Gonzalez v. Thomas J. Dart et al

Filing 59

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 8/10/2017. The Court grants Cook County and Sheriff Darts' Motions to Dismiss Count II and denies the Motions to Dismiss Counts III, IV, and V. (Dkt. 17 , 22 .) Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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Agustin Gonzalez, et al.,
Plaintiffs,
v.
Sheriff Thomas J. Dart, et al.
Defendants.

No. 17 C 217
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
This case arises out of the tragic death of Donna Moy Gonzalez while she was in the
custody of Cook County Management System (“CCOMB”). Plaintiff, Ms. Gonzalez’s widow,
Agustin Gonzalez, filed his Complaint individually and as the Independent Administrator of the
Estate of his late wife. Plaintiff named Sheriff Thomas Dart and Cook County among the
Defendants. In Count II of the Complaint, Plaintiff brings a Monell claim against Sheriff Dart
and Cook County under 42 U.S.C. § 1983 as well as supplemental state law claims against those
Defendants: Count III, Wrongful Death pursuant to 745 ILCS 10/9-102 against Sheriff Dart and
Cook County; Count IV, against Cook County for indemnification; Count V, for medical
negligence against Cook County; and Count VI, against Cook County under the Illinois Survival
Statute 755 ILCS 5/27-6.

Sheriff Dart and Cook County now move to dismiss.

For the

following reasons, Sheriff Dart and Cook County’s Motions are granted with respect to the §
1983 claims. Both Defendants’ Motions are denied and / or are withdrawn with respect to the
state law claims.

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BACKGROUND
In 2013, Donna Gonzalez had a stroke which partially paralyzed the left side of her body
impairing her motor functions and her ability to walk. (Dkt. 1 ¶ 11.) In 2014, she was diagnosed
with brain damage from the stroke which had caused a change in her personality. (Id. ¶ 13.)
Subsequently, Ms. Gonzalez was arrested for harassing her physical therapist; she pled guilty
and was incarcerated. (Id. ¶ 15–16.)
While incarcerated, Ms. Gonzalez fell three times between December 11, 2015 and
December 15, 2015. (Dkt. 1 ¶¶ 21, 24–30.) Plaintiff alleges that after each of the first two falls,
Ms. Gonzalez was “allowed to return to the general population with no change in care as a fall
risk.” (Id. ¶¶ 23, 25, 30.) Following the third fall, on December 16, 2015, Ms. Gonzalez was
seen by Dr. Defuniak at Cermak Health Services. (Id. ¶ 32.) Dr. Defuniak ordered Lorazepam,
Acetaminophen, Baclofen, and Enalapril, and gave Ms. Gonzalez a wheelchair. (Id. ¶ 32.)1 On
December 23, 2015, Ms. Gonzalez was seen again at Cermak and a plan was instated for her to
attend eight sessions with an occupational therapist. (Id. ¶ 33.) She was also encouraged to
notify nursing staff for transitions, such as needing to use the restroom; but, Plaintiff alleges that
“[n]o instructions were given or plans for supervision[.]” (Id.) On January 2, 2016, Ms.
Gonzalez was unattended and fell, sustaining a hematoma to her brain and putting her into a
coma. She remained in the coma until she passed away on January 11, 2016. (Id. ¶ 34.)
Plaintiff contends that Ms. Gonzalez should have been monitored, evaluated again after the
December 23 appointment, been required to use a wheelchair at all times, and should have been
transferred to a hospital for continuous monitoring. (Id. ¶ 36.)

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The allegations are not entirely consistent. Plaintiff alleges that Dr. Defuniak had Ms. Gonzalez in a wheel chair
on December 16, 2015, but in the precedent paragraph alleges “From December 16, 2015 to January 1, 2016 Mrs.
Gonzalez was allowed to use only a cane and walk unattended.” (Dkt. 1 ¶¶ 31–32.)

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Specifically pertaining to the Defendants who now move to dismiss, Plaintiff alleges that,
Sheriff Dart and Cook County maintained a policy in which they “failed to train correctional
officers and medical staff to properly provide adequate medical treatment to inmates especially
those with organic brain damage and left-side paralysis constituting a fall risk.” (Dkt. 1 ¶ 41.)
Plaintiff further alleges that around the period of Ms. Gonzalez’s falls, Defendants had notice of
a widespread practice under which detainees with serious medical conditions were routinely
denied access to proper or sufficient medication or medical attention. (Id. ¶ 55.) And at the time
of her death, it was “extremely common” to observe detainees with symptoms of serious illness
or injury who needed medical care but were routinely delayed, denied or ignored. (Id. ¶ 56.)
Plaintiff goes on to allege that there is a widespread practice of failing to examine detainees
when there has been a fall, refusing to provide 24-hour monitoring for fall risks, and providing
detainees who are fall risks with appropriate safeguards. (Id. ¶ 57.) These practices are “so
settled as to constitute de facto policy of the Sheriff and/or Cook County[.]” (Id. ¶ 59.) Plaintiff
does not allege facts as to any instances in which another detainee was specifically denied
treatment during that period or any other fall-risk detainees who were not provided adequate
treatment.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by
arguing that it fails to state a claim upon which relief may be granted. To survive a 12(b)(6)
motion, the complaint must provide enough factual information to state a claim for relief that is
plausible on its face and “raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint is facially plausible “when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At the 12(b)(6) stage, all of
the “factual allegations contained in the complaint” must be “accepted as true.” Twombly, 550
U.S. at 572.

Furthermore, well-pled facts are viewed in the light most favorable to the

plaintiff. See Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). But “legal
conclusions and conclusory allegations merely reciting the elements of a claim are not entitled to
this presumption of truth.” McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011).
DISCUSSION
A. Monell Claims
To establish liability against the Defendant under Monell, Plaintiff must show that: (1)
there was a deprivation of a federal right; (2) as a result of either an express municipal policy,
widespread custom, or deliberate act of a decision-maker; which (3) was the proximate cause of
the injury. See Ovadal v. City of Madison, Wisconsin, 416 F.3d 531, 535 (7th Cir. 2005); see
also Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 306 (7th Cir. 2009) (“the premise
behind a § 1983 action against a government body is ‘the allegation that official policy is
responsible for the deprivation of rights.’”) (emphasis in original); see also Gable v. City of
Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (to demonstrate liability for a harmful policy or
practice, plaintiff must show defendant was “deliberately indifferent as to [the] known or
obvious consequences.”) Additionally, to state a claim for municipal liability under Monell, a
plaintiff must allege “than an official policy or custom not only caused the constitutional
violation, but was the moving force behind it.” Estate of Sims ex rel. Sims v. County of Bureau,
506 F.3d 509, 514 (7th Cir. 2007) (quotation omitted); see also Thomas v. Cook County
Sherriff’s Dep’t, 604 F.3d 293, 306 (7th Cir. 2009) (“the premise behind a §1983 action against a

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governmental body is the allegation that official policy is responsible for the deprivation of
rights”) (quotation omitted).
Plaintiff asserts his claim against Cook County and Sheriff Dart based on a widespread

custom that led to Ms. Gonzalez’s death. (Dkt. 36 at 3.). Under the “custom” form of Monell
liability, a plaintiff must allege “more than one instance, or even three” incidents of the alleged
constitutional violation in order to prove a custom exists. Thomas, 604 F.3d at 303 (citation
omitted); see also Gable, 296 F.3d at 538 (“three incidents were too few to indicate that the City
had a widespread custom of which policymakers had reason to be aware”); see also Grieveson v.
Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (four incidents affecting the plaintiff not sufficient to
show a “widespread unconstitutional practice”).

Here, the Complaint alleges that Ms. Gonzalez fell four times and that the fourth fall
resulted in her death. Plaintiff asserts that the Complaint is clear enough to show a pattern but
that the extent of the pattern can only be brought out by discovery. (Dkt 36 at 3.) Plaintiff only
cites to Ms. Gonzalez’s experience but concludes that her experience is indicative of a wider
custom. Generally, the existence of a policy is shown through application to several different
individuals, although a policy may also be shown through repeated actions directed at one person
so long as the repeated actions truly evince the existence of a policy. Phelan v. Cook County,
463 F.3d 773, 789–90 (7th Cir. 2006). Although she fell four times and alleges that Defendants
did not respond appropriately, her circumstances are still too unique to evince the existence of a
policy. For example, Plaintiff alleges that the policy involved a failure to provide medical
treatment “to inmates especially those with organic brain damage and left-side paralysis
constituting a fall risk.” (Dkt. 1 ¶ 41.) There is no indication that the Defendants customarily
fail to address this specific group of inmates, if such a group exists at all.

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Plaintiff also cites to two distinguishable cases which demonstrate the insufficiency of
Plaintiff’s allegations. In Dixon v. Cook County, the plaintiff’s claim relied primarily on Cook
County’s official policy with respect to medical records in the jail and argued that if all of the
doctors involved in treating Dixon had access to records, there would not have been a delay in
treatment. 819 F.3d 343 (7th Cir. 2016). Here, there are no allegations of an official policy that
led to Ms. Gonzalez’s death and no allegations of problems stemming from record keeping
deficiencies. In Davis v. Carter, a detainee’s wife was told by personnel that “Cook County
don’t work that fast” suggesting the delays her husband experienced in receiving methadone
treatment for his drug withdrawal was customary.

452 F.3d 686, 693 (7th Cir. 2006).

Defendants here did not make any similar statements that Ms. Gonzalez’s experience represents
a widespread custom. Plaintiff alleges, for example, that Cook County “refused to provide 24hour monitoring for severe fall risks.” (Dkt. 1 ¶ 57.) But there are no allegations of a specific
instance in which she requested monitoring and was affirmatively refused, or that refusing
monitoring to fall-risks was a common practice; instead, Plaintiff only alleges that Defendants
were aware she had fallen and that they did not subsequently monitor her. In both Dixon and
Davis, the Monell claims were based on more than conclusory allegations like those that
comprise Plaintiff’s Complaint.
Finally, Gonzalez’s reliance on the 2008 findings from a U.S. Department of Justice
investigation of healthcare practices to show deficiencies at the jail is inapposite.

Ms.

Gonzalez’s falls occurred in late 2014 and 2015 and policies to correct the failures outlined in the
DOJ report were implemented as early as 2009. See Dixon, 819 F.3d at 349. The report
therefore does not support Plaintiff’s allegation that it was “extremely common” to observe
detainees who were ignored while in need of medical care. (Dkt. 1 ¶ 56.) Accordingly, Plaintiff

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has not sufficiently pled a Monell claim and the § 1983 claims against Defendants Cook County
and Sheriff Dart are dismissed.
B. State Law Claims
Next, Sheriff Dart moves to dismiss Count III for wrongful death under 745 ILCS 10/9102 based on statutory immunity as an official performing discretionary functions and acting
within the scope of his duties under the Illinois Tort Immunity Act (“TIA”), 745 ILCS 10/2-202.
Under the TIA, “[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[.]” 745 ILCS 10/9-102. However, “[a] public employee is not
liable for his act or omission in the execution or enforcement of any law unless such act or
omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202. The statute defines
“[w]ilful and wanton conduct” as “a course of action which shows an actual or deliberate
intention to cause harm or which, if not intentional, shows an utter indifference to or conscious
disregard for the safety of others or their property.” 745 ILCS 10/1–210.
Immunity under the TIA operates as an affirmative defense, so Sheriff Dart “bear[s] the
burden of properly raising and proving their immunity under the Act.” Salvi v. Vill. of Lake
Zurich, 66 N.E.3d 894, 908 (Ill. App. 2016).2 Sheriff Dart asserts that “Plaintiff has the burden
of proving that defendant’s conduct was willful and wanton,” (Dkt. 17 at p.7), but the Sheriff is
incorrect to suggest that the burden is on Plaintiff at the pleading stage. The cases cited to by the
Sheriff Dart occur at later stages in litigation. See, e.g., Wade v. City of Chicago, 364 Ill. App.3d
773, 789 (1st Dist. 2006) (motion for directed verdict at the end of jury trial); see also Urban v.
Village of Lincolnshire, 272 Ill. App.3d 1087, 1094 (1st Dist. 1995) (motion for summary

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judgment).3

Indeed, other courts have held that whether conduct “is sufficiently willful and

wanton is ordinarily a question of fact for the jury and rarely should be ruled upon as a matter of
law.” See, e.g., Liska v. Dart, 60 F. Supp.3d 889, 906-907 (N.D. Ill. 2014) (citing (Beal v. City
of Chi., 2007 WL 1029364, at * 10 (N.D. Ill. Mar. 30, 2007)). The one case Sheriff Dart relies
on involving a motion to dismiss, Doe v. Vill. of Arlington Heights, is factually distinguishable.
782 F.3d 911, 920 (7th Cir. 2015). In Doe, an officer encountered plaintiff, a young female, and
three intoxicated males; the officer left plaintiff with the males and she was then sexually
assaulted. The plaintiff proposed that she was owed a duty of care under the “community
caretaking” or “emergency aid” doctrines, but the court rejected these arguments and held that
the officer did not owe a duty that vitiated his immunity. Id. 921.

The one time encounter

between an officer and a civilian is distinguishable from Ms. Gonzalez who was in Defendants’
care and custody and had a serious medical issue that they were aware of. Moreover, while there
was no duty of care in Doe, there is a duty under the Eighth Amendment owed by a prison
official to ensure ‘reasonable safety.’ Farmer v. Brennan, 511 U.S. 825, 844 (1994); see also
Countryman v. Winnebago County, 135 Ill. App. 3d 384, 391 (Ill. App. 1985) (county owed duty
to “exercise ordinary and reasonable care for the preservation of their prisoner’s health and life
under the circumstances of the particular case.”) (internal quotations omitted); see also, e.g.,
Johnson v. United States, et al., 2016 WL 3387156, *10 (June 20, 2016) (Under Illinois law,
jailers owe a duty to “keep [a prisoner] safely and to protect [her] from unnecessary harm[.]”)
(quoting Dezort v. Village of Hinsdale, 35 Ill. App.3d 703, 707 n.1 (Ill. App. 1976)).

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It is altogether unclear why the Sheriff cites to Reeves v. Jewel Food Stores, Inc., 759 F.3d 698 (7th Cir. 2014).
Defendant Sheriff cites Reeves for the proposition that “Plaintiff has failed to provide any allegations rising to the
level of willful and wanton.” (Dkt. 17 p.7.) But Reeves is an ADA failure to accommodate case that never mentions
the willful and wanton standard.

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Plaintiff does not explicitly plead “willful and wanton” conduct but sufficiently pleads
facts that “show[] an utter indifference … for the safety of others[.]” 745 ILCS 10/1–210. There
were three falls in a short period of time leading up to Ms. Gonzalez’s death and yet there was no
initiation to more closely monitor her movements. This is especially egregious given her serious
medical condition which Plaintiff alleges all Defendants had notice of. While Plaintiff has not
sufficiently alleged a widespread custom of failing to monitor fall risks, Plaintiff has pled enough
facts to show that with respect to Ms. Gonzalez, Sheriff Dart’s employees may have been
“utterly indifferent” to her safety. Plaintiff specifically asks that any judgment for compensatory
damages entered against the individual Defendant employees of Sheriff Dart must be paid by
Sheriff Dart. To that extent, Defendant Dart is not immune and Count III for wrongful death
remains.
In Cook County’s Motion to Dismiss, the County initially moved to dismiss the state law
medical negligence claim, Count V, based on Plaintiff’s failure to provide a 622 Report and
moved to dismiss the other state law claims as derivative of that claim. (Dkt. 22 p. 3–4.)
Plaintiff has since filed a 622 report and is now in compliance with Section 735 ILCS 5/2-622.
Therefore, as stated in its Reply brief, Cook County agrees to withdraw its motion that Plaintiff
did not adequately plead a medical malpractice claim. (Dkt. 37 p. 2.) Because the Motion is
withdrawn with respect to the medical negligence claim, these state law claims are no longer
derivative of a failed claim and therefore those claims stand.

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CONCLUSION
For the reasons stated herein, the Court grants Cook County and Sheriff Darts’ Motions
to Dismiss Count II and denies the Motions to Dismiss Counts III, IV, and V. (Dkt. 17, 22.)

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: August 10, 2017

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