Miller v. County Of Cook et al

Filing 32

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 10/21/2015. Mailed notice(gel, ) (Main Document 32 replaced on 10/21/2015) (gel, ).

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
David Miller,
Plaintiff,
v.
Thomas J. Dart, et al.,

Case No. 14 C 1407
Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff David Miller, formerly an inmate in the Cook County Department of
Corrections, has sued under 42 U.S.C. §1983 alleging violation of his Eighth
Amendment right to be free from cruel and unusual punishment. 1 Miller sued
Sheriff Thomas J. Dart, Cook County, the Cook County Department of Corrections,
Cermak Health Services, Dr. Jack Liu and numerous Doe Defendants.

The

defendants have moved to dismiss Miller’s claim against Sheriff Dart, the Cook
County Department of Corrections, Cermak Health Services and the Doe
Defendants. The motion is granted.

The complaint does not state whether Miller was a pretrial detainee or a convicted person
during the relevant time period. But if he was a pretrial detainee, his claim would be
governed by the Fourteenth Amendment and not the Eighth Amendment, which applies
only to convicted persons. E.g., Minix v. Canarecci, 597 F.3d 824, 830-31 (7th Cir. 2010).
The Court’s analysis is the same in either case for present purposes. But counsel may wish
to consider whether the distinction may become important later in the proceedings.
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Background & Procedural History
Miller submitted his complaint [1] on February 26, 2014, along with an
application for leave to proceed in forma pauperis [3]. The Court granted him leave
to proceed in forma pauperis, dismissed the complaint without prejudice and
recruited counsel to represent him [5]. With the assistance of his recruited counsel,
Miller then filed an amended complaint on April 24, 2015 [14].

The amended

complaint alleges that, while an inmate in the CCDOC, Miller experienced
inhumane treatment and an extreme and unreasonable delay in receiving medical
care for a serious medical condition.

Amended Complaint [14], ¶1.

He seeks

redress pursuant to 42 U.S.C. §1983 for violation of his Eighth Amendment right.
Id., ¶¶15-33.
With regard to the allegations against specific defendants, Miller alleges that
Dart “was given custody and charge of Miller and was responsible for Miller’s
protection, as well as for the hiring, training and supervision of all personnel
necessary to operate and maintain the CCDOC. He is sued in his official capacity.”
Id., ¶8. With respect to the Doe Defendants, Miller alleges that these defendants
(the case caption names Does 1-45, but the substantive allegations refer to Does 124) “were, at all times relevant herein, employees of the Cook County who had
responsibility for ensuring David received proper medical services.”

Amended

Complaint [14], ¶12. Miller sues each defendant in both his individual and official
capacities. Id., ¶¶12-13.

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Miller alleges that he suffered from tooth pain and first requested medical
attention for that pain in February 2012. Id., ¶15. Miller was evaluated by Dr. Liu,
a dentist with Cermak Health Services, on February 8, 2012 and told that his
wisdom tooth was growing horizontally to his gum line and that three teeth (17, 30
and 32) were impacted. Id., ¶17. At that time, Miller was also advised that Cook
County Jail did not have the necessary resources available to perform surgery to
remove the impacted teeth and that he would have to go to Stroger Hospital for the
surgery. Id., ¶19. Dr. Liu gave him ibuprofen and ordered follow up visits. Id.,
¶20. Dr. Liu saw Miller again on July 24, 2012; by that time, Miller’s face was
swollen and he was unable to eat, swallow or sleep.

Id., ¶¶21-22.

Miller was

prescribed antibiotics on September 17, 2012, October 1, 2012, November 5, 2012,
November 15, 2012, November 30, 2012, December 7, 2012, January 22, 2013,
March 1, 2013 and March 18, 2013. Id., ¶28. Miller alleges that this “excessive and
dangerous overuse of antibiotics failed to address the true medical condition of
impacted teeth.” Id., ¶29.

Although the complaint does not expressly say so, it

appears that Miller had surgery in May 2013.
Miller alleges that “Dr. Liu knew David faced a substantial risk of serious
harm and disregarded that risk by failing to take reasonable measures to correct it”
and that “Dr. Liu provided David with inadequate medical care in violation of his
constitutional rights by . . . acting with deliberate indifference to [his] serious
medical need . . . .” Id., ¶¶30-31.
Miller also alleges that

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[t]he practice or custom include the following tactics by the Cook
County Jail, which are used so frequently that they amount to an
official policy of the Cook County Jail:
e. Responding to David’s and other detainees’ complaints of
mistreatment, including failure to provide medical attention, with
inadequate investigations and grievance responses calculated to
mislead the public and which show a deliberately indifferent attitude
towards official misconduct;
years;

f. Delaying investigations and treatment for months and even

g. Creating an atmosphere where medical personnel are
discouraged from treating inmates’ injuries and adequately
documenting the injuries;
h. Providing no protection or incentives for medical personnel at
Cook County to treat inmates’ injuries promptly and adequately and to
document the injuries appropriately, and instead provided protection
for medical personnel to refuse timely treatment and omit
documentation of medical care.
Id., ¶32. Miller seeks compensatory and punitive damages from all defendants, as
well as costs and attorney’s fees.
The defendants moved to dismiss the complaint as to the Cook County
Department of Corrections, Cermak Health Services, Sheriff Dart and the Doe
Defendants. For the following reasons, the motion is granted.

Discussion & Analysis
Under Rule 12(b)(6), the Court must construe the complaint in the light most
favorable to the Plaintiff, accept as true all well-pleaded facts and draw reasonable
inferences in her favor. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013);
Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Statements of law,
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however, need not be accepted as true. Yeftich, 722 F.3d at 915. To survive a
motion under Rule 12(b)(6), the complaint must “state a claim to relief that is
plausible on its face.” Yeftich, 722 F.3d at 915. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
A.

CCDOC and Cermak Health Services

Defendants first argue that the Cook County Department of Corrections and
Cermak Health Services are not suable entities and that, as a result, the claim
against these defendants must be dismissed.

In response to the motion, Miller

concedes that his claims against these entities may not proceed, and rightly so. See,
e.g., Service Employees International Union, Local 73 v. Cook County, No. 13 C
2935, 2014 WL 793114, at *4 (N.D. Ill. Feb 26, 2014)(Cermak Health Services is not
a suable entity); Castillo v. Cook County Mail Room Department, 990 F.2d 304, 307
(7th Cir. 1993)(“Cook County Department of Corrections is not a suable entity”).
Accordingly, the motion to dismiss is granted as to these defendants.
B.

The Doe Defendants

Defendants next argue that the allegations against the Doe Defendants must
be dismissed because Miller “fails to allege any action taken by ‘John Does 1-45’
against Plaintiff in violation of Plaintiff’s constitutional rights.” Motion to Dismiss
[10], p. 3. The defendants also emphasize the ambiguity in terms of the number of
defendants, given that the caption of the complaint identifies 45 Doe Defendants
and the substantive allegations of the complaint identify 24 Doe Defendants.

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In response, Miller clarifies that he is suing 45 Doe Defendants, not 24, and
argues that it is proper to name defendants in this manner until such time as he
learns the defendants’ true identities.

He argues that the sheer number of

employees at the CCDOC prevents him from naming those involved in the
deprivation of his constitutional rights.
Although Miller has accurately stated the theory behind naming Doe
Defendants, his allegations do not implicate anyone but Dr. Liu. Miller has pled no
facts that support a reasonable inference that any Doe Defendant was personally
involved in the constitutional deprivation.

The Amended Complaint does not

include any substantive allegations directed at any Doe Defendant; rather, the
substantive allegations of the complaint are directed solely and exclusively against
Dr. Liu. Accordingly, the Court agrees that the allegations are insufficient as a
matter of law to state a claim against any Doe Defendant. To the extent Miller is
able to amend his complaint to include allegations against Doe Defendants that
allow the parties to ascertain specific employees’ identities – and is able to do so
consistent with his obligations under Rule 11 and the relevant statute of limitations
– Miller is given leave to amend his complaint.
C.

Sheriff Thomas Dart

Next, defendants move to dismiss the complaint against Sheriff Dart in both
his personal and his official capacities.

The defendants first argue that the claim

against Dart in his personal capacity fails as a matter of law because Miller does
not allege any facts indicating that Dart was personally aware of Miller’s condition

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or was otherwise personally involved in the alleged constitutional violations.
Miller concedes that he may not proceed against Dart in his personal capacity, and,
given the lack of any allegations of personal involvement on Sheriff’s Dart’s part,
the claim against Sheriff Dart personally is dismissed. See, e.g., Pikul v. Dart, No.
13 C 6585, 2014 WL 287535, at *2 (N.D. Ill. Jan. 27, 2014)(individual liability under
§1983 requires personal involvement in the alleged constitutional violation).
The defendants argue that the claim against Sheriff Dart in his official
capacity should also be dismissed. Defendants argue that Dart is not responsible
for providing Miller’s day-to-day dental care and is not responsible for staffing
medical professionals at Cermak Health Services. In response, Miller argues that
Dart has a non-delegable duty to provide medical care to inmates and that he is an
appropriate defendant in light of the Monell claim.
It is true that Sheriff Dart is exclusively charged with the custody and care of
the county jail and is, therefore, the proper defendant named in a Monell claim
against the jail (really, the Cook County Sheriff’s Office). However, Miller’s Monell
claim is deficient in two important respects and, accordingly, the claim fails despite
the fact that he may have named the right person.
Under Monell v. Department of Social Services of City of New York, 436 U.S.
658 (1978), “[l]ocal governing bodies . . . can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that body’s officers.” Monell, 436

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U.S. at 690. “On the other hand, the language of § 1983 . . . compels the conclusion
that Congress did not intend municipalities to be held liable unless action pursuant
to official municipal policy of some nature caused a constitutional tort.” Id. at 691.
For liability to attach under Monell, the official policy must be the “moving force of
the constitutional violation.” Monell, 436 U.S. at 694. Whatever the evidence of
deliberate indifference, the plaintiff must “show a direct causal connection between
the policy or practice and his injury, in other words that the policy or custom was
‘the moving force [behind] the constitutional violation.’” Rice ex rel. Rice v.
Correctional Medical Services, 675 F.3d 650, 675 (7th Cir. 2012)(quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)).
Sheriff Dart – in his official capacity as the head of the Sheriff’s Office – may
be liable under §1983 only if the alleged constitutional violations resulted from the
execution of one of its policies. Monell, 436 U.S. at 694. “This may be established by
alleging: (1) an express policy that caused the constitutional deprivation; (2) a
widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled that it constitutes a policy; or (3)
that the constitutional injury was caused by a person with final policymaking
authority.”

Armour v. Country Club Hills, No. 11 C 5029, 2014 WL 63850, at *5

(N.D. Ill. Jan. 8, 2014)(citing Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir.
2007)).
Miller does not allege an express policy; nor does he allege that his
constitutional injury was caused by a person with final policymaking authority.

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Rather, he relies upon the second option, alleging that his injury was caused by a
practice or custom that is used so frequently that it amounts to an official policy of
the Cook County Jail – practices and customs that include responding to complaints
of mistreatment “with inadequate investigations and grievance responses calculated
to mislead the public”; “[d]elaying investigations and treatment for months and
even years”; “[c]reating an atmosphere where medical personnel are discouraged
from treating inmates’ injuries and adequately documenting the injuries”; and
“[p]roviding no protection or incentives for medical personnel at Cook County to
treat inmates’ injuries promptly and adequately and to document the injuries
appropriately.” Amended Complaint, ¶33.
In this case, Miller’s Monell claim is largely (but not entirely) deficient on the
causation front.

Accepting as true that the jail had these policies, Miller has not

alleged “a direct causal connection between the policy or practice and his injury.”
Miller has alleged four “tactics” employed at the jail “that are used so frequently
that they amount to an official policy” of the jail. Amended Complaint [14], ¶32. He
alleges that the jail has a policy of responding to complaints of mistreatment “with
inadequate investigations” and to grievances in a way that is “calculated to mislead
the public . . . .” Id., ¶32(e). But he has not alleged that anyone responded to his
complaint with an inadequate investigation or that anyone responded to his
grievances with calculation designed to mislead; nor has he alleged that he suffered
any harm as a result of this policy.

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Instead, he simply alleges that the jail has a policy of “[c]reating an
atmosphere where medical personal are discouraged from treating inmates’ injuries
and adequately documenting the injuries,” id., ¶32(g). But he has not alleged that
Dr. Liu was discouraged from treating him or that his injuries were inadequately
documented.

Likewise, he alleges that the jail has a policy of “[p]roviding no

protection or incentives for medical personnel at Cook County to treat inmates’
injuries promptly and adequately and to document the injuries appropriately,” id.,
¶32(h), but he has not alleged that Dr. Liu failed to treat him promptly because of
some disincentive or the lack of any protection; nor has he alleged that Dr. Liu
failed to document his injuries.

Miller has not alleged that any of these policies

was the driving force behind the constitutional violation he suffered.
More importantly, Miller’s Monell claim also pleads no facts to support a
reasonable inference that the Sheriff’s Office engaged in “a widespread practice that
is so permanent and well-settled that it constitutes a custom or policy.”

To

establish municipal liability under §1983, a plaintiff must present sufficient
evidence to show that the constitutional violation resulted from a municipal policy,
custom, or practice. Monell, 436 U.S. at 694. “This requirement ‘distinguish[es]
acts of the municipality from acts of employees of the municipality, and thereby
make[s] clear that municipal liability is limited to action for which the municipality
is actually responsible.’” Waters v. City of Chicago, 580 F.3d 575, 580-81 (7th Cir.
2009)(quoting Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515
(7th Cir. 2007). To establish liability on the part of the Sheriff’s Office, Miller must

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demonstrate that within the office there was a widespread practice that was so
permanent and well-settled that it constituted a custom or policy. Waters, 580 F.3d
at 580. Miller alleged no facts to support the existence of a widespread practice; he
merely alleged the existence of a widespread practice. Such conclusory allegations
are not enough.
To survive a motion to dismiss, “factual allegations must be more than
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.’” Olson v. Champaign County, Ill., 784 F.3d 1093, 1099 (7th
Cir. 2015) (quoting Iqbal, 556 U.S. at 678). To state a Monell claim against the
Sheriff’s Office for violation of Miller’s Eighth Amendment right, Miller must plead
“factual content that allows the court to draw the reasonable inference” that the
Sheriff’s

Office

“maintained

a

policy,

custom,

or

practice

of

intentional

discrimination against a class of persons to which [Miller] belonged.” McCauley v.
City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)(citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Monell, 436 U.S. at 694, Srail v. Village of Lisle, Ill., 588 F.3d 940,
943 (7th Cir. 2009).
Although there is no clear consensus as to how frequently the conduct
complained of must occur, the Seventh Circuit has given some guidance and
determined that one incident is not enough and three likely is not enough either.
Thomas v. Cook County Sheriff’s Department, 604 F.3d 293, 303 (7th Cir.
2009)(citing Cosby v. Ward, 843 F.2d 967, 983 (7th Cir. 1988); Gable v. City of
Chicago, 296 F.3d 531, 538 (7th Cir. 2002)).

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Regardless, “the plaintiff must

demonstrate that there is a policy at issue rather than a random event.” Thomas v.
Cook County Sheriff's Dep’t, 604 F.3d 293, 303 (7th Cir. 2010). Simply alleging that
there is a policy at issue is not enough. Miller’s only allegation suggesting that
anyone else may have been affected by the policies he challenges states that the
policy included “[r]esponding to David’s and other detainees’ complaints of
mistreatment, including failure to provide medical attention, with inadequate
investigations . . . .” Amended Complaint [14], ¶32(e).

Even if Miller had alleged

causation with respect to this one policy (he has not), “other detainees” – without
more – is not enough to state a Monell claim. And Miller does not allege that
anyone other than him was harmed by the alleged policy of “delaying investigations
and treatment for months and even years.”

With respect to the other policies

identified, not only does he not allege than anyone else was harmed by them, he
does not even allege that he was harmed by them. Miller’s Monell claim against the
Sheriff’s Office is dismissed without prejudice.
Conclusion
In light of the foregoing, defendants’ motion to dismiss [19] is granted.
Miller’s claim is dismissed with prejudice as against the Cook County Department
of Corrections, Cermak Health Services and Sheriff Thomas J. Dart in his personal
capacity, and dismissed without prejudice as to the Doe Defendants and Sheriff
Dart in his official capacity.

To the extent Miller can amend his complaint

consistent with his obligations under Rule 11, he is given leave to file a second

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amended complaint by November 5, 2015. Regardless of any amendment, the case
may proceed against the non-moving defendants, Cook County and Dr. Liu.
Date: October 21, 2015
ENTERED:

____________________________
John Robert Blakey
United States District Judge

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