Leaks et al v. Dart et al

Filing 8

WRITTEN Opinion entered by the Honorable James B. Zagel on 5/22/2013: The Clerk is instructed to file plaintiff's amended complaint (Dkt. No. 6). The Clerk is instructed to issue a summons for service on Defendant Dart. The Clerk shall also se nd plaintiff a Magistrate Judge Consent Form, Amended Civil Rights Complaint Form, and Instructions for Submitting Documents along with a copy of this order. The United States Marshals Service is appointed to serve Defendant Dart. Defendants Cook Cou nty Jail, Cermak Health Services, Dr. Manilla, and Sergenat Konick are dismissed. Plaintiff may only proceed against the Doe defendants in their individual capacity. Plaintiff's official capacity claims are dismissed. Sheriff Dart remains in the case solely so that plaintiff may identify the John and Jane Doe defendants. Plaintiff's motion for reconsdieration (Dkt. No. 7) of the denial of his request for attorney assistance is denied. [For further details see text below.]. Mailed notices(gcy, )

Order Form (01/2005)

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

James B. Zagel

CASE NUMBER

13 C 1262

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/22/13

Kermit Leaks (2012-0421058) vs. Thomas Dart, et al.

DOCKET ENTRY TEXT

The Clerk is instructed to file plaintiff’s amended complaint (Dkt. No. 6). The Clerk is
instructed to issue a summons for service on Defendant Dart. The Clerk shall also send
plaintiff a Magistrate Judge Consent Form, Amended Civil Rights Complaint Form, and
Instructions for Submitting Documents along with a copy of this order. The United States
Marshals Service is appointed to serve Defendant Dart. Defendants Cook County Jail,
Cermak Health Services, Dr. Manilla, and Sergeant Konick are dismissed. Plaintiff may only
proceed against the Doe defendants in their individual capacity. Plaintiff’s official capacity
claims are dismissed. Sheriff Dart remains in the case solely so that plaintiff may identify the
John and Jane Doe defendants. Plaintiff’s motion for reconsideration (Dkt. No. 7) of the denial
of his request for attorney assistance is denied.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Pro se plaintiff Kermit Leaks, a Cook County Jail detainee, has brought a civil rights
suit pursuant to 42 U.S.C. § 1983. Pending before the Court are an initial review of plaintiff’s
proposed amended complaint (Dkt. No. 6), under 28 U.S.C. § 1915A, and plaintiff’s motion for
reconsideration of the Court’s denial of his request for attorney assistance. (Dkt. No. 7).
Plaintiff alleges that he suffered from pneumonia at the Cook County Jail. He was
treated by a John Doe doctor he refers to as “Mr. Ed,” and Jane Doe nursing staff at the Jail.
The doctor and nurses allegedly willfully ignored plaintiff’s pneumonia symptoms and failed to
follow proper medical protocols. Instead, they simply responded that he had a common cold.
Plaintiff plausibly alleges that the doctor and nurses’ actions were “‘so far afield of accepted
professional standards as to raise the inference that [they] were not actually based on a
medical judgment.’” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)). Plaintiff may proceed with a deliberate
indifference claim against the John and Jane Doe doctor and nurses in their individual
capacities.
Defendants Cook County Jail and Cermak Health Services are dismissed because they
are not proper defendants. Menedez v. Cook County Jail, No. 12 C 8517, 2012 WL 5342384, at
*1 (N.D. Ill. Oct. 26, 2012) (citing Castillo v. Cook County Dep’t of Mail Room, 990 F.2d 304,
307 (7th Cir. 1993)). Plaintiff also cannot proceed with an individual capacity claim against
13C1262 Kermit Leaks (2012-0421058) vs. Thomas Dart, et al.

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STATEMENT
Sheriff Tom Dart or Dr. Manilla, the director of Cermak Health Services. Plaintiff claims that
Dart and Manilla had personal knowledge of his situation. However, the complaint does not
plausibly suggest that Dart or Manilla had any personally involved in causing the alleged
constitutional violation. Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). Their status
as supervisors is not sufficient by itself to establish personal liability. Vance v. Rumsfeld, 701
F.3d 193, 203 (7th Cir. 2012) (en banc) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009)).
Additionally, plaintiff names the John and Jane Doe defendants in their official and
individual capacity. Plaintiff cannot proceed with an official capacity claim. A claim in the
official capacity is, in actuality, against their employer, Cook County. Minix v. Canarecci, 597
F.3d 824, 830 (7th Cir. 2010). Plaintiff cannot proceed with a claim against Cook County
because he fails to plausibly allege that the alleged constitutional violation occurred pursuant
to an official county policy or practice. Holloway v. Delaware County Sheriff, 700 F.3d 1063,
1071 (7th Cir. 2012) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978)). As mentioned above, plaintiff may only proceed against the John and Jane Doe
defendants in their individual capacity.
Plaintiff should be aware that he cannot obtain damages from any defendant unless he
serves them (or obtains waivers of service) in accordance with Fed. R. Civ. P. 4. Naming the
officer as a John Doe is ultimately insufficient. He cannot obtain service on the Doe defendant,
he must determine his name. Sheriff Dart remains as a defendant solely so that plaintiff may
identify the John and Jane Doe defendants. Once an attorney has entered an appearance on
Sheriff Dart’s behalf, plaintiff may send defense counsel interrogatories (that is, a list of
questions) eliciting information regarding the identity of the John Doe defendant who
allegedly violated his constitutional rights. See Fed. R. Civ. P. 33. After plaintiff learns the
Doe defendant’s identity, he may submit a proposed amended complaint that names the Doe
defendants under his or her actual names. Summonses will then issue for service on the
defendant who allegedly injured plaintiff and Sheriff Dart will be dismissed. Plaintiff is
advised that there is a two-year statute of limitations for civil rights actions; he should
therefore attempt to identify the Doe Defendants as soon as possible. See Worthington v.
Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993); Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cr.
1980).
Should plaintiff decide to submit a proposed amended complaint, he must write both the
case number and the Judge’s name on the proposed amended complaint, sign it, and return it
to the Prisoner Correspondent. As with every document filed with the Court, plaintiff must
provide an extra copy for the Judge; he must also submit a service copy for each defendant
named in the proposed amended complaint. Plaintiff is cautioned that an amended pleading
supersedes the original complaint and must stand complete on its own. Therefore, all
allegations against all defendants must be set forth in the proposed amended complaint,
without reference to the original complaint. Any exhibits plaintiff wants the Court to consider
in its threshold review of the proposed amended complaint must be attached, and each copy of
the proposed amended complaint must include complete copies of any and all exhibits.
Plaintiff is advised to keep a copy for his files.

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STATEMENT
The Clerk is instructed to issue a summons for service on Defendant Dart. The Clerk
shall also send plaintiff a Magistrate Judge Consent Form, Amended Civil Rights Complaint
Form, and Instructions for Submitting Documents along with a copy of this order. The United
States Marshals Service is appointed to serve Defendant Dart. Defendants Cook County Jail,
Cermak Health Services, Dr. Manilla, and Sergeant Konick are dismissed. Plaintiff may only
proceed against the Doe defendants in their individual capacity. Plaintiff’s official capacity
claims are dismissed. Sheriff Dart remains in the case solely so that plaintiff may identify the
John and Jane Doe defendants.
Any service forms necessary for the plaintiff to complete will be sent by the Marshal as
appropriate to serve defendants with process. The U.S. Marshal is directed to make all
reasonable efforts to serve defendants. With respect to any former employees who no longer
can be found at the work address provided by the plaintiff, Cook County / Cook County Jail,
shall furnish the Marshal with Defendant’s last-known address. The information shall be
used only for purposes of effectuating service [or for proof of service, should a dispute arise]
and any documentation of the address shall be retained only by the Marshal. Address
information shall not be maintained in the Court file, nor disclosed by the Marshal. Plaintiff is
to provide the U.S. Marshals Service with a copy of the complaint and a proper form for
request of waiver pursuant to Federal Rule of Civil Procedure 4(d)(1). The U.S. Marshals
Service is requested to mail the complaint and appropriate papers for waiver of service by
first-class mail to the named Defendant pursuant to Rule 4(d)(1)(G).
Plaintiff is instructed to file all future papers concerning this action with the Clerk of
Court in care of the Prisoner Correspondent. Plaintiff must provide the Court with the
original plus a complete Judge’s copy, including any exhibits, of every document filed. In
addition, Plaintiff must send an exact copy of any court filing to defendants [or to defense
counsel, once an attorney has entered an appearance on behalf of Defendants]. Every
document filed with the Court 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 plaintiff.
Plaintiff’s motion for reconsideration (Dkt. No. 7) of the denial of his request for
attorney assistance is denied. The Court properly applied the controlling legal standard to the
applicable facts. There is no error in the Court’s ruling.

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