Bradford et al v. City of Chicago, a municipal corporation et al

Filing 72

MEMORANDUM Opinion and Order: For the forgoing reasons, the City's motion to dismiss, 56 , is denied. The parties are to appear to discuss a reasonable discovery schedule on the Monell claim at the status hearing set for 5/31/2017 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 5/15/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LINDA BRADFORD, as Special
Administrator of the ESTATE OF
DEVELT BRADFORD, deceased, and
LINDA BRADFORD, Individually,
PLAINTIFFS,
v.
CITY OF CHICAGO, a Municipal
Corporation, CHICAGO POLICE
OFFICER PHYLLIS GILL, CHICAGO
POLICE OFFICER JOHN OTTO, and
DETENTION AIDE DARRIN WEST,
DEFENDANTS.

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No. 16 C 1663
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Before this Court is the City of Chicago’s Rule 12(b)(6) motion to dismiss the
recently added Monell claim to the above-captioned suit. For the reasons that
follow, the motion is denied.
Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Moreover, “when evaluating the sufficiency of a complaint,” the Court may also
consider “facts alleged by a plaintiff in a brief in opposition to a motion to dismiss . .
. so long as they are consistent of the allegations in the complaint.” Smith v. Dart,
803 F.3d 304, 311 (7th Cir. 2015) (internal quotation marks and citation omitted);
see also Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (“[A] party
opposing a Rule 12(b)(6) motion may submit materials outside the pleadings to
illustrate the facts the party expects to be able to prove” and “may find it prudent to
do so”) (citations omitted).
Background
The factual allegations in this case are simple, but serious. On November 15,
2011, Devalt Bradford was arrested and charged with first degree murder. R. 44
(Complaint) ¶¶ 9, 12. After some shuffling between interview rooms and lineups, on

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November 16, 2011, Bradford was placed in a holding cell in the Fifth District
lockup beyond the sight and hearing of the police officer and detention aide on duty.
Id. ¶¶ 11, 13, 18-19. The cell was outfitted with a security camera, but the camera
was broken, and had been for years before. Id. ¶¶ 14-17, 23. Despite numerous
complaints from officers, the camera was never repaired. Id. ¶¶ 25-26. Plaintiff
alleges that it is common knowledge that arrestees charged with serious felonies
like murder are a suicide risk. R. 64 (Response) at 6. She further alleges that city
employees knew of safer places in the lockup to hold “at-risk detainees” than the
cell where Bradford was placed. Id.
On duty that night were one police officer and one detention aide, though
previously the standard had been to have three or four employees on lockup duty in
the cellblock where Bradford was detained. Id. The detention aide on duty had
complained to his superiors on more than one occasion before that shift that “two
people is not enough to work lockup.” R. 64-2 at 6. No staffing adjustments were
made in response to his complaints. Id.
In the early hours of November 17, 2011, Bradford hanged himself by his
pants. R. 44 ¶ 21. Three days later, again with only two employees on lockup duty
and no functioning security cameras, another arrestee held at the Fifth District also
committed suicide, hanging himself by his underpants. See Woods v. City of
Chicago, No. 16 C 1671, slip op. at 1 (N.D. Ill. Dec. 23, 2016) (order denying motion

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for judgment on the pleadings). 1 According to Plaintiff, several other “extraordinary
occurrences” such as deaths or serious injuries took place in city lockup cells beyond
the sight and hearing of on-duty staff and without functioning cameras between
2006 and 2011. 2 R. 64 at 6-7.
This case was brought by Bradford’s wife on his behalf and in her individual
capacity. It alleges that the continuous and systematic understaffing of city lockups
and the City’s ongoing failure to repair security equipment installed to ensure
inmate safety created constitutionally unreasonable conditions of confinement for
inmates at risk of suicide. R. 44 ¶¶ 53-56. She seeks to hold the City responsible for
failing to adequately supervise her husband, who had been charged with murder,
On a motion to dismiss, the Court may consider relevant matters outside the
pleadings if they are in the public record and subject to judicial notice under the
Federal Rules. See White v. Keely, 814 F.3d 883, 885 n. 2 (7th Cir. 2016)
(considering public court documents); see also Geinosky, 675 F.3d at 745 n.1.

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Plaintiff does not allege whether these incidents occurred at the Fifth District
lockup, but has requested discovery of relevant records to ascertain whether that is
the case. See R. 56-1. On March 8, 2017, the Court stayed discovery not “absolutely
necessary” to Plaintiff’s response to this motion, and left it to the parties to
negotiate the scope of the stay in light of the ruling. Apparently standing on the
Court’s order, the City refused to produce records from the Fifth District or any
other lockup related to “extraordinary occurrences” such as those alleged in the
complaint. See R. 56 at 4 n. 3; R. 64 at 5 n. 1. The City now seeks to penalize
Plaintiff for her inability to identify with specificity the “extraordinary occurrences”
referenced in the complaint and response. R. 68 at 7 (“Conspicuously, Plaintiffs . . .
do not provide any context such as alleging other incidents in the lockups with
broken security cameras or whether these other detainees represented “at-risk
detainees” similar to the decedent.”) The City may not use the Court’s limitation on
discovery as both a shield and a sword. Plaintiff has alleged on information and
belief that the records will show that during the relevant time period, as many as
one “extraordinary occurrence” per week involving inmate safety took place in
understaffed city lockups with non-functioning cameras. For the purpose of this
motion to dismiss, the Court will construe that allegation in Plaintiff’s favor.

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and thus to prevent his untimely death. Id. (Count IV). The City moves to dismiss
the Monell claim “for boilerplate pleading.” R. 56.
Discussion
When the government takes people into its custody, the Eighth Amendment’s
prohibition on cruel and unusual punishment requires the government not to act
with deliberate indifference to serious threats to prisoners’ health and safety.
Daniel v. Cook Cnty., 833 F.3d 728, 733 (7th Cir. 2016) (citations omitted); see also
Cavalieri v. Shepard, 321 F.3d 616, 623 (7th Cir. 2003) (recognizing the right to be
free from deliberate indifference to suicide). 3 For pre-trial detainees like Bradford,
“the Due Process Clause of the Fourteenth Amendment imposes at least as robust a
duty on government custodians.” Id.
To hold the City liable in an unreasonable conditions of confinement case,
Plaintiff must show that an “‘official policy, widespread custom, or action by an
official with policy-making authority was the ‘moving force’ behind [Bradford’s]
constitutional injury.’” Daniel, 833 F.3d at 734; see also Monell v. Dep't of Soc.
Servs. of City of N.Y., 436 U.S. 658, 690-91 (1978). Here, Plaintiff alleges that

The Supreme Court recently determined that there is no constitutional right
to suicide prevention screening in correctional facilities. Taylor v. Barkes, 135 S.Ct.
2042, 2044 (2015). In reaching its conclusion, the Court was careful to note that
“officials who know of an inmate’s particular vulnerability to suicide must not be
recklessly indifferent to that vulnerability.” Id. at 2045. Here, Plaintiff alleges that
the city knew that Bradford, as a pre-trial detainee charged with a serious felony,
was particularly vulnerable to suicide. The Cavalieri rule is consistent with Taylor,
and therefore remains the law of this district. See Woods, No. 16 C 1671, slip op. at
3 (noting that “[t]he Taylor court left intact the general principle from Farmer v.
Brennan, 511 U.S. 825 (1994) that under § 1983, ‘liability requires actual awareness
of risk.’”).
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Bradford’s death was the consequence of a widespread custom at the Fifth District
lockup of inadequately supervising at-risk arrestees. Monell claims like Plaintiff’s
are typically proven by reference to four elements: (1) a widespread municipal
practice so permanent and well-settled that it constitutes a custom; (2) a harm or
risk of harm to the plaintiff that is sufficiently serious to implicate the Constitution;
(3) the defendant municipality’s deliberate indifference to that harm or risk; and
(4) a causal link between the policy or custom of the municipality and the
constitutional injury by the plaintiff. See Woodward v. Corr. Med. Servs. of Illinois,
Inc., 368 F.3d 917, 926-27 (7th Cir. 2004). There is no question that the harm
alleged in this case is serious. See id. at 926 (finding the “serious harm” element
“obviously satisfied” by an inmate’s suicide). The City argues that as to each of the
other elements, however, Plaintiff’s allegations are inadequate to state a plausible
claim for relief.
As a preliminary matter, the Court has indicated its skepticism during status
hearings in this case that a constitutional right to cameras in jail cells exists.
Having now reviewed the case law, the Court remains skeptical. 4 This does not

However, there does seem to be a reasonable degree of consensus that at a
minimum, officers and others on duty in jails or lockups should have the ability to
see or hear inmates and respond promptly to dangerous situations and calls for
help. See, e.g., Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016)
(affirming a jury verdict for the plaintiff on a Monell claim where the city police had
a “custom or policy . . . to use a sobering cell that lacked adequate audio
surveillance to detain more than one belligerent drunk person while checking the
cell visually only once every half hour”); Thompson v. Spears, 336 F. Supp. 2d 1224,
1234 (S.D. Fla. 2004) (noting that “the Florida Model Jail Standards state that
inmates should be within either sight or hearing distance of [ ] officers,” but
granting summary judgment for the defendants where the officer posts were not
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settle the matter, however, as to whether Plaintiff has stated a Monell claim
against the City. In the Court’s view, the right Plaintiff claims here is not to
functioning surveillance cameras, but to constitutionally adequate care and
supervision. If, as Plaintiff alleges, the security cameras were part of the City’s
system for supervising detainees, and if that system failed in a way that caused a
deprivation of Bradford’s constitutional rights, then the problem with the cameras
may be an important part of Plaintiff’s case for deliberate indifference. So while the
broken camera does not, in itself, support a constitutional claim, it may
nevertheless provide support for Plaintiff’s broader argument that official
indifference to systemic problems with supervision at the Fifth District lockup
created unreasonable conditions of confinement leading to Bradford’s suicide. See
Daniel, 833 F.3d at 736-37 (finding no constitutional right to a grievance procedure
but finding systemic problems with the jail’s grievance procedure relevant to
whether the government was deliberately indifferent to the plaintiff’s medical
needs).
A.

De facto policy

The City argues that Plaintiff failed to plausibly allege facts that Bradford’s
suicide was not an “isolated incident,” but rather the product of “a systematic or
widespread custom or practice.” R. 56 at 6. Indeed, the Seventh Circuit has held
that to plead a de facto policy or widespread custom, a Plaintiff must allege a
located so far that officers could not hear calls for help); see also Ill. Admin. Code tit.
20, § 720.60(a)(1) (requiring periodic “visual checks by personal inspection” of
arrestees in city lockups “unless continuous audio and visual checks conducted with
a monitoring device has been approved as a variance”).
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“general pattern of repeated behavior (i.e., something greater than a mere isolated
incident).” Daniel, 833 F.3d at 734 (quoting Davis v. Carter, 452 F.3d 686, 694 (7th
Cir. 2006)). “The challenge in litigation like this is to distinguish between systemic
problems showing official deliberate indifference and occasional lapses that are
inevitable even in well-run institutions.” Id. And while it may be helpful to
establishing a widespread custom or practice to show that other inmates suffered
similar constitutional injuries, see Foy v. City of Chicago, 2016 WL 2770880, at *7
(N.D. Ill. May 12, 2016) (citing Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293,
303 (7th Cir. 2009)), no such showing is required: “[E]vidence of a single violation of
federal rights can trigger municipal liability if the violation was a ‘highly predicable
consequence’ of the municipality’s failure to act.” Woodward, 368 F.3d at 929 (citing
Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S. 397, 409 (1997)). At this stage in the
proceedings, all Plaintiff must plead is “factual content that allows the Court to
draw the reasonable inference that the defendant maintained a policy, custom, or
practice that contributed to the alleged violation.” Karney v. City of Naperville, 2015
WL 6407759, at * 3 (N.D. Ill. Oct. 22, 2015) (internal quotation marks omitted)
(citing McCauley v. City of Chicago, 671 F.3d 611, 618 (7th Cir. 2011)).
She has done so. Plaintiff alleges that certain cells in city lockups, including
the one where her husband was held on the night of his death, are beyond the sight
and hearing of lockup staff. She alleges that over the course of years, officials with
authority over city lockups failed to repair in-cell security cameras installed to
enhance monitoring capabilities despite repeated complaints from employees that

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the lack of functional cameras compromised inmate safety. Plaintiff also alleges
that during the period the cameras were not working, officials opted to reduce
lockup staffing as a matter of course, rather than to increase it or at least maintain
the status quo. Finally, she alleges that the City had no policy at all for holding atrisk detainees in more readily monitored locations to ensure their safety. In other
words, Plaintiff alleges a general pattern of decision-making over a period of years
that resulted in a de facto policy of inadequate oversight of at-risk detainees. See
Daniel, 833 F.3d at 735 (explaining that Monell liability may be premised on
“systemic and gross deficiencies in staffing, facilities, equipment or procedures”).
The City argues that despite the pattern of conduct Plaintiff alleges, her
claim nevertheless fails because it does not identify others who suffered the same
constitutional harm—suicide—under similar circumstances. See R. 56 at 9
(“Plaintiffs must allege more than just the underlying incident”); R. 68 at 5. This
argument fails for at least three reasons. First, Plaintiff has identified another
incident of suicide under similar circumstances–one that occurred within days of
Bradford’s suicide. This, of course, lends credence to Plaintiff’s claim that Bradford’s
placement in a cell without functioning cameras where he could not be readily seen
or heard by lockup staff—and where he then committed suicide—was more than
merely a “random event” limited to the unique circumstances of his case.
Second, it is incorrect that the Seventh Circuit requires a Plaintiff to plead a
certain number of similar incidents to survive a motion to dismiss. In support of its
position that a particular number of incidents is required, the City cites Thomas v.

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City of Chicago, 604 F.3d 293, 303 (7th Cir. 2010), which considered whether to
uphold a jury verdict on the plaintiff’s Monell claim, not whether the plaintiff had
stated a claim in the first instance. In deciding that issue, the court declined to
“adopt any bright-line rules defining a ‘widespread custom or practice,’” on the basis
that “there is no clear consensus as to how frequently such conduct must occur to
impose Monell liability.” Id. The Thomas court cited Cosby v. Ward, 843 F.2d 967,
983 (7th Cir. 1988), which held that “more than one instance” is required, as well as
Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002), which held that “three
incidents where vehicle owners were erroneously told that their vehicles were not at
Lot 6 do not amount to a persistent and widespread practice.” Id. Summarizing the
rule, the court continued:
[T]he plaintiff must demonstrate that there is a policy at issue rather
than a random event. This may take the form of an implicit policy or
gap in expressed policies, or a series of violations to lay the premise of
deliberate indifference. Beyond these threshold requirements, the jury
must make a factual determination as to whether the evidence
demonstrates that the [municipal defendant] had a widespread
practice that [caused] the alleged constitutional harm.
Id. (internal citations and quotation marks omitted). More recently, in Chatham v.
Davis, 839 F.3d 679, which considered whether summary judgment was properly
entered for a municipal defendant, the Seventh Circuit elaborated on its ruling in
Thomas. Id. at 685. It held that while Monell claims “normally require evidence
that the identified practice or custom caused multiple injuries,” “in a narrow range
of circumstances, the possibility of harm from a custom or practice may be so
obvious that evidence of a series or prior injuries is not needed to support an
inference of deliberate indifference.” Id. at 685 (internal quotation marks and
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citations omitted). The Chatham court referred to Woodward v. Correctional
Medical Services of Illinois, Inc., 368 F.3d 917 (7th Cir. 2004), wherein the Seventh
Circuit held that “evidence of a single violation of federal rights can trigger
municipal liability if the violation was a highly predictable consequence of the
municipality’s failure to act.” Id. at 929 (explaining that an absence of similar
injuries may “simply show[ ] that [the municipal defendant] was fortunate, not that
it wasn’t deliberately indifferent.”); see also Cruz v. Dart, 2017 WL 1021992, at *5
(N.D. Ill. Mar. 16, 2017) (aggregating Seventh Circuit authority, including Davis v.
Carter, 452 F.3d 686, 694 (7th Cir. 2006), to explain that “[t]he court does not
mechanically count the number of incidents, [ ] but instead looks for competent
evidence tending to show a general pattern of repeated behavior”).
Here, Plaintiff alleges that the City permitted the placement of at-risk
detainees in cells where they could not readily be seen and heard, despite safer
options, whether as a matter of policy or the absence of a policy. She further alleges
that the City failed over a period of years to fix broken security cameras in those
cells or to adequately staff the lockup to compensate for the lack of in-cell
surveillance. These allegations support a plausible inference at this stage in the
proceedings that Bradford’s suicide was the result of the City’s systemic failure to
adequately supervise at-risk detainees. And while Plaintiff cannot now point to a
third arrestee beyond Bradford and Woods who met a similar fate, discovery may
reveal one–or even several more. Whether it does, or whether the two suicides
already identified are sufficient for Plaintiff to prevail on her Monell claim, are

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questions for another day. See Price v. City of Chicago, 2017 WL 36444, at *10 (N.D.
Ill. Jan. 4, 2017) (“It is not impossible for a plaintiff to demonstrate the existence of
an official policy or custom by presenting evidence limited to his experience, but the
presentation of such evidence makes it more difficult to show there was a
widespread custom or practice instead of a random event. When the same incident
of which a plaintiff complains has arisen many times and the municipality has
acquiesced in the outcome, it is possible (though not necessary) to infer there is a
policy at work.”) (internal quotation marks and citations to authority omitted).
Third, the City’s reliance on Foy v. City of Chicago, 2016 WL 2770880 (N.D.
Ill. May 12, 2016) is misplaced. Foy, which does not control this Court, did not hold
as the City argues that a custom may not be inferred on the pleadings simply
because the plaintiff failed to allege a certain number of similar injuries. Rather,
after permitting discovery of all deaths at a lockup within a five year period (three of
the eight of which were suicides, at least one by hanging), the Foy court held that
the plaintiff’s failure to identify any other deaths like her son’s, which allegedly
resulted from inadequate medical treatment of a drug overdose, weighed against a
finding of a widespread policy or practice. Id. at *8. That has little bearing on this
case, where no meaningful discovery has taken place on Plaintiff’s Monell claim and
Plaintiff has already identified another incident similar to the one that befell
Bradford. Furthermore, the facts alleged in Foy are so wildly different from the
facts alleged here that any effort to draw an analogy strains reason. In Foy, the
officers and detention staff on duty had eyes and ears directly on the decedent as he

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was dying. Id. at *1. Instead of seeking out medical treatment, they told him to
“shut the fuck up” as he plead for help. Id. at *1. Here, of course, Plaintiff alleges
that no one could see or hear Bradford as he died, because despite being at-risk for
suicide, he was placed beyond the sight and hearing of employees in a cell without
functioning surveillance cameras. Simply put, vastly different policies and practices
are at issue here as compared with Foy, making the opinion in that case unhelpful
to the Court’s analysis.
B.

Deliberate Indifference
The City also argues that Plaintiff’s allegations are too threadbare to support

an inference that the City acted with deliberate indifference. R. 56 at 10. The
Seventh Circuit has said “that deliberate indifference requires a showing of more
than mere negligence (or even gross negligence) but less than purposeful infliction
of harm.” Woodward v. Corr. Med. Servs. of Illinois, Inc., 368 F.3d 917, 926 (7th Cir.
2004); see also Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003) (applying a
“subjective recklessness” test). “A detainee establishes a § 1983 claim by
demonstrating that the defendants were aware of a substantial risk of serious
injury to the detainee but nevertheless failed to take appropriate steps to protect
him from a known danger.” Woodward, 368 F.3d at 926-27 (quoting authority). To
make this showing, a plaintiff “need not show that a prison official acted or failed to
act believing that harm actually would befall an inmate; it is enough that the
official acted or failed to act despite his knowledge of a substantial risk of serious
harm.” Id. at 927 (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

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Plaintiff alleges that officials were aware as a general matter of the
heightened suicide risk of arrestees charged with serious crimes. She further alleges
that as frequently as once per week, inmates caused serious harm to themselves or
others in city lockups without functioning security cameras due to inadequate
staffing and supervision. She alleges that employees logged numerous complaints
about the impact of broken security cameras and staffing reductions on inmate
safety, and furthermore that during the time period at issue, those complaints went
unanswered. Taken together, and considering the circumstances of Bradford’s
suicide, the Court may plausibly infer at this stage in the proceedings that officials
were deliberately indifferent to a known risks to at-risk inmates like Bradford.
C.

Causation

Finally, the City argues that Plaintiff’s allegations do not support an
inference that the lockup supervision practices were “the moving force” behind
Bradford’s suicide. R. 56 at 6-7. As the Seventh Circuit teaches, it is only when the
challenged practice or custom “inflicts the injury[,] that the government as an entity
is responsible under § 1983.” Woodward, 368 F. 3d at 928 (citing Monell, 436 U.S. at
694). On the issue of causation, the City again turns to Foy at its peril. R. 68 at 9. In
Foy, the Court held that “even if Plaintiff alleged sufficient facts to demonstrate a
widespread practice of failing to maintain surveillance cameras, Plaintiff has stated
no facts or allegations to support an inference that such a practice could have been
the ‘moving force’ behind [the decedent]’s death.” 2016 WL 2770880 at *10. The
court reached that conclusion because even without functioning surveillance

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cameras, the employees in Foy could readily see the deteriorating condition of the
decedent and hear his (and others’) pleas for help. Id. In other words, the death of
the detainee in Foy had nothing to do with the surveillance capabilities of the staff,
and thus the lack of functioning cameras was irrelevant to causation.
The allegations in this case are markedly different. Here, Plaintiff alleges
that despite Bradford’s at-risk status, he was held in a location with broken
surveillance equipment where he could not be readily seen or heard by staff. It is
precisely this lack of oversight that Plaintiff alleges prevented the on-duty officer
and aide from timely responding to her husband’s suicide. Unlike Foy, in this case
no one was watching as Bradford died. Thus, on the facts construed in Plaintiff’s
favor, an inference of causation is plausible.
Conclusion
For the foregoing reasons, the City’s motion to dismiss, R. 56, is denied. The
parties are to appear to discuss a reasonable discovery schedule on the Monell claim
on May 31, 2017 at 9:00 am.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge
Dated: May 15, 2017

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