Miller v. Dart et al
Filing
94
MEMORANDUM Opinion and Order: The motion to dismiss Miller's sixth amendment complaint (ECF No. 80 ) is granted in part, denied in part, and denied in part without prejudice as to Count Fifteen. Plaintiff's claims against Cook County alleged in the sixth amended complaint are dismissed. The ADA claims alleged in Count Three are dismissed as well. Because of the unusual complexities of this case, the court exercises its discretion to recruit new counsel to represent Miller wi th thanks to Mr. Tasch for his ardent efforts on Miller's behalf. A status conference is set for April 28, 2017, at 9:30 a.m. Also, to conform the docket to the live complaint, the clerk is directed to terminate the following four parties: defendant Officer Jalowski; defendant Samuel L. Clemons, Commander; defendant Cook County Department of Corrections; and defendant Tom Dart, Sheriff. Signed by the Honorable Joan B. Gottschall on 3/10/2017. Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AARON MILLER,
Plaintiff,
v.
CHIEF NURSING OFFICER CYNTHIA
KIENLEN, DR. MOHAMMED MANSOUR,
NURSE ELIZABETH JEFFERSON, SHERIFF
DURAN, OFFICER LAWRENCE MAJOUSCH,
OFFICER JAROWSKI OR JOHN DOE,
SERGEANT LASHON CRUMP, OFFICER
CRUZ, SERGEANT CRUZ, OFFICER SCOTT
MICHALSKI, OFFICER MAXIMILLIAN
TOLEDO, COMMANDER SHEAHAN,
COMMANDER MUNDT, and COUNTY OF
COOK, ILLINOIS, a local public entity under
the laws of the State of Illinois,
Defendants.
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Case No. 14-CV-00031
Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
This suit stems from Aaron Miller’s (“Miller”) pretrial detention in the Cook County
Department of Corrections (“CCDOC”) from the time of his arrest until March 14, 2014, when
he was transferred to another facility. (See 6th Am. Compl. ¶ 4, ECF No. 77.) Before the court
is a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss all but two of the fifteen
counts pleaded in Miller’s sixth amended complaint. Except for Miller’s claims against Cook
County (“the County”), the motion is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Even though the plaintiff’s sixth amended complaint is his live pleading, the court has not
passed on the sufficiency of any of Miller’s prior complaints. Miller represented himself when
he commenced this action. The court granted him leave to proceed without prepayment of fees,
1
see 28 U.S.C. § 1915(a), and recruited counsel to represent him. (ECF No. 5 at 1.) Though
motions to dismiss some of Miller’s prior complaints were filed, Miller ultimately amended
those complaints with leave of court, mooting the motions. (E.g., ECF Nos. 35–36.) While
briefing on the motion to dismiss Miller’s fifth amended complaint was ongoing, one of Miller’s
attorneys withdrew. (ECF No. 65 at 1.) The court recruited new counsel to represent Miller,
denied the motion to dismiss as moot, and authorized Miller to file an amended complaint with
the assistance of new counsel. (ECF No. 68 at 1–2.)
In his sixth amended complaint (ECF No. 77), which the court will refer to as the
complaint for simplicity’s sake, Miller names Cook County as a defendant (¶ 18) along with
three medical providers (¶¶ 5–7), and twelve individuals who worked at the CCDOC variously as
sergeants, commanders, and correctional officers (¶¶ 8–17). Miller dropped the Cook County
Sheriff (“the Sheriff”) and the Cook County Sheriff’s Office as defendants in this complaint; he
had named one or both of them in every prior complaint.
Miller sues the individual defendants in their individual capacities. (6th Am. Compl. ¶¶
5–17.) He names an additional John Doe defendant, “Officer Jarowski or John Doe”
(“Jarowski”). (Id. at 1.) Despite the efforts of Miller’s counsel and defendants’ counsel, the
intended officer has not been identified or served. (Id. at 1 n1.) As a result, the pending motion
to dismiss does not address Counts One and Two because they pertain only to Jarowski (Mot. to
Dismiss 3, ECF No. 80), and neither does this order.
In his complaint, Miller pleads claims for constitutional violations under 42 U.S.C. §
1983; violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq.; and battery claims under Illinois law for which he invokes this court’s supplemental
jurisdiction, see 28 U.S.C. § 1367(a); 6th Am. Compl. ¶ 2. The constitutional and ADA issues
2
raised include prison guards’ refusal to transport Miller to court because he used a medically
prescribed wheelchair, guards’ use of excessive force, retaliation, and deliberate indifference by
CCDOC medical personnel to Miller’s serious medical needs. Because this is a Rule 12(b)(6)
motion, the court recites the well-pleaded factual allegations in the complaint in the light most
favorable to Miller and accepts them as true. See, e.g., Manistee Apts., LLC v. City of Chicago,
844 F.3d 630, 633 (7th Cir. 2016).
Miller suffered multiple gunshot wounds during his arrest. (6th Am. Compl. ¶ 4.)
Miller received a prescription from a medical provider authorizing him to use a walker to move
short distances and a wheelchair to travel longer distances. (¶ 20.) Miller also had a
gastrointestinal tube (“GI tube” or “g-tube”) while he was at the Cook County jail. (¶ 53.)
Miller has also been diagnosed with epilepsy. (¶ 52.)
Due to emergency abdominal surgery performed in June 2011, Mr.
Miller's abdominal wall has an opening, where his g-tube was
inserted until it fell out following his fall in March 2013. Miller
has a large incisional ventral hernia and percutaneous fistula
communicating with his stomach secondary to his non-healing gtube site. This results in an open wound which continues to this
day to leak fluids. His stomach muscles are detached as a result of
earlier surgery dating from his initial incarceration and have not
yet been successfully reconnected.
(Compl. ¶ 63.)
A. Medical Treatment
Physician’s orders required Miller’s bandages to be changed twice each day. (¶ 89.)
Defendant Elizabeth Jefferson (“Jefferson”), a nurse, disregarded those orders and changed
Miller’s bandages no more than once every two or three days. (¶ 90.) Miller developed
infections and sores on an ongoing basis as a result. (¶ 91.) Nurses, including Jefferson, also
refused to provide him with a physician-prescribed painkiller for arm pain related to a gunshot
wound, prescribed medication for his epilepsy, depression, anxiety, and neck pain. (¶¶ 92–93.)
3
Defendant Officer Cruz also prevented Miller from obtaining prescribed medication on January
5, 2014. (¶ 94.)
Repeatedly, doctors at Cook County hospital tried to schedule Miller for reconstructive
surgery but to no avail. (See 6th Am. Compl. ¶¶ 65–67.) Though defendant Dr. Mohammed
Mansour (“Mansour”) examined Miller approximately fifteen times during the relevant time
period (¶ 66), CCDOC officials refused to facilitate Miller’s surgery (¶ 67; see also ¶¶ 68–69
(alleging CCDOC officials refused to abide by Cook County hospital officials’ recommendations
for presurgery dietary restrictions)).
B. Fall From Bunk
In March 2013, a physician treating Miller for epilepsy had ordered that he sleep only on
the lower bunk because of the danger of a seizure. (¶ 52.) Despite knowing of his physician’s
order, correctional officers, including defendant Duran, ordered Miller to sleep on the top bunk.
(¶ 55.) Miller suffered serious injuries, including his GI tube falling out and aggravation of his
fistula, when he fell from the top bunk during a seizure on March 24, 2013. (¶¶ 56–57.)
Corrections officers at the CCDOC nevertheless continued to require Miller to sleep on the top
bunk after he fell. (¶ 58.) He fell twice more. (Id.)
C. Court Appearances
Two of the defendants, Sheahan and Mundt, refused to take Miller to a scheduled court
appearance in a criminal proceeding because he needed to use a wheelchair. (¶¶ 34, 41.) This
happened on at least two dates. (¶¶ 34, 35.)
D. Excessive Force
Defendant Majousch struck Miller in the stomach during a pat down on July 2, 2013. (¶
72.) When Miller told Majousch about the condition of his abdomen, Majousch slapped Miller
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in the face. (¶ 73.) Majousch’s supervisor, defendant Crump, sat a few feet away and saw what
happened but did not intervene, ignoring Miller’s request to file battery charges. (¶¶ 74–75.)
Shortly after the July 2 incident, Miller had diarrhea with blood in his stool. (¶ 76.) Blood also
leaked from his GI tube site. (Id.) In retaliation for Miller’s grieving the incident, Majousch
falsified a disciplinary ticket against Miller, which led to him being placed in administrative
segregation. (See 6th Am. Compl. ¶¶ 81–84.)1
Miller filed grievances about his medical care in August and October 2013. (¶ 99, 101.)
In retaliation, CCDOC officers pounded on Miller’s stomach wound during pat downs and
humiliated him. (¶ 102.) Miller also links the refusal to arrange his reconstructive surgery to his
grievances. (¶ 100.)
In late 2013, defendant Toledo kicked Miller’s walker away from him. (¶ 46.) Toledo
retaliated against Miller for complaining in February 2012 that Toledo was physically abusing
him. (¶ 46.) On February 26, 2014, Miller was waiting in “the bullpen” for a scheduled
appointment with his surgeon. (¶ 108.) Miller overheard someone say that his doctor was ready
to see him. (¶ 109.) Miller informed Cruz that the surgeon was ready to see him, but Cruz first
ignored him and then began hitting Miller on his chest and stomach. (¶¶ 109–10.) Cruz and
defendant Michalski “then moved Miller to another bullpen and handcuffed him in a torturous2
way.” (¶ 111.) Miller asked to use the bathroom; the officers denied his request; and he urinated
on himself. (Id.) Cruz and Michalski took Miller to the bathroom to clean him, called him
names, and referred to him as a monkey. (¶ 112.)
1
Count XII of the Sixth Amended Complaint is titled “Claim Against Crump for Violation of 14th Amendment Due
Process Rights.” In his response to the motion to dismiss, plaintiff states that this is a misnomer, and requests leave
to correct the title to accurately reflect the defendant against whom the count and prayer for relief are directed –
defendant Majousch. That request is granted.
2
The complaint contains a spelling mistake of this word as “tortuous” that plaintiff requests leave to correct in his
response to the instant motion. That request is also granted.
5
II. RULE 12(b)(6) STANDARD
A rule 12(b)(6) motion “tests the sufficiency of the complaint, not the merits of the case.”
McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012); accord. Randle v.
Bentsen, 19 F.3d 371,373 (7th Cir. 1994). A complaint need only set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, (2007)); Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir.
2016) (quoting Twombly, supra). A complaint satisfies this standard when its factual allegations
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also
Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (“[T]he complaint taken as a whole
must establish a nonnegligible probability that the claim is valid, though it need not be so great a
probability as such terms as ‘preponderance of the evidence’ connote.”); Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subjectmatter of the case to present a story that holds together.”). When deciding a motion to dismiss
under Rule 12(b)(6), the court takes all facts alleged by the plaintiff as true and draws all
reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations
that merely recite the elements of a claim are not entitled to this presumption of truth. KatzCrank, 843 F.3d at 646 (citing Iqbal, 556 U.S. at 662, 663); Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011).
III. ADA CLAIMS
The ADA “forbids discrimination against persons with disabilities in three major areas of
public life: (1) employment, which is covered by Title I of the statute; (2) public services,
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programs and activities, which are the subjects of Title II; and (3) public and private lodging,
which is covered by Title III.” Phipps v. Sheriff of Cook Cnty., 681 F. Supp. 2d 899, 913 (N.D.
Ill. 2009) (quoting Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.
2006)). The individual defendants to Miller’s ADA claims characterize them as Title II claims
and argue that they cannot be sued under Title II in their individual capacities. Miller does not
dispute that his claims arise under Title II in his response. Rather, he argues that his ADA claims
not be dismissed because he names Cook County as a defendant elsewhere in the complaint.
The individual defendants Miller sues under the ADA are correct. Title II of the ADA
declares that “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (West
2017). The ADA defines the term “public entity” as “any department, agency, special purpose
district, or other instrumentality of” one. § 1231(a)(1)(A)–(b). Under these definitions,
“employees of the Department of Corrections are not amenable to suit under . . . [Title II of] the
ADA” in their individual capacities. Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 670 (7th Cir.
2012) (citing Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004) and Garcia v.
S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)) (holding prisoner could
not bring ADA claims against Illinois Department of Corrections employees in their individual
capacities); see, e.g., Bilik v. Shearing, Case No. 16-CV-00821-MJR, 2017 WL 325256, at *6
(S.D. Ill. Jan. 23, 2017) (dismissing ADA claims against prison officials in their individual
capacity at Rule 12(b)(6) stage and retaining official-capacity claims); Dennis v. Curran, No. 16
C 6014, 2017 WL 264497, at *3 (N.D. Ill. Jan. 20, 2017) (citing Garfield v. Cook Cnty., No. 08
7
C 6657, 2009 WL 4015553, at *2 (N.D. Ill. Nov. 19, 2009)) (other citations omitted) (dismissing
ADA claim against corrections officer in his individual capacity).
Accordingly, Miller’s ADA claims must be dismissed because he sues CCDOC
employees in their individual capacities only. See Jaros, 684 F.3d at 670 n.2. As explained in
more detail below, the Cook County Sheriff enjoys a separate legal existence from the County.
Because Miller’s prior complaints named the Sheriff as a defendant, the court dismisses his ADA
claim in Count Three without prejudice to its assertion against the proper defendant.
IV. CONSTITUTIONAL CLAIMS UNDER 42 U.S.C. § 1983
Section 1983 provides a remedy where: “(1) there has been a violation of constitutional
or other federal rights and (2) those rights were violated by a person acting under color of state
law.” Narducci v. Vill. of Bellwood, 444 F. Supp. 2d 924, 929 (N.D. Ill. 2006) (citing Hanania v.
Loren–Maltese, 212 F.3d 353, 356 (7th Cir. 2000)); accord. Racine Charter One, Inc. v. Racine
Unified Sch. Dist., 424 F.3d 677, 680 (7th Cir. 2005). The arguments of all defendants except
the County and Killian concern the first element. The court addresses the County’s argument
first but deals with Killian’s argument as part of the analysis of the deliberate indifference count
against her and Jefferson.
A. Cook County Is Not a Proper Party
Cook County is the only institutional defendant named in the caption and body of the
sixth amended complaint. (See ECF No. 77 at 1–3.) Cook County argues that it is not a proper
party to the claims as pleaded in Miller’s sixth amended complaint. Miller responds that the
doctor and nurses he names as individual defendants “are health professionals . . . , so respondeat
superior should lie.” (Resp. to Mot. to Dismiss 8, ECF No. 84.)
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The Supreme Court rejected respondeat superior liability for “municipalities and other
local government units” in Monell, 436 U.S. at 690–91. Instead, to state a § 1983 claim under
the rule announced in Monell, a plaintiff must allege “a constitutional injury resulting from a
municipal policy, custom, or practice.” Lewis v. Cnty. of Cook, No. 10 C 1313, 2011 WL
839753, at *13 (N.D. Ill. Feb. 24, 2011). Furthermore, “[e]ven if respondeat superior liability
were possible, Cook County could not be held liable as the Sheriff's employer, because Illinois
sheriffs are independently elected constitutional officers not subject to the control of the county
regarding management of the county jail.” Posey v. Pruger, 762 F. Supp. 2d 1086, 1090 (N.D.
Ill. 2011) (citing Riley v. Cnty. of Cook, 682 F. Supp. 2d 856, 860 (N.D. Ill. 2010)); accord.
Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989) (“The Cook County Jail, and the Cook
County Department of Corrections, are solely under the supervision and control of the Sheriff of
Cook County.”).
Miller’s sixth amended complaint does not attempt to plead that any policy or custom of
Cook County caused his alleged constitutional deprivations, so the complaint must be dismissed
insofar as it brings § 1983 claims against the County. See, e.g., Johnson v. Sheriff of Cook Cnty.,
No 15 C 741, 2015 WL 1942724, at *1–2 (N.D. Ill. Apr. 24, 2015) (dismissing claims against
Cook County Sheriff because complaint failed to allege a custom or policy that was the moving
force behind the pretrial detainee’s alleged constitutional deprivations); Posey, 762 F. Supp. 2d
at 1091 (granting Rule 12(b)(6) motion in part and dismissing county in § 1983 action filed by
prisoner).
B. Due Process Principles
Miller premises his § 1983 counts on violations of the Due Process Clause of the
Fourteenth Amendment, which declares that no state may “deprive any person of life, liberty, or
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property, without due process of law.” See U.S. Const. amend. XIV § 1. Miller’s due process
claims can be generally divided into three groups: (1) claims that a defendant refused to take him
to scheduled criminal hearings; (2) claims that a defendant used excessive force (“excessive
force claims”); and (3) claims that a defendant was deliberately indifferent to Miller’s serious
medical needs (“deliberate indifference claims”). Defendants repeatedly assert in the instant
motion that “it is not clear” or “apparent” how Miller alleges his right to due process was
infringed. (E.g., ECF No. 80 at 4, 11.) The court therefore begins by reviewing the governing
principles.
The Due Process Clause of the Fourteenth Amendment has procedural and substantive
components. Price v. Bd. of Educ. of City of Chi., 755 F.3d 605, 607 (7th Cir. 2014) ("there are
both procedural and substantive components of the Due Process Clause . . . ."); Brokaw v.
Mercer Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000) (contrasting procedural and substantive due
process); Bigby v. City of Chicago, 766 F.2d 1053, 1058 (7th Cir. 1985) (same). The procedural
component “affords state citizens . . . the right to notice and an opportunity to be heard before
being deprived of “property” as defined by state law.” Taake v. Cnty. of Monroe, 530 F.3d 538,
543 (7th Cir. 2008) (citing Goros v. Cnty. of Cook, 489 F.3d 857, 859 (7th Cir. 2007)).
Substantive due process doctrine, on the other hand, recognizes that in addition to notice and an
opportunity to be heard, the Due Process Clause also “provides heightened protection against
government interference with certain fundamental rights and liberty interests.” Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) (citing Reno v. Flores, 507 U.S. 292, 301–302 (1993))
(other citation omitted). In this context, the Supreme Court has “observed that the Due Process
Clause specially protects those fundamental rights and liberties which are, objectively, deeply
rooted in this Nation's history and tradition.” Id. at 720–21 (internal quotation and citations
10
omitted). Today, the concept of substantive due process incorporates most of the protections
afforded by the Bill of Rights, see McDonald v. City of Chicago, 561 U.S. 742, 764 & n.12, 767
(2010) (expressly relying on Glucksberg’s “deeply rooted” substantive due process language
when deciding whether Due Process Clause incorporated Second Amendment rights), but the
Clause also protects fundamental rights “in addition to the specific freedoms protected by the
Bill of Rights.” Glucksberg, 521 U.S. at 720; see also Albright v. Oliver, 510 U.S. 266, 273
(1994) (plurality opinion) (holding that “where a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for
analyzing these claims’” (quoting Graham v. Connor, 490 U.S. 386, 395 (1989))). With this
framework in mind, the court turns to the three kinds of due process violations Miller alleges.
C. Refusals to Take Miller to Criminal Hearings
Defendants argue that the complaint does not spell out how the alleged refusals to take
Miller to scheduled court dates and failures to advise him of scheduled court dates alleged in
Count Four affected his due process rights. (Mot. to Dismiss 4–5, ECF No. 80.) Nor does it
specify what kinds of hearings he missed. The Sixth Amendment’s confrontation clause
guarantees criminal defendants “the right to be present at all critical stages of the criminal
proceedings.” Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004) (citing Illinois v. Allen, 397
U.S. 337, 338 (1970) and Ellsworth v. Levenhagen, 248 F.3d 634, 640 (7th Cir. 2001)). Due
process “supplements this right by protecting the defendant’s right to be present during some
stages of the trial where the defendant’s ability to confront a witness against him is not in
question . . . .” Id. at 940 (citing United States v. Gagnon, 470 U.S. 522, 526 (1985)).
11
Miller explicitly alleges that he “was harmed by being absent from Court because he was
unable to adequately defend the charges being brought against him and participate in his
defense.” (6th Am. Compl. ¶¶ 36, 42.) That allegation adequately alleges a claim that his
absences rendered the proceedings fundamentally unfair at the pleading stage. See Moore, 368
F.3d at 940; Ellsworth, 248 F.3d at 640.
This raises questions the parties have not briefed, however. If this court were to enter a
judgment based on a determination that Miller’s alleged absences made his criminal proceedings
fundamentally unfair, it would be implying the invalidity of his criminal proceedings, as in the
habeas corpus petitions attacking state court judgments in Moore and Ellsworth, supra. Miller
brings a § 1983 claim for damages, and under the Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477 (1994):
[A] person who has been convicted of a crime cannot seek
damages or other relief under federal law (as in a suit under 42
U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971)) for violation of his rights by officers who participated in
the investigation or prosecution of the criminal charge, if “a
judgment in favor of the plaintiff [in the civil suit] would
necessarily imply the invalidity of his conviction or sentence.”
Hill v. Murphy, 785 F.3d 242, 244 (7th Cir. 2015) (quoting Heck¸ 512 U.S. at 487)
(second alteration in original). The complaint does not disclose what kind of charges Miller
faced or what became of them. All the court knows is that Miller was transferred to Stateville
Correctional Center in Joliet. (6th Am. Compl. ¶ 4.)
D. Excessive Force Claims
Because Miller alleges that he was a pretrial detainee at all relevant times, the Due
Process Clause governs his excessive force claims rather than the Eighth Amendment’s
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prohibition of cruel and unusual punishment.3 See Forrest v. Prine, 620 F.3d 739, 743–44 (7th
Cir. 2010) (contrasting when Fourth Amendment applies and holding that Due Process Clause
applied to pretrial detainee’s excessive force claims). In their motion to dismiss, defendants
repeatedly quote and cite a sentence from Zinermon v. Burch, 494 U.S. 113, 125 (1990), quoted
in White v. City of Chicago, 149 F. Supp. 3d 974, 977 (N.D. Ill. 2016), that “the deprivation by
state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without due
process of law.” (Mot. to Dismiss, 4, 6, ECF No. 80.) As the rest of the sentence from which
that quotation was lifted makes clear, that standard applies to procedural, rather than to
substantive, due process claims. See White, 149 F. Supp. 3d at 977–78 (“Outside the context of
certain government actions altogether prohibited by the substantive component of the Due
Process Clause, . . . .” (citing Glucksberg, 521 U.S. at 720)); see also Zinermon, 494 U.S. at 115,
125 (characterizing the claim being reviewed as a “§ 1983 procedural due process claim”).
A person held as a pretrial detainee is presumed to be innocent, and “[d]ue process
requires that a pretrial detainee not be punished.” Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
The Supreme Court recently (but not as recently as the parties’ briefing) held in Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015) that “a pretrial detainee must show only that the force
3
The Seventh Circuit has more than once explained as follows:
The scope of an individual's right to be free from punishment—and,
derivatively, the basis for an excessive force action brought under § 1983—
hinges on his status within the criminal justice system. On one end of the
spectrum are sentenced prisoners. The Eighth Amendment protects these
individuals only from the infliction of cruel and unusual punishment, which is
often defined in the prison context as the unnecessary and wanton infliction of
pain. Pretrial detainees, by contrast, have not been convicted or sentenced and
thus are not yet punishable under the law.
As such, pretrial detainees couch excessive force claims as violations of their
Fourteenth Amendment rights to due process, not infringements on the Eighth
Amendment's ban on cruel and unusual punishment.
Forrest, 620 F.3d at 744 (quoting Lewis, 581 F.3d at 473).
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purposely or knowingly used against him was objectively unreasonable.” Id. at 2473; see id. at
2473–74 (elaborating on this standard and identifying relevant considerations for objective
inquiry). The Seventh Circuit has confirmed that Kingsley holds that “the treatment of a pretrial
prisoner is governed by the substantive standards of the Due Process Clause.” Werner v. Wall,
836 F.3d 751, 761 (7th Cir. 2016); see Whitley v. Albers, 475 U.S. 312, 326–27 (citing
Youngberg v. Romeo, 457 U.S. 307, 309 (1982)) (holding prisoner’s “substantive rights under the
Due Process Clause” provided independent basis for affirming Eighth Amendment excessive
force decision); Davis v. Wessel, 792 F.3d 793, 804–05 (7th Cir. 2015) (characterizing pretrial
detainee’s claim under Bell as a “substantive due process” claim and contrasting standard with
Eighth Amendment standard).
After Kingsley, defendants’ attempts to apply procedural due process and Eighth
Amendment standards to Miller’s excessive force claims fail. (See Mot. to Dismiss 5–6 (citing
White as authority for dismissing excessive force claim against officer alleged to have kicked
away Miller’s walker).) Miller does not allege that he should have received a hearing (or some
other chance to test the facts) before officers slapped him, kicked his walker out from under him,
or struck him repeatedly as he sat in his wheelchair. He claims those things should not have
happened with or without notice and a hearing.
Regarding Count Fifteen, Sergeant Cruz argues that the complaint needs to allege more
than that Cruz starting hitting Miller after Miller tried to get his attention while the two waited
for a surgeon; he must “explain[ ] the type of contact Plaintiff is describing . . . particularly as to
whether such contact was severe enough to cause Plaintiff injury.” (Mot. to Dismiss 15.)
Defendants cite no authority for that proposition, and the parties have not briefed the effect of
Kingsley on what must be alleged to state an excessive force claim. Under the objective standard
14
that applies in Fourth Amendment excessive force cases, “[a]lthough injury is a relevant factor in
determining whether an officer used excessive force, an excessive force claim does not require
any particular degree of injury.” Chelios v. Heavener, 520 F.3d 678, 690 (7th Cir. 2008)
(collecting and quoting cases). Rather than attempt to determine this issue without the benefit of
any briefing, the court will deny defendants’ motion to dismiss Count Fifteen without prejudice.
E. Deliberate Indifference Claims
“The Due Process Clause of the Fourteenth Amendment prohibits ‘deliberate indifference
to the serious medical needs of pretrial detainees.’”4 Pittman ex rel. Hamilton v. Cnty. of
Madison, 746 F.3d 766, 775 (7th Cir. 2014) (quoting Brownell v. Figel, 950 F.2d 1285, 1289
(7th Cir. 1991)); see also Treadwell v. McHenry Cnty., 193 F. Supp. 3d 900, 906 (N.D. Ill. 2016)
(“‘[D]eliberate indifference to [the] serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain’ such that a prisoner may bring a cause of action
against a prison official.” (quoting Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)) (alterations
in original)). To show deliberate indifference, the plaintiff “must show that his medical
condition was objectively serious.” Pittman, 746 F.3d at 775. The plaintiff must also make a
subjective showing. See id. The “official must be ‘aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists’ and the official ‘must also draw the
4
Courts nevertheless often look to Eighth Amendment standards in cases involving the treatment of pretrial
detainees. See Werner v. Wall, 836 F. 3d 751, 759 (7th Cir. 2016) (“For a long time, we have recognized that the
treatment of a detained person not serving a sentence of incarceration is governed by the Due Process Clause, but we
often have borrowed Eighth Amendment standards as a rule of decision.”) (citing Rice ex rel. Rice v. Corr. Med.
Servs., 675 F.3d 650, 664 (7th Cir. 2012)) and Bell v. Wolfish, 441 U.S. 520, 535 (1979)). That is because "the
protections of the Fourteenth Amendment's due process clause are at least as broad as those that the Eighth
Amendment affords to convicted prisoners, and the Supreme Court has not yet determined just how much additional
protection the Fourteenth Amendment gives to pretrial detainees.” Id. at 761 n.21 (citing Rice, 675 F.3d at 664).
The parties do not discuss how, if at all, the Supreme Court's decision in Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473, affects the Due Process analysis here, and the court does pass upon that question. See Werner, 836 F.3d at
761.
15
inference.’” Pittman, 746 F.3d at 776 (quoting Higgins v. Corr. Med. Servs. of Ill., Inc., 178
F.3d 508, 511 (7th Cir. 1999); see Farmer v. Brennan, 511 U.S. 825, 837, (1994). Showing that
a prison official was negligent does not suffice: “Deliberate indifference is not medical
malpractice.” Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc) (quoting McGee v.
Adams, 721 F.3d 474, 481 (7th Cir. 2013)). “Even objective recklessness—failing to act in the
face of an unjustifiably high risk that is so obvious that it should be known—is insufficient to
make out a claim.” Id. (citing Farmer, 511 U.S. at 836–38). With this framework in mind, the
court to Miller’s deliberate indifference claims.
1. The Doctor (Count Nine)
In Count Nine, Miller claims that Mansour was deliberately indifferent to his serious
medical needs because he did not facilitate reconstructive surgery for Miller, despite seeing him
fifteen times during the relevant time period and despite the fact that doctors at Cook County
hospital attempted to schedule surgery for Miller. (See 6th Am. Compl. ¶¶ 62–70.) Mansour
does not argue that Miller’s condition was anything but objectively serious. Instead, Mansour
argues that Miller pled himself out of court by alleging that Mansour saw him fifteen times,
showing that Mansour was providing “consistent medical treatment.” (Mot. to Dismiss 9–10.)
Miller did not plead himself out of court by alleging how often Mansour saw him. See Thomas
v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994) (“[I]f a plaintiff does plead particulars, and they
show that he has no claim, then he is out of luck—he has pleaded himself out of court.” (citing
Early v. Bankers Life & Casualty Co., 959 F.2d 75, 78 (7th Cir. 1992)) (other citations omitted)).
In the first place, Miller alleges only the number of visits, fifteen, not their frequency or
distribution over time. That is, he does not plead how close together his visits were. Suppose
“the relevant time period” for the visits (the complaint does not say how long) lasted six months.
16
The first ten visits might have all occurred in the first month with Mansour seeing Miller once
each subsequent month. Mansour may also have seen Miller every other week or so. Or
Mansour might have seen Miller three times a week for five weeks and then not at all. The
inferences must be drawn in Miller’s favor at this stage.
Moreover, consistency of care does not alone satisfy the deliberate indifference standard.
While providing consistent medical treatment is to be encouraged, care can be both inadequate
and regularly delivered, though the frequency of care is a factor to be considered when
evaluating the subjective component of the deliberate indifference test. See Roe v. Elyea, 631
F.3d 843, 856–58 (7th Cir. 2011) (“a successful plaintiff need not ‘show that he was literally
ignored’ in his demands for medical treatment, and a defendant's showing that a plaintiff
received ‘some’ treatment does not resolve the issue conclusively if the treatment was ‘blatantly
inappropriate.’” (quoting Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005)); Berry v.
Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010) (“Although the doctor did not completely ignore
plaintiff's pain, a doctor's choice of the ‘easier and less efficacious treatment’ for an objectively
serious medical condition can still amount to deliberate indifference for purposes of the Eighth
Amendment.” (citing Estelle, 429 U.S. at 104 & n. 10)). Thus, the allegation that Mansour saw
Miller fifteen times does not, in and of itself, plead Miller’s deliberate indifference claim out of
court. See Gil v. Reed, 381 F.3d 649, 663–63 (7th Cir. 2004) (holding summary judgment should
have been denied where evidence existed that doctor provided consistent course of treatment but
did not follow specialist’s advice); Toombs v. Mitcheff, Case No. 1:14-CV-480-TWP-DKL, 2016
WL 67296, at *4–5 (S.D. Ind. Jan. 4, 2016) (denying summary judgment even though record
showed that doctor provided “consistent care” over fourteen months in which plaintiff
complained of abdominal pain because reasonable jury could have found that fourteen months of
17
“watchful waiting” was too long and prisoner ultimately had surgery to remove his gallbladder);
but see Sutton v. Larson, Case No. 12-CV-01241, 2015 WL 1577686, at *2 (S.D. Ill. Apr. 2,
2015) (granting summary judgment for doctor, noting that he provided “consistent care” for
prisoner’s acid reflux, and concluding that failing to prescribe medication for several weeks did
not amount to deliberate indifference).
Without citing legal authority, Mansour also argues that Miller must plead additional
facts showing that he had final responsibility for scheduling Miller’s surgery and that he
thwarted the efforts of the Cook County hospital’s surgeons to schedule surgery for Miller.
(Mot. to Dismiss 10.) The web of responsibilities within the CCDOC may ultimately prove
important to evaluating the subjective element of this claim. See Riley v. Kolitwenzew, 640 F.
App’x 505, 507–09 (7th Cir. 2016) (reviewing summary judgment in favor of assistant chief of
corrections at federal prison and considering deliberate indifference claims in light of medical
department’s recommendation for surgery and need to obtain approval from the U.S. Marshal).
But the allegation that a prison official was “involved directly in the choice to stall necessary
surgery and prolong [the detainee]’s pain is enough to state a claim.” Heard v. Tilden, 809 F.3d
974, 981 (7th Cir. 2016) (per curiam) (citing Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th
Cir. 2012)) (collecting other authority). Mansour’s personal involvement and authority to at
least recommend that Miller receive surgery can be inferred from Miller’s allegation that
Mansour was aware of the recommendations of Miller’s doctors at the Cook County hospital,
knew Miller still had a bullet lodged in his stomach, but “the officers at Cook County Jail,
including attending physician Mansour, refused to facilitate the medically necessary surgery to
reconstruct Miller's abdomen.” (6th Am. Compl. ¶ 67; see also id. ¶¶ 66–68.) Therefore, Miller
has stated a deliberate indifference claim against Mansour.
18
2. Nurses (Count Thirteen)5
In Count Thirteen, Miller alleges that defendant Jefferson, a prison nurse, defied a
doctor’s orders to change his bandages daily and instead changed them “once every 2 to 3 days,”
even though she knew of the risk that the wound in Miller’s abdomen could become infected and
other complications could develop. (6th Am. Compl. ¶ 90.) Infections and sores plagued Miller
as a result. (Id. ¶ 91.) Jefferson also allegedly refused to give Miller prescribed medications for
his epilepsy, neck pain, back pain, and to treat pain for a gunshot wound to his right arm. (See
id. ¶¶ 92–93, 95.) Miller repeatedly reported Jefferson’s conduct to her supervisor, defendant
Kienlen, but Kienlen did nothing, though she knew of the risks. (Id. ¶ 95.)
The defendant nurses argue, in conclusory fashion, that the conduct pleaded in Miller’s
complaint amounts to no more than negligence, which is not actionable on a deliberate
indifference claim. See, e.g., Petties, supra, 836 F.3d at 728. A prison nurse’s refusal to
dispense medication to treat pain prescribed by a physician can be actionable as deliberate
indifference. See Walker v. Benjamin, 293 F.3d 1030, 1039–41 (7th Cir. 2002) (discussing
Estelle, supra, and holding not only that fact issue precluded summary judgment but also that
qualified immunity did not attach because “[t]here is no question here that at the time Nurse
Dunbar and Dr. Benjamin refused to give Walker his prescribed pain medication (again,
according to his version of events), such an action would give rise to liability under section
1983”). The gravamen of the allegations against the nurses is that they knowingly failed to
follow the course of treatment prescribed by Miller’s physicians, i.e., that their actions were “not
actually based on a medical judgment.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
5
Miller also names a corrections officer, defendant “Officer Cruz,” in Count Thirteen, but the motion to dismiss
does not address the claims against him because he has yet to be served. (ECF No. 80 at 12.) The defendant named
as “Officer Cruz” in Count XIII does not appear to be the same person as the defendant named “Sergeant Cruz” in
Count XV.
19
832 (7th Cir. 2009) (summary judgment opinion: holding that deliberate indifference can be
inferred from fact that medical provider’s care went “so far afield of accepted professional
standards as to raise the inference that it was not actually based on a medical judgment” (quoting
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008))). Viewed in the light most favorable to
him, Miller’s allegations that Jefferson and Kienlen refused to dispense prescribed pain
medication and that Jefferson changed his bandages less frequently than his doctors prescribed
—all causing him pain, sores, and infection, which he alleges, and it is reasonable to infer, were
painful—state deliberate indifference claims. See Walker, 293 F.3d at 1040–41 (holding that
doctor and nurse’s explanation for refusing treatment, viz. that they believed prisoner was
malingering, was a fact question for the jury).
Jefferson also claims the complaint should be dismissed for failing to plead facts showing
that Miller’s “care was solely [her] responsibility.” (Mot. to Dismiss 12.) The Seventh Circuit
has “explicitly rejected the notion . . . that nurses cannot, as a matter of law, be held liable for
Eighth Amendment violations where they allegedly lacked authority to provide particular forms
of medical care to inmates.” Perez v. Fenoglio, 792 F.3d 768, 781 (citing Berry v. Peterman,
604 F.3d 435, 443 (7th Cir. 2010)). “Nurses, like physicians, may thus be held liable for
deliberate indifference where they knowingly disregard a risk to an inmate's health.” Id. at 779
(citation omitted). Questions of a nurse’s authority generally “are questions of fact that cannot
be resolved at this stage in the litigation,” and so dismissal of the complaint against Jefferson is
not warranted. Id. at 780 (holding complaint stated a deliberate indifference claim against prison
nurse).
Kienlen, the former chief nurse, takes a different tack. She argues that Miller’s allegation
that he “repeatedly reported” Jefferson’s failure to follow his doctor’s orders to Kienlen is
20
insufficient to allege her personal involvement. (6th Am. Compl. ¶ 95.). “It is well established
that “for constitutional violations under § 1983 a government official is only liable for his or her
own misconduct.” Perez, 792 F.3d at 781 (quoting Locke v. Haessig, 788 F.3d 662, 669 (7th Cir.
2015)) (alterations omitted); see also Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003).
Kienlen’s supervisory position alone does not make her liable for Jefferson’s conduct
under § 1983. The Supreme Court held in Iqbal that a supervisor's mere “knowledge of a
subordinate’s misconduct is not enough for [§ 1983] liability.” Vance v. Rumsfeld, 701 F.3d 193,
203, 605 (7th Cir. 2012). Indeed, the Court in Iqbal observed that the phrase “supervisory
liability” is a misnomer in § 1983 suits in which the respondeat superior doctrine does not apply.
Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.”). Thus, Miller's allegation that
Kienlen served as the CCDOC’s chief nursing supervisor and that her responsibilities included
supervising and overseeing nursing care (6th Am. Compl. ¶ 5) does not by itself allege her
personal involvement with Jefferson’s provision of medical care. See Arnett v. Webster, 658
F.3d 742, 757 (7th Cir. 2011) (“Dr. Webster cannot be held liable merely due to his supervisory
capacity as clinical director.”); Velazquez v. Williams, No. 14 CV 9121, 2015 WL 4036157, at *2
(N.D. Ill. June 30, 2015) (dismissing claim against medical director of Illinois’ Stateville prison
based on allegations of his role alone).
The complaint nevertheless states a plausible claim of deliberate indifference against
Kienlen. To be liable under § 1983 in her individual capacity, “the supervisor must ‘know about
the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might
see.’” Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (quoting Jones v. City
of Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988)); see also Arnett, 658 F.3d at 755 (citing
21
Vance, 653 F.3d at 599 & n.5) (other citation omitted) (explaining that Iqbal did not change this
standard). Miller alleges that he reported to Kienlen that Jefferson was not changing his wound
dressings daily, irrigating his wound, and dispensing prescribed medication as his doctor
recommended and that Kienlen knew about the risks Jefferson’s conduct posed. (See 6th Am.
Compl. ¶¶ 91–93, 95.) The complaint does not spell out how Kienlen knew of the risks, but it
does not have to; that is what discovery is for. See Burks v. Raemisch, 555 F.3d 592, 594 (7th
Cir. 2009) (reversing dismissal of complaint against medical director because, although
complaint said only that director knew of plaintiff’s eye condition without saying how, “intent
may be pleaded generally (which is to say, in a conclusory fashion), [so] the lack of detail does
not permit dismissal”). In the face of Miller’s reports, Kienlen did nothing according to the
complaint. (6th Am. Compl. ¶ 95.) Viewed in the light most favorable to Miller, these
allegations state a plausible claim that Kienlen condoned, approved, or turned a blind eye to
Jefferson's alleged conduct. See McGowan v. Hulick, 612 F.3d 636, 640–41 (7th Cir. 2010)
(holding complaint drafted by pro se prisoner stated claim against supervising dental director
who allegedly delayed care for two months after subordinate recommended care); Burks, 555
F.3d at 594; Hoeft v. Menos, 347 F. App’x 225, 227 (7th Cir. 2009) (holding complaint stated
claim against medical director because prisoner alleged he personally informed director of his
request for treatment and director refused request).
3. Count Eight: Allegations That Prison Guard Disregarded Doctor’s Order That Miller Sleep on
Top Bunk State a Deliberate Indifference Claim
Also, Count Eight, which alleges that defendant Duran, a prison guard, knowingly
violated doctor’s orders and required Miller to sleep on the top bunk, states a claim. Duran
claims that Count Eight does not identify the constitutional right violated. (Mot to Dismiss 7.)
22
The Seventh Circuit has recognized, however, that “a risk an inmate will fall attempting to climb
into a high bunk due to an acute medical condition” is serious enough to satisfy the objective
component of the deliberate indifference standard. Buford v. Obaisi, No. 14 C 3931, 2016 WL
4245513, at *5 (N.D. Ill. Aug. 11, 2016) (citing Bolling v. Carter, 819 F.3d 1035 (7th Cir. 2016)
and Withers v. Wexford Health Sources, Inc., 710 F.3d 688 (7th Cir. 2013)). In Bolling, for
instance, a doctor at the Cook County Jail determined that the plaintiff, a pretrial detainee,
needed to sleep on the lower bunk. 819 F.3d at 1036. After falling and hurting his back, the
detainee sued six correctional officers whom he alleged, and the summary judgment record
permitted the jury to find, forced him to sleep on the top bunk anyway. See id. at 1035–36. The
Seventh Circuit held that a genuine issue of material fact existed and sent the case back to the
district court for a trial on the plaintiff’s deliberate indifference claim. See id. at 1036.
Viewed in a light favorable to him, Miller’s allegations suffice to state claim under
Bolling. Miller alleges that Duran and other, unspecified jail officials disregarded a doctor’s
order that he sleep in the bottom bunk. (6th Am. Compl. ¶ 55.) The doctor issued that order
after making a medical judgment that Miller’s serious condition, epilepsy, created an
unacceptable risk of falling (see 6th Am. Compl. ¶¶ 55–57) and as in Bolling, the doctor’s
concerns proved to be legitimate; Miller fell from the top bunk during a seizure. (See id. ¶ 56.)
Those allegations give fair notice of Miller’s claim of deliberate indifference to a serious medical
need under the Due Process Clause to the officers who allegedly disregarded the doctor’s order.
See Bolling, 819 F.3d at 1036; Buford, 2016 WL 4245513, at *5 (denying summary judgment on
prisoner’s deliberate indifference claims against prison officials’ based on officials’ “assigning,
placing, and leaving him to a ladderless top bunk when he suffered from ongoing Achilles
tendon pain; ambulated with crutches; informed officers he could not access the top bunk; was
23
consistently provided a low-bunk permit by the medical unit . . . ; and fell attempting to access
the top bunk within hours of assignment to it”).
That the complaint states a claim does not, of course, mean that Miller will ultimately
prevail after discovery. The court does not consider the merits of Miller’s claims today, only the
complaint’s sufficiency. Under the subjective prong of the deliberate indifference test, an
official must “both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see
also Withers, 710 F.3d at 690-91 (discussing issues that might be raised at trial under subjective
prong of deliberate indifference claim).
IV. BATTERY CLAIMS
As for Miller’s battery claims, defendants’ only argument against them is that battery
claims generally arise under state law. See Cervantes v. Skipper, No. 95 C 7721, 1996 WL
351192, at *3 (N.D. Ill. June 21, 1996) (noting that battery claims, brought in this case against
arresting officers, are “traditionally claims which arise under state law rather than federal law”).
Fair enough. The complaint invokes this court’s supplemental jurisdiction over state law claims
that are part of the same case or controversy. See 28 U.S.C. § 1367(a); (6th Am. Compl. ¶ 2.) In
Cervantes, the court dismissed an allegation that “[a]fter the stop, Defendants, without probable
cause and or reasonable suspicion and/or lawful justification, assaulted and battered the Plaintiff”
as insufficiently specific to state either a battery claim or excessive force claim because it did not
“set forth what happened during the arrest, how the Plaintiff was assaulted and battered, and
what his damages were as a result.” Cervantes, 2016 WL 351192, at *3.
Miller’s complaint does all of the things the Cervantes complaint did not. Battery is “the
unauthorized touching of another’s person” under Illinois law. Benitez v. Am. Standard Circuits,
24
Inc., 678 F. Supp. 2d 745, 767 (N.D. Ill. 2010) (citing Boyd v. City of Chicago, 880 N.E.2d 1033,
1043–44 (Ill. App. Ct. 2007)). To state a battery claim, Miller “must allege that the defendant
intended to cause a harmful contact, that harmful contact resulted and that the plaintiff did not
consent.” Happel v. Wal-Mart Stores, Inc., 319 F. Supp. 2d 883, 885 (citing Cohen v. Smith, 648
N.E.2d 329, 332 (Ill. App. Ct. 1995)). Miller alleges in Count Five that he fell because
defendant Toledo kicked his walker (6th Am. Compl. ¶ 46) and that he “was physically harmed .
. . and suffered pain, humiliation and embarrassment as a result” (id. ¶ 48). Toledo can be liable
for battery even if he only kicked Miller’s walker and never touched him, for “(I)t is enough that
the defendant sets a force in motion which ultimately produces the result.” Mink v. Univ. of Chi.,
460 F. Supp. 713, 717–18 (N.D. Ill. 1978) (quoting William L. Prosser, Law of Torts § 9, at 35
(4th ed. 1971)) (alteration in original). In Count Ten, Miller pleads that defendant Majousch
struck him in his abdomen on July 2, 2013, causing him to experience pain, diarrhea, and blood
in his stool. (6th Am. Compl. ¶¶ 72, 76.) The complaint also states that Majousch slapped
Miller in the face when he asked Majousch not to hit him in the abdomen. (Id. ¶ 73.) These
allegations are more than labels and conclusions, and they state claims for battery. See Stewart
v. Roe, 776 F. Supp. 1304, 1307–08 (N.D. Ill. 1991) (holding complaint stated battery claim
where it also stated excessive force claim).
VI. CONCLUSION
For the reasons given above, the motion to dismiss Miller’s sixth amendment complaint
(ECF No. 80) is granted in part, denied in part, and denied in part without prejudice as to Count
Fifteen. Plaintiff’s claims against Cook County alleged in the sixth amended complaint are
dismissed. The ADA claims alleged in Count Three are dismissed as well.
25
Because of the unusual complexities of this case, the court exercises its discretion to
recruit new counsel to represent Miller with thanks to Mr. Tasch for his ardent efforts on Miller’s
behalf. A status conference is set for April 28, 2017, at 9:30 a.m. Also, to conform the docket to
the live complaint, the clerk is directed to terminate the following four parties: defendant Officer
Jalowski; defendant Samuel L. Clemons, Commander; defendant Cook County Department of
Corrections; and defendant Tom Dart, Sheriff.
Date: March 10, 2017
/s/
Joan B. Gottschall
United States District Judge
26
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