Bell v. Kay et al

Filing 120

MEMORANDUM Opinion and Order: Tuwayne Bell brings this claim against Sheriff John Zaruba (in both his individual and official capacities), Supervisor Kay, Supervisor Sarah Lee, Supervisor Serafeo, Supervisor Tony, Supervisor Ms. D, A'Viands, LLC , DuPage County, and DuPage County Sheriff's Office alleging deliberate indifference to his safety under 42 U.S.C. § 1983 and a tort violation under Illinois law. Currently before the Court is Dupage County and Sheriff Zaruba's (" defendants") motion 95 to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants' motion to dismiss is granted. Bell's complaint is dismissed without prejudice. Signed by the Honorable Sharon Johnson Coleman on 6/13/2019. Mailed notice. (ym, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TUWAYNE BELL,

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Plaintiff,
v.

KAY, et al.,
Defendants.

Case No. 14-cv-9965
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Tuwayne Bell brings this claim against Sheriff John Zaruba (in both his individual and
official capacities), Supervisor Kay, Supervisor Sarah Lee, Supervisor Serafeo, Supervisor Tony,
Supervisor Ms. D, A’Viands, LLC, DuPage County, and DuPage County Sheriff’s Office alleging
deliberate indifference to his safety under 42 U.S.C. § 1983 and a tort violation under Illinois law.
Currently before the Court is Dupage County and Sheriff Zaruba’s (“defendants”) motion [95] to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained
below, defendants’ motion to dismiss is granted.
Background
The following facts are summarized from Bell’s Second Amended Complaint and are taken
as true for the purpose of deciding this motion. Bell was a pretrial detainee at the Dupage County
Jail. On April 8, 2013, Bell was working in the jail’s kitchen. A wheel malfunctioned on a cart Bell
was using to transport boiling water, which spilled and burned Bell. A doctor diagnosed Bell with
second-degree burns to his foot. Bell asserts that his injury occurred because of a lack of protective

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equipment despite numerous requests by inmates for proper protective gear for those who work in
the kitchen.
In Count I, Bell alleges that the defendants were deliberately indifferent to his injuries in
violation of 42 U.S.C. § 1983. In Count II, Bell alleges vicarious liability against DuPage County and
A’ Viands, LLC for the deliberate indifference of their supervisor-employees. Finally, in Count III,
Bell alleges a violation of the Local Government and Government Employees Tort Immunity Act,
745 ILCS 10/1-206.
Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint, not the merits of the allegations. To overcome a motion to dismiss, a
complaint must contain sufficient factual allegations to state a claim for relief that is plausible on its
face, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and raises the right
to relief above a speculative level, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007). When ruling on a motion to dismiss, the Court must accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Park v.
Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012).
Discussion
1. Deliberate Indifference Against Sheriff Zaruba in his Individual Capacity
Defendants argue that Count I should be dismissed against Sheriff Zaruba. Specifically,
defendants contend that Bell fails to allege that Sheriff Zaruba was personally involved with Bell’s
injury. To state a claim for deliberate indifference under section 1983, a plaintiff must plausibly allege
that the defendant was personally responsible for the conduct that caused the alleged constitutional
deprivation. See Childress v. Walker, 787 F.3d 433, 439-40 (7th Cir. 2015) (internal citation omitted). Put
differently, the defendant must “know about the conduct and facilitate it, approve it, condone it, or
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turn a blind eye for fear of they might see.” Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th
Cir. 2012) (internal citation omitted).
Bell alleges that Sheriff Zaruba, along with the other defendants, “knew of the serious dangers”
Bell faced while working in the kitchen but failed to take any action. Dkt. 1 at 5. However, Bell does
not assert any plausible facts that Sheriff Zaruba was aware of or facilitated any serious risk of danger.
His role as Sheriff, alone, does not automatically attach supervisory liability under section 1983. As
such, the Court finds that Bell has not adequately stated a claim for deliberate indifference against
Sheriff Zaruba. Defendants’ motion to dismiss Count I as to Sheriff Zaruba in his individual capacity
is granted.
2. Deliberate Indifference Against DuPage County and Sheriff Zaruba in his Official Capacity
Defendants argue that Bell’s section 1983 claim against DuPage County and Sheriff Zaruba in
his official capacity should be dismissed. To hold a municipality or officer in his official capacity liable
under section 1983, a plaintiff must allege that the constitutional violation was caused by: (1) an official
policy; (2) a widespread custom practice; (2) or an official with final policy-making authority. See
Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010) (citing Monell v. Department of
Social Services of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.E.d 611 (1978)). While there is
no heightened pleading standard for Monell claims, a plaintiff must allege more than conclusory
allegations. See Williams v. City of Chicago, 315 F. Supp. 3d 1060, 1079 (N.D. Ill. 2018) (Kendall, J.).
In his Second Amended Complaint, Bell alleges that Sheriff Zaruba “[was] responsible for the
implementation of the policies, procedures, practices, and customs” that led to the alleged
constitutional deprivation. Dkt. 91 at 2. But even at the pleading stage, Bell’s assertions are precisely
the type of conclusory allegations that are prohibited. See id. at 1082. Bell has not alleged any facts that
allow a reasonable inference that his injury was the result of an official policy or widespread custom.
See Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (upholding district court’s dismissal of
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complaint failing to allege any plausible facts that a policy or widespread practice existed). Bell further
argues that “a local government’s inaction to prevent widespread wrongful conduct is tantamount to
having a policy that allows such conduct.” Dkt. 121 at 4. But Bell does not provide, and the Court has
not found, any legal authority in support of this argument. An accident does not, in and of itself,
conclusively demonstrate an official policy or widespread custom. Accordingly, the Court finds that
Bell has not stated a section 1983 claim against DuPage County or Sheriff Zaruba in his official
capacity.
3. Tort Claim
Finally, Count III is untimely. The Local Government and Governmental Employees Tort
Immunity Act prevents any action from being filed against a public entity or its employees more than
one year after alleged the incident. 745 ILCS 10/8-101(a); Snyder v. Village of Midlothian, 302 F.R.D.
231, 233-34 (N.D. Ill. 2014). In this case, Bell alleges that his injury occurred on April 8, 2013.
However, Bell’s original complaint was not filed until December 10, 2014, more than eight months
past the one-year statute of limitations. As such, Count III is dismissed.
Conclusion
For the reasons explained above, Bell’s complaint is dismissed without prejudice.
IT IS SO ORDERED.
Date: 6/13/2019
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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