Harper v. Dart et al

Filing 53

ORDER Signed by the Honorable John J. Tharp, Jr on 10/20/2014: Defendants' motion to dismiss [#37] is denied with respect to Defendants Mansour and Patel and granted with respect to Defendant Dart. Defendants Mansour and Patel are directed to answer or otherwise respond to Plaintiff's complaint within twenty-one days of the date of this order, on pain of default. Defendant Dart is dismissed as a Defendant. (For further details see order)Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
BEDNAGO HARPER (#2011-1112058),
Plaintiff,
v.
SHERIFF TOM DART, et al.,
Defendants.

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Case No. 13 C 9265

Judge John J. Tharp, Jr.

ORDER
Defendants’ motion to dismiss [#37] is denied with respect to Defendants Mansour and
Patel and granted with respect to Defendant Dart. Defendants Mansour and Patel are directed to
answer or otherwise respond to Plaintiff’s complaint within twenty-one days of the date of this
order, on pain of default. Defendant Dart is dismissed as a Defendant.
STATEMENT
Plaintiff, an inmate in the custody of the Cook County Department of Corrections, has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Dr.
Mansour and Physician’s Assistant Patel violated his constitutional rights by acting with
deliberate indifference to his serious medical needs. More specifically, Plaintiff alleges that he
was denied prompt and adequate care and treatment for a hernia. Plaintiff additionally contends
that the Cook County Sheriff has an established policy and practice of failing to provide prompt
treatment to pretrial detainees with serious or potentially serious medical conditions. This matter
is before the court for ruling on Defendants’ motion to dismiss for failure to state a claim. For
the reasons stated in this order, the motion is denied.
Legal Standard
It is well established that pro se complaints are to be liberally construed. Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). Pro se submissions are held to a less
stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only “a short
and plain statement of the claim showing that the pleader is entitled to relief,” in order to “’give
the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d
663, 667 (7th Cir. 2008).
To satisfy the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), a plaintiff need
only state his basic legal claim and provide “some indication ... of time and place.” Thompson v.

Washington, 362 F.3d 969, 971 (7th Cir. 2004). In addition, when considering whether to dismiss
a complaint for failure to state a claim upon which relief can be granted, the court assumes all
factual allegations in the complaint to be true, viewing all facts as well as any inferences
reasonably drawn therefrom-in the light most favorable to the plaintiff. Bell Atlantic Corp., 550
U.S. at 563 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)); Parish v. City of
Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). A well-pleaded complaint may proceed even if it
appears “that actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.” Bell Atlantic Corp., 550 U.S. at 556.
Nevertheless, the factual allegations in the complaint must be enough to raise a right to
relief above the speculative level. Id. at 555. While a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). The court “need not
accept as true legal conclusions, or threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
“The complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Furthermore, a plaintiff can plead himself out of
court by pleading facts that undermine the allegations set forth in the complaint. See, e.g.,
Whitlock v. Brown, 596 F.3d 406, 412 (7th Cir. 2010) (citations omitted) (“A judicial admission
trumps evidence. This is the basis of the principle that a plaintiff can plead himself out of
court.”).
Facts
Plaintiff is a pretrial detainee at the Cook County Jail. Defendant Thomas Dart is the
Sheriff of Cook County. Defendant Mohammad Mansour is a staff physician and Manisha Patel
is a physician’s assistant at the jail.
Plaintiff alleges the following facts, assumed true for purposes of the motion to dismiss:
Plaintiff was booked into the jail on November 12, 2011. At the time Plaintiff went
through intake at the jail, he informed Defendant Mansour that he had a hernia and was
experiencing severe pain. Plaintiff again informed Defendant Mansour of his hernia on
December 20, 2011. Plaintiff also told Defendant Mansour that the pain was severe and
worsening. Defendant Mansour told Plaintiff that his pain was not severe enough to warrant
treatment, stating that Plaintiff would not be treated unless he was “doubled over in pain and
unable to walk.”
Throughout 2012 and 2013, Plaintiff repeatedly informed medical personnel via
grievances and in person that he was suffering from a hernia. On May 6, 2013, Plaintiff was
treated by Defendant Patel, who told him there was nothing that could be done for Plaintiff’s
hernia or pain.
Plaintiff avers that the Cook County Sheriff has an established policy and practice of

failing to provide prompt and acceptable medical care for inmates. Plaintiff bases this charge in
part on a July 11, 2008, Department of Justice report. According to Plaintiff, the report states, in
relevant part,
CCJ fails to provide adequate and timely care to inmates with serious or
potentially serious acute medical conditions.
CCJ’s acute care services
substantially depart from generally accepted correctional medical standards. We
identified grossly inadequate acute care that led to prolonged suffering and
premature deaths of inmates of CCJ. Acute care was so deficient that inmates
suffered needlessly because medical staff failed to monitor acute conditions, and
failed to timely treat inmate’s conditions. We found numerous instances where
CCJ’s failure to adequately assess and treat inmates likely contributed to
preventable deaths, amputations, hospitalizations, and unnecessary harm.
Analysis
The complaint appears to state a tenable claim against Dr. Mansour, and P.A. Patel.
Accordingly, Defendants’ motion to dismiss the complaint for failure to state a claim is denied
with respect to them. However, the Court grants the motion with respect to Defendant Dart.
In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Supreme Court held that “deliberate
indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’... proscribed by the Eighth Amendment.” This is true “whether the
indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison
guards in intentionally denying or delaying access to medical care....” Id.; see also Fields v.
Smith, 653 F.3d 550, 554 (7th Cir. 2011). Likewise, the Due Process Clause prohibits deliberate
indifference to the serious medical needs of a pretrial detainee. Grieveson v. Anderson, 538 F.3d
763, 779 (7th Cir. 2008); Chapman v. Keltner, 241 F. 3d 842, 845 (7th Cir. 2001).
Deliberate indifference has both an objective and a subjective element: the inmate must
have an objectively serious medical condition, and the defendant must be subjectively aware of
and consciously disregard the inmate’s medical need. Farmer v. Brennan, 511 U.S. 825, 837
(1994); Estelle, 429 U.S. at 103-04; see also Roe v. Elyea, 631 F.3d 843, 862 (7th Cir. 2011). In
the case at bar, the plaintiff can arguably satisfy both prongs.
The complaint meets basic pleading requirements by stating facts that suggest his
condition was potentially “serious,” for purposes of constitutional analysis. A medical need is
objectively serious when “the inmate’s condition has been diagnosed by a physician as
mandating treatment or is so obvious that even a lay person would perceive the need for a
doctor’s attention.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (quoting Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011)). A condition is also objectively serious if “failure to treat [it]
could result in further significant injury or unnecessary and wanton infliction of pain.” Hayes v.
Snyder, 546 F.3d 516, 522 (7th Cir. 2008) (citing Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th
Cir. 1997)). Seventh Circuit cases “demonstrate a broad range of medical conditions may be
sufficient to meet the objective prong of a deliberate indifference claim, including a dislocated
finger, a hernia, arthritis, heartburn and vomiting, a broken wrist, and minor burns sustained

from lying in vomit.” King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (quoting Roe, supra,
631 F.3d at 861).
Serious medical needs “encompass not only conditions that are life threatening or that
carry risks of permanent, serious impairment if left untreated, but also those in which the
deliberately indifferent withholding of medical care results in needless pain and suffering.”
Horton v. Bartels, No. 02 C 0740, 2003 U.S. Dist. LEXIS 24595 at *5 (W.D. Wis. Jul. 18, 2003)
(citing Gutierrez, 111 F.3d at 1371). The Seventh Circuit Court of Appeals has specifically held
that hernias and the pain resulting from them can constitute objectively serious medical
conditions for § 1983 purposes. See Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011)
(reiterating that hernia and chronic pain are objectively serious medical conditions and collecting
cases).
In the case at bar, Plaintiff claims that he suffered from a hernia and that because of the
hernia was in severe pain. The court recognizes that “a prison’s medical staff that refuses to
dispense bromides for the sniffles or minor aches and pains or a tiny scratch or a mild headache
or minor fatigue--the sorts of ailments for which many people who are not in prison do not seek
medical attention--does not by its refusal violate the Constitution.” Rodriguez v. Plymouth
Ambulance Service, 577 F.3d 816, 829 (7th Cir. 2009) (quoting Gutierrez, supra, 111 F.3d at
1372) (in turn quoting Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996)). But given the pain
Plaintiff describes, and on the basis of an undeveloped record, the court is not in a position to
determine that Plaintiff had no serious medical need.
Plaintiff is not, as the defendants suggest, required to come forth with any evidence at all
at this stage of the proceedings, let alone “compelling evidence.” (See Defendants’ Motion to
Dismiss at p. 3.) Plaintiff need only provide “enough details about the subject-matter of the case
to present a story that holds together,” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.
2010), along with allegations “plausibly suggesting (not merely consistent with) an entitlement
to relief.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013) (internal quotation
marks and citation omitted). The facts alleged support an inference that Plaintiff’s hernia and the
pain it caused may have been “serious.”
Moreover, Plaintiff has set forth facts that substantiate the subjective component of the
deliberate indifference test. To satisfy this prong, a plaintiff must allege that the defendant in
question was aware of and consciously disregarded his medical need. See Farmer v. Brennan,
511 U.S. 825, 837 (1994); Estelle, 429 U.S. at 103-04. Neither medical malpractice nor a mere
disagreement with a doctor’s medical judgment amounts to deliberate indifference. See, e.g.,
Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); see also King, 680
F.3d at 1018 (“Negligence--even gross negligence--is insufficient to meet this standard”). “This
subjective standard requires more than negligence and it approaches intentional wrongdoing.”
Holloway, 700 F.3d at 1073. Nevertheless, deliberate indifference can be manifested by such
actions as the refusal to provide effective treatment, see Fields, 653 F.3d at 556, erroneous
treatment based on a substantial departure from accepted medical judgment, practice, or
standards, see Roe, 631 F.3d at 857, or by “blatantly inappropriate” treatment, Greeno v. Daley,
414 F.3d 645, 654 (7th Cir. 2005). If, as Plaintiff alleges, he was told that his condition would
not be treated unless he was doubled over in pain and unable to walk, such refusal to provide

treatment may constitute deliberate indifference. Plaintiff explicitly states that he informed both
Defendants Mansour and Patel of his hernia and the resulting severe pain, and they both refused
him treatment. In spite of Defendants’ insistence that Plaintiff concedes that his condition did not
rise to the level of “treatability” (Defendants’ motion [6] at p. 6), the Court does not see any such
concession in Plaintiff’s complaint; counsel must use greater care in making such claims.
Granting all reasonable inferences in favor of Plaintiff at this stage of the litigation, as the Court
must, finds that Plaintiff has asserted a colorable claim of medical deliberate indifference as to
Defendants Mansour and Patel. The Court’s preliminary review does not, however, preclude the
defendants from making any challenge to the legal sufficiency of the complaint.
Finally, the motion to dismiss is granted with respect to Defendant Dart. Counsel
correctly states that the law governing civil rights actions is premised on the wrongdoer’s
personal responsibility, and that an individual therefore cannot be held liable in a Section 1983
action unless he caused or participated in an alleged constitutional deprivation. Kuhn v.
Goodlow, 678 F.3d 552, 556 (7th Cir. 2012) (citations omitted). It is also true that the doctrine of
respondeat superior (blanket supervisory liability) does not apply to actions filed under 42
U.S.C. § 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Plaintiff in the
instant case does not argue that Dart played any direct, personal role in the denial of medical
attention for his hernia. Instead, Plaintiff attempts to assert that the Sheriff has a pattern and
practice of denying detainees needed medical care, a claim ostensibly supported by a 2008
Department of Justice report that made such a determination.
A suit against the Cook County Sheriff in his official capacity is effectively a suit against
the County. Holloway, 700 F.3d at 1071 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
n.55, (1978). “While a municipality is not vicariously liable under § 1983 for the acts of its
employees, a constitutional deprivation may be attributable to a municipality ‘when execution of
a government’s policy or custom ... inflicts the injury.’” Houskins v. Sheahan, 549 F.3d 480, 493
(7th Cir. 2008) (quoting Montano v. City of Chicago, 535 F.3d 558, 570 (7th Cir. 2008)). “A
local government unit’s unconstitutional policy or custom can be shown by: (1) an express policy
causing the loss when enforced; (2) a widespread practice constituting a ‘custom or usage’
causing the loss; or (3) a person with final policymaking authority causing the loss.” Houskins,
549 F.3d at 493 (quoting Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008)). Furthermore,
the Sheriff and superintendent may be liable for “potentially systemic,” rather than “clearly
localized,” constitutional violations at the jail. See, e.g., Antonelli v. Sheahan, 81 F.3d 1422,
1428-29 (7th Cir. 1996); Riley-el v. Illinois, No. 13 C 5768, 2014 WL 3396531, at *4 (N.D. Jul.
10, 2014) (Gottschall, J.)
Plaintiff’s entire basis for asserting a claim against Defendant Dart is based upon the
2008 U.S. Department of Justice report which took issue with the medical care provided to
detainees at the Cook County Jail. However, Defendant Dart’s knowledge that Plaintiff was not
receiving adequate care from November 2011, to the present, cannot be inferred from a report
issued in 2008 examining conditions in prior years. Indeed, to the extent that the report gives rise
to any inference, it would be that having come under such criticism, the Sheriff would have taken
steps to address the deficiencies noted—making the plaintiff’s claims less likely, not more.
Accordingly Plaintiff has failed to make a claim against Defendant Dart in either his individual
or official capacities and he is dismissed as a Defendant. The Court further notes that Plaintiff

continues to rely on the standard established under Conley v, Gibson, 355 U.S. 41, 45-6 (1957)
(stating that a complaint may be dismissed only if it is clear that no relief may be granted under
any set of facts that could be provided consistent with the allegations) However, the test laid out
in Conley was expressly rejected in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in
favor of the plausibility standard set forth in that case and its progeny.
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s complaint for failure
to state a claim is denied. Defendants are directed to answer or otherwise plead within twentyone days of the date of this order.

Date: October 20, 2014

/s/ John J. Tharp, Jr.
United States District Court Judge