Esparza v. Cook County, Illinois et al
Filing
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MEMORANDUM Opinion and Order. Defendants' motion to dismiss 10 is denied. Cook County remains a defendant for indemnification purposes only, and Esparza may proceed with his substantive § 1983 claims against Dart. Motion hearing date of 11/6/14 is stricken. It is so ordered. Signed by the Honorable Marvin E. Aspen on 11/4/2014. Notice mailed by judge's staff (ntf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BULMARO ESPARZA,
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Plaintiff,
v.
THOMAS DART, Sheriff of Cook County,
COOK COUNTY,
Defendants.
No. 14 CV 1390
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Bulmaro Esparza (“Esparza”) filed this action pursuant to 42 U.S.C. § 1983
against Defendants Thomas Dart, the Sherriff of Cook County, (“Dart”) and Cook County,
Illinois (“Cook County”). Presently before us is Defendants’ motion to dismiss Esparza’s entire
complaint pursuant to Federal Rule of Civil Procedure 12(b). For the reasons stated below,
Defendants’ motion is denied.
BACKGROUND
Esparza’s claims stem from injuries that he incurred while at the Cook County
Department of Corrections (“CCDOC”) as a pretrial detainee from February 2010 through July
2012. (Compl. ¶¶ 1, 2.)1 In his complaint, Esparza alleges that on November 11, 2010 he
1
Esparza asks us to adopt the amended complaint attached to his response brief. (Resp. at 3.)
This amended complaint corrects a typographical error in the original complaint and clarifies
Esparza’s claim against Cook County. (Id.) Federal Rule of Civil Procedure 15(a)(1)(B)
permits a party to amend his pleading as a matter of course within twenty-one days after
service of a responsive pleading or a Rule 12(b) motion, whichever is earlier. Since
Defendants have not filed a responsive pleading and Esparza filed his amended complaint
within twenty-one days after Defendants filed the instant Rule 12(b) motion, we will adopt
Esparza’s Amended Complaint as operative. (Dkt. 13, Resp., Ex. 1.)
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suffered serious physical injuries while a detainee at Cook County Jail, including a fracture to his
right hand. (Id. ¶ 5.) He further alleges that he “made numerous unsuccessful written requests
for medical care to his injured hand,” and that “[a]s part of a widespread practice at the Cook
County Jail, [he] did not receive treatment to set the fracture in his hand, which is now
permanently deformed.” (Id. ¶¶ 6–7.)
On October 2, 2012, Esparza filed a pro se § 1983 lawsuit regarding these injuries,
naming various employees of CCDOC as defendants, and on November 27, 2012 he added Dart
as a defendant. (Dkts. 1 & 5, Esparza v. Dart et al., No. 12 C 7909.) After Esparza secured
counsel, we granted his voluntary motion to dismiss with leave to refile. (Dkt. 16, Esparza v.
Dart et al., No. 12 C 7909.) On February 28, 2014, Esparza refiled his case naming Dart and
Cook County as defendants. In that complaint, Esparza stated that “Defendant Cook County,
Illinois is joined in this action pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947
(7th Cir. 2003) and may be liable for the policies alleged herein.” (Dkt. 1, Original Compl. ¶ 4.)
Defendants move to dismiss pursuant to Rule 12(b)(6), alleging that: (1) Esparza’s
allegations against Cook County are time barred; (2) Esparza failed to allege sufficient facts to
sustain a § 1983 claim against Cook County; and (3) Esparza is unlikely to prevail in his claim of
deliberate indifference against Dart. In his response, Esparza clarified that he is not asserting
substantive § 1983 claims against Cook County; rather, he simply seeks indemnification for any
official capacity judgments entered against Dart. (Resp. at 3.) For that reason, we will not
address Defendants’ second argument. We consider the other two arguments in turn.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) is meant to test the sufficiency of the complaint,
not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990).
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To survive a motion to dismiss, the complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specifically, “a
complaint 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, 129 S. Ct. 1937, 1949 (2009) (citing
Bell Atl. Corp. v. Twombly, 540 U.S. 544, 555, 127 S. Ct. 1955, 1964–65 (2007)). The
plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. Thus, while a complaint need not give
“detailed factual allegations,” it must provide more than “labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Twombly, 540 U.S. at 545, 127 S. Ct. at 1964–
65; Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618–19 (7th Cir. 2007). The
statement must be sufficient to provide the defendant with “fair notice” of the claim and its basis.
Twombly, 540 U.S. at 545, 127 S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78
S. Ct. 99, 102 (1957)); Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). In
evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor. Thompson v. Ill. Dep’t of Prof’l
Reg., 300 F.3d 750, 753 (7th Cir. 2002).
DISCUSSION
I.
Indemnification Claim Against Cook County
Defendants argue that Esparza’s claim against Cook County is time barred because he did
not name Cook County as a defendant until after the statute of limitations for § 1983 claims
expired. (Mot. at 3–4; Reply at 1.) “[A] statute of limitations defense is not normally part of a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), [but] when the allegations of
the complaint reveal that relief is barred by the applicable statute of limitations, the complaint is
subject to dismissal for failure to state a claim.” Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir.
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2011); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) (“[A] litigant
may plead itself out of court by alleging (and thus admitting) the ingredients of a defense . . .”).
Defendants’ statute of limitations argument fails for two distinct reasons. First,
Defendants’ urge us to apply the wrong statute of limitations. When we apply the proper
limitations period—that for indemnification claims, not § 1983 claims—Esparza’s claim against
Cook County is clearly not time barred. Second, even if we apply the § 1983 statute of
limitations as Defendants propose, we find that Esparza’s claim against Cook County relates
back to his timely-filed complaint against Dart, and thus it should not be dismissed.
A. Statute of Limitations for Indemnification
In arguing that Esparza’s claim against Cook County is time barred, Defendants apply the
wrong statute of limitations. Defendants assert that Esparza’s claim is precluded by the two-year
statute of limitations for substantive § 1983 claims. (Mot. at 3–4.) Esparza is not, however,
pursuing substantive § 1983 claims against Cook County. Rather, Esparza made clear in his
response that he added Cook County to this law suit only to indemnify any judgments entered
against Dart. (Resp. at 3.)
Cook County’s obligation to indemnify Dart for actions taken in his official capacity
stems from 745 ILCS 10/9-102, which provides that “[a] local public entity is empowered and
directed to pay any tort judgment or settlement for compensatory damages . . . for which it or an
employee while acting within the scope of his employment is liable . . . .”2 See Carver v. Sheriff
of LaSalle County, 203 Ill.2d 497, 516, 787 N.E.2d 127, 138 (Ill. 2003). Claims for statutory
indemnification under § 9-102 are subject to a one-year statute of limitations pursuant to
745 ILCS 10/8-101. This includes indemnification for § 1983 official capacity judgments. See
2
Despite the fact that Defendants insist the claims against Cook County are time barred,
(Reply at 1), they seem to concede that Cook County must indemnify Dart, (Mot. at 6).
4
Williams v. City of Chi., 11 C 1105, 2014 WL 3787422, at *6 (N.D. Ill. July 30, 2014) (applying
§ 8-101 to an indemnity claim against the city for § 1983 judgments against city employees);
Nixon v. Lake Cnty. Metro. Enforcement Grp. Agents, 10 C 1382, 2012 WL 74755, at *2 (N.D.
Ill. Jan. 10, 2012) (same); Loza v. City of Chi., 9 C 2474, 2009 WL 3125542, at *1 (N.D. Ill.
Sept. 25, 2009) (same). Therefore, we find that the § 8-101 statute of limitations applies
Esparza’s indemnification claim, not the § 1983 period.
Importantly, the statute of limitations on indemnity claims under § 8-101 does not begin
to accrue until judgment is entered against the employee. Williams, 2014 WL 3787422, at *6;
Nixon, 2012 WL 74755, at *2; Am. Safety Cas. Ins. Co. v. City of Waukegan, 776 F. Supp. 2d
670, 709 (N.D. Ill. 2011); Loza, 2009 WL 3125542 at *1; see Wilson v. City of Chi., 120 F.3d
681, 685 (7th Cir. 1997) (finding a plaintiff does not need to wait until he wins a judgment
against the city before bringing a § 9–102 claim). Thus, plaintiffs who succeed on § 1983
official capacity claims have up to one-year after judgment is entered to file a claim for
indemnification against the local public entity.3 Since Esparza’s substantive claims against Dart
are still pending, the statute of limitations on his indemnification claim against Cook County has
not even started to run. Accordingly, Esparza’s claim against Cook County is not timed barred.
B. Statute of Limitations for § 1983
Even if we apply the § 1983 statute of limitations, we find that Esparza’s claim against
Cook County relates back to his original complaint against Dart, and thus it is still timely.
Section 1983 claims arising in Illinois are governed by a two-year statute of limitations. Draper
3
Even though a cause of action for indemnification does not accrue until after judgment is
entered, it is well established in this circuit that a plaintiff can bring an indemnification claim
parallel with the underlying claim. Wilson, 120 F.3d at 685; Williams, 2014 WL 3787422,
at *6 (“Since Wilson, courts in this district routinely have allowed plaintiffs to file Section 9–
102 indemnity claims prior to the finding of municipal liability.”). Thus, Esparza’s claim
against Cook County is also not premature.
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v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011); Kelly v. City of Chi., 4 F.3d 509, 511 (7th Cir.
1993). Additionally, Illinois tolling rule 735 ILCS 5/13-217 allows a plaintiff who voluntarily
dismisses a § 1983 case to refile within one year of dismissal without violating statute of
limitation restrictions.4 Defendants are correct that Esparza did not name Cook County as a
defendant until after the expiration of the two-year § 1983 statute of limitations. Esparza’s cause
of action accrued sometime around November 2010,5 but he did not name Cook County as a
defendant until he re-filed the case on February 26, 2014.
Nonetheless, a plaintiff may name a new defendant after the expiration of the statute of
limitations if the new defendant “relates back” to the original timely-filed complaint. Fed. R.
Civ. P. 15(c). Federal Rule of Civil Procedure 15(c)(1)(C)(ii) provides that an amended pleading
that adds a party relates back if “the party to be brought in by amendment . . . knew or should
have known [within 120 days after the timely complaint was filed] that the action would have
been brought against it, but for a mistake concerning the proper party’s identity.”6 In Krupski v.
4
Although Defendants originally argued that the § 1983 claims against Dart were also time
barred, Defendants now concede that those claims are timely in light of Illinois’ equitable
tolling rules. (See Reply at 1; Resp. at 2–3.)
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“A § 1983 claim accrues ‘when the plaintiff knows or should know that his or her
constitutional rights have been violated.’ This inquiry proceeds in two steps. First, a court
must identify the injury. Next, it must determine the date on which the plaintiff could have
sued for that injury.” Hileman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004) (quoting Kelly v.
City of Chi., 4 F.3d 509, 511 (7th Cir. 1993)). Esparza claims that he injured his hand on
November 11, 2010, and that thereafter he made numerous unsuccessful requests for medical
care. (Compl. ¶¶ 5–6.) Esparza does not state when he submitted these requests, but
Defendants suggest that they were also filed in November 2010 and Esparza did not reply
otherwise. (Mot. at 4.) Thus, we will assume that Esparza filed his requests for medical care
in November 2010, and we find that he should have known his constitutional rights were
violated at that time.
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In addition, Rule 15(1)(C) requires that the amendment clearly “asserts a claim or defense
that arose out of the conduct . . . set out in the original pleading.” This requirement is easily
met here since the amendment sues Cook County as indemnitee for the same actions alleged
against Dart in the timely-filed complaint. See Fed. R. Civ. P. 15(c)(1)(B–C).
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Costa Crociere S. p. A., the Supreme Court held that the relation back inquiry focuses on the
defendant’s knowledge, not the plaintiff’s—reversing precedent from this circuit and others.
560 U.S. 538, 548, 130 S. Ct. 2485, 2493 (2010) (“Rule 15(c)(1)(C)(ii) asks what the prospective
defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew
or should have known at the time of filing her original complaint.”); see Solivan v. Dart, 897
F. Supp. 2d 694, 701 (N.D. Ill. 2012).
The Seventh Circuit has instructed that, after Krupski, the district court is only permitted
to make two inquiries when deciding whether relation back applies to the addition of a new
party. Joseph v. Elan Motorsports Techs. Racing Corp., 638 F.3d 555, 559 (7th Cir. 2011).
First, whether the new defendant “knew or should have known that the plaintiff, had it not been
for a mistake, would have sued him instead or in addition to suing the named defendant.” Id. at
559–60. And second, whether “the delay in the plaintiff’s discovering his mistake impaired the
new defendant’s ability to defend himself.” Id. at 560. Carelessness on the part of the plaintiff
in not discovering the proper defendant sooner “is no longer a ground independent of prejudice
for refusing to allow relation back.” Id.; see Goldsmith v. Correct Care Solutions, 12 C 3738,
2014 WL 3377058, at *3 (N.D. Ill. July 10, 2014) (“In short, examining whether the plaintiff’s
failure to sue the belatedly-named defendant earlier was a mistake is the wrong focus.”).
In Krupski, the plaintiff sought compensation for injuries that she suffered on a cruise
ship. In her original complaint the plaintiff sued Costa Cruise, which was the sales and
marketing agent for the actual cruise ship operator Costa Crociere. After the expiration of the
statute of limitations, the plaintiff amended her complaint to substitute Costa Crociere for Costa
Cruise. The Court of Appeals found that the plaintiff had made a deliberate choice to not sue
Costa Crociere, instead of a mistake under Rule 15(c)(1), because its identity was clearly known
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to her when she filed the original complaint. Krupski, 560 U.S. at 548, 130 S. Ct. at 2493.
Reversing that finding, the Supreme Court held that a plaintiff’s knowledge of a party’s
existence “does not preclude her from making a mistake with respect to that party’s identity.” Id.
at 549, S. Ct. 2494. The Court explained that “a plaintiff might know that the prospective
defendant exists but nonetheless harbor a misunderstanding about his status or role in the events
giving rise to the claim at issue, and she may mistakenly choose to sue a different defendant
based on the misimpression.” Id. It then found that even though the plaintiff might have known
that Costa Crociere was the ship carrier, that knowledge did not foreclose the possibility that she
misunderstood the two companies’ identities and relationship to one another. Id. at 554–56, 130
S. Ct. at 2497–98. Ultimately, the Court ruled that the relation back requirements were satisfied
because “Costa Crociere should have known that [the plaintiff’s] failure to name it as a
defendant in her original complaint was due to a mistake concerning the proper party’s identity.”
Id. at 557, 130 S. Ct. at 2498; see also Brown v. SportsArt Am., Inc., 10 C 6818, 2012 WL
5304157, at *4 (N.D. Ill. Oct. 25, 2012) (finding that a subsidiary knew or should have known
that the plaintiff intended to sue it, rather than the parent, because the companies shared “an
identity of interests” and were “closely connected entities”); Mitter v. Cnty. of DuPage,
13 C 841, 2013 WL 5951810, at *5 (N.D. Ill. Nov. 7, 2013) (finding the sheriff’s office should
have known that its omission from the original complaint was inadvertent where the original
complaint named the county).
As in Krupski, we cannot find that Esparza’s failure to sue Cook County sooner was a
well-informed and deliberate decision. Rather, the delay is likely attributable to Esparza’s
misunderstanding regarding the relationship between Dart and Cook County; namely which
party is liable for judgments arising out of Dart’s actions. As we have stated, Esparza seeks to
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join Cook County only to indemnify judgments against Dart in his official capacity. In Illinois,
the sheriff’s office does not have the authority to establish a budget or levy taxes and is instead
financed by public funds appropriated by the county board. Carver, 203 Ill.2d at 516, 787
N.E.2d at 138 (citing 55 ILCS 5/4-6003; 55 ILCS 5/5-1106). Thus, the Illinois Supreme Court
determined that the county is obligated to pay official capacity judgments entered against the
sheriff. Carver, 203 Ill.2d at 516, 787 N.E.2d at 138. Furthermore, in Carver v. Sheriff of
LaSalle Cnty., Ill., the Seventh Circuit held that “[b]ecause state law requires the county to pay,
federal law deems it an indispensable party to the litigation” against the sheriff. 324 F.3d 947,
948 (7th Cir. 2003).
In response to Defendants’ motion to dismiss Cook County, Esparza explains that it seeks
to join Cook County to abide by the Carver decision. (Resp. at 3.) Even though Esparza
undoubtedly knew that Cook County existed when he filed his original complaint, he apparently
misunderstood which party would be responsible for the judgment against Dart. Particularly
because the sheriff’s office lacks funds to pay judgments against it, there is no other logical
conclusion for the omission. See Krupski, 560 U.S. at 555–56, 130 S. Ct. at 2497–98
(“[R]espondent has articulated no strategy that it could reasonably have thought [plaintiff] was
pursuing in suing a defendant that was legally unable to provide relief). Indeed, nothing in the
record suggests that Esparza failed to name Cook County sooner because of anything other than
a mistake.
In addition, we find that Cook County knew or should have known that, but for Esparza’s
mistake, Esparza would have named it as a defendant sooner. Carver, decided in 2003, was
applied in countless cases against Dart and Cook County before Esparza filed his original
complaint. See, e.g., Askew v. Sheriff of Cook Cnty., Ill., 568 F.3d 632, 637 (7th Cir. 2009)
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(citing Carver and finding that the district court should have joined Cook County as a defendant
in an action against the Sheriff instead of dismissing the case); Riley v. Cnty. of Cook, 682
F. Supp. 2d 856, 861 (N.D. Ill. 2010); Cooper v. Office of Sheriff of Will Cnty., 333 F. Supp. 2d
728, 736–37 (N.D. Ill. 2004). Thus, Cook County cannot reasonably argue that it was unaware
of its obligation to indemnify Dart for actions taken in his official capacity or that the Seventh
Circuit deems it a necessary party to those cases. As soon as Esparza named Dart as a defendant
in his first amended complaint, Cook County should have known that Esparza also intended to
sue it pursuant to Carver.
Finally, Defendants have not argued or explained how adding Cook County at this stage
would be prejudicial. See Mitter, 2013 WL 5951810, at *5 (finding that an amended complaint
adding the sheriff’s office as a defendant related back to the original complaint in part because
defendants failed to articulate any prejudice). To the contrary, we find that adding Cook County
as a defendant will not cause prejudice since Cook County’s presence will not change the scope
of discovery or the merits of Esparza’s claims. See Brown, 2012 WL 5304157, at *4 (finding no
prejudice where the parties had not started discovery on the topics relevant to the new party and
such discovery would be necessary regardless of whether the new defendant remained a party).
Our conclusion is consistent with the district court’s holding in Dandridge v. Cook Cnty.,
12 C 5458, 2013 WL 3421834 (N.D. Ill. July 8, 2013), which addressed facts very similar to
those here. In that case, the plaintiff filed a timely complaint against Dart alleging § 1983
violations. Id. at *1. After the statute of limitations period, the plaintiff filed an amended
complaint adding Cook County as a defendant for the first time. Id. In permitting Cook County
to remain a party, the court explained: “[t]o the extent that Cook County contends that the claims
against it are time barred because only Sheriff Dart was named in the caption to the original
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complaint (and not Cook County for indemnification purposes), Cook County’s argument is not
well taken. This is the exact scenario that the Supreme Court in Krupski sought to remedy.” Id.
at *10 n.5; see also Askew, 568 F.3d at 637 (finding that the district court should have joined
Cook County in a § 1983 action against the sheriff, even after the § 1983 statute of limitations
expired).
In sum, we find that even applying the § 1983 statute of limitations, Rule 15(c)(1)
relation back applies to Esparza’s indemnification claim against Cook County. As long as
Esparza’s claims against Dart remain pending, Cook County is a necessary party to this action
and we will not dismiss it.
II.
Deliberate Indifference Claim Against Dart
Defendants argue that Esparza’s complaint fails to state a claim against Dart for
deliberate indifference under § 1983. (Mot. at 7–8.) The Fourteenth Amendment provides a pretrial detainee with a cause of action for deliberate indifference to his medical needs. Heard v.
Sheahan, 148 Fed. App’x 539, 540 (7th Cir. 2005) (“The Fourteenth Amendment, not the Eighth,
protects a pre-trial detainee from denial of adequate medical care, but our analysis is practically
identical to the Eighth Amendment standard of deliberate indifference.”); Hall v. Ryan, 957 F.2d
402, 405 (7th Cir. 1992). “A finding of deliberate indifference requires a showing that the
Sheriff was aware of a substantial risk of serious injury to Plaintiff but nevertheless failed to take
appropriate steps to protect him from a known danger.” Frake v. City of Chi., 210 F.3d 779, 782
(7th Cir. 2000); accord Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014).
Defendants assert that admissions in Esparza’s past pro se complaints preclude his claim
for deliberate indifference against Dart, and they ask us to take judicial notice of those
complaints. (Mot. at 7.) Specifically, Defendants argue that the inoperative complaints establish
that Dart ensured Esparza received medical care by taking him to Stroger Hospital. (Id.)
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Although the district court may, under some circumstances, consider earlier versions of
pleadings as evidence of the facts therein, these pleadings are not judicial admissions that can be
considered on a motion to dismiss. 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir.
2002) (“When a party has amended a pleading, allegations and statements in earlier pleadings are
not considered judicial admissions.”); Moriarty v. Larry G. Lewis Funeral Dirs. Ltd., 150 F.3d
773, 777–78 (7th Cir. 1998) (rejecting defendants’ argument that the plaintiff pleaded himself
out of court through allegations in superseded complaints); DePaepe v. Gen. Motors Corp., 141
F.3d 715, 719 (7th Cir. 1998). Indeed, the Seventh Circuit has explained that parties are “not
bound by the factual allegations made in [] earlier pleading[s].” 188 LLC, 300 F.3d at 736. “An
amended pleading ordinarily supersedes the prior pleading. The prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading and becomes functus officio.”
Id. (quoting Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir. 1955)). Since Esparza’s earlier
pleadings are not judicial admissions, and because we cannot weigh evidence on motion to
dismiss, we will not consider them at this time.
Defendant also argues that even if a jury found Esparza did not receive proper medical
treatment, Stroger Hospital would be liable instead of Dart. (Mot. at 7; Reply at 4–5.) This
argument, however, once again requires us to rely on Esparza’s earlier pleadings. In the
operative amended complaint, Esparza does not allege that he was ever taken to Stroger Hospital.
Instead, he simply claims that despite “numerous unsuccessful written requests for medical care”
he “did not receive treatment to set the fracture in his hand.” (Compl. ¶¶ 6–7.) These allegations
place the alleged liability squarely on the sheriff’s office. We already determined that we will
not consider Esparza’s earlier pleadings; therefore, Defendants’ attempt to push liability to
Stroger Hospital fails.
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We also reject Defendants’ contention that Esparza did not allege a sufficiently serious
injury. (Mot. at 7–8.) To succeed on his claim that Dart acted with deliberate indifference to his
medical needs, Esparza must show that he had an “objectively serious medical need.” King v.
Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012); Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.
2001). Defendants point to Esparza’s original complaint, which mistakenly stated that his hand
is “not permanently deformed,” to argue that Esparza’s injury was not objectively serious. (Mot.
at 7–8.) In his response, Esparza explained that his original complaint contained a typographical
error, which he resolved in the amended complaint attached thereto. (Resp. at 1 n.1.) The nowoperative complaint alleges that his hand suffered a fracture and is “now permanently deformed.”
(Compl. ¶¶ 5, 7.) The Seventh Circuit has recognized a broad range of medical conditions that
qualify as a serious medical condition for deliberate indifference claims. See King, 680 F.3d
at 1018 (explaining that “[m]edical conditions much less serious than seizures have satisfied the
standard”); Roe v. Elyea, 631 F.3d 843, 861 (7th Cir. 2011) (noting that “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”). We find that a fracture and deformity certainly
meet the standard.
Finally, in their reply motion, Defendants argue for the first time that Esparza fails to
sufficiently state an “official policy [or] widespread practice,” which is a necessary element of a
§ 1983 official capacity claim. (Reply at 2–3.) Grieveson v. Anderson, 538 F.3d 763, 771
(7th Cir. 2008) (quoting Wagner v. Washington Cnty., 493 F.3d 833, 836 (7th Cir. 2007)); Eckert
v. City of Chi., 8 C 7397, 2009 WL 1409707, at *4 (N.D. Ill. May 20, 2009). Because
Defendants did not raise this argument until its reply brief, we will not consider it. Wigod v.
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Wells Fargo Bank, N.A., 673 F.3d 547, 571 (7th Cir. 2012) (“[A]rguments raised for the first
time in a reply brief are waived.”); Padula v. Leimbach, 656 F.3d 595, 605 (7th Cir. 2011);
United States v. Haynes, 11 C 8483, 2012 WL 4490532, at *3 (N.D. Ill. Sept. 28, 2012); Del
Monte Fresh Produce, N.A., Inc. v. Chiquita Brands Int’l Inc., 616 F. Supp. 2d 805, 830 (N.D.
Ill. 2009) (“[A] movant may [not] present new arguments in a reply brief simply because the
non-movant added specificity to facts originally alleged in the pleadings.”).
CONCLUSION
For the above reasons, Defendants’ motion to dismiss is denied. Cook County remains a
defendant for indemnification purposes only, and Esparza may proceed with his substantive
§ 1983 claims against Dart. It is so ordered.
____________________________________
Marvin E. Aspen
United States District Judge
Dated: Chicago, Illinois
November 4, 2014
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