Harper v. Dart et al
Filing
102
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant Dart's motion to dismiss 84 is granted in part and denied in part. Any motion for leave to file an amended complaint is due by 11/17/2015. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARRYL HARPER,
Plaintiff,
v.
THOMAS DART, et al.,
Defendants.
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No. 14 C 01237
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Darryl Harper is a detainee at the Cook County Jail. He is disabled,
wheelchair-bound, and suffers from several chronic illnesses. Harper complained to
correctional officers, asking for handicap-accessible housing and adequate medical
care. He says his complaints were ignored. Furthermore, Harper alleges that during
his stay at Stroger Hospital, which is the primary hospital for the Jail, he was
shackled to his hospital bed per a Sheriff’s Department policy. Based on these
allegations, Harper sued Sheriff Dart, in his official capacity only, and Cook County
under 42 U.S.C. § 1983; the American with Disabilities Act, 42 U.S.C. § 12132; and
the Rehabilitation Act, 29 U.S.C. § 794.1
Cook County answered, R. 83, but Dart moved to dismiss, R. 84, Mot.
Dismiss. Dart argues that Harper has failed to adequately plead any of his claims.
The Court agrees in part. Dart’s motion to dismiss is granted (though without
prejudice, at least for now) as to Harper’s § 1983 claims for inadequate facilities and
1The
Court has subject-matter jurisdiction over these federal claims under 28 U.S.C.
§ 1331. Citations to the record are “R.” followed by the docket number then the page or
paragraph number.
medical care, and as to his ADA and Rehabilitation Act claims. But the motion is
denied as to Harper’s § 1983 claim based on Dart’s shackling policy.
I. Background
In considering the motion to dismiss, Harper’s factual allegations must be
accepted as true. Harper entered the Cook County Jail on March 12, 2013. R. 82,
Second Am. Compl. ¶ 5. He must use a wheelchair and he suffers from several
chronic medical conditions. Id. ¶ 6. Since the time of Harper’s intake, correctional
staff has been aware that Harper requires special housing to accommodate his
physical limitations and need for regular medical care. Id. ¶ 7. Harper repeatedly
requested accessible living conditions. Id. ¶ 8. His requests were ignored and he was
assigned to an inaccessible cell. Id. For most of Harper’s incarceration, he has been
assigned to the third floor of Cermak Infirmary. Id. ¶ 11. The cell’s layout causes
Harper “great difficulty” with showering, toileting, and getting into bed. Id. ¶ 9.
Harper also alleges that he has been injured by deficiencies in the quality of the
infirmary’s medical care; the deficiencies are supposedly the subject of United States
v. Cook County, 10 C 2946. Id. ¶ 12. Per Harper, the infirmary’s inadequate medical
care required him to be admitted to Stroger Hospital on several occasions. Id. ¶ 13.
While at the Hospital, he was, at all times, shackled to his bed per Dart’s explicit
policy. Id. ¶ 14. Requests to remove the shackles were ignored. Id. ¶ 15.
II. Standard
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
2
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Rule 8(a)(2) applies to
most claims, requiring only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain
statement must “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original) (internal quotation marks and citation omitted). And it must
“contain sufficient factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). These allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. Factual allegations, but not legal
conclusions, are assumed to be true. Iqbal, 556 U.S. at 678-79.
III. Analysis
Relying on Harper’s complaint and the parties’ briefs, the Court construes
Harper as making four claims against Dart and Cook County:
(1)
a Monell claim alleging a widespread
constitutionally inadequate medical care,
(2)
a Monell claim based on Dart’s express policy of shackling detainees in
the hospital,
(3)
a Monell claim alleging a widespread practice of assigning wheelchairbound inmates to constitutionally inadequate, inaccessible housing;
and
3
practice
of
providing
(4)
claims under the ADA and the Rehabilitation Act (which follow the
same analysis, so the Court treats them as one claim for now) also
alleging inaccessible facilities.
The Court addresses each in turn.
A. Section 1983 Claims
Harper brings three claims under 42 U.S.C. § 1983. Section 1983 provides
that “every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State … subjects, or causes to be subjected, any citizen … to the
deprivation of any rights … secured by the Constitution … shall be liable to the
party injured.” To hold a municipality liable, not only must a plaintiff prove the
deprivation of an underlying substantive right (§ 1983 does not supply the
substantive right, and instead is only the cause of action to vindicate the right), the
plaintiff must show that the deprivation was caused by the municipality’s policy or
custom, or by a final policymaker for whom the municipality is responsible. Here,
Harper’s § 1983 claims are against Dart in his official capacity as Cook County’s
Sheriff. R. 99, Minute Entry (“Plaintiff confirmed that there is no claim against
Dart in his individual capacity.”). Official capacity claims against municipal officials
are, in effect, claims against the municipal body itself. Walker v. Sheahan, 526 F.3d
973, 977 (7th Cir. 2008) (“Actions against individual defendants in their official
capacities are treated as suits brought against the government entity itself.”) (citing
Hafer v. Melo, 502 U.S. 21, 25 (1991)). Municipalities, like individuals, are suable
“persons” under § 1983. Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520
U.S. 397, 403 (1997) (“We held in Monell … that municipalities and other local
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governmental bodies are “persons” within the meaning of § 1983.”) (citing Monell v.
New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). Claims against
municipalities are often called Monell claims. To make out a Monell claim—that is
to show that a municipal “person” caused a deprivation of the plaintiff’s
constitutional rights—a plaintiff must allege “that an official policy or custom not
only caused the constitutional violation, but was the moving force behind it.” Estate
of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (internal
quotation marks omitted). That showing, practically speaking, breaks down into
three parts.
First, the plaintiff must allege that he or she has suffered the deprivation of a
constitutional right. See 42 U.S.C. § 1983. (Section 1983 is only a vehicle to
vindicate rights found elsewhere, most often in the United States Constitution; it
provides no substantive rights itself.) Second, the plaintiff must allege that the
municipality’s “official policy or custom,” the one the plaintiff believes caused him
harm, actually exists. Estate of Sims, 506 F.3d at 514. There are three ways to do
this: one can allege “(1) an express policy, (2) a widespread practice which, although
unwritten, is so entrenched and well-known as to carry the force of policy, or (3) []
the actions of an individual who possesses the authority to make final policy
decisions on behalf of the municipality or corporation.” Rice ex rel. Rice v. Corr. Med.
Servs., 675 F.3d 650, 675 (7th Cir. 2012). The express-policy and individual-action
routes are self-explanatory. But to go the widespread-practice route, a plaintiff
must allege that the relevant official (in this case Dart) was “deliberately indifferent
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to the known or obvious consequences” of the alleged widespread practice. Thomas
v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2009) (quoting Gable v.
City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)). In order for a plaintiff to prevail
on a deliberate-indifference claim in this context, the relevant official “must have
been aware of the risk created by the custom or practice and must have failed to
take appropriate steps to protect the plaintiff.” Id. There can be no liability under
the widespread practice theory unless the plaintiff shows (and at the pleading
stage, adequately alleges) that the official knew of the practice or that it was “so
pervasive” that he must have known. See Phelan v. Cook County, 463 F.3d 773, 790
(7th Cir. 2006). Finally, once the plaintiff has alleged a deprivation and a custom or
a policy, the plaintiff must allege causation: the plaintiff must connect the policy or
custom to the constitutional deprivation by alleging that the former was the
“moving force” behind the latter. Estate of Sims, 506 F.3d at 514.
1. Inadequate Medical Care
Dart’s motion to dismiss is granted as to Harper’s Monell claim alleging a
widespread practice based on “structural problems in the administration of
healthcare at the jail” including inadequate staffing, “assigning the sickest
prisoners to the third floor of Cermak Infirmary,” and the failure to provide “life
essential wound care.” Second Am. Compl. ¶¶ 11-13; R. 91, Harper’s Resp. Br. at 6.
The underlying substantive right arises from the Due Process Clause of the
Fourteenth Amendment, which bans deliberate indifference to the serious medical
needs of pretrial detainees. Pittman v. Cnty. of Madison, 746 F.3d 766, 775 (7th Cir.
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2014). To succeed on a Monell claim based on a widespread practice, Harper must
allege that the conditions were so persistent and widespread that Dart must have
known about them. Latuzskin v. City of Chicago, 250 F.3d 502, 505 (7th Cir. 2001);
Thomas v. Sheahan, 499 F. Supp. 2d 1062, 1094 (N.D. Ill. 2007).
The Second Amended Complaint falls well short of adequately alleging a
widespread-practice claim. Aside from alleging that it was Dart’s “widespread
practice . . . to assign some of the Jail’s sickest prisoners to the third floor of the
Cermak Infirmary” and citing—by name only—another case involving the same
issues (the prison-institution litigation brought by the United States Justice
Department in United States v. Cook County), Harper provides no factual
allegations (as distinct from statements of bare conclusions) to support this claim.
Second Am. Compl. ¶ 12. To be sure, it might have been appropriate for Harper to
rely on specific factual allegations in the Justice Department complaint, but Harper
makes no effort to actually point to any. Only when the specific factual allegations
are known can the Court possibly evaluate whether a claim has been stated as a
matter of substance (that is, deliberate indifference to serious medical needs) or,
more importantly here, as a matter of stating a Monell claim. In an adversarial
system of litigation, it is not up to the Court to sift through the referenced-lawsuit’s
filings, of which there are hundreds, looking for factual allegations to support
Harper’s attempt to plead a claim on this issue.
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2. Shackling Claim
Dart’s motion to dismiss is denied as to Harper’s claim challenging Dart’s
“explicit policy” of shackling wheelchair-bound detainees in Stroger Hospital.
Second Am. Compl. ¶¶ 13-16; Harper’s Resp. Br. at 7. To state a claim for unlawful
restraint (again, under the Due Process Clause of the Fourteenth Amendment),
Harper must allege that the use of bodily restraints is not rationally related to a
legitimate non-punitive government purpose or that their use appears excessive and
objectively unreasonable in relation to the purpose they serve. Davis v. Wessel, 792
F.3d 793, 800 (7th Cir. 2015); see also May v. Sheahan, 226 F.3d 876, 884 (7th Cir.
2000).2 Harper alleges that, per an official policy, he was shackled to his hospital
bed despite the presence of two armed guards. Second Am. Compl. ¶ 14; Harper’s
Resp. Br. at 7. This was excessive, he argues, because he is wheelchair-bound and
his chronic health conditions make him less dangerous. Id. at 11. Those allegations
state a claim. Harper’s allegations are very close to, if not more serious than those
in May, which reversed the grant of a motion to dismiss a claim based on the same
policy. 226 F.3d at 884. At this stage of the litigation, the inquiry is limited to the
facts in the Second Amended Complaint, which of course does not set forth any facts
2Restraint
claims by pretrial detainees, like Harper’s, have traditionally been
evaluated under this standard, which originated in Bell v. Wolfish, 441 U.S. 520, 561
(1979), and Youngberg v. Romero, 457 U.S. 307, 324 (1982). But there is an argument that
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), which adopted an objective standard for
excessive force claims brought by pretrial detainees, id. at 2470, may be a better fit. See
Davis, 792 F.3d at 801 (“There was great debate between the parties as to whether Kingsley
… controls this [restraint] case.”). The parties here have not raised that possibility but
should consider whether to do so at the summary judgment stage.
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that would justify always shackling every prisoner to a hospital bed at all times,
even though armed guards are present. This claim survives.
3. Inaccessible Facilities
Dart’s motion to dismiss is granted as to Harper’s claim that Dart was
deliberately indifferent to a widespread practice at the jail of assigning wheelchairbound detainees to inaccessible housing. Second Am. Compl. ¶¶ 9-11; Harper’s
Resp. Br. at 4. This practice, per Harper, deprived him of his constitutional right to
“the minimal civilized measure of life’s necessities” by “caus[ing] him great
difficulty when toileting, showering, and transferring to his assigned bed.” Second
Am. Compl. ¶ 9. The Second Amended Complaint does not describe what is meant
by “great difficulty.”
It is of course true that “facilities to wash and use the toilet,” among other
things, “are among the minimal civilized measure of life’s necessities that must be
afforded prisoners.” Jaros. v. Ill. Dep’t of Corr., 684 F.3d 667, 670-71 (7th Cir. 2012).
But experiencing “great difficulty” which is how Harper characterizes the use of the
facilitites) accessing or using these necessities is not the same as not having them;
difficulty is not deprivation, and deprivation is what violates the Constitution. Id. at
671. In Jaros, the Seventh Circuit distinguished between a disabled inmate’s
constitutional claim and his claim under the ADA and the Rehabilitation Act. When
rejecting the constitutional claim for access to showers, the Seventh Circuit went so
far as to point out the number of times the inmate showered per month (four times),
and that the presence of grab bars would not have made a difference to the amount
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of pain he experienced because he experienced the same severe pain all the time. Id.
In the Second Amended Complaint, Harper does not explain what is meant by
“great difficulty,” which really is just a bare conclusion rather than a factual
allegation entitled to the presumption of truth. It might very well be that Harper
could allege facts to state a claim, and (as discussed below) he may seek leave to
amend the complaint again (the dismissal is, for now, without prejudice), but the
Second Amended Complaint does not state a claim.
B. Statutory Claims
Although a much closer question, Dart’s motion to dismiss is also granted on
the claim that Dart violated Harper’s rights under the ADA and the Rehabilitation
Act by denying him equal access to washing facilities, toilets, and bedding. Second
Am. Compl. ¶ 9. To state a claim under the Rehabilitation Act,3 Harper “need only
allege that (1) he is a qualified person (2) with a disability and (3) [Dart] denied him
access to a program or activity because of his disability.” Jaros, 684 F.3d at 671-72
(citing 29 U.S.C. § 705(2)(B)). One can “deny access” by failing to reasonably
accommodate
a
plaintiff’s
disability.
Id.
(“Refusing
to
make
reasonable
accommodations is tantamount to denying access; although the Rehabilitation Act
does not expressly require accommodation, the Supreme Court has located a duty to
accommodate in the statute generally.”) (internal quotation marks omitted).
3Dart
concedes that the analysis under both Acts is materially identical. R. 84,
Dart’s Br. at 4, n.1 (citing Jaros, 684 F.3d at 671). And the two Acts also provide the same
relief. Id. at 671-72. The only material difference is that the Rehabilitation Act requires the
plaintiff to prove that the defendant accepts federal funds. R. 84, Dart’s Br. at 4, n.1 (citing
Id. at 671). Dart rightly concedes this point. Id. So, for simplicity’s sake, this Court will, as
the Seventh Circuit has done, “dispense with the ADA” analysis and focus on the
Rehabilitation Act. Id. at 671-72.
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Harper comes close, but fails, to state a claim under the ADA and the
Rehabilitation Act. It is true that Harper adequately alleges that he is a qualified,
disabled person by alleging that he is wheelchair bound. See Wagoner v. Lemmon,
778 F.3d 586, 592 (7th Cir. 2015) (“Wagoner’s paraplegia qualifies as a disability.”);
see also Jaros, 684 F.3d at 671-72 (prisoner-plaintiff with hip problem qualified due
to mobility impairment). But Harper fails to adequately allege facts as to a denial of
equal access. As in his parallel constitutional claim, all Harper has alleged is “great
difficulty” showering, toileting, and getting into bed. Those two words alone do not
explain how Harper was denied equal access and are therefore not enough to allow
a plausible inference that the failure to give Harper different accommodations
denied him access equal to that of other prisoners. To be sure, it would not have
taken much to adequately allege a failure to provide equal access. See Jaros, 684
F.3d at 671-72 (reversing order granting motion to dismiss where prisoner
explained how inaccessible facilities affected his access to meal and shower
facilities). But once again Harper’s allegations are just conclusions without facts,
which are not enough. As discussed next, the dismissal of the ADA and
Rehabilitation Act claims is also without prejudice, but it is up to Harper to seek
leave to amend.
C. Leave to Amend
Harper’s § 1983 claims for inadequate medical care and inaccessible facilities,
as well as his ADA and Rehabilitation Act claims, are dismissed without prejudice.
If Harper wishes to re-plead them, he must file a motion seeking leave to do so.
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Given the discovery schedule, this motion will be due on or before November 17,
2015. Also, because the Rule 16(b) deadline to amend the pleadings has passed, R.
21 (“any amendments to pleadings … shall be filed on or before 08/04/2014”),
Harper will need to satisfy the “good cause” standard in Rule 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”). He must
therefore explain why—this late in the game—he deserves a fourth chance at
pleading these claims. Perhaps the parties have engaged in enough discovery so
that the claims have been made more specific, so leave to amend would be
appropriate (and perhaps would be uncontested, at least in part), but Harper must
take the initiative to propose a Third Amended Complaint and to explain why leave
is justified.
IV. Conclusion
Dart’s motion to dismiss, R. 84, is granted as to Harper’s § 1983 claims for
inadequate medical care and inaccessible facilities and as to Harper’s statutory
claims. The motion is denied as to Harper’s shackling claim.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: October 21, 2015
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