LULA DIXON, Independent Administrator of the Estate of Kevin P. Dixon, Plaintiff-Appellant,
COUNTY OF COOK, KATINA M. BONAPARTE, and NEWWORLD EBOIGBE,  Defendants-Appellees
October 26, 2015.
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 C 6976 --
Thomas M. Durkin, Judge.
KEVIN P. DIXON, deceased, by and through LULA M. DIXON, his
mother, next best Friend and Indpendent Administrator of the
Estate of Kevin P. Dixon, Plaintiff - Appellant: Michael D.
Robbins, Attorney, Law Offices of Michael D. Robbins &
Associates, Chicago, IL; Robert J. Robertson, Attorney, Law
Offices of Robert Robertson, Chicago, IL.
Cook County, Illinois, doing business as: CERMAK HEALTH
SERVICES, Defendant - Appellee: Thomas Cargie, Attorney,
Office of The Cook County State's Attorney, Chicago, IL.
WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.
September 2008 Kevin Dixon was sent to the Cook County jail
as a pretrial detainee. A month later, he developed severe
and persistent pain in his back and abdomen. In early
December, he had a CT scan that revealed a paratracheal mass.
Over the next few weeks, the mass grew rapidly. Medical
personnel at the jail were aware of the problem, but they
accused Dixon of malingering, gave him over-the-counter
analgesics, and ordered him to seek psychiatric care. By
January 5, 2009, Dixon's condition had deteriorated
severely. He was finally taken to Stroger Hospital, where he
was diagnosed with lung cancer. He died two months later.
in her capacity as the Independent Administrator of
Dixon's Estate, Lula Dixon (Dixon's mother) sued Cook
County, as well as Dr. Katina Bonaparte and Nurse Newworld
Eboigbe, who had overseen Dixon's care at the jail's
Cermak Acute Care Facility. (We refer to plaintiff as Lula,
and to her son as Dixon. Lula also sued several corrections
officers, but the district court dismissed her claims against
them and she has not appealed from that ruling.) Lula
asserted claims under 42 U.S.C. § 1983 for deliberate
indifference to Dixon's serious medical condition in
violation of the Eighth and Fourteenth Amendments to the
Constitution, and state-law claims for intentional infliction
of emotional distress. In response to the defendants'
motions, the district court dismissed the claims against
defendants Bonaparte and Eboigbe under Federal Rule of Civil
Procedure 12(b)(6); it later granted summary judgment in Cook
County's favor, and this appeal followed.
purposes of both Rule 12(b)(6) and Rule 56, we take the facts
as alleged and view them in the light most favorable to Lula.
See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008); Shields v. Ill. Dep't of
Corrections, 746 F.3d 782, 786 (7th Cir. 2014). The only
difference is that the facts before us are limited to those
in the complaint for the Rule 12(b)(6) ruling, and they
include the full summary judgment record for the Rule 56
was arrested and taken to the jail on September 5, 2008. His
symptoms began to bother him in October. In response to his
complaints, he was sent to the jail's Cermak Health
Services facility, where he had a chest x-ray on December 10
and a follow-up CT scan the next day. The tests revealed a
paratracheal tumor (that is, a tumor next to his trachea). On
December 15, a Cermak physician's assistant referred
Dixon for an " urgent" pulmonary consultation. The
word " urgent" did not have much force: eight days
later, Dixon met with a pulmonologist. He reported
intermittent pain for the past two months, which he rated at
10 out of 10 for severity. The pulmonologist reviewed the
December 11 scan, ordered another CT for January 2, 2009, and
scheduled a follow-up appointment for January 6.
Dixon could not wait that long for treatment. By December 30,
he was experiencing intense abdominal pain, difficulty
breathing, difficulty moving his legs, and an inability to
use the toilet. As he lay on the floor in partial paralysis
after falling from his bunk, a corrections officer informed
Nurse Eboigbe of his condition. Eboigbe took no action;
instead, the guard scheduled Dixon for " sick call"
three days later. Later that day, another nurse relieved
Eboigbe of his shift and got Dixon admitted to the Cermak
Acute Care Facility. Despite the documentation of his tumors
(which because of the records problem we discuss below might
have been unknown to the people staffing Acute Care), the
physician's assistant at the Acute Care facility thought
that Dixon was malingering and so ordered a psychiatric
December 30 and 31, Dixon received additional CT scans, which
revealed growth of the tumor and fecal matter in his colon.
At that point Dr. Bonaparte, the supervisor of the hospital
ward, first saw him. Dr. Bonaparte did not have instant
access to Dixon's medical records and previous CT and
x-ray results, because there was a backlog in the system for
scanning medical records into the Cook County system. Nor did
she have Dixon's paper medical records in front of her.
She knew about his tumor, but she did not recall making any
effort to find out about the results of the December 30
tests. Critically, she knew that more information was
available but proceeded without collecting it. She agreed
with the physician's assistant (based on the incomplete
records before her) that a psychiatric consult was in order
to rule out malingering. She ordered that, as well as a
second consultation with a pulmonologist; she marked the
latter request " RUSH." She noted that she would
see him again three days later.
next day, January 1, Cermak nurses reported that Dixon was on
the floor and had soiled himself. He complained that he could
not walk. On January 2, he was taken for the follow-up CT
ordered by the first pulmonologist. The notes from that scan
described the tumor as " 6 x 4 cm in the left upper lung
lobe which extends to the level of the aortic arch and
invades the mediastinum and posterior chest wall" and
stated, " [f]indings are most indicative of malignant
neoplasm." The scan also identified a 12 x 9 mm nodule
in the right upper lobe that was ...