Rusinowski et al v. Village of Hillside et al
Filing
46
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/29/2011:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN RUSINOWSKI and JOSEPH
RUSINOWSKI,
Plaintiff,
Case No. 11 C 4772
v.
VILLAGE OF HILLSIDE, JOSEPH
LUKASZEK, ROBERT DiDOMENICO,
DAVID ANDRESKI, and ELMHURST
MEMORIAL HEALTHCARE,
Hon. Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Before the Court are Motions to Dismiss Plaintiffs’ Second
Amended Complaint.
(The Court denies Defendants’ Motions to
Dismiss the first Complaint, Dkt.#s 12 and 14, as moot.)
For the
reasons stated herein, the Court grants in part and denies in part
the Hillside Defendants’ Motions to Dismiss; grants in part and
denies in part Defendant Andreski’s Motion to Dismiss Count IV and
grants his request for a clearer statement of Count V; grants
Elmhurst Memorial’s Motion to Dismiss Count IV without prejudice;
and denies Defendant DiDomenico’s Motions to Dismiss.
II.
STATEMENT OF FACTS
At this stage in litigation, the Court accepts Plaintiffs’
well-pleaded allegations as true.
Plaintiffs Steven Rusinowski
(“Steven” or “Rusinowski”) and his father Joseph (“Joseph”) bring
this nine-count suit based on the events of March 4-10, 2011.
Steven is 28, lives with his father in the Village of Hillside, and
is
a
student
at
Elmhurst
College.
He
is
also
a
user
of
Battlecam.com, a web site in which users role-play with one another
in threatening, intimidating, or combative scenarios.
In late 2010 or early 2011, Steven met Defendant Robert
DiDomenico (“DiDomenico”) on Battlecam.com, and DiDomenico began a
campaign
of
harassment
against
Steven.
DiDomenico
began
by
encouraging people to send pizzas and taxis to Steven’s home, and
endeavored to send men to Steven’s home to have sex with him.
On
November
10,
2010,
the
Hillside
Police
received
an
anonymous call from “Michael,” who reported that Joseph had two
guns and had threatened to kill himself.
Police visited the
Rusinowskis’ home, spoke to both men, and confirmed the report as
false. Several similar incidents occurred in early 2011; each time
the police concluded that the call was a false alarm.
calls were also made to Steven’s school.
Similar
On January 20, 2011,
Steven filed a police report regarding DiDomenico’s harassment.
On March 4, 2011, DiDomenico called the Hillside Police
claiming that Steven was on his WebCam, threatening to kill himself
or others or rape someone, while drinking and waving guns around.
He may also have said that Steven threatened to rape someone in
South Carolina (it is unclear whether the police received this
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information by tip or claim to have witnessed it themselves on
Steven’s video feed).
Steven maintains that he never threatened
anyone.
The Hillside Police, led by Chief Lukaszek (“Lukaszek”),
responded
to
the
call,
Rusinowskis’ door.
warned
neighbors,
and
banged
on
the
Steven claims that he showed his hands when
asked; the Hillside Defendants claim that Steven refused to come
outside when
ordered.
Lukaszek
pulled
Steven to
the
ground
outside, cutting his hand on the cement and hurting his back.
Steven was then handcuffed and placed in a squad car.
Steven
claims that he was arrested, but the Hillside Defendants disagree.
Once Steven was secured, the police searched his home without a
warrant and seized two unloaded guns, ammunition, and two beer
bottles (one empty, one half full) from Steven’s desk.
Steven had
a permit for the guns.
The Hillside Police transported Steven to the station and held
him there for one to two hours.
From there, an ambulance took him
to Elmhurst Memorial Healthcare (“Elmhurst”), where he was placed
in seclusion.
No doctors examined Steven at Elmhurst, but a
“crisis center worker” told Steven that he was being committed and
could not leave.
Steven protested, but the worker was unreceptive
to his explanation about the false alarms and harassment.
Lukaszek completed a petition to involuntarily commit Steven.
The
supervising
physician
at
Elmhurst,
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Dr.
David
Andreski
(“Andreski”), completed the accompanying physician’s certificate,
but without examining Steven as required by statute. Andreski also
filled out a form transferring Steven to the J.J. Madden Mental
Health Center (“Madden”).
Andreski indicated on the form that he
communicated the risks and benefits of the transfer (it is unclear
to whom); however, he wrote down no benefits and indicated that
Steven was “unstable.”
Steven claims that he signed a transfer
form, but did not understand it as he was under duress and heavily
sedated on Xanax.
Steven was held at Elmhurst for up to 12 hours and was guarded
so that he could not leave.
At approximately 2:00 a.m. on March 5,
he was transported to Madden.
Steven remained at Madden until March 10, 2011.
time, Steven
was
given the
wrong
medication
for
During that
his
anxiety
disorder, and so could not sit still or calm down for five days.
He reports being medicated against his will, but did not protest in
order to keep the situation from getting worse.
The mental health
workers who worked with Steven noted no suicidal or homicidal
tendencies.
His hand injury went untreated and became infected.
Upon his release, Steven found that campus security at his
school had received an anonymous tip that he kept a loaded gun in
his car and was dealing drugs.
not substantiated.
Upon investigation, the claim was
Campus security had also already been informed
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of Steven’s hospitalization.
Stephen’s permit to carry firearms
was also reviewed as a consequence of this incident.
On March 17, 2011, DiDomenico posted a video on Battlecam.com
entitled “[DiDomenico] Thinks It’s Funny Calling the Cops on Beer
Guy & [Steven] Part 2.”
In that and other videos, he taunts Steven
and laughs about calling the police as a “concerned citizen.”
DiDomenico also implied in another video that he intended to see
that Steven was expelled from his college.
Steven claims that due to this incident he suffers sleepless
nights and a decreased appetite, and had to withdraw from one of
his classes when he failed a midterm after his hospitalization.
Joseph alleges that due to the stress of the incident he has had to
have his blood pressure medication adjusted.
Plaintiffs bring the following claims:
Count I (under 42
U.S.C.§ 1983 for illegal search and seizure) against Lukaszek;
Count II (under 42 U.S.C.§ 1983 for excessive force) against
Lukaszek; Count III for battery against Lukaszek; Count IV (for
violation
of
the
Illinois
Mental
Health
and
Developmental
Disabilities Code) against Andreski and Elmhurst; Count V (for
violation of the Emergency Medical Treatment and Active Labor Act)
against Andreski and Elmhurst; Count VI (for false imprisonment)
against Lukaszek and Elmhurst; Count VII (under 42 U.S.C.§ 1983 for
unlawful
detention)
against
Lukaszek;
Count
VIII
(a
Monell
municipal liability claim) against the Village of Hillside; and
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Count IX (for intentional infliction of emotional distress) against
DiDomenico.
III.
LEGAL STANDARD
On a motion to dismiss under Rule 12(b)(6), this Court accepts
as true all well-pleaded facts in Plaintiffs’ Complaint and draws
all inferences in their favor.
Cole v. Milwaukee Area Tech. Coll.
Dist., 634 F.3d 901, 903 (7th Cir. 2011). A complaint must contain
a “short and plain statement of the claim showing that the pleader
is entitled to relief.”
FED. R. CIV. P. 8(a)(2).
Plaintiffs need
not allege “detailed factual allegations,” but must offer more than
conclusions or “a formulaic recitation of the elements of the cause
of action[.]”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “Naked assertion[s] devoid of further factual enhancement”
will not suffice – a complaint “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50
(2009).
A
civil
commitment
is
a
seizure
implicating
Amendment, and may only be made upon probable cause.
Abrams, 972 F.2d 792, 795 (7th Cir. 1992).
the
Fourth
Villanova v.
That is, the police may
only seize an individual for commitment if they have reasonable
grounds to believe that the person is subject to seizure under the
governing legal standard. Id.
In Illinois, that standard is when
an individual “is subject to involuntary admission on an inpatient
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basis and in need of immediate hospitalization to protect such
person or others from physical harm.”
606.
405 Ill. Comp. Stat. 5/3-
See Baltz v. Shelley, 661 F.Supp. 169, 178 (N.D. Ill. 1987).
IV.
A.
DISCUSSION
Hillside Defendants’ Motion to Dismiss
Lukaszek and the Village move to dismiss the Second Amended
Complaint under Rule 12(b)(6).
As discussed below, the Court
denies the motion as to the claims against Lukaszek, and grants it
in part and denies it in part as to the Monell claim against the
Village.
1.
Attorneys’ Fees for Battery and False Imprisonment
Lukaszek seeks to strike Plaintiffs’ request for attorney’s
fees in the state law false imprisonment and battery claims.
He
points to the rule in Illinois that attorney’s fees are generally
not
recoverable
agreement.
1985).
absent
statutory
authority
or
contractual
Michaels v. Michaels, 767 F.2d 1185, 1205 (7th Cir.
Plaintiffs
do
not
address
this
motion
to
strike
or
articulate authority for obtaining legal fees in their response.
Accordingly, the Court grants the Motion to Strike.
See Automated
Concepts Inc. v. Weaver, No. 99 C 7599, 2000 WL 1134541, at *7
(N.D. Ill. August 09, 2000).
2.
Search and Seizure
The Hillside Defendants claim that Plaintiffs cannot state a
claim
for
illegal
search
and
seizure
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because
the
Complaint
demonstrates that the police had probable cause.
To support this
assertion, they cite to the police report attached as an exhibit
the Complaint.
However,
attaching
the
police report
to
the
Complaint does not mean that Plaintiffs are bound by its contents.
Guzell v. Tiller, 223 F.3d 518, 519 (7th Cir. 2000).
Plaintiffs
repeatedly dispute the contents of the police reports throughout
their Complaint, for example, by asserting that Steven never
threatened anyone.
on
which
the
justification”
Indeed, Plaintiffs challenge almost every fact
Hillside
for
Defendants
their
search.
rely
It
to
is
show
true
“abundant
that
all
of
Plaintiffs’ objections may not be sustainable — for example, it is
not clear that Plaintiffs may use the collective knowledge doctrine
to impute awareness of the false alarms to the searching officers.
Cf. United States v. Blauvelt, 638 F.3d 281, 289 (4th Cir. 2011)
(information undermining the credibility of a complainant is not
subject to the collective knowledge doctrine).
Even so, to the
extent that the Hillside Defendants ask this Court to credit the
police report and reject Plaintiffs’ contrary allegations, this
Court cannot do so at this stage of litigation.
Instead,
Plaintiffs’
this
Court
well-pleaded
must
determine
allegations
existed as a matter of law.
as
whether,
true,
accepting
probable
cause
See United States v. Ellis, 499 F.3d
686, 688 (7th Cir. 2007) (where the underlying facts are not in
dispute, the existence of probable cause is a question of law). On
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the current factual record, however, the Court cannot find that the
Hillside Defendants had probable cause as a matter of law.
If
Plaintiffs eventually concede that Steven waved guns around on his
WebCam, it may corroborate DiDomenico’s tip enough to give police
probable cause, even if he was not making threats.
States v. Clark, 657 F.3d 578, 582 (7th Cir. 2011).
Cf. United
At this stage,
however, Plaintiffs have made no such concession; they have merely
asserted that DiDomenico fabricated the entire incident.
Rule 8
simply does not require Plaintiffs to identify and confirm or deny
every potentially relevant fact.
This Court thus cannot conclude that the face of the Complaint
establishes probable cause.
Because a warrantless search of the
home is per se unreasonable absent both probable cause and exigent
circumstances, the Court need not consider whether the Complaint
sets forth facts establishing exigent circumstances to deny the
motion.
3.
Excessive Force and Battery
The primary issue underlying both the excessive force and
battery claims is whether the force used by police was objectively
reasonable under the circumstances.
See Wells v. Coker, No. 08-
3302, 2011 WL 4381488, at *7 (C.D. Ill. September 20, 2011).
was, both claims are barred.
If it
The Hillside Defendants claim that
Lukaszek’s “minimal use of force” was justified when Steven refused
to exit the home and show that he was not armed.
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To support that
assertion,
they
Complaint.
point
They
to
contend
the
police
that
where
report
an
attached
exhibit
allegations in a complaint, the exhibit trumps.
to
the
contradicts
However, the
Seventh Circuit has specifically rejected the argument that by
attaching police report to complaint, a plaintiff vouches for the
accuracy of its contents.
Cir. 2000).
Guzell v. Hiller, 223 F.3d 518, 519 (7th
Steven specifically alleges that he followed police
orders; Plaintiffs clearly did not intend to vouch for the accuracy
of any contrary statements in the police reports.
Evaluating the objective reasonableness of police action under
the Fourth Amendment requires consideration of the totality of the
circumstances and “careful attention to the facts and circumstances
of each particular case.”
(1989).
Graham v. Connor, 490 U.S. 386, 395-96
Because the facts alleged in the Complaint, as opposed to
the contrary statements the police report, do not indisputably
establish that the use of force was reasonable, this Court denies
the Hillside Defendants’ Motion to Dismiss.
4.
Unlawful Detention and False Imprisonment
A police officer who unlawfully restrains an individual’s
movement
violates
the
Fourth
Amendment
and
opens
itself
liability for unlawful detention or false imprisonment.
to
See
Jeffries v. City of Chicago, No. 09 C 7247, 2010 WL 5313491, at *3
(N.D. Ill. December 17, 2010) (citing Dunaway v. New York, 442 U.S.
200, 207-08 (1979)).
The requirements for an unlawful detention
- 10 -
claim under the Fourth Amendment and false imprisonment claim under
Illinois law are very similar.
Warfield v. City of Chicago, 565
F.Supp.2d 948, 967 (N.D. Ill. 2008); Meerbrey v. Marshall Field &
Co.,
545
N.E.2d
952,
955-56,
(Ill.
App.
Ct.
1989)
(“False
imprisonment is an unreasonable restraint of plaintiff’s liberty
against his will caused or procured by the defendant”).
Under both claims, the existence of probable cause is a
complete defense.
See Kampinen v. Individuals of Chicago Police
Dept., No. 00 C 5867, 2003 WL 21982158, at *7 (N.D. Ill. August 19,
2003).
However,
the Hillside
Defendants
did
not
invoke
the
existence of probable cause (or their alleged compliance with state
law procedures) until their reply, and as such that argument will
not be considered.
Instead, Defendants relied on their claims Steven’s detention
was de minimis and for a proper purpose.
They cite to a case
dealing with pre-arraignment procedure to demonstrate that the
detention was lawful, but offer no explanation for why Steven was
held at the station if, as they claim, he was taken into custody
only for delivery to a psychiatric facility.
Plaintiffs focus on the presence or absence of probable cause
to believe that Steven committed a crime, and ignore the fact that
detention for involuntary commitment may be lawful even absent
evidence of other criminal activity.
As noted above, in the
context of involuntary commitment, probable cause means probable
- 11 -
cause
to
believe
that
the
requirements
of
the
involuntary
commitment statute have been met — that is, that the person was a
danger to himself or others.
Steven’s claims that he posed no
safety threat to anyone are insufficient to preclude a finding of
probable cause; however, he specifically denies several facts on
which the Hillside Defendants’ rely to show that the detention was
lawful.
Accepting Steven’s factual allegations, the Court cannot
conclude as a matter of law that the Hillside Defendants properly
detained him for up to two hours before transferring him to
Elmhurst, and denies their motion.
5.
Qualified Immunity
State officials with discretionary or policymaking authority
are protected from some constitutional claims by the doctrine of
qualified immunity.
(7th Cir. 2000).
their
conduct
constitutional
Jacobs v. City of Chicago, 215 F.3d 758, 766
Such officials are not civilly liable unless
violated
rights
of
clearly
which
a
position would have been aware. Id.
established
reasonable
statutory
person
in
or
their
If a Plaintiff cannot show
both of those things, their complaint will be dismissed. Id.
This
inquiry is objective; it does not consider officials’ subjective
motivations, and gives them the benefit of the doubt.
Cowgill v.
City of Marion, 127 F.Supp.2d 1047, 1053 (N.D. Ind. 2000).
A qualified immunity defense is normally presented on summary
judgment, but can be available on a motion to dismiss.
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Stevens v.
Umsted, 131 F.3d 697, 706 (7th Cir. 1997).
However, dismissing a
§1983 suit at this stage on qualified immunity grounds is a
“delicate matter”; on the one hand, qualified it immunity is a
defense to suit rather than just liability, and should be addressed
as early as possible.
Jacobs, 215 F.3d at 765 n.3.
On the other
hand, FED. R. CIV. P. 8 does not require plaintiffs to anticipate a
qualified immunity defense and allege every fact needed to defeat
it in the complaint. Id.
Thus, a court must determine whether the
facts actually alleged clearly establish a qualified immunity
defense. Id.
If not, courts have a variety of ways to protect
defendants from unnecessary litigation, such as requiring a more
definite statement of the claim, a reply to an answer, or summary
judgment briefing. Id.
In
their
motion,
the
Hillside
Defendants
reasonable officer would have believed that:
argue
that
a
the warrantless
search of Plaintiffs’ residence was justified by the tip and
Lukaszek’s observations; his use of force was reasonable; and
Steven
was
only
held
at
the
station
for
a
“de
minimis
and
reasonable” amount of time. The Court has already explained why it
cannot conclude from this record that there was no violation of
Plaintiffs’ constitutional rights.
The discrepancy between the
facts that the Hillside Defendants rely upon the allegations in the
Complaint similarly precludes a finding that a reasonable officer
would have found Lukaszek’s conduct lawful.
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Furthermore, although
the
conclusory
language
in
parts
of
the
Complaint
is
not
particularly enlightening, the allegations are sufficient to defeat
a motion to dismiss when read in light of the complaint as a whole.
Accordingly, while Lukaszek’s qualified immunity claim may have
merit upon a more developed record, this Court cannot conclude that
the allegations in the Complaint are so deficient or indicative of
qualified immunity that dismissing the Complaint at this stage is
appropriate.
6.
Monell Municipal Liability Claim
Municipalities
cannot be
respondeat superior theory.
held
must
show
that
under
§
1983
on
a
Monell v. Dep’t of Soc. Servs. of New
York, 436 U.S. 658, 691 (1978).
plaintiffs
liable
a
Instead (as relevant here),
person
with
final
policymaking
authority over the challenged conduct caused their constitutional
harm.
Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005).
The
parties dispute whether a single act of a final decision maker can
be the basis for a Monell claim.
Plaintiffs are correct.
See
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (“municipal
liability
may be
imposed for
a
single
decision
by
municipal
policymakers under appropriate circumstances”).
The
length,
critical
is
question,
whether
circumstances.”
this
which
case
neither
party
involves
such
addresses
at
“appropriate
Specifically, Monell liability requires Lukaszek
to be the final policymaking authority in this case, and his
- 14 -
actions to be fairly attributable to Hillside.
See Valentino v.
Village of South Chicago Heights, 575 F.3d 664, 676 (7th Cir.
2009).
For liability to attach, the final policymaker must have
chosen deliberately the course of action in question. Pembaur, 475
U.S. at 483.
Whether a municipal official is the final decision maker is a
question of state or local law. Id at 484.
However, neither party
undertook that inquiry; indeed, on reply the Hillside Defendants
assumed arguendo that Lukaszek was the final decision maker.
Accordingly, although it seems questionable whether Plaintiffs will
be able to make the necessary showing at trial, the Court will deny
the motion to dismiss at this time.
Defendant is correct, however, that Plaintiffs’ failure-totrain Monell claim is insufficient.
Plaintiffs’ bare assertions
that Hillside “failed to adequately monitor, train, educate, and/or
evaluate
the
performance
of
the
officers
.
.
.
in
the
constitutional requirements to use force, make arrests, and/or
conduct
searches
and
seizures,”
is
unsupported
allegations and insufficient. Compl. at ¶ 96.
by
factual
Accordingly, the
Monell failure-to-train claim is dismissed with prejudice.
B.
Andreski’s Motion to Dismiss
In his motion to dismiss, Defendant Andreski asks that several
parts
of
the
Complaint
the
stricken
as
inadequately
pled.
Rule 12(f) specifies that a court “may strike from a pleading and
- 15 -
insufficient
matter.”
defense
or
any
redundant
[or] immaterial
.
.
.
Ordinarily, when a claim is insufficiently pled, it will
be dismissed pursuant to Rule 12(b) or ordered clarified under
Rule 12(e).
Accordingly, the Court denies Andreski’s motions to
strike, but considers his motions under Rules 12(b) and (e).
1.
Illinois Mental Health and Development Disabilities Code
Andreski
attacks
Count
IV
on
several
fronts:
that the
Illinois Mental Health and Development Disabilities Code (the
“MHDDC”) does not create a civil remedy for the alleged conduct;
that 405 Ill. Comp. Stat. 5/3-601 (under which the count is
brought) does not apply; that Plaintiffs misrepresent Andreski’s
statutory obligations; that Count IV is insufficiently clear as to
whether it alleges medical negligence; and that, even if it does,
the accompanying physician’s certificate of merit is inadequate.
The Court addresses each claim in turn.
a.
Applicability of Section 3-601
Andreski seeks dismissal of Count IV because it cites 405 Ill.
Comp. Stat. 5/3-601, which deals with petitions for involuntary
admission, instead of § 3-602, which governs the certification that
Andreski completed.
Because it cites the wrong section, Andreski
claims, Count IV fails as a matter of law.
Although the Complaint
cites § 3-601, the discussion therein makes clear that the Andreski
allegedly falsified the physician’s certification governed by § 3602. The Court concludes that Plaintiffs’ scrivener’s error is not
- 16 -
fatal, and Andreski was sufficiently put on notice as to his
alleged wrongdoing. The motion to dismiss on this basis is denied.
b.
Requirements Section 3-602
Andreski contends that Plaintiffs wrongfully claim that § 3602 requires him to explain the benefits of the hospital transfer
to patients.
However, a close reading of Count IV shows that it
challenges his failure to identify any such benefits, not his
failure to explain them to Steven.
required by § 3-602.
Even that, however, is not
Paragraph 69 of the Complaint appears to
include an EMTALA claim grafted (intentionally or not) onto the
MHDDC claim.
Below, the Court gives Plaintiffs leave to file an
amended complaint; if they choose to pursue the EMTALA claim in the
amended complaint, this allegation belongs there.
In any event,
Count IV is dismissed without prejudice to the extent that it
alleges that the transfer paperwork violated § 3-602.
The claim
that Andreski violated § 3-602 by signing a certificate without
examining Steven, however, remains.
c.
Enforceability of Section 3-602 and Medical Negligence
Andreski
next
argues
that
even
if
he violated
§ 3-602,
Plaintiffs have no private cause of action thereunder, and have not
adequately pleaded medical negligence to be able to use § 3-602 as
the standard of care in a negligence claim.
Section 3-602 does
have an enforcement mechanism; 405 Ill. Comp. Stat. 5/6-102 makes
it a misdemeanor to receive or detain a person with mental illness
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in violation of the MHDDC, or otherwise violate that act. However,
this does not resolve whether Plaintiffs have private right of
action to enforce § 3-602.
See Rhodes v. Mill Race Inn, Inc., 467
N.E.2d 915, 916-17, (Ill. App. Ct. 1984) (existence of a criminal
penalty neither bars nor establishes an implied private right of
action).
This
Court
is
aware
of
no
Illinois
Supreme
Court
case
addressing existence of a private cause of action under § 3-602.
However, at least one Illinois appellate court and the Chief Judge
of this district have concluded that the Illinois Supreme Court
would imply a cause of action for violations of the MHDDC.
See
Marx v. Northwestern Mem’l Hosp., No. 04 C 5688, 2007 WL 1280643,
at *4 (N.D. Ill. April 30, 2007); Montague v. George J. London
Mem’l Hosp., 396 N.E.2d 1289, 1293 (Ill. App. Ct. 1979).
Even though they can thus arguably proceed directly under § 3602, Plaintiffs seek leave to amend Count IV to clearly articulate
their theory that Andreski committed medical negligence per se in
violating § 3-602.
See Threlkeld v. White Castle Sys. Inc., 127
F.Supp.2d 986, 989 (N.D. Ill. 2001.)
Particularly in light of
Andreski’s alternative requested relief of a clear statement of the
medical negligence claims, this Court will dismiss Count IV to the
extent that it alleges medical negligence, but without prejudice to
Plaintiffs’ refiling an amended complaint to clarify the negligence
claim.
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If Plaintiffs do choose to refile a medical negligence claim,
however, they will need to attach a more complete physician’s
certification of merit to comply with 735 Ill. Comp. Stat. 5/2–622.
A physician’s certificate of merit is required to file a medical
negligence claim under Illinois law, even in federal court.
Sherrod v. Lingle, 223 F.3d 605, 613-14 (7th Cir. 2000).
Federal
courts follow the Illinois practice of liberally construing such
certificates in favor of plaintiffs. Id.
Federal courts should
also adopt the Illinois practice of allowing Plaintiffs to amend
their
dismissed
claims
to
comply
with
§
2-622,
rather
than
dismissing them with prejudice. Id. at 614. (After recent rulings,
§ 2-622 currently requires essentially what it did in 1989, after
Public Act 86-646.
See Cookson v. Price, 239 Ill.2d 339, 341-42
(2010)).
Even under that liberal standard, the Court agrees with
Andreski that the certification here is too sparse.
Although
Plaintiffs’ counsel attests to that Dr. Kaliski reviewed the
details and
records
of
this
case before
writing
his
(brief)
statement, his written report was too bare-bones and equivocal to
meet the requirements of § 2-622. Thus, if Plaintiffs pursue their
medical negligence claim in an amended complaint, a more thorough
certificate will be necessary.
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2.
EMTALA Claim
As to Count V, Andreski complains that Plaintiffs did not
specify which sections of EMTALA he violated, or which parts of
Count V implicate him.
provisions:
The EMTALA has two primary relevant
a requirement to medically screen emergency patients,
and one forbidding transfer of unstable patients without weighing
the risks and benefits of the transfer.
Plaintiff appears to
allege that Andreski violated both.
The Court reads Count V to allege that Andreski violated the
medical
screening
requirement
by
transferring
Steven
without
assuring that he had been examined, and that Andreski (and through
him, Elmhurst) violated the transfer restrictions by engaging in
forbidden “patient-dumping.” However, the pleading is sufficiently
unclear that this Court will grant Andreski’s alternative requested
relief
under
Rule
12(e)
of
a
more
definite
statement.
Alternatively, Plaintiffs may choose to clarify Count V if they
file a Third Amended Complaint.
Candidly, however, it seems unlikely that Plaintiffs can
maintain an EMTALA action against Andreski.
Although the Seventh
Circuit has not spoken, essentially every court to consider the
issue has concluded that no private cause of action lies against
individual doctors under EMTALA.
to
the
Government
plaintiffs.)
for
civil
(That is, doctors may be liable
penalties,
but
not
to
private
See, e.g., Binkley v. Edward Hosp., No. 02 C 2508,
- 20 -
2004 WL 2211647, *3 (N.D. Ill. Sep 30, 2004) (citing King v.
Ahrens, 16 F.3d 265, 271 (8th Cir. 1994)); Eberhardt v. City of Los
Angeles, 62 F.3d 1253, 1256 (9th Cir.1995).
Because neither party
has briefed the issue, this Court will not dismiss this count
against Andreski on that basis. However, should they bring a Third
Amended Complaint and choose to press Count V against Andreski,
Plaintiffs must come prepared to explain to this Court why it
should depart from the conclusions of several circuit courts and at
least one other judge in this district.
C.
Elmhurst’s Motion to Dismiss
Like Andreski, Elmhurst asks this Court to dismiss Count IV
for failing to provide adequate physician’s certificate of merit
under 7350 Ill. Comp. Stat. 5/2-622.
For the reasons discussed
above, this Court agrees that the certification is insufficient.
In response, Plaintiffs argue that because the parties dispute
whether
Andreski
treated
certification is impossible.
Kaliski’s
equivocation, he
Steven,
obtaining
an
adequate
If that dispute is the source of Dr.
may
so
state
in
his
report
while
nonetheless affirming or denying his belief that upon reviewing the
evidence this claim has merit.
Once he provides a coherent
explanation, the parties and this Court can adequately assess
whether his report complies with the statute. As written, however,
certification is inadequate, and thus the Count must be dismissed.
- 21 -
However, in line with Sherrod v. Lingle, the dismissal is without
prejudice. Sherrod, 223 F.3d at 613-14.
Elmhurst does not ask this Court to dismiss Count V (EMTALA)
or Count VI (false imprisonment) against it.
D.
Defendants DiDomenico’s Motion to Dismiss
Defendant
DiDomenico
asks
this
Court
to
dismiss
the
intentional infliction of emotional distress claim against him
under Rule 12(b)(2); for lack of jurisdiction under Rule 12(b)(6);
and on equitable estoppel grounds.
The Court considers each
argument in turn.
1.
Rule 12(b)(2)
a.
Legal Standard
When a District Court sits in diversity jurisdiction, the law
of the form state governs personal jurisdiction over defendants.
FED. R. CIV. P.
4(k)(1).
Illinois’
long-arm
statute
extends
Illinois jurisdiction to the full limits permitted by the federal
Constitution, and specifically covers defendants who commit torts
in Illinois. 735 Ill. Comp. Stat. 5/2-209(c).
thus
whether
DiDomenico
has
sufficient
The key question is
minimum
contacts
with
Illinois such that suing him here does not offend “traditional
notions of fair play and substantial justice.” Tamburo v. Dworkin,
601 F.3d 693, 700-01 (7th Cir. 2010) (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
- 22 -
Where, as here, the basis for the lawsuit is the defendant’s
only contact with the forum state, “specific” jurisdiction is
invoked.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.15
(1985).
Telephones and the internet have considerably broadened
specific jurisdiction, but potential defendants must retain some
degree of control and predictability regarding where they can be
hauled into court.
Tamburo, 601 F.3d at 701.
Thus, if DiDomenico
intentionally aimed his conduct at Illinois knowing that its
effects would be felt here, and that conduct harmed Steven here,
jurisdiction is permissible. Id. at 702-03 (citing Calder v. Jones,
465 U.S. 783 (1984)).
b.
Discussion
DiDomenico argues that he lacks sufficient contacts with
Illinois to support personal jurisdiction, because at most he made
several phone calls to Illinois.
In support, he cites several
cases that deal mostly with the remote practice of law. Plaintiffs
rejoin that DiDomenico both committed a tort in Illinois and
established minimum contacts by making phone calls directing third
parties to commit torts against Steven.
In addition, Plaintiffs
note, DiDomenico should have known that making phony calls to
police could
subject
him
to
legal action here.
Plaintiffs’
argument about committing a tort in Illinois only begs the ultimate
question; this Court focuses its inquiry on whether DiDomenico had
sufficient contacts with Illinois to support jurisdiction.
- 23 -
DiDomenico claims that only one of the phony calls to police
can be traced to him, as three came from blocked numbers and/or
assumed names.
By raising this argument only in his reply,
DiDomenico gave Plaintiffs insufficient opportunity to respond.
Regardless, Plaintiffs have alleged a reasonable basis to support
their belief, and pleading on information and belief is still
permissible post-Twombly.
See Simonian v. Blistex, Inc., No. 10 C
01201, 2010 WL 4539450, at *3 (N.D. Ill. Nov. 3, 2010).
This is
simply not a case where tying the calls to DiDomenico would be
impossible or irrelevant.
Cf. Gulley v. Moynihan, No. 10 C 4435,
2011 WL 2461813, at *3 (N.D. Ill. June 17, 2011).
In considering the jurisdictional consequences of phone calls
or Internet contact, Illinois courts consider whether a defendant’s
actions deliberately and consciously intruded into Illinois.
See,
e.g., MacNeil v. Trambert, 932 N.E.2d 441, 447 (Ill. App. Ct. 2010)
(where an eBay seller could not control the buyers location, the
sale and related communications did not confer jurisdiction);
Hanson v. Ahmed, 889 N.E.2d 740, 745 (Ill. App. Ct. 2008) (a phone
call initiated by another party is not sufficient contact).
Here,
in order to harass Steven, DiDomenico deliberately and repeatedly
chose to involve himself with Illinois police and schools.
Defendant relies on Gordon v. Gordon, in which an Illinois
appellate court found that several e-mails and phone calls to
Illinois were not sufficient to confer jurisdiction.
- 24 -
Gordon v.
Gordon, 887 N.E.2d 35(Ill. App. Ct. 2008).
There, the plaintiff
alleged a host of violations of his divorce agreement, over which
a Florida court maintained jurisdiction.
He argued that his ex-
wife’s calls and e-mails to Illinois, including a call to the
Department of Children and Family Services, constituted sufficient
contacts to confer jurisdiction here.
The court rejected his
“thinly veiled attempt to have an Illinois court enforce the
Florida court’s order through [a] tort action.” Id. at 39.
However, there is no other court with current jurisdiction over
this case.
In a case somewhat similar to this one, the Seventh Circuit
found jurisdiction where defendants had allegedly used their e-mail
lists and web sites to encourage potential customers to boycott the
plaintiff’s business and harass him in person.
at 700-01, 706.
Tamburo, 601 F.3d
In finding that the Illinois long arm statute
conferred jurisdiction, the court noted that the defendants had
intentionally directed their communications to Illinois, intending
to harm the plaintiff here, jurisdiction was appropriate. Id. at
708-09.
fair
Similarly here, maintaining jurisdiction does not offend
play
or
substantial
justice
under
International
Shoe.
DiDomenico allegedly waged a campaign of harassment in Illinois,
repeatedly contacting the Hillside Police and Steven’s school in
order to upset him and potentially have him arrested or expelled.
- 25 -
He thus could or should have predicted adverse legal action against
him in Illinois, whether by Steven or by police.
Furthermore, Illinois has a strong interest in providing a
forum for its residents to vindicate harms from out-of-state
actors. Id.
the
suit,
Finally, given the number of claims and defendants in
it
would
be
wasteful
and
inefficient
to
require
Plaintiffs to sue DiDomenico separately in New York. See Powell v.
XO Servs, Inc., 781 F.Supp.2d 706, 716 (N.D. Ill. 2011).
This
Court concludes that Plaintiffs have made a sufficient showing to
support jurisdiction over DiDomenico, and denies the motion to
dismiss.
2.
Rule 12(b)(6)
a.
Legal Standard
DiDomenico next argues that this Count must be dismissed under
Rule
12(b)(6),
intentional
arguing
infliction
Illinois standards.
that
of
Plaintiffs
emotional
inadequately
distress
(“IIED”)
pled
under
However, Illinois pleading standards do not
govern in federal court.
Lifton v. Board of Educ. of Chicago, 290
F.Supp.2d 940, 945-46 (N.D. Ill. 2003).
Accepting as true all of
Plaintiffs’ well-pled allegations and drawing reasonable inferences
in their favor, this Court concludes that Plaintiffs have pled
sufficient facts to pursue their IIED claim.
To sustain this claim, Plaintiffs must prove four elements:
(1) that DiDomenico’s conduct was extreme and outrageous; (2) that
- 26 -
he intended to cause (or was reckless with regard to causing)
emotional distress; (3) that Steven suffered severe or extreme
emotional
distress;
and
(4)
that
DiDomenico
actually
and
proximately caused that distress. Sornberger v. City of Knoxville,
434 F.3d 1006, 1030 (7th Cir. 2006) (citing Pub. Fin. Corp. v.
Davis, 360 N.E.2d 765, 767–68 (1976)).
Although fright, horror,
shame, or humiliation may be distressing, they are not sufficiently
“severe” to support an IIED claim. Id.
Plaintiffs
have
shown
neither
Defendant claims that
outrageousness
nor
sufficient
emotional distress.
b.
Outrageousness of the Conduct
The tort of IIED is narrow in Illinois.
Indeed, even making
a false police report is not necessarily sufficient for an IIED
claim.
Layne v. Builders Plumbing Supply Co., Inc., 569 N.E.2d
1104, 1108 (Ill. App. Ct. 1991).
slight
hurts
which
are
the
IIED provides no remedy for “the
price
of
a
complex
society”
but
addresses only “severe mental disturbances inflicted by intentional
actions wholly lacking in social utility.”
Knierim v. Izzo, 22
Ill.2d 73, 85 (1961). Here, Plaintiffs allege a malicious campaign
of harassment including false reports to police and schools, hoping
to have Steven arrested, committed, or expelled.
Given the extent
of DiDomenico’s alleged efforts and the serious consequences that
could (and did) result, this Court concludes that Plaintiffs have
sufficiently alleged extreme and outrageous conduct.
- 27 -
DiDomenico appears to claim that Steven concedes that he was
drinking and waving guns in front of his WebCam.
because
at
least
some
of
DiDomenico’s
accurate, his conduct was not outrageous.
Thus, he argues,
report
to
police
was
Plaintiffs allege that
DiDomenico fabricated the entire event; thus DiDomenico asks this
Court to draw a contrary inference from the fact that alcohol and
firearms
were
recovered
near
the
WebCam.
At
this
stage
in
litigation, all inferences must be drawn in favor of Plaintiffs.
Thus,
the
court
must
assume
that
DiDomenico
fabricated
the
incident, and Steven did not wave guns in front of the WebCam, nor
did he threaten to rape, kill, or assault anyone.
DiDomenico further contends that because his harassment took
the form of calls to police, it is privileged and cannot subject
and civil liability. He identifies no cases, however, which extend
that privilege doctrine from the law of defamation into the law of
IIED.
Indeed,
defamation
and
discussing IIED.
his
own
cited
false-light
cases
torts,
but
apply
the
fail to
privilege
mention
it
to
in
Layne v. Builders Plumbing Supply Co., Inc., 569
N.E.2d 1104, 1109 (Ill. App. Ct. 1991).
See also Gvozden v. Mill
Run Tours, Inc., No. 10 C 4595, 2011 WL 1118704, at *8 (N.D. Ill.
March
28,
2011).
Accordingly,
DiDomenico’s
calls
privileged and he is not insulated from liability.
- 28 -
were
not
c.
DiDomenico
Severity of the Emotional Distress
also
claims
that
Plaintiffs
did
not
allege
sufficiently serious emotional distress to support an IIED claim.
In their Complaint and Response, Plaintiffs allege that Steven
continues to lose sleep and his appetite, and had to withdraw from
a class after failing the midterm as a result of the incident.
The
Complaint also describes Steven’s shock and significant emotional
disturbance and distress throughout his hospitalization.
Whether symptoms like these can support an IIED claim is a
question of degree rather than kind.
Compare Amato v. Ireenquist,
679
Ct.
N.E.2d
446,
455
(Ill.
App.
1997)
(allegations
of
“depression, despair, insomnia, anxiety, nervousness and emotional
trauma” are sufficient) with
Swanson v. Swanson, 257 N.E.2d 194,
196 (Ill. App. Ct. 1970) (nervousness, sleepless nights, and fear
of nightmares were insufficient).
Given the seriousness of the
allegations here and the various descriptions of Steven’s distress
throughout the Complaint, this Court concludes that Plaintiffs have
(very narrowly) alleged sufficient emotional distress.
However,
Plaintiffs are cautioned that they will need to provide evidence of
the severity of Steven’s symptoms in order to survive summary
judgment.
Cf. Knowles v. United Healthcare Servs. Inc., No. 05 C
1613, 2006 WL 1430212, at *11 (N.D. Ill. May 19, 2006) (allegations
of sleeplessness and loss of appetite, without evidence as to their
- 29 -
severity
or
any
medical
treatment,
will
not
survive
summary
judgment).
d.
Equitable Estoppel
Finally, DiDomenico argues that Plaintiffs’ claims against him
are equitably barred by the fact that Steven signed Battlecam.com’s
user agreement and expansive liability waiver.
however,
appears
designed
to
protect
That waiver,
Battlecam.com
and
its
affiliates, not other users; indeed, it specifies that it creates
no third party beneficiary rights.
Furthermore, as Plaintiff
points out, this suit is based upon DiDomenico’s alleged calls to
authorities in Illinois.
The fact that he later made a video about
them on Battlecam.com would not protect him from liability.
The
Court also questions whether DiDomenico can avail himself of an
equitable estoppel claim under the user agreement that he also may
have violated.
intimidating,
The agreement prohibits users from bullying,
or
harassing
other
users,
and
from
using
Battlecam.com to do anything that is unlawful, malicious, or
misleading.
If, as he claims, this suit implicates conduct on
Battlecam.com, his own alleged conduct violated the user agreement.
Accordingly, this Court will not dismiss the Complaint on the basis
of equitable estoppel.
V.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Denies Defendant Joseph Lukaszek’s Motion to Dismiss;
- 30 -
2.
Grants Defendant Village of Hillside’s Motion to Dismiss
in part and denies it in part;
3.
Grants Defendant David Andreski’s Motion to Dismiss Count
IV in part (without prejudice) and denies it in part, and grants
his request for a clearer statement of Count V;
4.
Grants Defendant Elmhurst Memorial Healthcare’s Motion to
Dismiss Count IV without prejudice; and
5.
Denies Defendant Robert DiDomenico’s Motion to Dismiss.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE: 12/29/2011
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