RIPPLE, Circuit Judge.
Janet Hahn was a pretrial detainee at the Champaign County Correctional Center ("CCCC") immediately before she died as a result of diabetic ketoacidosis.
The plaintiffs now appeal, raising three issues. First, the plaintiffs submit that the district court erred in dismissing their state law wrongful death claim. The district court faulted the plaintiffs for failing to comply with an Illinois statute that requires plaintiffs who allege medical malpractice to submit with their complaints (1) an affidavit confirming that a medical professional has verified the claim's merit and (2) a written report from that medical professional. Second, the plaintiffs contend that the district court abused its discretion by dismissing their wrongful death claim with prejudice instead of granting them leave to amend in order to cure the deficiency. Finally, they submit that the district court erred in granting summary judgment to two of the defendants.
We affirm in part and reverse in part the judgment of the district court. The district court correctly dismissed the plaintiffs' wrongful death claim but erred by dismissing it with prejudice. The plaintiffs produced insufficient evidence to permit their claims against Sheriff Walsh and Health Professionals Ltd. ("HPL"), the jail's medical services contractor, to survive summary judgment. Accordingly, we reverse the district court's judgment insofar as it dismissed the wrongful death claim with prejudice. We affirm the remainder of its decisions.
We recount the facts in the light most favorable to the plaintiffs. See Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013).
On the evening of June 15, 2007, Mrs. Hahn was arrested for aggravated domestic battery and transported to the satellite location of the CCCC. The Champaign
Mrs. Hahn was placed on suicide watch pursuant to a CCCC policy for handling detainees who are identified as mentally ill, who demonstrate unusual behavior or who indicate that they are experiencing suicidal ideations. Accordingly, Mrs. Hahn was given a gown and blanket made from a material that prevents detainees from fashioning them into instruments of self-harm. Further, correctional officers were required to observe Mrs. Hahn every fifteen minutes for signs of physical or mental distress and to report any such signs to their supervisors.
Beyond the fifteen-minute checks, the CCCC had additional policies in place relevant to Mrs. Hahn's physical and mental conditions. First, the CCCC contracted with a private company, HPL, to provide medical and mental health services to detainees in its custody.
In order to provide the necessary medical and mental health care, HPL staffed the CCCC with a physician (who visited once per week), registered nurses and mental health personnel. Correctional officers could contact an on-call nurse at any time. HPL provided training on an annual basis to correctional officers about the care and monitoring of diabetic patients. This training included instruction on how to recognize hypoglycemia and hyperglycemia (low and high blood sugar, respectively).
In addition to the CCCC's policies and practices, HPL had its own policies for identifying and handling detainees suffering from serious medical conditions, including
When Mrs. Hahn was first processed into the jail, Officer Joanne Lewis and a supervisor, Sergeant Michael Johnson, were among the officers on duty. Officer Lewis gave Mrs. Hahn a meal on the evening of June 15, 2007. When she returned to retrieve the tray, Officer Lewis noted that some of the food was gone, but she did not know whether Mrs. Hahn had eaten it. At some point that evening, Mrs. Hahn took off her gown and stuffed her gown and blanket into the toilet in her cell. The cell then flooded. Accordingly, the water to Mrs. Hahn's cell was shut off. After the water was shut off, correctional officers brought Mrs. Hahn water upon request. Officer Lewis assisted Mrs. Hahn in putting on a new gown.
Sergeant Johnson also interacted with Mrs. Hahn that evening. He spoke with Mrs. Hahn about her diabetes and discussed checking her blood sugar. Mrs. Hahn initially resisted but eventually agreed to have her blood sugar checked. After contacting the on-call HPL nurse, Kendra Adams, Sergeant Johnson checked Mrs. Hahn's blood sugar and, at 9:40 p.m., her blood sugar reading was 160. Adams advised Sergeant Johnson that this reading was within an acceptable range, and no insulin was provided to Mrs. Hahn.
After his interaction with Mrs. Hahn, Sergeant Johnson wrote an e-mail to HPL staff. He stated that Mrs. Hahn was a "psych patient," that she had a cut and stitches on her left arm (and that the bandage had been removed for safety purposes because she had made statements about hurting herself), that she was unpredictable and had flooded her cell, and that her blood sugar was 160 and she was not given insulin. Sergeant Johnson also left a message for officers assigned to subsequent shifts. That message included most of the information given to HPL, as well as a note that Mrs. Hahn had been very uncooperative and that the water in her cell had been turned off. CCCC staff started a "segregation log" for Mrs. Hahn, which noted various information, including her refusal of meals.
On that same evening, according to the testimony of Donald MacFarlane, a detainee at the CCCC, Mrs. Hahn stood at her cell window for more than an hour, yelling that she needed help and asking that her doctor be called. MacFarlane testified
Officer Karee Voges was on duty from 11:45 p.m. on June 15, 2007, to 8:15 a.m. on June 16, 2007. She testified that because she had interacted with Mrs. Hahn during her prior detention, she knew that Mrs. Hahn was a Type-1 diabetic and that she had a history of being angry and uncooperative. Officer Voges said that throughout that night, she brought Mrs. Hahn cups of water when requested. She offered breakfast to Mrs. Hahn around 6:30 a.m., but she documented on the log that Mrs. Hahn refused the meal.
On the morning of June 16, Mrs. Hahn was seen by both Alyson Morris, a mental health clinician with HPL,
Swain arrived at the CCCC around 9:30 a.m. on June 16. She reviewed Officer Schweighart's paperwork regarding Mrs. Hahn. Swain recalled from a prior experience with Mrs. Hahn and from looking at Mrs. Hahn's records that Mrs. Hahn was an insulin-dependent diabetic and that she previously had refused insulin and blood sugar checks. She also was aware of the possibility that Mrs. Hahn suffered from a mental disability. Swain was called to Mrs. Hahn's cell at around 10:00 a.m. because a correctional officer had tested Mrs. Hahn's blood sugar and found it to be 396.
On the afternoon of June 16, Morris conducted a more in-depth assessment of Mrs. Hahn. She completed an "Initial Mental Health Screening and Assessment Form," which noted Mrs. Hahn's antidepressant medication
Around 4:00 p.m. on June 16, Mrs. Hahn was escorted to the infirmary by Officer Jenna Thode for a blood sugar check. Officer Thode initially wrote down 320 on the tracking sheet as Mrs. Hahn's blood sugar level. She then crossed it out and wrote 107. Officer Thode's explanation is that 320 is her badge number, and she had written it accidentally. Mrs. Hahn refused dinner on the evening of June 16. MacFarlane testified that Mrs. Hahn looked sick and pale that evening.
Officer Voges worked overnight again from June 16 to June 17. She brought Mrs. Hahn water on several occasions. In the morning on June 17, Mrs. Hahn refused breakfast. Officer Voges tried to test Mrs. Hahn's blood sugar. The Accu-Chek machine read "E" on two attempts. An "E" reading could indicate that there was not enough blood used or that the stick containing blood was not inserted properly into the Accu-Chek machine. According to the plaintiffs, it also could mean that there was "some problem with the machine."
At approximately 11:00 a.m. that same morning, a correctional officer told Swain that Mrs. Hahn had reported vomiting in her cell. Swain immediately went to check on Mrs. Hahn, but she did not observe any signs of vomiting. Swain said that she spoke with Mrs. Hahn at this point and observed her for any signs or symptoms of illness. Throughout the day on June 17, Officer Terrance Alexander had repeated contacts with Mrs. Hahn. He did not observe
Later that evening, Officer Thode tried to test Mrs. Hahn's blood sugar but Mrs. Hahn again refused. Mrs. Hahn also refused dinner that evening. Mrs. Hahn told Officer Thode that she had been throwing up for the last few days. Officer Thode told the officers whose shift followed hers about her interactions with Mrs. Hahn, but Mrs. Hahn's refusals to have her blood sugar checked were not documented on the tracking sheet or segregation log.
Sixty-one cell checks, conducted by multiple correctional officers, were performed from 3:00 p.m. on June 17 to 6:30 a.m. on June 18. One officer testified that when he checked on Mrs. Hahn throughout his overnight shift, she was making sounds and moving around a lot and that he heard her hitting the door. Another officer, Matthew McCallister, testified that sometime between 2:00 a.m. and 4:00 a.m., he opened the door to Mrs. Hahn's cell to check on her because she was so close to the door that he could not see her from the outside, but that she was responsive and moved away from the door when he opened it. Two detainees testified that, during the night, they heard a female detainee stating that she did not feel well, that she wanted to see the nurse and that she needed insulin.
Early in the morning on June 18, CCCC staff began to treat Mrs. Hahn's condition as acute. MacFarlane testified that, around 6:00 a.m., a correctional officer looked into Mrs. Hahn's cell and said, "This one's not looking so good."
In June 2009, Mr. Hahn and Mr. Redwood filed an eight-count complaint in the United States District Court for the Central District of Illinois. The Amended Complaint, filed shortly after the original complaint, named as defendants the County of Champaign, Sheriff Walsh, Officer McCallister and other unnamed Champaign County correctional officers. It also named HPL and unnamed "jail nurse(s)."
The defendants moved to dismiss the complaint on various grounds. Relevant to this appeal, the County of Champaign, Sheriff Walsh and HPL moved to dismiss Count VIII, the state law wrongful death action. Specifically, the defendants contended that the plaintiffs had failed to comply with an Illinois state law, 735 ILCS 5/2-622, that required them to include with their complaint "an affidavit of merit and a written report from a health professional."
The plaintiffs then filed a Second Amended Complaint that addressed the rulings made by the district court on the motions to dismiss. Counts II, IV and V remained substantially unchanged in the Second Amended Complaint. The plaintiffs did not include a wrongful death claim in the Second Amended Complaint. They did, however, file a motion under Federal Rule of Civil Procedure 59(e) to amend the judgment dismissing Count VIII. They made two arguments: (1) that no affidavit or report needed to be provided because Federal Rule of Civil Procedure 8, not Illinois state pleading rules, governed the sufficiency of their complaint; and (2) that, in the alternative, they should have been permitted to amend their complaint under the relation-back doctrine, despite the expiration of the relevant limitations period. The district court denied the Rule 59(e) motion; it held that section 2-622 applies in federal court and that dismissal with prejudice was proper because plaintiffs' counsel knew of the affidavit requirement and failed to attempt to comply with it before the statute of limitations had expired.
The case proceeded through discovery, and, in February 2012, the defendants moved for summary judgment. The district court granted summary judgment in favor of the defendants. With respect to the claims against Sheriff Walsh in his official capacity (Counts II and V), the district court held that the plaintiffs had "not identified evidence sufficient for the factfinder to conclude that Walsh maintained a policy or custom evincing deliberate indifference to the needs of mentally ill or diabetic inmates that resulted in harm to Janet."
The plaintiffs timely appealed and now challenge three of the district court's rulings. First, they submit that the district court erred in dismissing the state law wrongful death claim (Count VIII). Specifically, they contend that Illinois's statutory requirement that a claim alleging medical malpractice — as the wrongful death claim against HPL does — be accompanied by an affidavit and written report confirming the claim's merit, see 735 ILCS 5/2-622, conflicts with Rule 8 or Rule 11 of
The jurisdiction of this court and of the district court is secure.
We first turn to the dismissal of the defendants' wrongful death claim. Count VIII of the plaintiffs' Amended Complaint alleged that HPL had failed to provide adequate medical treatment to Mrs. Hahn, in violation of the state's Wrongful Death Act, 740 ILCS 180/1 to /2.2. Under Illinois law, a plaintiff seeking damages for "medical, hospital, or other healing art malpractice" must attach to his complaint either (1) an affidavit confirming that he has reviewed the facts of the case with a health care professional and that the professional believes that there is a "reasonable and meritorious cause for the filing of such action," as well as a copy of the professional's written report on the case, or (2) an affidavit stating an acceptable reason why such an opinion and report could not be obtained. 735 ILCS 5/2-622(a).
The parties do not dispute that if this claim had been brought in state court, this provision would have required the plaintiffs to file an affidavit and report conforming to the statutory requirements. They disagree solely as to whether the affidavit and report must be attached when the state law claim is brought in federal court. The district court held that they must comply with the provisions of state law.
The plaintiffs now seek a reversal of that ruling. They submit that section 2-622 is a state procedural rule that conflicts with either Rule 8 or Rule 11 of the Federal Rules of Civil Procedure.
The district court was correct. The basic doctrine governing this area stems from Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). There, the Supreme Court addressed the question of whether state law or federal law controls when the two conflict in diversity cases.
In this case, the analytical path set out in the Supreme Court's later decision in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), provides us with more precise guidance. There, the Court addressed specifically how we ought to proceed when a state law is alleged to conflict with a Federal Rule of Civil Procedure. See Windy City, 536 F.3d at 670-71. Under Hanna, "if a duly promulgated federal rule of procedure conflicts with state law, the Rules Enabling Act, 28 U.S.C. § 2072, commands a federal court to apply [the federal] rule of procedure unless to do so would abridge a substantive right under state law." In re Air Crash Disaster, 803 F.2d at 313-14 (footnote omitted). In applying Hanna, we first consider whether there is a conflict between 735 ILCS 5/2-622 and either Rule 8 or Rule 11, or whether the state and
In this case, we conclude that there is no conflict between section 2-622 and either Rule 8 or Rule 11 and, therefore, we only need to conduct the first step of the Hanna analysis. See Shady Grove, 559 U.S. at 398, 130 S.Ct. 1431 ("We do not wade into Erie's murky waters unless the federal rule is inapplicable or invalid."). The Supreme Court has held in a number of instances that a Federal Rule controlled in the face of a conflicting state law,
As with the rules in Walker, Rules 8 and 11 and section 2-622 comfortably "can exist side by side" in diversity cases. Nothing in the operative provisions of Rule 8, Rule 11 or section 2-622 prevents us from simultaneously applying them. Rule 8 governs the content and form of a complaint. It requires, in pertinent part, that a complaint include a jurisdictional statement, a statement of the claim and a demand for relief.
Rule 11 may be enforced consistently with section 2-622 as well. The relevant portion of Rule 11 provides:
Further, given the respective purposes of Rule 8, Rule 11 and section 2-622, it cannot be said that one of the Federal Rules occupies the field that section 2-622 aims to regulate and, therefore, must trump the state law. See Burlington N., 480 U.S. at 7, 107 S.Ct. 967. The purpose of section 2-622 is "to reduce the number of frivolous medical malpractice lawsuits that are filed and to eliminate such actions at an early stage." Apa v. Rotman, 288 Ill.App.3d 585, 223 Ill.Dec. 851, 680 N.E.2d 801, 804 (1997).
By contrast, the purpose of Rule 8 is to provide a defendant with fair notice of the claims against him. Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 775 (7th Cir.1994); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Even after Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which clarified that a complaint must state a claim for relief that is "plausible" on its face, we have emphasized that plausibility is required "in order to assure that a pleading suffices to give effective notice to the opposing party," not in order to evaluate the veracity of the pleaded facts or the ultimate merits of the plaintiff's claim. Alexander v. United States, 721 F.3d 418, 422 (7th Cir.2013); cf. Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011) (noting that a complaint need not show whether a plaintiff will ultimately prevail). Thus the purposes of Rule 8 (fair notice) and section 2-622 (eliminating frivolous claims) are different enough that the rules comfortably may coexist in diversity cases.
With respect to Rule 11, the Supreme Court has stated that its "central purpose... is to deter baseless filings in district court and thus, consistent with the Rules Enabling Act's grant of authority, streamline the administration and procedure of the federal courts." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). "Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and `not interposed for any improper purpose.'" Id. (quoting Fed.R.Civ.P. 11 (1989)). Because Rule 11 is about attorney conduct — not about (or only incidentally about) the merits of a plaintiff's case — it has a sufficiently separate purpose from section 2-622 that no conflict exists between them.
Our prior cases support the conclusion that Rules 8 and 11 and section 2-622 may be enforced simultaneously in diversity cases.
In sum, section 2-622 may be applied in diversity cases without running afoul of either Rule 8 or Rule 11. Therefore, the district court properly dismissed the plaintiffs' wrongful death claim against HPL because the plaintiffs had failed to attach the required affidavit and report.
Having determined that the district court properly granted the defendants' motion to dismiss the plaintiffs' state law wrongful death claim, we now examine the district court's decision to dismiss that claim with prejudice. In dismissing the claim initially, the district court wrote, "Plaintiffs clearly failed to comply with the requirements of § 2-622 and the statute of limitations has passed. Therefore, this court concludes that dismissal of Count VIII with prejudice is proper in this case."
We are mindful of the discretion accorded to district courts in deciding whether to grant a motion to dismiss with or without prejudice. We are especially cautious about interfering with that discretion here because the district court believed that counsel knew that the district court required compliance with section 2-622 and deliberately had failed to respect the court's prior holdings. Nevertheless, we think that several considerations require that the district court reconsider this issue.
First, our cases and Illinois cases suggest that when a claim is dismissed for failure to include a section 2-622 affidavit and report, the dismissal should be without prejudice. The Appellate Court of Illinois
Cammon v. W. Suburban Hosp. Med. Ctr., 301 Ill.App.3d 939, 235 Ill.Dec. 158, 704 N.E.2d 731, 738-39 (1998) (emphasis added) (citations omitted) (internal quotation marks omitted). We quoted Cammon and echoed its sentiment in Sherrod v. Lingle, 223 F.3d 605, 614 (7th Cir.2000), where we held that a district court's failure to permit a plaintiff to amend his complaint in order to comply with section 2-622 was an abuse of discretion.
Second, although the district court believed that plaintiffs' counsel should have known to submit an affidavit and report in accordance with section 2-622, it made no specific finding that the failure to do so was in bad faith or an attempt to delay litigation. See Cookson v. Price, 393 Ill.App.3d 549, 333 Ill.Dec. 22, 914 N.E.2d 229, 232 (2009) (holding that it was error for the trial court to refuse to permit plaintiff to amend his complaint to include a new affidavit and report complying with section 2-622 where there was no indication that the plaintiff's failure to file the report earlier in the litigation was in bad faith). Further, it did not explain whether or in what manner the defendants might be prejudiced by permitting the plaintiffs to replead. See Christmas v. Dr. Donald W. Hugar, Ltd., 409 Ill.App.3d 91, 350 Ill.Dec. 883, 949 N.E.2d 675, 684 (2011) (listing prejudice to the other party as one of the factors that a trial court should consider in determining whether to grant leave to amend a complaint that did not comply with section 2-622). On this record, we decline to affirm the district court's decision to dismiss the claim with prejudice. Cf. Apa, 223 Ill.Dec. 851, 680 N.E.2d at 805 (overturning for abuse of discretion a trial court's decision to dismiss a claim with prejudice for failure to comply with section 2-622 because "the trial court failed to take into consideration the particular
Finally, the district court's conclusion that the plaintiffs could not timely file an amended complaint — attaching a proper affidavit and report — because the statute of limitations had lapsed on their wrongful death claim fails to take into account the possibility that the amendment would relate back to the plaintiffs' initial, timely complaint. Cf. Fed.R.Civ.P. 15(c) (explaining the doctrine of relation back). We take no position on whether relation back would permit amendment under the specific circumstances of this case;
We now turn to the district court's summary judgment decision. As previously discussed, the district court granted summary judgment to the defendants on all claims that remained after their respective motions to dismiss were denied. The plaintiffs confine their appeal, however, to the district court's grant of summary judgment (1) to Sheriff Walsh, on the plaintiffs' § 1983 claims against him in his official capacity; and (2) to HPL, on the plaintiffs' § 1983 claim against the organization.
Our standard of review is clear. We shall affirm the district court's grant of summary judgment if, exercising de novo review and construing all facts and inferences in favor of the plaintiffs, there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law. Guzman v. Sheahan, 495 F.3d 852, 856 (7th Cir.2007); see also Fed. R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The plaintiffs submit that Sheriff Walsh was deliberately indifferent primarily for failing to ensure that medical staff had a "written policy or procedure for diabetic detainees whose blood sugar was not being measured and who refused to eat."
If a plaintiff's allegation is that an express municipal policy violates the constitution when enforced, then a single incident may be sufficient to sustain liability
In this case, the plaintiffs have not shown that there was a "series of unconstitutional acts from which it may be inferred that the [sheriff] knew [CCCC] officers were violating the constitutional rights of [CCCC] inmates and did nothing." Estate of Novack, 226 F.3d at 531. Before the district court, the plaintiffs alleged that the following put Sheriff Walsh on notice of the unconstitutional practices in the jail:
The problem with these contentions is that none of them support the conclusion that the sheriff was on notice that the custom of which the plaintiffs complain on appeal — the sheriff's lack of policies for treating a diabetic detainee who refuses to participate in her own care — could cause death as a result of diabetic ketoacidosis. Although seven individuals had died in the CCCC, none had died because of complications from diabetes. In Pittman, 746 F.3d at 780, we held that thirty-six failed suicide attempts and three suicides were not enough — standing alone — to show that a sheriff's suicide-prevention policies were inadequate because the fact that other inmates attempted suicide did not necessarily show a deficiency in those policies. Similarly, in this case, the seven deaths referenced by the plaintiffs — notably, deaths from different causes than Mrs. Hahn's — do not show that Sheriff Walsh was "aware of any ... risk posed by [his] policies or that [Sheriff Walsh] failed to take appropriate steps to protect [Mrs. Hahn]." Id.
Swain's e-mail dealt with a single incident, not a "series," and it did not describe any adverse effects on Mrs. Hahn's health caused by the policies in place. At best, it showed that one member of HPL's nursing staff experienced a temporary difficulty with one detainee. See Calhoun, 408 F.3d at 380 (noting that the same problem needs to have come up multiple times to put a municipality on notice that a policy may need to be implemented to address the situation). The complaint by counsel on behalf of the earlier detainee, Morrissey, is similarly flawed. It does not show that detainees suffered a serious risk of harm, only that one detainee was dissatisfied with his treatment. Moreover, Morrissey's
We contrast this case with King v. Kramer, 680 F.3d 1013, 1021 (7th Cir. 2012), where we held that summary judgment was inappropriate for a municipality where there was evidence that officials were on notice that the municipality's medical policies were causing serious problems at the jail. There, the plaintiff challenged the jail's policy of taking detainees off of their prescribed medications and transitioning them to preferred medications absent proper supervision by a physician. Id. at 1020-21. We held that there was a triable issue of fact as to whether the municipality was aware of the problem because several newspaper articles had addressed it and the sheriff had publicly acknowledged his awareness of the problem. Id. at 1021. Unlike in King, the plaintiffs here do not point to any evidence that Sheriff Walsh knew that there was a problem with diabetic detainees refusing to participate in their own care and, as a consequence, suffering serious medical ramifications.
The record before us suggests that any deliberate indifference that may have occurred in this case was at the hands of the individual correctional officers or HPL employees who interacted with Mrs. Hahn.
The plaintiffs next submit that the district court erred in granting summary judgment to HPL. They first contend that, contrary to established precedent set forth in Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir.1982), and subsequent cases, HPL should be liable for the actions of its employees under a respondeat superior theory of liability. Second, they submit that even if HPL is not liable under a respondeat superior theory of liability, the company is liable under a direct theory of liability because its policies and procedures for treating diabetic detainees were deliberately indifferent to the needs of those individuals. We shall address each of these contentions.
The plaintiffs submit that they should be able to pursue a claim under § 1983 against HPL for its employees' misconduct. In their view, we have erred in extending the limitation on municipal liability established in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), to private actors. Monell permits suits against municipal entities under § 1983, but only when a governmental policy or custom caused the constitutional deprivation; municipal entities cannot be liable for their employees' actions under a respondeat superior
As a preliminary matter, the plaintiffs have waived the issue of HPL's respondeat superior liability because they failed to raise it before the district court. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.2012). In their appellate brief, the plaintiffs state, "The district court granted summary judgment to defendant Health Professionals Ltd. (`HPL') by applying the rule that respondeat superior does not apply to Section 1983 claims brought against private corporations."
We raised the matter of waiver at oral argument, and plaintiffs' counsel subsequently submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j) contending that the respondeat superior argument was not waived because a court of appeals may review "`the merits of each and every theory the district judge relied upon in deciding the case.'"
Even if we were to reach the respondeat superior issue, we would not take the position urged by the plaintiffs. The plaintiffs
Because the issue was waived or, alternatively, because it fails on the merits, we conclude that the plaintiffs' argument for holding HPL liable on a respondeat superior theory is unavailing.
We next assess the plaintiffs' direct claims against HPL. "Private corporations acting under color of state law may, like municipalities, be held liable for injuries resulting from their policies and practices." Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir.2012). As with municipal defendants (like Sheriff Walsh, in his official capacity), the plaintiff "must show that his injury was the result of the ... corporation's official policy or custom." Id. The plaintiff must identify a policy:
Id. The plaintiff also must establish a causal link between the corporation's policy (or lack of policy) and the plaintiff's injury. Id.
The plaintiffs here submit that three of HPL's policies caused constitutional violations: (1) the policy of not requiring HPL employees to obtain detainees' medical records; (2) the policy of administering insulin according to a generic sliding scale; and (3) the policy of ignoring erroneous readings from the blood sugar monitoring machines.
The first two of these arguments fail because the plaintiffs cannot demonstrate the requisite causation. The plaintiffs present no evidence that obtaining Mrs. Hahn's medical records would have saved her life. HPL and CCCC personnel already knew that Mrs. Hahn was an insulin-dependent diabetic who was irresponsible with her medications. Indeed, the plaintiffs do not argue that having Mrs. Hahn's records would have prevented her death. Nor do the plaintiffs argue that HPL's insulin-dosage policy caused her death. They argue that the policy was problematic in the abstract but concede that it did not cause Mrs. Hahn's death here. If it had, the cause of death would have been hypoglycemia (low blood sugar), not diabetic ketoacidosis.
The plaintiffs' third contention deserves independent examination. Unlike their other contentions, there is a link here between the failure to provide an alternative method of checking a detainee's blood sugar and Mrs. Hahn's death: On the day before her death, she consented on one occasion to having her blood sugar
HPL had a policy in place for rechecking an individual's blood sugar when the Accu-Chek machine returned an error message; the existence of that policy indicates that HPL was aware that, on occasion, the Accu-Chek machine would not render an accurate reading. The record shows, however, that such a malfunction could have been due to a variety of causes, such as the use of an insufficient amount of blood, improper insertion of the stick containing blood into the Accu-Chek machine or a broken machine. Some of these causes are due to operator error or other circumstances not necessarily linked to a defect in the machine itself and therefore do not result in § 1983 liability. Cf. Rice, 675 F.3d at 676 (noting that where "most of the errors and omissions" cited by the plaintiffs were about how staff handled the detainee's medical condition, there could be no liability for the policymaker). Absent evidence that the machine was inoperable a significant number of times and that its predicable failure to operate was due to a malfunction of the machine itself, a jury could not find that the company's failure to maintain an alternate testing device to check diabetics' blood sugar levels on a regular basis was deliberately indifferent. See Shields, 746 F.3d at 796 (observing that isolated incidents do not "support an inference of a custom or policy," as is required to find a corporation liable for deliberate indifference under § 1983).
For the foregoing reasons, we affirm the judgment of the district court with respect to the applicability of 735 ILCS 5/2-622 in federal district courts. We reverse the district court's decision to dismiss the plaintiffs' wrongful death claim with prejudice. We affirm the district court's grant of summary judgment to Sheriff Walsh and to HPL. The case is remanded to the district court for further proceedings consistent with this opinion. Each party will bear its own costs in this appeal.
AFFIRMED in part, REVERSED and REMANDED in part NO COSTS IN THIS COURT.
Id. at 3-4.
Count III alleged that the City of Urbana exhibited deliberate indifference by failing to implement adequate policies and procedures for handling arrestees with serious medical and mental health conditions. The district court granted summary judgment to the City on this count, and the plaintiffs do not appeal this part of the district court's decision.
Count VI alleged that Champaign County and HPL violated the Americans with Disabilities Act and the Rehabilitation Act by failing to accommodate Mrs. Hahn's mental health and medical conditions and by denying her adequate treatment. The district court granted summary judgment to the defendants on this count. The plaintiffs do not appeal this determination.
Count VII alleged a claim against all of the defendants by Mr. Hahn for loss of consortium. The district court dismissed this count, holding that loss of consortium was not a separate cause of action. It ordered that the plaintiffs be given leave to amend their complaint to include with their constitutional claims a demand for damages for loss of consortium. The plaintiffs therefore filed a Second Amended Complaint that incorporated the loss of consortium claims into each of the other, remaining counts. The plaintiffs make no arguments on appeal about the loss of consortium claim.
R.3 at 11. The magistrate judge wrote that even where records cannot be obtained and, therefore, a report cannot be prepared by a medical professional, section 2-622 requires the plaintiffs' attorney to submit an affidavit containing certain information about the attempt to obtain the necessary records. R.34 at 16. An allegation in the complaint, the magistrate judge recommended, could not be substituted for the required affidavit. Id.
735 ILCS 5/2-622(a). Thus, the statute requires the filing of either an affidavit and a report or, if those preferred items cannot be obtained, an affidavit explaining the deficiency. Throughout this opinion, we frequently refer to this provision as a requirement to submit an "affidavit and report," with the understanding that, occasionally, only an affidavit is necessary.
In Burlington Northern Railroad Co. v. Woods, 480 U.S. 1, 2, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), the plaintiffs brought tort claims in Alabama state court against a defendant who removed those claims to federal court on diversity grounds. The plaintiffs won a monetary judgment at trial. Id. The defendant posted bond to stay the judgment pending appeal, and the court of appeals affirmed the judgment. Id. Under Federal Rule of Appellate Procedure 38, federal appellate courts have discretion to award damages or costs to appellees in frivolous appeals. Alabama law, however, mandates that if a monetary judgment for which the appellant posted bond pending appeal is affirmed without modification, the Alabama courts must award a penalty to the appellee in the amount of ten percent of the damages award. Burlington N., 480 U.S. at 3-4, 107 S.Ct. 967. The Supreme Court held that Rule 38 and Alabama law directly conflicted because the Alabama law interfered with Rule 38's "discretionary mode of operation" and because "the purposes underlying the Rule are sufficiently coextensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute's field of operation so as to preclude its application in federal diversity actions." Id. at 7, 107 S.Ct. 967. Thus, because there was a conflict and because Rule 38 was valid under the Constitution and the Rules Enabling Act, Rule 38 displaced the Alabama statute in federal diversity cases. Id. at 8, 107 S.Ct. 967.
In Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 397, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), the plaintiff filed a diversity suit on its own behalf and on behalf of a class of plaintiffs who it alleged were owed interest on late benefits payments received from the defendant. Federal Rule of Civil Procedure 23 sets out the procedures for pursuing a class action in federal court; notably, there is no limitation based on the type of relief sought. See Fed. R.Civ.P. 23. New York law, by contrast, prohibits class action suits seeking to recover a "penalty," such as the statutory interest sought by the plaintiffs. Shady Grove, 559 U.S. at 397, 130 S.Ct. 1431. The Court held that both Rule 23 and the New York law at issue governed when plaintiffs may maintain a class action and, therefore, there was a direct conflict between them. Id. at 398-99, 130 S.Ct. 1431. A plurality of the Court held that Rule 23 was valid under the Rules Enabling Act, id. at 407-08, 130 S.Ct. 1431 (opinion of Scalia, J.), and five Justices agreed that Rule 23, not the New York law at issue, should be applied in federal court. Id. at 416, 130 S.Ct. 1431; id. at 416, 130 S.Ct. 1431 (Stevens, J., concurring in part and concurring in the judgment).
Fed.R.Civ.P. 8(a).
Thus, either Illinois law (which supplies the statute of limitations for the plaintiffs' wrongful death claim here) or Federal Rule of Civil Procedure 15(c)(1)(B) could determine whether an amended pleading relates back to the plaintiffs' initial pleading. See Fed.R.Civ.P. 15 advisory committee's note to the 1991 amendment ("Whatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim."); Arendt v. Vetta Sports, Inc., 99 F.3d 231, 236 (7th Cir. 1996).
There is no meaningful distinction, however, between Illinois law on relation back and Federal Rule of Civil Procedure 15(c)(1)(B). See Henderson v. Bolanda, 253 F.3d 928, 932-33 (7th Cir.2001) ("Illinois law on relation back is not more forgiving [than federal law]."). Illinois permits relation back when the same two requirements are met: "(1) the original complaint was timely filed, and (2) the amended complaint grew out of the same transaction or occurrence set forth in the original pleading." Id.; see also Porter v. Decatur Mem'l Hosp., 227 Ill.2d 343, 317 Ill.Dec. 703, 882 N.E.2d 583, 591-92 (2008) (recognizing similarities between Illinois and federal law on relation back).
Second, the Illinois courts that have been confronted with a defective affidavit and report have required amendment, not just the filing of a new affidavit and report once the deficiency has been uncovered. See, e.g., Apa v. Rotman, 288 Ill.App.3d 585, 223 Ill.Dec. 851, 680 N.E.2d 801, 804 (1997). The Illinois courts liberally permit amendments in order to prevent technical filing rules from cutting off a plaintiff's ability to pursue a meritorious claim. See Cammon v. W. Suburban Hosp. Med. Ctr., 301 Ill.App.3d 939, 235 Ill.Dec. 158, 704 N.E.2d 731, 738-39 (1998). That policy is furthered by requiring amendment here. The plaintiffs never satisfied all of the requirements for bringing a wrongful death claim; because the statute of limitations on that claim has expired, they are unable to bring the claim unless amendment is permitted. If their claim has merit, then not permitting amendment would cut off a claim because of a technical filing rule.
Finally, this approach appears to be consistent with the statute, which identifies specific situations — not including the one presented here — where a plaintiff may file an affidavit and report late and without amending his complaint. For example, 735 ILCS 5/2-622(a)(2) provides that where an affidavit and report cannot be obtained in a timely fashion and the limitations period is about to expire, the plaintiff may submit with the complaint only an affidavit explaining the situation, and the required affidavit and report confirming the claim's merit may be filed within ninety days. Subsection 5/2-622(a)(3) similarly states that if a plaintiff cannot obtain the required affidavit and report because a party has failed to produce necessary records as required by statute, the plaintiff may submit with the complaint only an affidavit explaining the situation, and the required affidavit and report confirming the claim's merit may be filed within ninety days. If the legislature wanted litigants in the plaintiffs' situation to proceed without filing an amended complaint, it could have included a specific subsection authorizing such a course of action.