Brooks v. Bukowski et al
Filing
10
MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 5/12/2015: The clerk is directed to add Kankakee County as a Defendant; The clerk is directed to terminate Defendants Nolan and Hughes; The clerk is directed to enter the standard order g ranting Plaintiff's in forma pauperis petition and assessing aninitial partial filing fee, if not already done, and to attempt service on Defendants Henshaw, Ahramovich, Voss, Bukowski, and Kankakee County pursuant to the standard procedures; The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE FULL WRITTEN ORDER. (Clerk sets Rule 16 Deadline for 7/13/2015)(JRK, ilcd)
E-FILED
Tuesday, 12 May, 2015 08:52:45 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JERMAINE BROOKS,
Plaintiff,
v.
TIMOTHY BUKOWSKI,
OFFICER HENSHAW,
OFFICER LAZARUS HUGHES,
OFFICER AHRAMOVICH,
OFFICER NOLAN, and
CAPTAIN VOSS,
Defendants.
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14-CV-2314
MERIT REVIEW OPINION
JAMES E. SHADID, U.S. DISTRICT JUDGE.
Plaintiff, proceeding pro se from his incarceration in Stateville
Correctional Center, seeks leave to proceed in forma pauperis on
claims arising from an incident in the Jerome Coombs Detention
Center.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the
factual allegations as true, liberally construing them in Plaintiff's
favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
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However, conclusory statements and labels are insufficient.
Enough facts must be provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
ALLEGATIONS
On the morning of August 29, 2014, Plaintiff was sitting in a
dayroom at the Jerome Coombs Detention Center. Around 10:15
a.m., he told Defendants Henshaw and Ahramovich that he had
blood in his urine, sharp pains in the left side of his chest and was
having difficulty breathing. He told the officers that he needed his
two inhalers. Officers Henshaw and Ahramovich allegedly denied
Plaintiff’s request for medical attention or his inhalers, even after
Plaintiff suffered two asthma attacks in the officers’ presence and
other detainees tried to help by pressing the emergency button and
knocking on the observation window . According to Plaintiff,
Officers Henshaw and Ahramovich ignored the pleas and continued
to play computer games.
Though Plaintiff’s difficulties continued, lunch was served, and
then the detainees in the dayroom were directed to return to their
cells. Plaintiff was unable to comply with the direction because he
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was still experiencing chest pains and having trouble breathing.
Officers Henshaw and Ahramovich again allegedly ignored Plaintiff’s
request for medical attention. Six officers then came into the
dayroom, including Defendant Voss, a supervisor. Voss and the
other officers also allegedly ignored Plaintiff’s requests for medical
help and instead threatened, harassed, and degraded Plaintiff.
Plaintiff then had a third asthma attack in front of the officers.
Thirty minutes later, Voss informed the medical unit about
Plaintiff’s asthma attacks.
ANALYSIS
Plaintiff states an arguable constitutional claim against
Defendants Henshaw, Ahramovich, and Voss for deliberate
indifference to his serious medical needs.1 Gomez v. Randle, 680
F.3d 859, 865 (7th Cir. 2012)(Eighth Amendment prohibits
deliberate indifference to inmate’s medical needs).2 Plaintiff’s
description of his symptoms allows an inference that his medical
needs were serious and that these three Defendants deliberately
1
Counts 1 (conspiracy) and 2 (failure to intervene) of the Complaint are more accurately titled as claims for
deliberate indifference to Plaintiff’s serious medical needs and are construed as such.
2
As a pretrial detainee, Plaintiff’s claim arises under the Fourteenth Amendment, but "there is little practical
difference” between the Fourteenth and Eighth Amendment standards.” Weiss v. Cooley, 230 F.2d 1027, 1032 (7th
Cir. 2000).
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ignored Plaintiff’s requests for medical care. Plaintiff’s
supplemental state law claim for the intentional infliction of
emotional distress will also proceed against these three Defendants,
as will the indemnification claim against Sheriff Bukowski in his
official capacity. See 745 ILCS 10/9-102. Kankakee County will be
added as a necessary party. See Olson v. Champaign County, --F.3d ---, 2015 WL 1934388 (7th Cir. 2015)(745 ILCS 10/9-102
“requires the county to indemnify Sheriffs and their deputies for
damages for torts committed in the scope of their employment. . . .
Champaign County is a necessary party to a suit against a Sheriff
under federal law.”)
Plaintiff names Officers Nolan and Hughes as Defendants
without explaining their involvement. The Court cannot tell from
the Complaint if Nolan or Hughes were in the dayroom or were
aware of what was happening. At this point, Defendants Nolan and
Hughes will be dismissed, without prejudice to reinstatement if
Plaintiff files a motion to reinstate explaining how Nolan and
Hughes were personally involved in the denial of medical care. Kuhn
v. Goodlaw, 678 F.3d. 552, 555 (7th Cir. 2012)(Ҥ 1983 liability is
premised on the wrongdoer's personal responsibility.”)
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Plaintiff pursues an unconstitutional policy claim for failure to
train, but the allegation is too conclusory. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”)(citing Bell Atlantic v. Twombly, 550 U.S. 550, 555-56
(2007). A constitutional failure to train claim requires that the
Sheriff’s Office have a policy or practice of deliberate indifference to
a detainee’s civil rights. See Hollins v. City of Milwaukee, 574 F.3d
822 (7th Cir. 2009); Chavez v. Illinois State Police, 251 F.3d 612,
651 (7th Cir. 2001)(no respondeat superior liability under § 1983).
The failure to train claim will be dismissed, but without prejudice to
filing an amended complaint if discovery supports the addition of
the claim.
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states the following
claims against Defendants Henshaw, Ahramovich, and Voss based
on the alleged events which occurred August 29, 2014: (1)
Fourteenth Amendment federal claim for deliberate indifference to
Plaintiff’s serious medical needs; and, (2) supplemental state law
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claim for the intentional infliction of emotional distress. Plaintiff
also states an indemnification claim against Sheriff Bukowski in his
official capacity.
2)
Kankakee County is added as a necessary party.
3)
Plaintiff’s failure to train claim is dismissed, without
prejudice.
4)
Defendants Nolan and Hughes are dismissed, without
prejudice.
5)
This case proceeds solely on the claims identified in
paragraph one. Any additional claims shall not be included in the
case, except at the Court’s discretion on motion by a party for good
cause shown or pursuant to Federal Rule of Civil Procedure 15.
6)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
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7)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
8)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
9)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
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answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
10)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
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11)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
12)
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
13)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
14)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
15)
The clerk is directed to add Kankakee County as a
Defendant.
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16)
The clerk is directed to terminate Defendants Nolan
and Hughes.
17)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants Henshaw, Ahramovich, Voss, Bukowski,
and Kankakee County pursuant to the standard procedures.
18)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 5/12/2015
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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