In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 15‐2832 ALEX DANIEL, Plaintiff‐Appellant,
v.
COOK COUNTY, et al., Defendants‐Appellees. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 2030 — Jorge L. Alonso, Judge. ____________________
ARGUED MAY 26, 2016 — DECIDED AUGUST 12, 2016 ____________________
Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. In this appeal we address a spe‐ cific piece of evidence that has divided the judges of the Northern District of Illinois. In a number of cases, including this one, plaintiffs have asserted that medical care at the Cook County Jail falls below constitutional standards as a matter of official policy, custom, or practice. The evidence question is whether such plaintiffs may use as evidence the 2008 findings 2 No. 15‐2832
from a U.S. Department of Justice investigation of health care at the Jail. The investigation found systemic flaws in the Jail’s scheduling, record‐keeping, and grievance procedures that produced health care below the minimal requirements of the United States Constitution. If those findings are admissible for the truth of the matters asserted, they go a long way toward meeting a plaintiff’s bur‐ den of proving an unconstitutional custom, policy, or practice under Monell v. Department of Social Services, 436 U.S. 658, 694– 95 (1978). The Department of Justice Report is hearsay if used to assert the truth of its contents, and the district court held that the Report was not admissible to prove the truth of its findings. But we conclude it should be admitted under the hearsay exception for civil cases in Federal Rule of Evidence 803(8)(A)(iii) for factual findings from legally authorized in‐ vestigations. The district court granted summary judgment for defend‐ ants because the plaintiff had not offered evidence of an un‐ constitutional official custom, policy, or practice. We deter‐ mine that he has offered sufficient evidence on summary judgment, and we therefore reverse and remand. I. Factual and Procedural Background Because we are reviewing a grant of summary judgment for defendants, we present the evidence in the record in the light reasonably most favorable to the non‐moving party, plaintiff Alex Daniel, who in 2010 was a pretrial detainee at the Cook County Jail. Rahn v. Board of Trustees of Northern Illi‐ nois Univ., 803 F.3d 285, 287 (7th Cir. 2015). On April 24, 2010, Daniel fell and injured his wrist while playing basketball. The bone in his wrist suffered multiple fractures. No. 15‐2832 3
Daniel asserts, and an orthopedic specialist agrees with him, that the treatment of his wrist was disrupted by avoida‐ ble delays that caused permanent damage to Daniel’s hand and wrist. There were delays at first, but the principal concern is that the Jail and its health care staff failed to ensure that Daniel’s second cast was removed on time. Leaving the sec‐ ond cast on too long caused permanent damage to his hand and wrist that was aggravated by a further failure to provide physical therapy. On April 24, the day Daniel was injured, on‐duty general practitioner Dr. Gawo used an elastic bandage and a sling to stabilize his wrist. This was a temporary solution, of course, and Dr. Gawo asked for Daniel to see an orthopedic specialist as soon as possible. On April 30, Daniel had yet to see an or‐ thopedist. Accordingly, he filed a grievance with the Jail. While Daniel waited for a response, he finally saw an or‐ thopedist on May 10, sixteen days after his injury. The special‐ ist, Dr. Mejia, put Daniel in a long arm cast extending from his wrist to just above his elbow. The cast was the standard treat‐ ment for Daniel’s fracture, and Dr. Mejia did not think that the delay in putting on the cast was improper. Dr. Mejia wanted Daniel to return in two to three weeks for transition to a short arm cast. On June 1—the three week mark—Daniel was placed in the short arm cast. He was instructed to return in another three weeks. That did not happen; Daniel did not see an orthopedist for removal of that cast until ten weeks later, on August 12. That delay is the principal focus of this lawsuit. In the meantime, on June 11, Daniel received the Jail’s re‐ ply to his grievance. The reply said that he had been cared for properly, and Daniel appealed. “I have swelling in my fingers 4 No. 15‐2832
and I can barely move them,” he wrote. The Jail referred the matter to health administrators. On June 22, three weeks after the short arm cast was put on, Daniel saw an unidentified practitioner. That doctor simply noted that Daniel was awaiting treatment from an or‐ thopedist. Daniel did not see another doctor until August 3, nine weeks after his last appointment with an orthopedist. He saw Dr. Baker, a family practitioner, who wrote that Daniel was still in the cast and still needed to see an orthopedist. On August 10, Daniel again saw Dr. Baker. Daniel was “sched‐ uled for ortho last night,” Baker wrote, “but apparently not taken by security.” The doctor expressed alarm that the cast had not come off yet. In the meantime, Daniel had raised his own concerns about the delay. On July 26, he filed a second grievance: “It’s been 3 months [since I broke my wrist] and I have very limited movement in fingers…. I am not receiving proper medical care or treatment….” And on August 10, after a perfunctory reply by the Jail, Daniel appealed again. “They still haven’t removed my cast,” he wrote, “and I still can’t move [my] fin‐ gers properly.” Finally, on August 12, nearly ten weeks after receiving his short arm cast, Daniel’s cast was finally removed by orthope‐ dist Dr. Kapotas. In Dr. Kapotas’s view, the immobilization had gone beyond the proper six to eight week window for a short arm cast. He recommended that Daniel see an occupa‐ tional therapist to recuperate and return in a month for a check‐up. That did not happen either. Daniel was scheduled for a therapy appointment on August 27 but was not seen by a therapist. He filed a third grievance that day, saying he could barely move his fingers, could not make a fist or turn No. 15‐2832 5
his palm upright, and was experiencing continued wrist pain. His therapy appointment was rescheduled for August 30, but that day came and went without Daniel able to visit the ther‐ apist. He was rescheduled for September 6, and again officials did not take Daniel to therapy. Starting in late September, the Jail responded to several of Daniel’s grievances. On September 30, in accepting Daniel’s second grievance, the Jail asked its health administrators to address his issues. On October 4, the Jail responded to Dan‐ iel’s third grievance: “patient will be rescheduled for therapy.” He was not, and Daniel appealed the response to his August 27 grievance to alert the Jail. On November 9, the Jail denied the appeal, responding incorrectly: “Per CHS Admin seen/therapy 9/13 – 10/25 – 10/27.” A few days before that response, on November 3, Daniel saw Dr. Kapotas again. At their last appointment on August 12, Dr. Kapotas had recommended occupational therapy and a check‐up in a month. No therapy had occurred, and the fol‐ low‐up was nearly three months after their first meeting. A November 3 x‐ray showed that Daniel’s wrist had suffered a loss in density, the onset of arthritis, and abnormal joint spac‐ ing. Daniel would later enlist an orthopedic expert, Dr. Fetter, to examine his injury in 2013. Dr. Fetter concluded that Daniel had suffered “residual and permanent stiffness of his left hand and wrist,” more likely than not caused by the unduly long cast immobilization. On March 24, 2011, Daniel filed a pro se complaint, though the district court later recruited counsel for him. In the opera‐ tive version of the complaint, Daniel has sued the Cook County Sheriff’s Office, Cook County Sheriff Dart in his indi‐ 6 No. 15‐2832
vidual capacity, and Cook County under 42 U.S.C. § 1983 al‐ leging violations of his Fourteenth Amendment due process rights that parallel, for pretrial detainees, the Eighth Amend‐ ment rights of prisoners to adequate health care. In support of his claim, he offered evidence from his own experience, as recounted above. He also presented extensive testimony from Jail medical staff. And finally, he offered three additional doc‐ uments: the 2008 Department of Justice Report detailing sys‐ temic health care problems at the Jail, a subsequent Agreed Order that incorporated the Report’s findings, and a 2010 Monitor Report that provided a detailed account of the Jail’s progress in remedying the problems. The district court granted summary judgment for the de‐ fendants. This appeal followed. We begin with the merits of Daniel’s Monell claims under § 1983 on our review of sum‐ mary judgment, without relying on the three additional doc‐ uments arising from the Department of Justice investigation to prove the truth of their contents. We then address these ad‐ ditional documents in more detail to determine if they were incorrectly excluded as hearsay. II. Daniel’s Monell Claims A. The Monell Claim for Inadequate Health Care The individual rights in our Bill of Rights have long been understood as negative rights, meaning that the Constitution protects individuals from some forms of government intru‐ sions upon their liberty, without imposing affirmative duties on governments to care for their citizens. See DeShaney v. Win‐ nebago County Dep’t of Social Services, 489 U.S. 189, 196 (1989). One broad exception to this general principle applies when the government takes people into its custody so that they are No. 15‐2832 7
no longer able to take steps to protect their own health. Id. at 198–99. The Eighth Amendment’s prohibition on cruel and unusual punishment requires governments not to act with de‐ liberate indifference to serious threats to prisoners’ health and safety. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Farmer v. Brennan, 511 U.S. 825, 828–29 (1994); King v. Kramer, 680 F.3d 1013, 1020 (7th Cir. 2012). For people like Daniel, in govern‐ ment custody other than through a criminal conviction, the Due Process Clause of the Fourteenth Amendment imposes at least as robust a duty on government custodians. E.g., Rice v. Correctional Medical Services, 675 F.3d 650, 664 (7th Cir. 2012). Plaintiff Daniel claims that Cook County and its Sheriff vi‐ olated their duties under the Due Process Clause by acting with deliberate indifference toward his serious health needs as the result of inadequate customs and practices. The district court granted the defendants’ motion for summary judgment against Daniel’s suit; we review that decision de novo. Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). Summary judg‐ ment is appropriate only “where there is no genuine issue of material fact and the movant is entitled to judgment as a mat‐ ter of law.” Id. The damages remedy available under 42 U.S.C. § 1983 es‐ tablishes a remedial scheme focused primarily on the respon‐ sibilities of individual government employees and agents. As applied to local governments like Cook County, the Supreme Court has interpreted § 1983 to bar respondeat superior liability. Monell, 436 U.S. at 694–95, 707.1 Most inmates who believe
1 In Shields v. Illinois Dep’t of Corrections, we noted some of the critiques
of this portion of Monell and noted the debate over whether the same rule 8 No. 15‐2832
their right to health care has been violated therefore seek damages from individual doctors or other health care profes‐ sionals, or from correctional staff who might have ignored or interfered with the inmates’ efforts to seek the health care they need. See, e.g., Glisson v. Indiana Dep’t of Corrections, 813 F.3d 662, 668 (7th Cir. 2016) (Wood, C.J., dissenting), vacated and re‐ hearing en banc granted (May 24, 2016). In such cases, individ‐ ual defendants can defend themselves by shifting blame to other individuals or to problems with the “system,” particu‐ larly where no one individual seems to be responsible for an inmate’s overall care. In this case, Daniel has not tried to hold any one doctor responsible for his injury. On this record, it is hard to see how he might have done so. This case reflects a common scenario: an institution “structured its affairs so that no one person was responsible for [the inmate’s] care,” and such diffused respon‐ sibility can make it very difficult to show individual respon‐ sibility for health care failures. Shields, 746 F.3d at 795; see also Glisson, 813 F.3d at 666 (majority opinion) (divided panel de‐ cision, now vacated, on whether private corporation contract‐ ing to provide health care for prisoners had policy amounting to deliberate indifference to prisoners’ health). Daniel con‐ tends instead that the delays and confusion that caused his injury were caused by systemic problems in the health care system for the Cook County Jail that reflect deliberate indif‐ ference to inmates’ health needs as a matter of official custom, policy, or practice.
should apply to private corporations whose employees act under color of state law. 746 F.3d 782, 789–96 (7th Cir. 2014). No. 15‐2832 9
To hold defendants liable under § 1983 and Monell, Daniel must demonstrate that the defendants’ “official policy, wide‐ spread custom, or action by an official with policy‐making au‐ thority was the ‘moving force’ behind his constitutional in‐ jury.” Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016), citing City of Canton v. Harris, 489 U.S. 378, 379 (1989). An un‐ constitutional policy can include both implicit policies as well as a gap in expressed policies. Id., quoting Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009). Similar to the plaintiff’s claim in Dixon, Daniel argues that the Jail had both an unlawful official policy and widespread custom that led to his injury. At bottom, though, he is essen‐ tially attempting to prove “that the unlawful practice”—the failure to establish adequate systems for scheduling health care, keeping health care records, and addressing inmate grievances about health care—“was so pervasive that acqui‐ escence on the part of policymakers was apparent and amounted to a policy decision.” Id., quoting Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir. 2006). We have said in gen‐ eral terms that an inmate can meet this burden by offering “competent evidence tending to show a general pattern of re‐ peated behavior (i.e., something greater than a mere isolated event).” Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006). Negligence on the part of policymakers is not sufficient to show deliberate indifference. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (deliberate indifference “is more than neg‐ ligence” and “is not medical malpractice”). In any large insti‐ tution, and the Cook County Jail is very large (9,000 inmates at a time), one would expect some instances of poor health care caused by errors in scheduling and record‐keeping. Yet at the same time, such instances are to be expected by both 10 No. 15‐2832
courts and by correctional officials, whose jobs include the re‐ sponsibility to design and implement systems to minimize such errors. The challenge in litigation like this is to distin‐ guish between systemic problems showing official deliberate indifference and occasional lapses that are inevitable even in well‐run institutions. 1. Daniel’s Claim as to Medical Scheduling and Record‐ Keeping To prove an official policy, custom, or practice within the meaning of Monell, Daniel must show more than the deficien‐ cies specific to his own experience, of course. See Thomas, 604 F.3d at 303 (liability requires conduct in “more than one in‐ stance”), quoting Cosby v. Ward, 843 F.2d 967, 983 (7th Cir. 1988). When seeking to rely upon indirect proof, he must come forward with evidence that could allow a reasonable trier of fact to find, as we said in Dixon, “systemic and gross deficiencies in staffing, facilities, equipment, or procedures in a detention center’s medical care system.” 819 F.3d at 348 (quotation mark omitted). If Daniel meets this mark, he must then show that a policymaker or official knew about these de‐ ficiencies and failed to correct them. Id., citing Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983). He need not present evidence that these systemic failings affected other specific in‐ mates. See Davis, 452 F.3d at 695 (“To establish a widespread custom or policy, the plaintiff here was not required to show that Cook County’s alleged repeated pattern of delay … actu‐ ally caused pain and suffering to other inmates in need of medical intervention … .”). Even setting aside for now the 2008 Department of Justice Report, the Agreed Order, and the Monitor Report, Daniel provided substantial evidence of systemic deficiencies in the No. 15‐2832 11
Jail’s medical care, including extensive testimony from Jail medical staff. Dr. Baker, the general practitioner who treated Daniel, described the difficulty in getting inmates scheduled for the health care they needed: “I mean, you can make phone calls, you can give them papers, you can write movement en‐ velopes, you can put them in your car and drive them over. I mean, how many things can you do?” Medical records were routinely inadequate. Notes from appointments would fail to be recorded on a patient’s chart. Appointments were sched‐ uled and then rescheduled. “You never really kind of knew” when “the clinic might get canceled and they had to get re‐ scheduled. … I want things to happen when they’re supposed to happen. And there’s—in any big system a lot of things, you know, don’t always happen.” During the period of Daniel’s treatment, notes on patients “were only available in one hard‐ copy chart that applied to multiple patients.” To the extent there was an appointment schedule, it was haphazard. Staff would submit appointments by filing pieces of paper or simply talking to a scheduling department staffer without a written record. Dr. Kapotas noted that he would make general requests for follow‐up appointments, but in practice he would simply wait for patients to turn up for treat‐ ment. This practice is reflected in Daniel’s evidence of the Jail’s grievance procedures, which showed delays in scheduling his follow‐up care and outright errors as to whether he had ever seen an occupational therapist, as directed by Dr. Kapotas. The evidence, viewed in the light most favorable to Daniel, raises a genuine issue of material fact as to whether his injury resulted from systemic, gross deficiencies in the Jail’s medical care. His indirect evidence shows more than a mere “one or two missteps,” Dixon, 819 F.3d at 348, or isolated problems. 12 No. 15‐2832
Daniel has also offered substantial evidence that Sheriff Dart, who is a relevant policymaker for health care for Jail in‐ mates, knew of these deficiencies and failed to take reason‐ able corrective action. We return to the three documents—the Report, the Agreed Order, and the Monitor Report—stem‐ ming from the U.S. Department of Justice investigation of health care in the Cook County Jail. The investigation con‐ cluded that medical care at the Jail fell “below the constitu‐ tionally required standards of care.” The district court found that the Report was inadmissible as hearsay to the extent it was offered to prove the truth of its contents, a decision we address and disagree with below. But the district court cor‐ rectly held that the Report could be offered for the non‐hear‐ say purpose of proving the sheriff knew of the problems de‐ scribed in the Report. (This limited use of the document re‐ quires some rather legalistic intellectual gymnastics: the reader must consider the Report only as evidence of what the sheriff knew about the problems, but may not consider it as evidence that the problems actually existed.) The problems described by the Report must be shown, according to the dis‐ trict court, by other evidence, but if they are shown, the Re‐ port and related documents are evidence that the sheriff was on notice. We are satisfied that the plaintiff has come forward with enough evidence, including his own experience and the ex‐ tensive deposition testimony from Jail staff, to demonstrate systemic problems with health care scheduling and record‐ keeping. This is so even without the substance of the Depart‐ ment of Justice Report. And when we include the Report and related documents to prove notice and the apparent absence of a response by the sheriff, it would be reasonable, though No. 15‐2832 13
not necessary, to infer an official custom, policy, or practice of deliberate indifference toward inmates’ serious health needs. Daniel must also offer evidence of causation: that the un‐ constitutional custom, policy, or practice at the Jail “was the ‘moving force’ behind the constitutional deprivation.” Mon‐ taño v. City of Chicago, 535 F.3d 558, 570 (7th Cir. 2008), quoting Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). He has done so. First, Daniel has presented a clear link between his inade‐ quate treatment and his injury. Dr. Fetter—Daniel’s expert— testified that the permanent stiffness in Daniel’s hand “was, more likely than not, caused by the prolonged cast immobili‐ zation.” Dr. Kapotas’s observation that the short arm cast was removed weeks after the treatment window corroborates Dr. Fetter’s conclusions. Daniel also offers evidence that his poor treatment was the likely result of the widespread breakdowns in scheduling and record‐keeping endemic at the Jail. Dr. Baker noted a failure in Daniel’s treatment and the removal of his cast due to a mix‐ up in scheduling. In response to Daniel’s later grievances that he was losing function of his hand, the Jail noted that he would be rescheduled for therapy, but there was no follow‐ up. The Jail would later respond, incorrectly, that Daniel had seen a therapist for his injuries. Daniel has offered sufficient evidence of a causal link between the inadequate Jail medical scheduling and record‐keeping practices and the deprivation of his constitutional rights to survive summary judgment.
14 No. 15‐2832
2. The Grievance System Claim Daniel also asserts that deficiencies in the Jail’s grievance system are sufficient to support a Monell claim. Speaking from his own experience and the testimony he has gathered from Jail medical staff, Daniel has offered evidence that the Jail’s grievance system was not reliable or timely. But the Constitu‐ tion does not require that jails or prisons provide a grievance procedure at all, nor does the existence of a grievance proce‐ dure create a constitutionally guaranteed right. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d 763, 772–73 (7th Cir. 2008). The right at issue is in‐ stead a right to constitutionally adequate care. This does not mean that problems in the grievance system are not relevant to Daniel’s core claim that he was deprived of medical care by an official custom, policy, or practice. A jail or prison must have effective channels for inmates to communi‐ cate their health care needs. Thomas, 604 F.3d at 304 (“The dan‐ gers of delayed responses to medical requests are readily ap‐ parent….”). If those channels break down, the result may be a deprivation of needed care. If a grievance system is part of a jail’s or prison’s system for communicating and responding to health care requests, and if the system fails in a way that causes a deprivation of needed health care, then the problem with the grievance system may be an important part of the plaintiff’s case for deliberate indifference to his health care needs. See, e.g., Awalt v. Marketti, 74 F. Supp. 3d 909, 936 (N.D. Ill. 2014) (denying government’s motion for summary judg‐ ment for deprivation of health care resulting in death where plaintiff offered evidence that Cook County Jail personnel routinely ignored medical grievances). No. 15‐2832 15
Accordingly, delays in responses to Daniel’s grievances do not support an independent constitutional claim, but those delays may support Daniel’s other evidence that systemic problems at the Jail caused him to suffer injury as a result of official indifference. The evidence that such delays occurred further bolsters Daniel’s general claim of inadequate medical treatment. B. Proper Defendants Daniel’s suit names as defendants the Cook County Sher‐ iff’s Office, Cook County Sheriff Dart in his individual capac‐ ity, and Cook County itself. The Sheriff’s Office argues that it cannot be liable for Daniel’s injuries because it was not re‐ sponsible for his medical care. Instead, all treatment was to be handled by Cermak Health & Hospitals System, which is a medical facility separate from the Jail itself. But the constitu‐ tional duty under the Eighth and Fourteenth Amendments to provide adequate health care rests on the custodian. See Rice, 675 F.3d at 664–65. As the district court correctly noted, a gov‐ ernment entity “cannot shield itself from § 1983 liability by contracting out its duty to provide medical services.” King, 680 F.3d at 1020; cf. Estelle, 429 U.S. at 103 (the government has “obligation to provide medical care for those whom it is pun‐ ishing by incarceration”). There is also a close relationship be‐ tween the Jail and Cermak. The Cermak facilities are physi‐ cally located within the Jail, and Jail personnel are responsible for delivering patients to Cermak for care. Even if the care Daniel received at Cermak was inadequate, Daniel has of‐ fered evidence that the Sheriff’s Office exacerbated the prob‐ lems by failing to communicate with Cermak and failing to deliver Daniel to his appointments. The Sheriff’s Department is therefore a proper defendant. 16 No. 15‐2832
Sheriff Dart also argues that he cannot be liable in his per‐ sonal capacity. He points out that there is no vicarious liability for supervisory officials under § 1983. This is correct but in‐ complete. The sheriff can be directly liable for Daniel’s injury. If a senior jail or prison official, including a person with final policymaking power, is “aware of a systemic lapse in enforce‐ ment of a policy critical to ensuring inmate safety, his failure to enforce the policy could violate the Eighth Amendment.” Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (quotation marks omitted). Similarly, if a supervisor designed or is aware of the institution’s “deliberately indifferent policy that caused a constitutional injury, then individual liability might flow from that act.” Armstrong v. Squadrito, 152 F.3d 564, 581 (7th Cir. 1998). The Department of Justice Report, along with the later Agreed Order incorporating the investigation’s findings and the 2010 Monitor Report detailing the Jail’s progress, provides substantial evidence that Sheriff Dart had notice of the sys‐ temic deficiencies in the Jail’s health care. The totality of Dan‐ iel’s evidence would allow a jury to find that these problems persisted when Daniel received inadequate care and that the sheriff did not respond reasonably to them. Daniel may pro‐ ceed with his claim against Sheriff Dart in his personal capac‐ ity. III. Evidence Issues Daniel has presented a sufficient case to overcome defend‐ ants’ motion for summary judgment. But it is one thing to sur‐ vive summary judgment and another to prove a case at trial. This is especially so with a Monell claim, where it may be dif‐ ficult to draw a line between occasional failings that may be No. 15‐2832 17
inevitable in a large institution and more widespread, intoler‐ able failures toward which policymakers are deliberately in‐ different. We therefore address a recurring question about the evidence that will be offered at trial. In response to defendants’ motion for summary judgment, Daniel presented the evidence of his own experience and, as recounted above, testimony from staff members and medical professionals at the Jail. He also offered the Department of Justice Report and the two related documents as substantive evidence. As noted above, the district court allowed him to use the Report and related documents to prove notice to the sheriff of the widespread problems detailed in the Report. But the court held that the Report and related documents were inadmissible hearsay to the extent Daniel offered them to prove the truth of the findings. Daniel argues that this evi‐ dence should be admissible under hearsay exceptions and that it offers strong support for his Monell claim of deliberate indifference to widespread, systemic problems in providing health care at the Jail. We agree in part with his arguments. A. The Department of Justice Investigation into Cook County Jail On February 16, 2007, the Department of Justice’s Civil Rights Division notified the Cook County Board of Commis‐ sioners that it would be investigating conditions of confine‐ ment at the Jail. Between June 18–22, and then again from July 23–27, Department of Justice officials conducted on‐site in‐ spections of the Jail in collaboration with experts in correc‐ tions and custodial medical and mental health care, among others. The team interviewed numerous Jail officials, staff, and inmates, and reviewed extensive Jail records. Initial find‐ 18 No. 15‐2832
ings were reported to the Jail in July and August 2007, includ‐ ing what the Department of Justice found to be “inadequate emergency key precautions and grossly unsanitary condi‐ tions.” On July 11, 2008, the Department of Justice sent a 98‐page letter to Cook County Sheriff Thomas Dart and Cook County Board President Todd Stroger reporting the complete and of‐ ficial findings. This is the “Department of Justice Report” we have discussed. At bottom, the Department of Justice found that medical care at the Jail was constitutionally inadequate in many respects. Most relevant here, the Department of Justice found deficiencies that included “inadequate acute care,” “in‐ adequate chronic care,” “inadequate record keeping,” and “inadequate access to medical care.” The Department of Justice found that health care at the Jail was unacceptable. Patients “suffered needlessly because med‐ ical staff failed to ensure that inmates met scheduled appoint‐ ments, failed to monitor acute conditions, and failed to treat inmates’ conditions.” Patients with chronic conditions also re‐ ceived inadequate treatment. The Jail “was deficient in ensur‐ ing that patients are seen on a regular basis … and that in‐ mates are monitored and treated to prevent the progression of illnesses.” These shortcomings were exacerbated by an inadequate system of record‐keeping. The Department of Justice Report determined the Jail failed to “maintain complete, accurate, readily accessible, and systematically organized medical rec‐ ords.” And it lacked “an adequate medical records system to ensure that inmates’ records are correct and accessible so that physicians can provide appropriate care.” The Jail suffered No. 15‐2832 19
from months‐long backlogs of unfiled medical records. Pa‐ tients requiring more sophisticated care were in an even worse position. The system in place failed to “facilitate … co‐ ordinated treatment by multiple providers because inmates’ records [were] not accurate, organized or timely filed.” Finally, the Department of Justice investigation uncovered evidence that the Jail’s grievance procedures were insuffi‐ cient. Staff expressed frustration that the Jail health care pro‐ fessionals did not respond to medical and mental health grievances by inmates. Department of Justice investigators “reviewed numerous grievance files that alleged the need for medical services, some of an emergent nature, that showed a referral to [health care services], but contained no actual re‐ sponse to the grievance.” The Report concluded that the Jail needed to improve con‐ ditions by providing timely medical appointments, follow‐up care, and complete, accurate, and systematically organized medical records. (The full Department of Justice Report is eas‐ ily available at https://www.justice.gov/crt/about/spl/docu‐ ments/CookCountyJail_findingsletter_7‐11‐08.pdf.) Daniel also offered two related documents. The first was an Agreed Order entered in the federal lawsuit that arose from the Department of Justice investigation. The second was a 2010 report from the federal court monitor, Ronald Shansky, who reviewed the Jail’s progress in meeting the terms of the Order. The issue concerning the Department of Justice Report is whether it qualifies for the Federal Rule of Evidence 803(8)(A)(iii) hearsay exception in civil cases for “factual find‐ 20 No. 15‐2832
ings from a legally authorized investigation” where the oppo‐ nent does not show a lack of trustworthiness. The district court concluded that the Report lacked sufficient indicia of trustworthiness when examined under the committee com‐ ments to the Rule. The court also excluded the other two doc‐ uments, declining to take judicial notice of the Agreed Order and rejecting Daniel’s argument that the Shansky Monitor Re‐ port was a present sense impression under Rule 803(1). We review the district court’s exclusion of this evidence for abuse of discretion. United States v. Rogers, 587 F.3d 816, 819 (7th Cir. 2009). A district court abuses its discretion if it rules based on an erroneous view of the law or a clearly erroneous assessment of the evidence. Costello v. BeavEx, Inc., 810 F.3d 1045, 1057 (7th Cir. 2016), quoting Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2011); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). We review de novo the district court’s legal interpretations for error, in‐ cluding its interpretation of the Federal Rules of Evidence. Rogers, 587 F.3d at 819. It is the nature of discretionary deci‐ sions that trial courts can reach conflicting decisions and that neither may be an abuse of discretion. In reviewing such de‐ cisions about the same piece of evidence in parallel lawsuits, though, we also exercise some supervisory responsibility to ensure that parties receive consistent treatment from court to court when identical evidence is at issue. B. The Official Investigation Exception Daniel offers the Report for the truth of its contents, rely‐ ing on the hearsay exception in civil cases for “factual findings from a legally authorized investigation.” Fed. R. Evid. 803(8)(A)(iii). These findings can take the form of an evalua‐ tive report containing both opinions and conclusions. Jordan No. 15‐2832 21
v. Binns, 712 F.3d 1123, 1132 (7th Cir. 2013). Mere transcripts of third‐party statements do not constitute factual findings and still count as hearsay. Id. at 1133–34. A report that com‐ bines such statements with an investigator’s on‐scene obser‐ vations and conclusions based on the sum of the evidence falls within the Rule 803(8) exception. Id. at 1134. Such an evaluative report is presumed to be admissible in a civil case. Id. at 1132. A trial court has discretion to exclude the report if circumstances demonstrate a lack of trustworthi‐ ness. Id., citing Fed. R. Evid. 803(8)(B). The burden to show untrustworthiness lies on the party seeking to exclude an evaluative report. Id. at 1134. We assume that public officials, in crafting such a report, acted “properly and without bias.” Id. at 1132, citing Fed R. Evid. 803(8) advisory committee’s note (“Justification for the exception is the assumption that a public official will perform his duty properly….”). That as‐ sumption can be rebutted, but it has not been rebutted here. The Report meets the standard for admissibility. The De‐ partment of Justice conducted its investigation in accordance with its authority under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997. It prepared the report based on extensive visits to the Jail, in collaboration “with consultants in the fields of use of force, corrections, correctional medical care, correctional mental health care, fire safety, and environ‐ mental health.” The report contains third‐party statements, including interviews with Jail staff, medical professionals, and inmates. But in conducting the investigation and coming to their findings, Department of Justice officials and experts combined these statements with extensive inspections and re‐ view of Jail documents, and their conclusions and recommen‐ dations took into account all available evidence. 22 No. 15‐2832
In Dixon v. County of Cook, 819 F.3d 343, 348–49 (7th Cir. 2016), we reversed summary judgment for Cook County on a Monell claim based in large part on this same Department of Justice Report. The plaintiff was the estate of a Cook County Jail inmate who had died after, according to the plaintiff’s ev‐ idence, unjustified delays and mix‐ups in medical care for tu‐ mors and complications that eventually caused his death. Id. at 346–47. In finding that the plaintiff estate had met its bur‐ den of showing that Dixon’s case was not just an isolated in‐ stance of errors, we relied on the same Report in dispute here. Id. at 349. Judges of the Northern District of Illinois have confronted numerous Monell claims against Cook County based on poor health care in the Jail. Most judges have either held or sig‐ naled that the same Department of Justice Report would be admissible under Rule 803(8). See, e.g., Martinez v. Cook County, No. 11 C 1794, 2012 WL 6186601, at *4 n.7 (N.D. Ill. Dec. 12, 2012) (“courts have found Department of Justice let‐ ters of this exact type, when relevant, admissible under the Federal Rule of Evidence 803(8)”); Hunt ex rel. Chiovari v. Dart, 754 F. Supp. 2d 962, 970 n.5 (N.D. Ill. 2010) (collecting cases addressing admissibility of similar Department of Justice let‐ ters). Other courts have held analogous Department of Justice reports admissible under Rule 803(8). See, e.g., Shepherd v. Dal‐ las County, 591 F.3d 445, 457–58 (5th Cir. 2009) (admitting sim‐ ilar 2006 Department of Justice report on investigation of health care at Dallas County Jail); McLaughlin v. Freeman, No. 2:08‐CV‐58‐PRC, 2013 WL 5407046, at *4 (N.D. Ind. Sept. 26, 2013) (Department of Justice report criticizing jail conditions admissible under Rule 803(8)). In Daniel’s case and one other we know of, the same Department of Justice Report has been excluded as hearsay outside the Rule 803(8) exception. See No. 15‐2832 23
Bailey v. City of Chicago, No. 08 C 4441, 2012 WL 850741, at *5 (N.D. Ill. Mar. 9, 2012). The district court in this case relied upon the 1972 advisory committee note to Rule 803(8) saying that the admissibility of evaluative reports was “controversial” and that courts should consider four factors as to whether to admit them. Fed. R. Evid. 803(8), cmt. (c). These factors include how timely the re‐ port is for the present litigation, the skill or expertise of the officer preparing the report, whether a hearing was held to evaluate the report, and whether the report suffered from any motivation problems. Id. The court determined that, in Dan‐ iel’s case, the factors “militate against admission of the letter.” Committee notes to the Rules of Evidence are “entitled to our respectful consideration,” United States v. Dawson, 434 F.3d 956, 958 (7th Cir. 2006), though they are by no means binding. Deppe v. Tripp, 863 F.2d 1356, 1362 (7th Cir. 1988). The test laid out by the committee note is not the law of this court, and the presumption of admissibility in the text of Rule 803(8) is not reversed by the note’s contention that the hearsay ex‐ ception was controversial in pre‐Rule case law when it was adopted in 1972. The burden of persuasion still lies with the party seeking to exclude the investigative findings. The factors enumerated in the committee note were not in‐ tended to be applied mechanically. The factors “may be of as‐ sistance” in close cases, and the list is by no means exhaustive. Fed. R. Evid. 803(8), cmt. (c) (“Others no doubt could be added.”). The note pointed out that rote application of the fac‐ tors “is an obvious impossibility,” so courts are to “assume[] admissibility in the first instance” of evaluative reports. Id. 24 No. 15‐2832
The relevant factors here weigh strongly in favor of admit‐ ting the Department of Justice Report. The Report was timely for this case. While the investigation was conducted in 2007, the subsequent Agreed Order and Shansky Monitor Report, both from 2010, show that the need for and process of correct‐ ing the Jail’s conditions continued into the months when Dan‐ iel needed better and more timely medical care. In terms of expertise, it is difficult to imagine an official investigation with more expertise or facial credibility. The Department of Justice relied on a team of experts in medicine, corrections, and medical administration. There was no hearing, but the Department provided a draft to Cook County officials and an opportunity to respond. Finally, we are not persuaded by the district court’s con‐ cern that the Department of Justice Report suffered from mo‐ tivation problems because it was written in anticipation of lit‐ igation. The Report was not prepared for purposes of litiga‐ tion. It was prepared as part of an investigation that the De‐ partment carried out pursuant to its duties under the Civil Rights of Institutionalized Persons Act. Litigation could fol‐ low, of course, depending on the outcome of the investigation and the response of institutional officials to the findings. 42 U.S.C. § 1997. But litigation was not the point of the investiga‐ tion or the Report. The mere fact that “the Attorney General may initiate a lawsuit” against the Jail if a resolution is not otherwise reached to address its unconstitutional conditions does not mean that the preliminary investigation was con‐ ducted as anticipatory fact‐finding for a potential lawsuit. If the law were otherwise, many official investigative findings would be inadmissible. No. 15‐2832 25
In fact, the advisory committee note to Rule 803(8) listed a host of instances in which “[v]arious kinds of evaluative re‐ ports are admissible under federal statutes,” many of which are cases where an agency’s investigative report can become the factual basis for a subsequent lawsuit, and the advisory committee noted that such statutes provide a “helpful guide” for applying the more general hearsay exception in the rule. Fed. R. Evid. 803(8), cmt. (c). The defendants have not offered any particular evidence of a motivation problem other than the Department of Justice has the statutory authority both to investigate and then, if necessary, to litigate against the county. We start from the assumption that “public officials will perform their duties properly and without bias,” Jordan, 712 F.3d at 1132, and we see no reason to believe this report suffers from motivation problems on the part of its authors. We do not mean to suggest that a target of such an investiga‐ tion could never show a report is not sufficiently reliable to admit, but it would take a reason more powerful than any of‐ fered in this case. There is a close fit between the factual and legal issues in a Monell claim based on a jail or prison’s health care failings and this Report. As noted above, a plaintiff cannot ultimately prove a Monell claim at trial based on only his own case or even a handful of others. He must show systemic failings that reflect official deliberate indifference to the serious health needs of inmates. That is intended to be a demanding stand‐ ard, and it is difficult, time‐consuming, and expensive for most private plaintiffs to meet. Yet such systemic failings are exactly what the Department of Justice experts were looking for and found in Cook County. Compared to other forms of evidence of the overall quality of the jail’s health care system, 26 No. 15‐2832
the Department of Justice Report seems likely to deserve con‐ siderable weight. The Report is not conclusive, of course. The defendants are entitled to a full opportunity to rebut it. But in litigating the constitutional adequacy of the Jail’s health care, this Report would seem to provide a thorough and reasonably trustwor‐ thy starting point. It would be difficult to replicate through ordinary processes of litigating individual private cases. There may be individual circumstances that might justify ex‐ clusion of the Report, perhaps because it is no longer suffi‐ ciently timely or does not fit sufficiently well the issues in a particular case. But the general presumption of admissibility in the text of Rule 803(8) has considerable force. C. Remaining Evidence Questions Daniel also asks this court to overturn the district court’s decision not to admit the Agreed Order and the Shansky Monitor Report for the truth of the matters stated. He argues first that we may take judicial notice of the facts in the Agreed Order. The district court was correct to exclude the Order. Courts routinely take judicial notice of the actions of other courts or the contents of filings in other courts. See General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997). Taking judicial notice of the contents of hearsay statements in such filings to prove the truth of the matters is much harder to justify. We may take judicial notice of findings of fact from another court proceeding only if, among other requirements, the fact is “not subject to reasona‐ ble dispute.” Id. at 1082, quoting Fed. R. Evid. 201(b); see also Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1354 (7th Cir. 1995) (“In order for a fact to be judicially noticed, in‐ disputability is a prerequisite.”). Judicial notice is a powerful No. 15‐2832 27
tool that must be used with caution. General Electric, 128 F.3d at 1081. The facts from the Agreed Order are in dispute for pur‐ poses of this case. Defendants in the 2010 litigation made clear that they did not “waive the right to contest the July 11, 2008 findings letter or any of the conclusions set forth therein.” The facts in the Order were consented to “For the purposes of this lawsuit only.” Finally, the Order makes clear that the Agreed Order itself would not be “admissible against Defendants ex‐ cept in a proceeding involving the parties to this Agreed Or‐ der.” The district court did not err by declining to take judicial notice of facts asserted in the Agreed Order. Daniel also argues that the monitor report prepared in 2010 by Dr. Shansky is admissible for the truth of its contents as a present sense impression under Federal Rule of Evidence 803(1). The Rule 803(1) hearsay exception covers statements that “describe an event or condition without calculated narra‐ tion.” United States v. Boyce, 742 F.3d 792, 797 (7th Cir. 2014). The statement must have been made contemporaneously with the speaker observing the events, or immediately there‐ after. Id. The Shansky Monitor Report was a communication crafted with care for the court and parties based on scheduled visits to the Jail. There is no evidence that it was made at the time of Shansky’s observations. The Monitor Report does not constitute a present sense impression and was properly ex‐ cluded by the district court. Accordingly, the Department of Justice Report should be admitted for the truth of its substance under Rule 803(8). The 2010 Agreed Order and Shansky Report are inadmissible hearsay to the extent they are offered to prove the truth of the statements they contain, but they may be admissible to show 28 No. 15‐2832
that the defendants were on notice of their contents, or per‐ haps for other purposes. * * * We REVERSE the grant of summary judgment to the de‐ fendants and REMAND to the district court for further pro‐ ceedings consistent with this opinion.