Williams v. Cook County et al

Filing 46

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 3/6/2017.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WALTER WILLIAMS and MONTRELL CARR,
individually and for a class,
Plaintiffs,
vs.
SHERIFF OF COOK COUNTY and COOK COUNTY,
ILLINOIS,
Defendants.

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16 C 7639
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Walter Williams and Montrell Carr, pretrial detainees at Cook County Jail, filed this suit
under 42 U.S.C. § 1983 against the Sheriff of Cook County and Cook County itself, alleging that
dental care at the jail is constitutionally inadequate. Doc. 15. They seek injunctive relief, but not
damages, for themselves and a putative class. Defendants move to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6). Doc. 25. The motion is denied.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Plaintiffs’ brief opposing dismissal, so long as those additional facts “are consistent with
the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The
facts are set forth as favorably to Plaintiffs as those materials allow. See Pierce v. Zoetis, 818

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F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does
not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d
382, 384 (7th Cir. 2010).
Plaintiffs are pretrial detainees at Cook County Jail. Doc. 15 at ¶ 2. The jail employed a
full-time oral surgeon until 2007. Id. at ¶¶ 5-6. In the oral surgeon’s stead, Defendants adopted
a policy of sending detainees in need of oral surgery to Stroger Hospital, but that policy is
ineffective because they do not provide the resources necessary to transport detainees to the
hospital. Id. at ¶¶ 11-12. In 2011, the chief of dental services at the jail warned that employing a
full-time oral surgeon was “absolutely essential.” Id. at ¶ 15.
On January 4, 2016, a jail dentist examining Williams, who had complained of dental
pain, determined that his pain could have resulted from a fractured tooth, which would require a
microscope to diagnose. Id. at ¶ 19. Instead of attempting such a diagnosis, the dentist removed
a filling and replaced it with a temporary sedative filling. Ibid. The dentist did not note signs of
infection, but prescribed antibiotics anyway. Ibid. Williams’s pain persisted, and on January 26,
the dentist suggested that he see a different provider. Id. at ¶ 20.
On March 29, a physician’s assistant referred Williams for a priority dental appointment
to treat “chronic toothache.” Id. at ¶ 21. On April 13, a dentist prescribed painkillers and
another dose of antibiotics. Id. at ¶ 22. During an examination on April 20, Williams asked to
have the tooth pulled, but the dentist declined. Id. at ¶ 23. On June 8, Williams received
antibiotics and pain medications but again did not have his tooth pulled. Id. at ¶ 26.
A jail dentist examined Carr in February 2016 due to pain in his wisdom teeth. Id. at
¶¶ 34-35. The dentist told him he needed to see an oral surgeon at Stroger to have the teeth
pulled. Id. at ¶ 35. Carr saw the same dentist three or four more times; each time, he received

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pain medication and was told that his appointment at Stroger was “coming soon.” Id. at ¶ 36.
He was never treated by an oral surgeon. Id. at ¶ 37.
In this suit, Plaintiffs seek “appropriate injunctive relief.” Id. at 8. They have moved to
certify these two injunction classes under Rule 23(b)(2):
1. All persons confined at the Cook County Jail who have been referred by
a dentist at the Jail for an extraction by an oral surgeon and are experiencing
pain while awaiting treatment by an oral surgeon.
2. All persons currently confined at the Cook County Jail who, having
complained of dental pain, have been prescribed successive course[s] of
treatments with antibiotics without having received the dental procedure
required to permanently alleviate the dental pain.
Doc. 30 at 1.
Discussion
Defendants press three arguments in their motion to dismiss. All fail to persuade.
I.

Failure to Request Specific Relief
Defendants contend that the complaint is defective because it does not articulate the relief

Plaintiffs seek. Doc. 25 at 7-8. That is wrong, as the complaint asks the court to “grant
appropriate injunctive relief.” Doc. 15 at 8. In any event, “[a]lthough Rule 8(a)(3) of the civil
rules requires that a complaint contain ‘a demand for [the relief sought],’ the demand is not itself
a part of the plaintiff’s claim, and so failure to specify relief to which the plaintiff [is] entitled
[does] not warrant dismissal under Rule 12(b)(6) … .” Bontkowski v. Smith, 305 F.3d 757, 762
(7th Cir. 2002) (citations omitted).
II.

Preclusive Effect of Smentek
Defendants also argue that Plaintiffs’ claims are precluded by decisions issued in Smentek

v. Sheriff of Cook County, No. 09 C 529 (N.D. Ill. filed Jan. 27, 2009), an earlier case alleging
inadequate dental services at Cook County Jail. Doc. 25 at 5-7. The district court in Smentek

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certified two classes early in the litigation. The first, an injunction class under Rule 23(b)(2),
consisted of “all persons presently confined at the Cook County Jail who are experiencing dental
pain and who have waited more than seven days after making a written request for treatment of
that pain without having been examined by a dentist.” Smentek v. Sheriff of Cook Cnty., 2010
WL 4791509, *6 (N.D. Ill. Nov. 18, 2010). The second, a damages class under Rule 23(b)(3),
consisted of “all inmates housed at Cook County Department of Corrections on or after January
1, 2007, who have made a written request for dental care because of acute pain and who suffered
prolonged and unnecessary pain because of a lack of treatment.” Smentek v. Sheriff of Cook
Cnty., 2011 WL 13136965, *6 (N.D. Ill. Aug. 17, 2011). After a hearing at which the court
denied injunctive relief for reasons stated on the record, the court decertified the injunction class
and then modified the damages class to include an end date of October 31, 2013. Smentek v.
Sheriff of Cook Cnty., 2014 WL 7330792, *11 (N.D. Ill. Dec. 22, 2014); Smentek v. Sheriff of
Cook Cnty., 2016 WL 5939704, *5 (N.D. Ill. Oct. 13, 2016). Defendants contend that Smentek is
preclusive as to Plaintiffs’ request for injunctive relief and effort to certify a class.
The preclusive effect of Smentek is governed by federal law. See Taylor v. Sturgell, 553
U.S. 880, 891 (2008). The claim preclusion doctrine, also called res judicata, provides that “a
final judgment forecloses successive litigation of the very same claim, whether or not relitigation
of the claim raises the same issues as the earlier suit.” Id. at 892 (internal quotation marks
omitted). The issue preclusion doctrine, also called collateral estoppel, “prohibits relitigation of
an issue of fact or law when the issue is actually litigated, determined by a final judgment and
essential to the judgment of a prior tribunal.” Martin v. Garman Const. Co., 945 F.2d 1000,
1004 (7th Cir. 1991). Both preclusion doctrines require an identity of the parties or their privies

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in the two cases. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n. 7 (1979); CropMaker Soil Servs., Inc. v. Fairmount State Bank, 881 F.2d 436, 439 (7th Cir. 1989).
That requirement is not met here. Although the injunction class in Smentek might have
included Plaintiffs, it ultimately was decertified. Citing In re Bridgestone/Firestone, Inc., Tires
Prod. Liab. Litig., 333 F.3d 763 (7th Cir. 2003), Defendants contend that a decision declining to
certify or decertifying a class precludes subsequent attempts to certify another class for the same
claim. Doc. 35 at 3-4. However, the Supreme Court saw things differently in Smith v. Bayer
Corp., 564 U.S. 299 (2011), holding that “[n]either a proposed class action nor a rejected class
action may bind nonparties.” Id. at 315.
Defendants submit that Smith addressed only whether the Anti-Injunction Act, 28 U.S.C.
§ 2283, could be used to bar a state court class action after a federal court class action had been
rejected. Doc. 35 at 3. But nothing in Smith limited the decision’s reach to the Anti-Injunction
Act, and the opinion makes clear that it speaks to the broader rule against nonparty preclusion:
“[O]ur legal system generally relies on principles of stare decisis and comity among courts to
mitigate the sometimes substantial costs of similar litigation brought by different plaintiffs. We
have not thought that the right approach … lies in binding nonparties to a judgment.” Smith, 564
U.S. at 317; see also Thorogood v. Sears, Roebuck and Co., 678 F.3d 546, 551 (7th Cir. 2012)
(noting that Smith applies beyond the Anti-Injunction Act). The fact that the injunction class was
certified at one point is inconsequential under Smith. See Thorogood, 678 F.3d at 551 (holding
that a member of a decertified class was not a party to the earlier suit even though “there was a
time—between the district court’s certifying the class and our ordering it decertified—during
which a class action ‘existed,’ though not it seems one that was ‘properly conducted,’ for the
class was decertified on appeal”).

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Accordingly, because Plaintiffs cannot be deemed parties to the Smentek suit, there is no
identity of parties or privies between that suit and this one. It is true that preclusion does not
demand strict identity of parties; in some cases, parties in privity can meet this requirement. See
Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995); Kunzelman v. Thompson, 799 F.2d
1172, 1178 (7th Cir. 1986). But the privity principle applies only where the parties are “so
closely aligned that they represent the same legal interest,” with the question being “whether the
[parties against whom estoppel is asserted] were sufficiently involved in the [previous] litigation
to actuate principles of collateral estoppel.” Kraushaar, 45 F.3d at 1050. That standard is not
met here. Nothing in the present record suggests that Plaintiffs had any involvement in Smentek,
beyond being absent class members of a decertified class. Under these circumstances, preclusion
does not apply. See Brown v. Am. Airlines, Inc., 285 F.R.D. 546, 553 (C.D. Cal. 2011)
(declining, post-Smith, to find privity as to absent members of a decertified class).
III.

The Phillips Decision
Finally, Defendants contend that Phillips v. Sheriff of Cook County, 828 F.3d 541 (7th

Cir. 2016), which affirmed the Smentek court’s decertification of the injunction class, defeats
Plaintiffs’ putative injunction class here. Doc. 25 at 3-5. Defendants are incorrect.
Recognizing that a district court’s decision to certify or decertify a class is reviewed for
abuse of discretion, Phillips, 828 F.3d at 549, the Seventh Circuit held that based on the record
there, the district court did not abuse its discretion in concluding that the plaintiffs’ claims were
highly individualized and thus not appropriate for class resolution. Id. at 558. In so holding, the
Seventh Circuit was careful to note: “We express no opinion on the potential merits of the
pending class action or on any individual detainee’s claims. Rather, we simply hold that the
district court did not abuse its discretion when it concluded, on the record before it, that the

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detainees’ claims do not present common issues of law or fact.” Ibid. The Seventh Circuit did
not hold that deliberate indifference claims involving dental treatment at Cook County Jail could
never prevail or be certified.
That is sufficient to hold that Phillips does not preclude class certification here. That is
particularly true given that this case remains at the pleading stage, with the motion before the
court being not a motion to certify or decertify a class, but a motion to dismiss. Rule 23(c)(1)(A)
states: “At an early practicable time after a person sues … as a class representative, the court
must determine by order whether to certify the action as a class action.” The Rule’s text plainly
indicates that the court may reject a plaintiff’s attempt to represent a class as soon as it becomes
obvious that he will be unable to satisfy Rule 23. However, most often it will not be
“practicable” for the court to do that at the pleading stage. As a general rule, whether a suit can
be maintained as a class action is determined not on a Rule 12 motion, but on a motion to certify
under Rule 23. See Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F. Supp. 3d 798, 809 (N.D.
Ill. 2016); Howell v. Rush Copley Med. Grp. NFP, 2012 WL 832830, *2-3 (N.D. Ill. Mar. 12,
2012); Howard v. Renal Life Link, Inc., 2010 WL 4483323, *2 (N.D. Ill. Nov. 1, 2010);
Holtzman v. Caplice, 2008 WL 2168762, *2-3 (N.D. Ill. May 23, 2008); 7B Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1798, at 226-29
(3d ed. 2005). An exception to the general rule applies where the complaint reveals fatal
deficiencies with class claims that warrant their dismissal at the pleading stage. See Wright v.
Family Dollar, Inc., 2010 WL 4962838, *1 (N.D. Ill. Nov. 30, 2010).
That is not the case here, however. Smentek and Phillips certainly suggest that classes in
cases like this one may be difficult to certify; medical treatment is by its nature individualized.
However, at this stage in the litigation, with the facts and inferences drawn therefrom viewed in

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the light most favorable to Plaintiffs, it is at least possible to conceive of common questions,
amenable to classwide answers, see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011),
that satisfy Rule 23. For example, Plaintiffs could present common questions concerning
whether there was a general policy to provide antibiotics and/or pain medication as a substitute
for oral surgery, without regard to the individual detainee’s circumstances and needs. Although it
is Plaintiffs’ burden to demonstrate the appropriateness of class treatment when the court is
ruling on a Rule 23 motion, see Retired Chi. Police Ass’n v. City of Chicago, 7 F.3d 584, 596
(7th Cir. 1993), Defendants bear the burden on a Rule 12 motion. They have not met their
burden here. See Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 295 (N.D. Ill. 2014)
(discussing when it is appropriate to strike class allegations at the pleading stage and collecting
cases).
Conclusion
Defendants’ motion to dismiss is denied. Defendants shall answer the operative
complaint by March 20, 2017.

March 6, 2017
United States District Judge

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