Potts v. Dart et al

Filing 76

ORDER Signed by the Honorable Joan H. Lefkow on 11/7/2013: Dart's motion to dismiss claims brought against him in his individual capacity 72 is denied. Dart is ordered to answer the second amended complaint ( 52 by November 27, 2013. Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DISTRICT

REGINALD M. POTTS, Jr.,
Plaintiff,
v.
SERGEANT JOHN MANOS, et al.,
Defendants.

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Case No: 11 C 3952
Judge Joan H. Lefkow

ORDER
Plaintiff Reginald M. Potts, Jr., has filed a second amended complaint against various
employees of Cook County Jail (“Cook County Jail” or the “Jail”) in their individual capacities,
Cook County, and Cook County Sheriff Thomas Dart in both his individual and official
capacities. (Dkt. 52.) Potts alleges claims for excessive force, failure to protect, liability
pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and statutory indemnification. (Id.) The sole issue
before the court is whether Potts has alleged sufficient facts against Dart in his individual
capacity to survive Dart’s motion to dismiss. (Dkt. 72.) For the following reasons, Dart’s
motion is denied.1

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The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). Venue is proper in
the Northern District of Illinois under 28 U.S.C. § 1391(b) because at least one defendant resides in this
District and all of the events giving rise to Potts’ claims occurred in this District.

BACKGROUND2
Potts is a pretrial detainee at Cook County Jail. He has been repeatedly subjected to
excessive force by Jail employees despite having filed “dozens of grievances” and having
“pleaded directly to policymakers and supervisors at the Cook County Jail on numerous
occasions about the improper use of pepper spray and excessive force by Jail employees.” (Dkt.
52 ¶ 4.) Potts alleges one incident in particular that occurred on May 27, 2009. According to
Potts, he was taking a shower at the Jail when a Jail employee turned off the water and then
sprayed Potts with oleoresin capiscum spray (“OC spray”), or pepper spray. Jail employees
refused to allow Potts to shower to remove the spray. They then handcuffed and shackled Potts
and fitted him with a waist chain to take him to the medical unit to be treated for the pepper
spray. On the way there, Jail employees allegedly twisted Potts’ cuffed wrist and dragged him
on the concrete, causing Potts to suffer injuries to his head, back and ankles. Potts alleges he
reported the incident to Jail supervisors but that they took no action to investigate the force.
This shower incident is but one instance of physical abuse at Cook County Jail and is part
of a pattern and practice of unlawful actions. Potts enumerates multiple other incidents in which
he was physically abused or otherwise mistreated by Jail employees. After each instance, he
complained to or notified Jail supervisors but does not know if any action was taken to
investigate his allegations or take corrective action against any Jail employee.
Potts has repeatedly notified a class of defendants he labels the “Supervisor
Defendants”—including Dart—about the conditions of his confinement at the Jail. He also notes

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These facts are taken from the second amended complaint and are presumed true for purposes
of resolving the motion to dismiss. See, e.g., Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

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a Jail policy that requires a “Use of Force” report to be filled out every time a Jail employee uses
OC spray or other force on a detainee. He thus states,
On information and belief, some or all of the Supervisor Defendants received
such reports or were otherwise notified each time a Jail employee used force on
Potts. On information and belief, video cameras recorded each time a jail
employee used force, and the video recordings are in the possession or control of
the Cook County Sheriff’s Office. In addition, on information and belief, the
Supervisor Defendants participated in high-level meetings in which the use of
force against Potts was discussed.
(Id. ¶ 33.)
Based on these allegations, Potts states that “the Supervisor Defendants were thus
personally aware that Jail employees were repeatedly using excessive force on Potts, not to
maintain or restore discipline, but instead to maliciously cause Potts harm.” (Id. ¶ 34.) By
failing to protect Potts and ignoring his grievances and complaints, Jail employees were
deliberately indifferent to the risks Potts faced, violating 42 U.S.C. § 1983 and Potts’
Fourteenth Amendment rights. In addition to alleging Count II against Dart in his individual
capacity, Potts alleges three other counts against different defendants and/or against Dart in his
official capacity. In Count I, Potts alleges a claim against various Jail employees for violation
of § 1983 by using excessive force against him. In Count III, he alleges that the policy and
practice of Jail employees of using excessive force on detainees results in Monell liability
against Dart in his official capacity,3 and in Count IV he alleges that the Cook County Sheriff is

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The court presumes that the references to “the Sheriff of Cook County” in Count III, for Monell
liability, refers to Dart in his official, and not individual, capacity. (Dkt. 52 ¶ 51.) This differs from
Potts’ references to Dart in his individual capacity in Potts’ failure to protect claim, where Potts refers to
Dart by his name and not his title. (Id. ¶ 44.) In any case, Potts cannot bring his Monell claim against
Dart in his personal capacity. See Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 382 (7th Cir.
1988) (“Because personal-capacity suits are really suits against the official as an individual, not against
the government entity, Monell is always inapplicable.”).

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responsible for paying any tort judgment for compensatory damages for which Cook County
employees are liable within the scope of their employment, and that Cook County is liable to
pay any judgment for compensatory damages entered against the defendants.4
Dart has moved to dismiss the second amended complaint, arguing that he cannot be
liable in his individual capacity for Potts’ alleged harm. (Dkt. 72.)
LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a
complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P.
12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.
1997). In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in
the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s
favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion,
the complaint must not only provide the defendant with fair notice of a claim’s basis, but must
also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. At the same time, the

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Although Potts does not cite the statute under which he alleges he is entitled to statutory
indemnification, the court presumes he is referring to 745 Ill. Comp. Stat. 10/9-102, which provides that
“[a] local public entity is empowered and directed to pay any tort judgment or settlement for
compensatory damages . . . for which it or an employee while acting within the scope of his employment
is liable.”

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plaintiff need not plead legal theories. Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th
Cir. 2010). Rather, it is the facts that count.

ANALYSIS5
Dart argues that the complaint provides no factual basis to conclude that he was
personally involved in any unconstitutional conduct. (Dkt. 72 at 3.) He asserts that Potts’
statement that Dart participated in “high-level meetings in which the use of force against Potts
was discussed” (dkt. 52 ¶ 33) is insufficient to meet requisite pleading standards. (Dkt. 72 at 23.) Potts responds that (1) he has met and exceeded the Twombly and Iqbal pleading standards;
(2) cases from this district support his argument that a pretrial detainee can bring suit against the
Cook County Sheriff in his individual capacity where the Sheriff had personal knowledge of
alleged abuse; and (3) Dart is, at the very least, individually liable for the creation of
“deleterious system conditions” of which Potts was a victim. (Dkt. 75 at 8.)
In order to succeed on an individual capacity claim against a state actor under § 1983, a
plaintiff must show that the defendant was personally involved in the alleged constitutional
deprivation. Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003); Duncan v. Duckworth,
644 F.2d 653, 655 (7th Cir. 1981). Agency principles of respondeat superior and vicarious
liability do not apply to § 1983 claims. Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008);
see also Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”).

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Because, as stated above, Potts only brings Count II for failure to protect against Dart in his
individual capacity, this analysis only applies to that Count as the others are not at issue.

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Therefore, supervisors are held individually liable for violating the constitution only where they
“kn[ew] about the unconstitutional conduct and facilitate[d] it, approve[d] it, condone[d] it, or
turn[ed] a blind eye for fear of what they might see.” T.E. v. Grindle, 599 F.3d 583, 588 (7th
Cir. 2010) (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)); see also
Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982) (“An official satisfies the personal
responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless
disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional
deprivation occurs at her direction or with her knowledge and consent.”).
Because Potts is a pretrial detainee, he brings his claims of failure to protect pursuant to
the Fourteenth Amendment of the United States Constitution rather than the Eighth
Amendment, as he would if he had already been convicted and imprisoned. See, e.g.,
Washington v. LaPorte Cnty. Sheriff’s Dep’t, 306 F.3d 515, 517 (7th Cir. 2002). Pretrial
detainees, however, are entitled to protections at least as great as those afforded to prisoners, so
the applicable standard under the Eighth Amendment applies. Id. The Supreme Court set out
that standard in Farmer v. Brennan, 511 U.S. 825, 832-34, 114 S. Ct. 1970, 128 L. Ed. 811
(1994). To assert a claim for failure to protect under Farmer, a detainee must meet a twopronged test. First, he must demonstrate that the injury alleged is sufficiently serious, and
second, he must allege that the official acted with “deliberate indifference” to the detainee’s
health or safety. Id. at 834. The second prong is subjective rather than objective, in that the
detainee must demonstrate that the defendant had actual knowledge of the danger the plaintiff
faced, not that a reasonable person should have known of the danger. See, e.g., Brown v. Budz,
398 F.3d 904, 913 (7th Cir. 2005); Birch v. Jones, No. 02 C 2094, 2003 WL 21210107, at *3

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(N.D. Ill. May 21, 2003) (citing Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999)). Under the
“deliberate indifference” prong, the detainee must show both that the official knew the inmate
“face[d] a substantial risk of serious harm” and “disregard[ed] that risk by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847.
For example, in Hoskins v. Dart, No. 09 C 5154, 2010 WL 4823065, at **2-3 (N.D. Ill.
Nov. 15, 2010), the court held that a pretrial detainee adequately alleged a failure to protect
claim against two officials in the Cook County Sheriff’s department in their individual
capacities where the complaint stated that one official had received a grievance filed by the
plaintiff after other inmates attacked him but had done nothing about it, and the other official
discussed the assaults with the plaintiff but did nothing to protect him. Conversely, the court
held that the plaintiff had not adequately stated individual capacity claims against other highlevel officials, including Dart, where he did not allege anything about the other officials’
“knowledge of or involvement in the treatment of” him. Id. at *3; see also Lewis v. Cook Cnty.
Dep’t of Corr., 28 F. Supp. 2d 1073, 1079 (N.D. Ill. 1998) (plaintiff adequately stated
individual capacity claims against correctional officers where he “made an allegation of direct
responsibility” against them); compare Adedeji v. Cobble, No. 10 C 0892, 2013 WL 449592, at
*5 (N.D. Ill. Feb. 5, 2013) (dismissing individual capacity claims against Dart where plaintiff
did not allege Dart was personally present at incident that caused plaintiff harm or that “Dart
was involved in turning a blind eye to inmate violence or otherwise facilitating an environment
for attacks to occur at the Jail”).

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Dart does not contest whether the harm Potts alleges he suffered was sufficiently serious
under the first prong of the Farmer test.6 Instead, Dart argues that the complaint fails to allege
he had sufficient knowledge to bring this suit against him in his individual capacity. Potts
responds that his complaint states enough facts against Dart to allege that Dart can be held
individually liable because he was personally involved in Potts’ mistreatment. Specifically,
Potts alleges that Dart and the other Supervisor Defendants “personally knew about the
widespread pattern of abuse against Potts through the numerous grievances, complaints, and
repeated communications from Potts’ family, Potts’ attorneys, and Potts himself.” (Dkt. 75 at 3
(citing Dkt. 52 ¶ 32).) He notes that Dart “even discussed the widespread, unlawful use of force
against Potts with other Jail supervisors in ‘level meetings.’” (Id. (citing Dkt. 52 ¶ 33).) Dart
asserts that these facts do not assert a “plausible claim” against Dart because Potts’ allegations,
which he brings “on information and belief,” (dkt. 52 ¶ 33) amount to “a conclusory allegation
that Sheriff Dart was present at specific meetings in which specific instances of force against
Plaintiff were discussed.” (Dkt. 72 at 3.)
Potts, however, has stated sufficient facts against Dart to survive a motion to dismiss.
He specifically alleges that he notified Dart and other Supervisor Defendants of the conditions
of his confinement, and that Dart received reports each time Jail officials used force on Potts.
(Dkt. 52 ¶¶ 32-33.) Potts also alleges that Dart “participated in high-level meetings in which
the use of force against Potts was discussed.” (Id. ¶ 33.) That Potts is only able to allege this
“on information and belief” is understandable at this point in the litigation. See Brown, 398

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Indeed, neither party cites to Farmer or discusses its test. Because Potts is proceeding on a
failure to protect theory, however, Farmer is the applicable standard. Farmer, 511 U.S. at 832-34.
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F.3d at 914 (detainee-plaintiff should not be faulted for reliance on “information and belief”
where he had no knowledge of “an event offering definitive insight into the [detention] facility
officials’ minds”). Because Potts alleged that Dart had actual knowledge of the abuse that
Potts suffered at the hands of Jail officials and that Dart took no action to protect Potts from
future mistreatment, Potts has adequately alleged facts to survive Dart’s motion to dismiss. See
Hoskins, 2010 WL 4823065, at *2.
There is a second basis on which Dart could be held liable for failure to protect Potts in
his individual capacity. “A senior jail official who was not personally involved in the acts or
omissions complained of nonetheless may be liable in his individual capacity if he can be
expected to have either known of or participated in creating systematic inadequate conditions at
the jail.” Warren ex rel. Warren v. Dart, No. 09 C 3512, 2010 WL 4883923, at *6 (N.D. Ill.
Nov. 24, 2010) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1428-29 (7th Cir. 1996)). In
Antonelli, the Seventh Circuit explained that the Sheriff of Cook County should not be held
liable in his individual capacity for “clearly localized” claims brought by inmates where he had
no knowledge of the facts underlying the claims. Antonelli, 81 F.3d at 1429. It explained that
the Sheriff and others in high-level positions are “far from most of the day-to-day decisions that
may have affected inmates.” Id. at 1428. Under the Seventh Circuit’s distinction between
“clearly localized, non-systemic violations” and “potentially systemic” violations, allegations of
the former should be dismissed as to the Sheriff. Id. at 1429. The court held that the Sheriff
could be held liable in his individual capacity for those potentially systematic claims that did
not solely involve the plaintiff. Id. at 1428-29.

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Moreover, a plaintiff can show deliberate indifference of high level officials by
demonstrating that he fell victim to a “general, obvious risk to inmate safety posed by the
problem” whose pervasiveness would “lead to the inference that Defendants had actual
knowledge of [its] substantial risk.” Byron v. Dart, 825 F. Supp. 2d 958, 963-64 (N.D. Ill.
2011). The court in Byron held that the plaintiff had adequately alleged that jail officials were
liable under a failure to protect claim after the plaintiff had been attacked in his jail cell because
the plaintiff alleged the defendants “knew there was a widespread problem of faulty cell doors.”
Id. at 964.
Thus, while high level officials normally cannot be held liable for localized violations,
they “are expected to have personal responsibility for systemic conditions.” Jones v. Sheahan,
No. 99 C 3669, 2001 WL 1230551, at *6 (N.D. Ill. Oct. 15, 2001) (citing Antonelli, 81 F.3d at
1429). For example, in Jones v. Sheahan, No. 01 C 6548, 2002 WL 959814, at *6 (N.D. Ill.
May 9, 2002), the court denied a motion to dismiss claims against high level officials (including
Cook County Sheriff Sheahan and the executive director of Cook County Jail) because, “[a]t
this stage of the litigation, it is difficult to tell if the problem is non-systemic or systemic.” The
plaintiff there alleged various constitutional violations based on employees in the Cook County
Jail mail room allegedly opening and reading privileged mail he sent to or received from
attorneys. The defendants moved to dismiss, arguing that they could not be individually liable
for these claims because they were not personally responsible for the alleged violations. The
court denied the motion as “premature,” explaining, “[i]f unidentified employees are
intentionally opening and reading [the plaintiff’s] legal mail, then it is clearly a non-systemic
problem. If proper procedures have not been set up and are not being enforced for dealing with

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the large volume of mail that enters and leaves Cook County Jail, then it is clearly a systemic
problem.” Id.; see also Terry v. Cook Cnty. Dep’t of Corr., No. 09 C 3093, 2010 WL 331720,
at *3 (N.D. Ill. Jan 22, 2010) (denying Dart’s motion to dismiss individual capacity claim
against him where the claim was based on his “alleged failure to enact procedures, obtain
funding and adopt safeguards to prevent the denial of adequate medical care to pretrial
detainees”); Lara v. Sheahan, No. 06 C 669, 2007 WL 1030304, at *9 (N.D. Ill. Mar. 30, 2007)
(denying Sheriff’s motion to dismiss certain claims brought against him in his individual
capacity where it was “difficult to tell” at that “stage of the litigation” if they were “nonsystemic or systemic violations”).
Here, Potts is explicitly alleging systemic claims. Potts has alleged that he has
“repeatedly been subjected to excessive force by Jail employees” (dkt. 52 ¶ 3) and that Jail
policymakers and supervisors have “consistently ignored [his] complaints and pleas for help;
they have failed to protect Potts from repeated attacks; they have failed to adequately
investigate allegations of excessive force; and they have failed to discipline Jail employees who
are unlawfully using excessive force.” (Id. ¶ 4.) He also alleges that the mistreatment he has
endured is systemic rather than “ isolated events.” (Id. ¶ 23.) He points to the Jail’s “policy and
widespread practice of using pepper spray and other types of force to punish detainees rather
than to maintain order or discipline,” and its “policy and practice of failing to adequately
investigate allegations of force or discipline Jail employees who violate detainees’
constitutional rights.” (Id.) Because it is not immediately apparent that these are “clearly
localized, non-systemic violations,” it is premature to dismiss the claims brought against Dart in
his individual capacity. Antonelli, 81 F.3d at 1429.

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ORDER
For the aforementioned reasons, Dart’s motion to dismiss claims brought against him in
his individual capacity (dkt. 72) is denied. Dart is ordered to answer the second amended
complaint (dkt. 52) by November 27, 2013.

Date: November 7, 2013

_____________________________
U.S. District Judge Joan H. Lefkow

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