Banks v. Dart et al

Filing 9

WRITTEN Opinion entered by the Honorable Ronald A. Guzman on 10/10/2012: For the reasons stated below, the claim for deliberate indifference against the bus drivers remains while the deliberate indifference claim against Tom Dart is dismissed. D art shall remain a Defendant for the purpose of assisting with service of the two Officers Browns. The clerk shall issue summonses for service of the Second Amended Complaint [ 8 ] on the Defendants. (For further details see Written Opinion). Mailed notice. (et, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Ronald A. Guzman

CASE NUMBER

12 C 4333

CASE TITLE

Sitting Judge if Other
than Assigned Judge

DATE

October 10, 2012

Larry Banks (B-42423) vs. Tom Dart, et al.

DOCKET ENTRY TEXT

For the reasons stated below, the claim for deliberate indifference against the bus drivers remains while the
deliberate indifference claim against Tom Dart is dismissed. Dart shall remain a Defendant for the purpose of
assisting with service of the two Officers Browns. The clerk shall issue summonses for service of the Second
Amended Complaint [8] on the Defendants.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff Larry Banks has submitted a Second Amended Complaint as the Court instructed him to do in its
August 16, 2012, order. Plaintiff is currently incarcerated at the Pinckneyville Correctional Center. He filed this
42 U.S.C. § 1983 action against two Cook County Jail officers (both named Brown) and Sheriff Tom Dart. His
original complaint included as Defendants an unknown nurse and doctor at the jail, but his amended complaints no
longer list them. Plaintiff alleges that he was involved in an accident when two buses transporting Cook County Jail
inmates collided on April 27, 2012. The two Officer Browns were the drivers of the buses. Plaintiff states that he
received inadequate medical care after the accident because he was not referred for x-rays.
Although the allegations in the prior complaints stated no deliberate indifference claims against the bus
drivers, the current complaint sufficiently alleges such a claim. As previously noted, claims of only negligence do
not support a § 1983 action, and Plaintiff’s allegations must indicate that the Defendants acted with deliberate
indifference (criminal recklessness). “Allegations of a public official driving too fast for the road conditions are
grounded in negligence, not criminal recklessness.” Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996). A plaintiff must
allege facts demonstrating that the drivers “knew an accident was imminent but consciously and culpably refused
to prevent it.” Id.; see also Blakemore v. Dart, No. 12 C 1713, 2012 WL 1378676, at *2 (N.D. Ill. Apr. 20, 2012)
( “Deliberate indifference in the context of an automobile accident generally requires actions amounting to criminal
recklessness, i.e., that the driver had actual knowledge that the manner he drove the vehicle posed a serious risk of
harm and that he consciously disregarded that risk.”)
In his Second Amended Complaint, Plaintiff alleges that the Defendant bus drivers drove “recklessly” at a
“fast speed” and “close” to each other, and “consciously disregarded [his] saf[tey].” (R. 8, Second Am. Compl. at
4.) Plaintiff further alleges that the officers had been drinking alcohol. (Id.) If these allegations are true, which the
Court must assume at this stage, Plaintiff may be able to prove that the drivers drove in an intentionally reckless
manner with knowledge that their behavior would likely cause an accident. The Second Amended Complaint thus
states a “plausible claim for relief” and alleges facts that raise Plaintiff's right to relief above a “mere speculative
level.” Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Accordingly, the Court will allow Plaintiff to proceed with his claims against the two Officer Browns. Given
that Brown may be too common a last name to identify them for service, Tom Dart shall remain a Defendant to assist
with identifying them. The Court advises Plaintiff that ultimately it is his responsibility to serve Defendants, and his
failure to do so will result in dismissal. Fed. R. Civ. P. 4(m). Once an attorney enters an appearance for Dart,
Plaintiff should forward interrogatories (written questions) to the attorney seeking the names of the drivers. Once
Plaintiff’s learns their full names, he may then request that service be again attempted.
12C4333 Larry Banks (B-42423) vs. Tom Dart, et al.

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STATEMENT
Although Tom Dart remains a Defendant to assist with service of the Brown Defendants, the claim directly
against Dart are dismissed. As noted above, to state a civil rights claim, Plaintiff must assert facts that demonstrate
that the Defendants acted with deliberate indifference, i.e., that the Defendant was actually aware of a serious risk
of harm to Plaintiff, yet consciously disregarded that risk. In his Second Amended Complaint, Plaintiff again
contends that he received inadequate medical treatment after the accident, and again refers to his inability to obtain
x-rays. (Second Am. Compl. at 5.) Plaintiff does not allege that Dart was personally involved with Plaintiff’s
medical care. Instead, Plaintiff states only general allegations that inmates are entitled to adequate medical care and
that Tom Dart knew about the accident. (Id.) Plaintiff makes no allegation as to how Dart was involved with
Plaintiff’s medical care, and Dart appears to be named simply as a supervisory official who knew about the accident.
A sheriff “is entitled to relegate to the [jail]’s medical staff the provision of good medical care” and “[a]
layperson's failure to tell the medical staff how to do its job cannot be called deliberate indifference,” Burks v.
Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Included with the Second Amended Complaint is a sheet titled
“Orders” providing a description of at least some of the medical attention Plaintiff received. (Second Am. Compl.
at Exh. A.) The “Orders” sheet shows that, on the day of the accident, Plaintiff received medications of ibuprofen
and methocarbomol (a muscle relaxant). (Id.) The “Orders” sheet also states that Plaintiff was referred for a followup visit one week later on May 4, 2012. (Id.) The complaint thus indicates that Plaintiff received medical attention
at least on the day of the accident, and possibly a week after. Plaintiff’s general assertions about his entitlement to
adequate medical care and Dart’s knowledge of the accident do not state a claim of deliberate indifference against
Dart. The claims against Tom Dart are thus dismissed.
Even if Tom Dart was named to identify medical persons who treated Plaintiff, this claim must still be
dismissed. As noted in the Court’s prior order, “[f]or a medical professional to be liable for deliberate indifference
to an inmate's medical needs, he must make a decision that represents ‘such a substantial departure from accepted
professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the
decision on such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). In his Second Amended
Complaint, Plaintiff continues to base his allegation of inadequate medical care on the fact that x-rays were ordered
for other inmates, but not for him. “[T]he Constitution is not a medical code that mandates specific medical
treatment.” Id. (citation omitted). “A medical decision not to order an X-ray, or like measures, does not represent
cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court.”
Id. at 697–98 (quoting Estelle v. Gamble, 429 U.S. 97, 107 (1976)). Plaintiff may have state-law claims of
negligence with respect to the medical care he received for his injuries, but not a federal civil rights claim.
For the reasons stated above, the deliberate indifference claim against the two bus drivers remains while the
claim for deliberate indifference against Tom Dart is dismissed. Tom Dart shall remain a Defendant to assist with
service on the two Officer Browns. Once the bus drivers are served, Dart may seek to be dismissed.
The clerk shall issue summonses for service of the Second Amended Complaint on Cook County Jail Officers
Browns and Tom Dart. The United States Marshals Service is appointed to serve the Defendants. Any forms
necessary for the Marshal to serve Defendants shall be forwarded to Plaintiff. His failure to return the forms may
result in the dismissal of the Defendants. With respect to a former employee who no longer can be found at Cook
County Jail, officials there shall provide the Marshal with Defendant’s last-known addresses. The information shall
be used only for purposes of effectuating service, or to show proof of service. Such information shall be retained
only by the Marshal, shall not be maintained in the court file, nor shall be disclosed by the Marshal. The Marshal
may mail requests for waiver of service to Defendants in accordance with Fed. R. Civ. P. 4(d)(2). If unable to obtain
waivers, the Marshal must attempt to serve Defendants with personal service.
Plaintiff is instructed to file all future papers concerning this case with the Clerk of Court in care of Prisoner
Correspondent. Plaintiff must provide the original plus a judge’s copy of every document filed. Also, he must send
an exact copy of any court filing to Defendants, or their attorney once one enters an appearance. Every document
filed must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any
paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded
by the Court or returned to the Plaintiff.

12C4333 Larry Banks (B-42423) vs. Tom Dart, et al.

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