentadue v. Redmon, ___ F.3d ___, ___, 2010 WL 3239397, *3 (7^th Cir. 2010); Gunville v. Walker, 583 F.3d 979, 986 (7^th Cir. 2009). We simply cannot take the leap from Mr. Hunt collapsing and later dying with multiple bruises on his body to an unconstitutional policy of understaffing — or any policy — on the part of the Sheriff without more from plaintiff to fill in the gap. This is especially true in light of the extensive injuries suffered by the plaintiff five months earlier which resulted in traumatic brain injury, skull fracture, facial fracture, aphasia, and impaired cognition. The Sheriff is entitled to summary judgment on plaintiff's failure to intervene claim.

E.

Plaintiff's remaining theory of § 1983 liability is the claim that Cook County Correctional officers failed or refused to seek medical attention for Mr. Hunt. Because there is no dispute that on-scene medical technicians responded immediately to Mr. Hunt's crisis, plaintiff focuses on what, according to the paramedics' log, appears to have been a twenty-two minute delay in calling the outside ambulance. But a delay alone, even an egregious one, does not amount to a constitutional violation. Langston v. Peters, 100 F.3d 1235, 1240 (7^th Cir. 1996). In cases where the claim is that prison officials delayed rather than denied medical assistance to an inmate, the plaintiff must adduce "verifying medical evidence" that the delay, as opposed to the medical condition, caused some degree of harm. Williams v. Liefer, 491 F.3d 710, 714-15 (7^th Cir. 2007); Langston, 100 F.3d at 1240. In other words, the plaintiff must "offer medical evidence that tends to confirm or corroborate a claim that the delaywas detrimental." Williams, 491 F.3d at 15. Cf., Cyrus v. Town of Mukwonago, 2010 WL 4483713, 6 (7^th Cir. 2010) ("Common-law rules of tort causation apply to § 1983 claims. . . ."); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7^th Cir. 2010) ("`unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law. . . .'").

The plaintiff points to no such evidence; indeed, she does not even argue that the delay was detrimental. ( Plaintiff's Brief in Opposition, at 14; Pl.St., ¶¶ 27-32). Expert medical testimony that the delay exacerbated Mr. Hunt's condition, as the Seventh Circuit has said, would "clearly satisfy the requirement of verifying medical evidence. Williams, 491 F.3d at 715. Although plaintiff engaged three medical experts, she is unable to point to anything in their reports that suggests Mr. Hunt's condition was affected or worsened by any delay between the medical technician's response and the arrival of the ambulance. (Pl.St., ¶ 27-32). The only opinions plaintiff gleans from her experts are that "Mr. Hunt died from multiple traumatic injuries to the head;" that he "sustained a traumatic injury to his brain and head and other parts of his body, an his death was due to non-natural causes;" and that "he died of multi trauma with the fatal injury being a traumatic brain injury that led to his death." (Pl.St., ¶¶ 27-29). There is no mention of any delay in transport to the hospital contributing to Mr. Hunt's demise. The expert testimony is insufficient to raise a genuine issue of fact regarding this claim. See Williams, 491 F.3d at 715 ("evidence of a plaintiff's diagnosis and treatment, standing alone, is insufficient if it does not assist the jury in determining whether a delay exacerbated the plaintiff's condition or otherwise harmed him.); Laughlin v. Schriro, 430 F.3d 927, 929 (8^th Cir. 2005) (grant of summary judgment for defendant proper where plaintiff "submitted evidence documenting his diagnosis and treatment, [but] offered no evidence establishing that any delay in treatment had a detrimental effect and thus failed to raise a genuine issue of fact on an essential element of his claim."). The Sheriff is entitled to summary judgment on this claim as well.

F.

That leaves plaintiff's state law wrongful death claim. The Sheriff submits that he is entitled to summary judgment on this claim, arguing that plaintiff's failure to identify the Cook County Jail officers who either beat Mr. Hunt or allowed other detainees to assault him dooms her wrongful death claim under Illinois's Tort Immunity Act, 745 ILCS 10/2-109. Under the Act, "[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." For the Sheriff, because there is no liable employee, there can be no liability in respondeat superior for the Sheriff.

The plaintiff disagrees, relying on McCottrell v. City of Chicago, 135 Ill.App.3d 517, 520, 481 N.E.2d 1058, 1060 (1^st Dist. 1985). ( Plaintiff's Response, at 14-15). This is an odd choice, for that case holds that "it is sufficient for recovery against a public entity to prove that an identified employee would be liable even though that employee is not named a defendant in the action." 135 Ill.App.3d at 520, 481 N.E.2d at 1060 (emphasis supplied). There is no identified employee here, while in McCottrell, there was, and "the specific paramedics were identified in plaintiffs' amended complaint. . . ." 135 Ill.App.3d at 518, 481 N.E.2d at 1059.

Under Illinois law, a public employee — and, in turn, a public entity — is only liable for wilful and wanton conduct. 745 ILCS 10/2-202; 10/4-105; Williams v. Rodriguez, 509 F.3d 392, 405 (7^th Cir. 2007); Gordon v. Degelmann, 29 F.3d 295, 299 (7^th Cir. 1994). Conduct is willful and wanton under Illinois law if it constitutes a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. Illinois recognizes that negligence and willful and wanton conduct are different, see Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill.2d 429, 593 N.E.2d 522, 531 (1992); Loitz v. Remington Arms Co., Inc., 138 Ill.2d 404, 563 N.E.2d 397, 402 (1990), because "willful and wanton conduct carries a degree of opprobrium not found in merely negligent behavior. . . ." Burke, 593 N.E.2d at 532. Willful and wanton conduct "`approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it.'" Loitz, 563 N.E.2d at 402 (citation omitted). The standard for assessing whether conduct is willful and wanton is "remarkably similar" to the deliberate indifference standard. See Chapman v. Keltner, 241 F.3d 842, 847 (7^th Cir. 2001).

Although the plaintiff's submission does not delve into it, the Seventh Circuit has suggested that there might be cases where there is enough evidence about what an employee did, even though the plaintiff does not know the employee's name, that an employee's conduct can be assessed as wilful and wanton. See Williams, 509 F.3d at 405; Gordon, 29 F.3d at 299. Where the plaintiff had evidence about what an officer did but was unable to discover his or her identity, the principle would apply. But it does not apply in a case like this. With no identified officer, and no evidence as to what happened before Mr. Hunt collapsed, plaintiff cannot establish wilful and wanton — or even negligent conduct — on anyone's part. Consequently, summary judgment is appropriate on the plaintiff's wrongful death claim as well.

Generally, when all federal claims have been dismissed prior to trial, the federal court should relinquish jurisdiction over the remaining pendant state claims under 28 U.S.C. § 1367(c). Wilson v. Price, 624 F.3d 369, 395 (7^th Cir. 2010); Porter v. Suliene, 2010 WL 3377598, *3 (7^th Cir. 2010); Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507,513 (7^th Cir. 2010). But, "[i]f the district court, in deciding a federal claim, decides an issue dispositive of a pendent claim, there is no use leaving the latter to the state court." Wright v. Associated Insurance. Cos., 29 F.3d 1244, 1252 (7^th Cir. 1994); Williams, 509 F.3d at 404. Given the bases for the disposition of plaintiff's federal claims, this case is an inappropriate one in which to decline supplemental jurisdiction over plaintiff's wrongful death claim.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment [#148] is GRANTED.

DATE: 12/8/10