DEFENDANTS NURSE MELISSA PITTS AND ADVENTIST HINSDALE HOSPITAL'S MOTION FOR JUDGMENT AS A MATTER OF LAW ON PLAINTIFF'S EXCESSIVE FORCE CLAIM

JOAN HUMPHREY LEFKOW, District Judge.

NOW COME Defendants Nurse Melissa Pitts and Adventist Hinsdale Hospital, by and through their attorneys, Barker & Castro, LLC., and hereby move this Honorable Court to enter Judgment as a Matter of Law in their favor and against Plaintiff on Count II of Plaintiff's 1st Amended Complaint. In support thereof, Defendants state as follows:

Background

Plaintiff's First Amended Complaint is a five Count pleading which wages allegations against these Defendants and others. See "Plaintiff's First Amended Complaint," attached hereto as Exhibit A. The allegations waged by Plaintiff are as follows:

Thus, the allegations waged against these Defendants that are the subject of this trial are found in Counts II and IV, only, and Plaintiff's allegations are further limited based upon the Court's granting of Defendants' Motion for Summary Judgment, in part.

Standards and Applicable Law

Federal Rule of Procedure 50 states:

"(a) Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment."

USCS Fed Rules Civ Proc R 50.

Under Rule 50, a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. Rule Civ. Proc. 50(a); see also Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011, 1018, 145 L. Ed. 2d 958 (2000) (slip op., at 5-7).

Argument

To establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and a private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, and (2) those individual(s) were willful participant[s] in joint activity with the State or it agents." Hopkins v. City of Springfield, 2014 U.S. Dist. LEXIS 90345, 15-16 (C.D. Ill. July 2, 2014), citing Cooney v. Casady, 735 F.3d 514, 518 (7th Cir. 2013). A civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principle element of which is an agreement between the parties to inflict a wrong against or injury upon another. Cooney v. Casady, 735 F.3d 514, 519 (7th Dist. 2013); citing Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1975).

A. Nurse Pitts did not enter into a conspiracy with any state actor, as a matter of law.

As stated in Hopkins, cited above, in order to prove a claim of conspiracy, Plaintiff is required to establish that a private actor reached an understanding with a state actor to deprive the plaintiff of a constitutional right. The minimum ingredient of a conspiracy is an agreement to commit some future unlawful act in pursuit of a joint objective. Redwood v. Dobson, 476 F.3d 462, 466 (7th Cir. Ill. 2007), citing United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993) (en banc).

Officer Hayes, Officer Maravigilia, and Nurse Pitts have each testified. The uncontradicted testimony is that Nurse Pitts did not speak to either Officer Hayes or Officer Maravigilia at any time prior to or during the at-issue events.

Officer Hayes and Maravigilia spoke together, and by themselves, regarding potentially needing to use a taser if the situation became dangerous. The evidence is uncontradicted that Officer Hayes unilaterally made a decision to tase Plaintiff. There is no evidence that Nurse Pitts was ever involved in any discussion regarding tasing Plaintiff. There is no evidence that Nurse Pitts was aware of any potential that Plaintiff would be tased. There is no evidence that Nurse Pitts entered into any plan with Officer Hayes or Officer Maravigilia at any time.

The evidence is uncontradicted that Officer Hayes engaged Dr. Martinez in a conversation regarding Plaintiff's status in the hospital. There is no evidence that Nurse Pitts participated in this conversation. There is no evidence that Nurse Pitts played any part of developing any plan.

Plaintiff bears the burden of proving that Nurse Pitts reached an understanding with a state actor to deprive Plaintiff of a constitutional right. There is no evidence in this case that Nurse Pitts ever reached any understanding of any kind with any state actor. The evidence in this case affirmatively establishes that Nurse Pitts never spoke to any state actor. There is no legally sufficient evidentiary basis upon which any reasonable jury could determine that Nurse Pitts entered into any agreement with any state actor to commit any unlawful act. Judgment must be granted in favor of Nurse Pitts as a matter of law.

B. Nurse Pitts did not have the required intent in order to be held liable under a theory of conspiracy.

As stated in Cooney, the principle element of a conspiracy is an agreement to inflict a wrong or injury upon another. There is no evidence in this case that Nurse Pitts had any intent to inflict any wrong upon Plaintiff.

As Wojcik makes clear, the mens rea required for liability to be found under a claim of conspiracy is one of intent.

It is undisputed that Nurse Pitts was not even aware of the potential for Plaintiff to be tased. Thus, it is impossible for Nurse Pitts to have possessed the requisite intent to be liable for the tasing of Plaintiff.

It is Defendants' position that Dr. Martinez and Nurse Pitts are not state actors, and did not enter into any agreement with any state actor such that any of their respective actions constituted a conspiracy. Therefore, no Defendant may be held liable for any decision made regarding the administration of Geodon under a conspiracy theory. However, even assuming, arguendo, that the administration of Geodon forms a basis of Plaintiff's conspiracy claims, Plaintiff's claims fail as a matter of law.

The decision to administer medication against a Plaintiff's will is not inherently a "wrong" against a patient in an emergency situation. 405 ILCS 5/2-107. An agreement to do that which is legal is not a conspiracy. Hudson v. S.D. Warren Co., 665 F.Supp. 937, 941 (D. Me. 1987). Therefore, if the administration of medication was appropriate, there can be no conspiracy. Plaintiff, of course, contends that the decision to medicate Plaintiff was not appropriate.

However, the law establishing the elements of conspiracy does not require that the administration of medication be appropriate. As quoted in Wojcik above, accidental, inadvertent, or negligent participation in a common scheme does not amount to conspiracy. There is no such thing as an accidental or negligent conspiracy.

It is undisputed that Dr. Martinez evaluated Plaintiff and determined that Plaintiff was an imminent risk of causing serious harm to himself and others. Dr. Martinez, in his role as an attending Emergency Department physician, unilaterally made the decision to order Geodon. Nurse Pitts, in her role as an Emergency Department nurse carried out Dr. Martinez's order.

Although there is no evidence of in this case to support such a finding, hypothetically, it would not be enough even for Dr. Martinez's decision to have been incorrect, as there is no such thing as an accidental or negligent conspiracy. Conspiracy must be intentional. In order for Defendants to be held liable under a theory of conspiracy, Plaintiff must prove that Defendants knew Dr. Martinez's decision to administer Geodon to Plaintiff was made with the intent to violate Plaintiff's constitutional rights.

Plaintiff's own expert, Dr. Junig, does not dispute that Plaintiff was in the midst of a manic episode, for which Geodon is an appropriate medication. Dr. Junig's criticisms of Dr. Martinez are based on claims that Dr. Martinez should have considered other options, prior to ordering Geodon. Most importantly, Plaintiff has not presented any evidence that Nurse Pitts reliance on Dr. Martinez was not reasonable. The only evidence in this case, elicited from Dr. Martinez, Dr. Ortinau, and Nurse Pitts, is that she appropriately carried out Dr. Martinez's order.

Plaintiff bears the burden of proving that Nurse Pitts intended to participate in a conspiracy to violate Plaintiff's civil rights. The evidence in this case affirmatively establishes that Nurse Pitts appropriately carried out Dr. Martinez's order. There is no legally sufficient evidentiary basis upon which any reasonable jury could determine that Nurse Pitts intended to embark on a conspiracy to violate Plaintiff's civil rights. Judgment must be granted in favor of Nurse Pitts as a matter of law.

Conclusion

In sum, Plaintiff has failed to prove that: 1) Nurse Pitts reached any agreement with any state actor; and 2) Nurse Pitts intended to violate Plaintiff's constitutional rights. Plaintiff must prove each of these claims. No reasonable jury could determine that Plaintiff has proved any of the two specified elements. Judgment must be granted in favor of Nurse Pitts on Count II of Plaintiff's First Amended Complaint as a matter of law.

WHEREFORE Defendants Nurse Melissa Pitts and Adventist Hinsdale Hospital request that this Honorable Court enter Judgment as a Matter of Law in their favor and against Plaintiff on Count II of Plaintiff's First Amended Complaint, and for such other relief as this Court deems just.

FIRST AMENDED COMPLAINT

NOW COMES the Plaintiff, Deane Pantaleo, by and through his attorneys, John P. DeRose & Associates, and complains of Defendants OFFICER LOUIS HAYES, JR., OFFICER ANTHONY MARAVIGLIA, the VILLAGE OF HINSDALE, ROBERT GRONER, SECURITY GUARD SANCHEZ, NURSE PITTS, DR. MARTINEZ, and ADVENTIST HINSDALE HOSPITAL as follows:

JURISDICTION

1. The jurisdiction of this Honorable Court is invoked pursuant to 42 U.S.C. § 1983 and supplemental jurisdiction is requested over state law claims pursuant to 28 U.S.C. § 1367.

PARTIES

2. Deane Pantaleo, at all relevant times hereinafter mentioned, was a citizen and resident of the State of Illinois and the United States of America.

3. Officer Louis Hayes, Jr., at all relevant times hereinafter mentioned, was a Police Officer employed with the Village of Hinsdale Police Department.

4. Officer Anthony Maraviglia, at all relevant times hereinafter mentioned, was a Police Officer employed with the Village of Hinsdale Police Department.

5. The Village of Hinsdale, at all relevant times hereinafter mentioned, was and is a municipal corporation and body politic in the State of Illinois.

6. Robert Groner, at all relevant times hereinafter mentioned, was a Security Officer employed with Adventist Hinsdale Hospital.

7. Security Guard Sanchez, at all relevant times hereinafter mentioned, was a Security Officer employed with Adventist Hinsdale Hospital.

8. Nurse Pitts, at all relevant times hereinafter mentioned, was employed with Adventist Hinsdale Hospital.

9. Dr. Martinez, at all relevant times hereinafter mentioned, was a physician employed with Adventist Hinsdale Hospital.

10. Adventist Hinsdale Hospital, at all relevant times hereinafter mentioned, was and is a Corporation providing health care services to residents of its Illinois community.

FACTS

11. On November 10, 2007, Plaintiff, who suffers from and has been diagnosed with a bipolar psychological disorder, was brought by his parents to Adventist Hinsdale Hospital.

12. Plaintiff became upset when he realized that his parents deceived him in order to get him to the hospital.

13. The Hinsdale Police Department was summoned to the hospital by employees of Adventist Hinsdale Hospital, and shortly thereafter, two police officers arrived at the hospital and spoke with Plaintiff.

14. While speaking with the police officers, Plaintiff was calm and cooperative, and allowed himself to be admitted into Adventist Hinsdale Hospital.

15. Plaintiff consented to a dose of sedative medication administered to him by employees of Adventist Hinsdale Hospital on November 10, 2007, which medication promptly rendered Plaintiff unconscious.

16. When Plaintiff awoke on November 11, 2007, he found himself in a "safe room" of the Hinsdale Hospital Emergency Room.

17. Plaintiff was told that he was being admitted into the mental health wing of the hospital.

18. Upon receipt of that information, Plaintiff became confused and agitated, and started to workout as a way to calm himself and control his nervous energy as has long been his wont and practice.

19. A security guard at Hinsdale Hospital summoned a nurse, and Plaintiff heard the nurse tell the security guard that they were going to administer Plaintiff another shot as she went for the syringe.

20. Plaintiff did not want further medication or sedation, so he closed the door to his hospital room and pushed his bed in front of the door.

21. Soon Plaintiff heard an alarm go off with a "code grey" alert, and Plaintiff knew that the police were being summoned.

22. Upon hearing the "code grey" alert, Plaintiff immediately opened the door to his hospital room.

23. Plaintiff told the security guard that he was not looking for conflict and that he would speak to the police officers when they arrived.

24. Shortly thereafter, Hinsdale Police Officers Louis Hayes, Jr. and Anthony Maraviglia arrived and came rushing down the hall, yelling and swearing loudly.

25. When they arrived, they found Plaintiff standing in his underwear in the doorway of his room, asking the security guards to help him untie a knot left in his hospital gown so that he could put on the gown and cover himself.

26. Plaintiff calmly told Police Officers Louis Hayes, Jr. and Anthony Maraviglia that he was refusing treatment, that he did not want to submit to any form of medication or sedation, and that he wanted to be released or transferred to the mental health ward.

27. Plaintiff went back into the room and sat down on the gurney as Police Officers Louis Hayes, Jr. and Anthony Maraviglia talked to Security Guards Groner and Sanchez, Nurse Pitts, and Doctor Martinez.

28. Plaintiff saw Nurse Pitts approach the room carrying a needle, and the security guards and police officer following closely behind her.

29. Plaintiff jumped off the bed and wedged the door with his foot and stated that he was not going to take the medication or sedation of any kind.

30. Officer Louis Hayes, Jr. and Officer Anthony Maraviglia approached the door and forced themselves into the room.

31. Plaintiff retreated into the far corner of the room opposite the door, and in doing so rolled the gurney out of his way and in between himself and the Defendants.

32. In the corner, Plaintiff got into the fetal position facing the wall with his hands covering his head.

33. Plaintiff began to cry and very clearly stated so that the Defendants could and did hear him, "I surrender!"

34. Plaintiff was immediately tased in the back upper torso by the Officer Hayes.

35. As Plaintiff was being shocked by the taser and laid on the floor in pain, one of the Defendant police officers said, "Who's in charge now, Mother_____er?"

36. When Officer Hayes finished tasing Plaintiff, Officer Maraviglia roughly drew and bent Plaintiff's hands behind his back and handcuffed him while Nurse Pitts simultaneously administered him a dose of the sedative "Geodon".

37. The sedative was administered at the direction of Dr. Martinez against Plaintiff's stated wishes and expressed protestations and promptly rendered him unconscious.

38. While the other Defendants looked on and did not intervene to help him, Plaintiff was arrested by Police Officers Louis Hayes, Jr. and Anthony Maraviglia.

39. Plaintiff was transported in custody to the jail of the Hinsdale Police Department and charged with the criminal offenses of Aggravated Assault and Resisting a Peace Officer where he remained until the was able to post bond to secure his release.

40. Thereafter, Plaintiff was obliged to answer the criminal charges in the Circuit Court of Du Page County, Illinois and to secure legal counsel to represent him in the defense of those criminal charges.

41. On July 22, 2008, after the prosecutors for the People of the State of Illinois had mustered all the evidence that they could muster, Plaintiff was acquitted of both criminal charges and was discharged.

COUNT I VIOLATION OF 42 U.S.C. § 1983 FALSE ARREST

(Against Defendants Officer Louis Hayes, Officer Anthony Maraviglia and Village of Hinsdale)

42. The Plaintiff repeats and re-alleges paragraphs 1 through 41 of this Complaint as paragraphs 1 through 41 of Count I as though fully set forth herein. 43. Defendant Officers Hayes and Maraviglia violated the civil rights of plaintiff when they illegally seized the plaintiff against his will and falsely arrested him without probable cause.

44. The Defendant Officers were, at all times, acting under color of state law, in their capacity as Hinsdale Police Officers.

45. Defendant Officer's actions were intentional.

46. Plaintiff suffered physical and mental injuries due to the false arrests.

47. The Hinsdale Police Department has a custom and practice consistent with the Defendant Officer's actions.

WHEREFORE, Plaintiff Deane Pantaleo, respectfully pray for judgment against the Defendants and each of them as follows:

A. Compensatory damages in the amount of one million dollars ($1,000,000), including but not limited to, physical injury and disability, pain and suffering, and medical expenses which were incurred as a result of Defendants' actions;

B. Costs of this suit;

C. Reasonable attorney's fees;

D. Punitive damages against the individually named Defendant Officers in the amount of one million dollars ($1,000,000); and

E. Other such relief as this Honorable Court deems proper and just.

COUNT II VIOLATION OF 42 U.S.C. § 1983 EXCESSIVE FORCE

(Against all defendants)

48. The Plaintiff repeats and re-alleges paragraphs 1 through 47 of this Complaint as paragraphs 1 through 47 of Count II as though fully set forth herein.

49. The Defendants and each of them violated the civil rights of the Plaintiff when he was subjected to the use of excessive, unreasonable, and unjustified force, and subjected to great duress.

50. Defendants violated Plaintiff's Fourth Amendment right to be free from unreasonable search and seizure when excessive force was used against Plaintiff Deane Pantaleo.

51. Defendant Officers, without any legal justification, willfully and maliciously tased Plaintiff, causing him severe physical and emotional pain.

52. Thereafter, the Defendant Officers without any legal justification willfully, forcefully, and maliciously restrained Plaintiff.

53. The Defendants and each of them conspired together to use excessive force against Plaintiff, restrain him, and administer sedative medication without his consent and against his clearly stated protestations to the contrary.

54. As a result of the Defendants' use of excessive use, restraint against him, and administering sedative medication without his consent, Plaintiff suffered physical and emotional injuries as hereinafter set forth.

55. The Defendants and each of them knew or should have known that their actions were violative of rights guaranteed to the Plaintiff.

56. The Defendants' actions were the direct and proximate cause of the injuries suffered by the Plaintiff.

57. The Defendant Police Officers were at all times, acting under the color of state law, in their individual and official capacities as members of the Hinsdale Police Department.

58. The actions of the Defendants and of each of them, acting in conspiracy with each other, were willful and malicious and showed a wanton disregard for the constitutional rights of Plaintiff.

59. The Defendants used a degree of force that was objectively unreasonable in light of the facts and circumstances at the time.

60. By reason of the acts of the Defendants, Plaintiff has suffered great anxiety and pain of mind and body and will continue to suffer, all to his damage.

61. The Hinsdale Police Department maintains a custom and practice consistent with the actions of Police Officers Hayes and Maraviglia.

WHEREFORE, Plaintiff Deane Pantaleo, respectfully pray for judgment against the Defendants and each of them as follows:

A. Compensatory damages in the amount of one million dollars ($1,000,000), including but not limited to, physical injury and disability, pain and suffering, and medical expenses which were incurred as a result of Defendants' actions;

B. Costs of this suit;

C. Reasonable attorney's fees;

D. Punitive damages against the individually named Defendant Officers in the amount of one million dollars ($1,000,000); and

E. Other such relief as this Honorable Court deems proper and just.

COUNT III MALICIOUS PROSECUTION

(Against Defendants Officer Louis Hayes, Officer Anthony Maraviglia and Village of Hinsdale)

62. The Plaintiff repeats and re-alleges paragraphs 1 through 61 of this Complaint as paragraphs 1 through 61 of Count III as though fully set forth herein.

63. The arrest of Plaintiff subjected him to judicial proceedings.

64. There was no probable cause for either the arrest or the prosecution of plaintiff.

65. Defendant officers instigated the prosecution of Plaintiff by arresting him without probable cause, signing false complaints, and aiding in subjecting the plaintiff to judicial proceedings.

66. The Hinsdale Police Department maintains a custom and practice consistent with the officers' actions.

67. The Defendants instituted or continued the proceedings maliciously.

68. The proceedings were terminated in the plaintiff's favor in a manner indicative of innocence.

69. Plaintiff suffered physical and emotional injuries due to the prosecutions.

70. Plaintiff was deprived of his liberty interests due to the prosecutions.

WHEREFORE, Plaintiff Deane Pantaleo, respectfully pray for judgment against the Defendants and each of them as follows:

A. Compensatory damages in the amount of one million dollars ($1,000,000), including but not limited to, physical injury and disability, pain and suffering, and medical expenses which were incurred as a result of Defendants' actions;

B. Costs of this suit;

C. Reasonable attorney's fees;

D. Punitive damages against the individually named Defendant Officers in the amount of one million dollars ($1,000,000); and E. Other such relief as this Honorable Court deems proper and just.

COUNT IV ASSAULT and BATTERY

(Against all Defendants)

71. The Plaintiff repeats and re-alleges paragraphs 1 through 70 of this Complaint as paragraphs 1 through 70 of Count IV as though fully set forth herein.

72. The Defendants and each of them conspired together to restrain Plaintiff and administer medicine to him against his will on November 11, 2007.

73. Not only did Plaintiff not consent to the administration of medication/sedation, he in fact, verbally opposed it.

74. Plaintiff did not present a medical emergency at the time the medication/sedation was administered.

75. No medical emergency existed and the administration of medication/sedation was not required in order to protect the patient's health.

76. Defendants did not seek to obtain or have a valid Court Order allowing them to administer medication/sedation to Plaintiff Deane Pantaleo.

77. Defendants, by virtue of their aforementioned conduct, intentionally assaulted and battered Plaintiff, causing him severe physical and mental pain and suffering.

WHEREFORE, Plaintiff Deane Pantaleo, respectfully pray for judgment against the Defendants and each of them as follows:

A. Compensatory damages in the amount of one million dollars ($1,000,000), including but not limited to, physical injury and disability, pain and suffering, and medical expenses which were incurred as a result of Defendants' actions;

B. Costs of this suit;

C. Reasonable attorney's fees;

D. Punitive damages against the individually named Defendant Officers in the amount of one million dollars ($1,000,000); and

E. Other such relief as this Honorable Court deems proper and just.

COUNT V INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

(Against all defendants)

78. The Plaintiff repeats and re-alleges paragraphs 1 through 77 of this Complaint as paragraphs 1 through 77 of Count V as though fully set forth herein.

79. The actions of the Defendants were extreme and outrageous.

80. The Defendants actions were done in consort and conspiracy to intentionally and maliciously cause severe emotional distress to Plaintiff.

81. Defendants knew or reasonably should have known that their actions had a high probability of causing severe emotional distress to the Plaintiff.

82. Defendants actions were intentional and malicious and demonstrated a willful and wanton disregard for the rights of Plaintiff and had a high probability of causing severe emotional distress to him.

83. Plaintiff has suffered and continues to suffer from severe emotional distress.

WHEREFORE, Plaintiff Deane Pantaleo, respectfully pray for judgment against the Defendants and each of them as follows:

A. Compensatory damages in the amount of one million dollars ($1,000,000), including but not limited to, physical injury and disability, pain and suffering, and medical expenses which were incurred as a result of Defendants' actions;

B. Costs of this suit;

C. Reasonable attorney's fees;

D. Punitive damages against the individually named Defendant Officers in the amount of one million dollars ($1,000,000); and

E. Other such relief as this Honorable Court deems proper and just.