Jaimes et al v. Cook County et al

Filing 147

MEMORANDUM Opinion and Order: Plaintiffs Deisy Jaimes, Enrique Jaimes, and Gloria Jaimes have filed an eleven-count second amended complaint against defendants Cook County, Sheriff Thomas J. Dart, Cara Smith, Dr. Nneka Jones, George Turner, Superint endent Jeff K. Johnsen, Sergeant Phillips, Sergeant Monroe, Lieutenant Juanita Peterson, Lieutenant Sharon Lee, and the Estate of Erika Aguirre, alleging claims under 42 U.S.C. § 1983 (Counts I-III), Monell claims (Counts IV-VI), and various state law claims (Counts VII-XI). All defendants, except for Lieutenant Lee and the Estate of Erika Aguirre, move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts I, II, III, VII, VIII, IX, X and XI of plaintiffs' seco nd amended complaint 74 . For the reasons set forth below, the motion is granted in part and denied in part. Status set for September 26, 2019 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 9/13/2019. Notice mailed by judge's staff (lf, )

Case: 1:17-cv-08291 Document #: 147 Filed: 09/13/19 Page 1 of 11 PageID #:1205

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEISY JAIMES, ENRIQUE JAIMES, and,
GLORIA JAIMES,
v.

Plaintiffs,

COOK COUNTY, et al.,
Defendants.

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Case No. 17 C 8291
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiffs Deisy Jaimes, Enrique Jaimes, and Gloria Jaimes have filed an eleven-count
second amended complaint against defendants Cook County, Sheriff Thomas J. Dart, Cara Smith,
Dr. Nneka Jones, George Turner, Superintendent Jeff K. Johnsen, Sergeant Phillips, Sergeant
Monroe, Lieutenant Juanita Peterson, Lieutenant Sharon Lee, and the Estate of Erika Aguirre,
alleging claims under 42 U.S.C. § 1983 (Counts I-III), Monell claims (Counts IV-VI), and various
state law claims (Counts VII-XI). All defendants, except for Lieutenant Lee and the Estate of
Erika Aguirre, move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts I, II,
III, VII, VIII, IX, X and XI of plaintiffs’ second amended complaint [74]. For the reasons set forth
below, the motion is granted in part and denied in part. Status set for September 26, 2019 at 9:30
a.m.
BACKGROUND
For purposes of this motion, the Court accepts as true the following allegations in plaintiffs’
second amended complaint:
On November 15, 2015, Cook County Jail Correctional Officer Erika Aguirre broke into
the home of her ex-girlfriend, Deisy Jaimes (“Deisy”). Using her service weapon, Officer Aguirre

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shot both Deisy and Deisy’s father, Enrique, causing severe, permanent injuries to each. Officer
Aguirre then took her own life. Prior to the shooting, Officer Aguirre and Deisy had lived together
for four years. During that time, Officer Aguirre had been verbally and emotionally abusive to
Deisy. Officer Aguirre also had two disciplinary incidents at work, both of which involved her
losing her temper. Deisy ended the relationship a few months before the shooting.
The Cook County Sheriff’s Office deputizes its correctional officers, thereby authorizing
these officers to carry a service weapon. Correctional officers who work at the Jail are prohibited
from bringing their service weapons into the Jail. According to plaintiffs, correctional officers at
the Jail regularly subject detainees to excessive force, and supervisory officials at the Cook County
Sheriff’s Office and the Cook County Jail have a history of covering up or condoning this behavior.
On November 14, 2016, plaintiffs filed a complaint in the Circuit Court of Cook County,
Illinois against defendants Cook County, the Sheriff of Cook County in his official capacity, and
the Cook County Department of Corrections, alleging claims of willful and wanton conduct
(Counts I-II) and loss of consortium (Count III). On November 29, 2016, plaintiffs filed a motion
pursuant to 735 ILCS 5/2-1009(a) to voluntarily dismiss the matter without prejudice. The motion
was granted on December 2, 2016. On November 15, 2017, plaintiffs filed the instant action and
added several new defendants and several new claims.
Defendants now move to dismiss, arguing that plaintiffs have filed an impermissible group
pleading, the state law claims against certain defendants are time-barred, and Officer Aguirre was
not acting within the scope of her employment at the time of the incident.
STANDARD
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a

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complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must
“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted). Under federal notice-pleading
standards, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id. Stated differently, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (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.” Id. (citing Twombly, 550 U.S. at 556). “In
reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the
well-pleaded facts in the complaint as true, but [they] ‘need[] not accept as true legal conclusions,
or threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013) (quoting Brooks
v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)).
DISCUSSION
I.

Statute of limitations affirmative defense
Failure to comply with a statute of limitations is an affirmative defense. Fed. R. Civ. P.

8(c)(1). A plaintiff need not plead around an affirmative defense, and the Court may dismiss on
the basis of an affirmative defense only where a plaintiff alleges, and thus admits, the elements of
the affirmative defense. Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 61314 (7th Cir. 2014); United States Gypsum Co. v. Indiana Gas Col, Inc., 350 F.3d 623, 626 (7th
Cir. 2003).

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Plaintiffs’ claim for relief arises from the November 15, 2015 incident. Plaintiffs first filed
suit against Cook County, the Sheriff of Cook County, and the Cook County Department of
Corrections (the “original defendants”) on November 14, 2016. Roughly two weeks later, on
November 29, 2016, plaintiffs voluntarily dismissed the action with leave to re-file. On November
15, 2017, plaintiffs filed this action and added several new defendants, including Cara Smith,
Nneka Jones, George Turner, Superintendent Johnsen, Sergeant Phillips, Sergeant Monroe, and
Juanita Peterson (the “newly added defendants”).
As the Court understands defendants’ argument, defendants move to dismiss plaintiffs’
state law claims (Counts VII – XI) against the newly added defendants, arguing that these claims
are time-barred by the one-year statute of limitations period under the Illinois Tort Immunity Act.
See 745 ILCS 10/8-101(a). Defendants say that plaintiffs cannot save these claims, even with the
Illinois Savings Statute, 735 ILCS 5/13-27, because plaintiffs did not name these defendants in
their first suit. Defendants argue that the Illinois Savings Statute does not allow new claims against
new defendants who were not parties to the first action. (Dkt. 96, pg. 3 (citing Brengettcy v.
Horton, No. 01 C 197, 2006 WL 1793570, at *7 (May 5, 2006)). According to defendants, the
applicable statute of limitations period for the state law claims against these defendants expired on
November 15, 2016—one year before plaintiffs filed this action.
Plaintiffs respond that their state law claims against all defendants, including the newly
added defendants, are timely pleaded because the Illinois Savings Statute allows a plaintiff to refile claims within one year after a voluntary dismissal. See 735 ILCS 5/13-217. In support,
plaintiffs rely on Muhammed v. Oliver, 547 F.3d 874 (7th Cir. 2008), where the court noted, “if . .
. there are multiple defendants, the extinction of the claim against one . . . extinguishes the
plaintiff’s claim against the others . . . if the claim against them arose out of the same facts as the

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first claim.” Id. at 877. Plaintiffs argue conversely here: they say that they may add new
defendants to their re-filed complaint so long as the complained-of conduct is identical to that
alleged in their original complaint. The Court disagrees.
Under the Illinois Tort Immunity Act, “[n]o civil action . . . may be commenced in any
court against a local entity or any of its employees unless it is commenced within one year from
the date that the injury was received or the cause of action accrued.” 745 ILCS 10/8-101(a). The
Illinois Savings Statute allows a plaintiff who voluntarily dismisses an action to commence a new
action within one year of the date of dismissal. See Mabry v. Boler, 972 N.E.2d 716, 720 (Ill. App.
2012); Evans ex. rel. Evans v. Lederle Labs., 167 F.3d 1106, 1112 (7th Cir. 1999); 735 ILCS 5/13217.
The Court finds that plaintiffs’ claims against the newly added defendants are not timely
and cannot be saved through the Illinois Savings Statute. As noted, plaintiffs’ claim for relief
stems from the November 15, 2015 incident. Under the Illinois Tort Immunity Act, plaintiffs were
required to file any claims against a local entity or any of its employees within one year, or by
November 15, 2016. Plaintiffs did so by filing suit against defendants Cook County, the Sheriff
of Cook County, and the Cook County Department of Corrections on November 14, 2016.
However, plaintiffs waited another year to file their claims against the newly added defendants.
Unfortunately for plaintiffs, this delay bars plaintiffs from asserting the state law claims against
the newly added defendants. See Brengettcy, 2006 WL 1793570, at *7 (the Illinois Savings Statute
allows a plaintiff to refile only the state law claims that were dismissed against one of the original
defendants; plaintiff cannot file new clams against new parties). Accordingly, plaintiffs’ state law
claims against defendants Cara Smith, Nneka Jones, George Turner, Superintendent Johnsen,

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Sergeant Phillips, Sergeant Monroe, and Juanita Peterson are not timely and are dismissed with
prejudice.
II.

Group Pleading
Defendants also contend that plaintiffs have not adequately pleaded causes of action

against each defendant individually. Defendants argue that plaintiffs improperly base their
complaint on a theory of collective responsibility. (Dkt. 74, pgs. 7-8 (citing Knight, 725 F.3d at
818 (“A complaint based on a theory of collective responsibility must be dismissed.”) and Atkins
v. Hasan, No. 15 C 203, 2015 WL 3862724, at *3 (N.D. Ill. 2015) (finding plaintiffs’ complaint
insufficient because many of plaintiffs’ allegations were not directed at “all of the defendants”)).
Defendants further argue that plaintiffs have not sufficiently pleaded their Section 1983 claims
against them because plaintiffs do not allege that defendants personally participated in any
violation of plaintiffs’ constitutional rights or that defendants had any actual knowledge that this
event would occur. Defendants also say that plaintiffs have, at best, improperly presented a
respondeat superior allegation against Superintendent Johnsen based on his supervisory position.
In response, plaintiffs say that they need not name each defendant individually in each
paragraph. Rather, they may direct allegations at a group or a subgroup of defendants. (Dkt. 82,
pg. 9 (citing Brooks v. Ross, 578 F.3d 574, 582 (7th Cir. 2009) (collective pleading is allowed
when a plaintiff directs its allegations “at all of the defendants.”) and Warren ex rel. Warren v.
Dart, No. 09 C 3512, 2010 WL 4883923, at *7 (N.D. Ill. Nov. 24, 2010) (noting that plaintiffs
need not explicitly parse which of the named defendants were responsible for the alleged acts or
omissions)). Plaintiffs say they have done so here. In their second amended complaint, plaintiffs
allege that Superintendent Johnsen, Lieutenants Lee and Peterson, and Sergeants Phillips and
Monroe “personally witnessed or were directly informed of Officer Aguirre’s misconduct and

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troubled behavior at the Cook County Jail.” (Dkt. 82, pg. 10 (citing dkt. 32-1 at ¶¶ 58-64).) They
say that these defendants witnessed Officer Aguirre’s emotionally unstable behavior but did not
take any steps to correct the behavior through discipline, counseling, or testing. Instead, these
defendants acted pursuant to a code of silence. Likewise, plaintiffs say that they have pleaded
sufficient facts against Sheriff Dart, Smith, Jones, and Turner because they identify these
defendants as policymakers and make “multiple detailed allegations about their knowledge/notice
and fostering of unconstitutional policies that led to the [incident].” (Dkt. 82, pg. 10.) Plaintiffs
contend that these defendants had notice of widespread misconduct in the Jail involving excessive
force. They say that officers who would engage in such misconduct would often also engage in
this behavior at home, in the form of domestic violence. Plaintiffs further allege that these
defendants knew that the use of force early intervention program was not working and that officers
who engage in misconduct at the Jail pose a serious risk of harm to the public. According to
plaintiffs, these defendants failed to adequately train, supervise, and discipline officers at the Jail,
and they maintained a code of silence. Lastly, plaintiffs say that they are not pursuing liability
under a theory of respondeat superior, which is not allowed under Section 1983. Rather, they are
pursuing a theory of supervisor liability that can be established when a supervisor approves
unconstitutional conduct and the basis for that conduct. (Dkt. 82, pgs. 11-12 (citing Backes v.
Village or Peoria Heights, Ill., 662 F.3d 866, 869-70 (7th Cir. 2011) (“Supervisors must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they
might see.

They must in other words act either knowingly or with deliberate, reckless

indifference.”)).
Under the notice-pleading requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not
provide extensive details, but it must state enough to “give the defendant fair notice of what the

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claim is and the grounds upon which it rests” and “to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (2007) (citation omitted). In other words, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “For a
claim to be plausible and to meet the notice requirements of Rule 8, the complaint must explain
each defendant’s allegedly wrongful actions.” Heartland Consumer Prod. LLC v. DineEquity,
Inc., No. 17-CV-01035-SEB-TAB, 2018 WL 465784, at *4 (S.D. Ind. Jan. 18, 2018) (citing Bank
of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013)). “However, a plaintiff need not
extensively elaborate on the details of each individual defendant to comply with Rule 8.” Id.
(internal citations and brackets omitted). Liability exists under Section 1983 when an individual
defendant caused or participated in a constitutional deprivation. Hildebrandt v. Ill. Dep’t of Nat.
Res., 347 F.3d 1014, 1039 (7th Cir. 2003). For supervisors, the personal responsibility requirement
is satisfied when the conduct causing the constitutional deprivation occurs at the supervisor’s
direction or with the supervisor’s knowledge and consent. Id. (quoting Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995)). In other words, there must be some causal connection or
affirmative link between the complained-of action and the official sued. Id.
Here, plaintiffs’ factual allegations are sufficient to put defendants on notice of the claims
against them. Collective pleading is allowed when a plaintiff directs its allegations “at all of the
defendants.” See Brooks, 578 F.3d at 582. When multiple defendants are involved, a plaintiff
need not explicitly parse which of the named defendants were responsible for which alleged acts
or omissions, so long as all were allegedly on notice of a particular risk, which they disregarded.
See Warren, 2010 WL 4883923, at *7. Plaintiffs plausibly allege that Superintendent Johnsen,
Lieutenants Lee and Peterson, and Sergeants Phillips and Monroe witnessed and/or were made

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aware of Officer Aguirre’s misconduct at the Cook County Jail but did not take any steps to
discipline and/or correct the behavior. As for defendants Sheriff Dart, Smith, Jones, and Turner,
plaintiffs plausibly allege that these defendants are policymakers who had notice or were aware
that: Cook County Jail officers would oftentimes use excessive force against detainees; officers
who use excessive force at the Jail would oftentimes engage in this behavior in public and/or at
home, in the form of domestic violence; and, the Cook County Jail Early Intervention Program
was ineffective in identifying and/or dealing with officers who are likely to engage in excessive
force and/or are prone to violence. According to plaintiffs, these defendants failed to adequately
train, supervise, and discipline officers at the Jail, and they maintained a code of silence. Like the
plaintiffs in Brooks, plaintiffs direct their claims at all of the defendants. Compare Brooks, 578
F.3d at 582 (collective pleading permissible when allegations are directed “at all of the
defendants”), with Atkins v. Hasan, No. 15 C 203, 2015 WL 3862724, at *3 (N.D. Ill. 2015)
(collective pleading impermissible when allegations are directed at only some, or possibly none,
of the defendants).
The Court also finds that plaintiffs’ allegations sufficiently plead personal involvement.
Plaintiffs allege that defendants Superintendent Johnsen, Lieutenants Lee and Peterson, and
Sergeants Phillips and Monroe had knowledge or were aware of Officer Aguirre’s misconduct but
turned a blind eye. Plaintiffs also allege that defendants Sheriff Dart, Smith, Jones, and Turner are
policymakers who were aware of unconstitutional policies that, according to plaintiffs, led to the
incident in November 2015. Despite this awareness, these defendant policymakers turned a blind
eye. Although plaintiffs’ allegations are somewhat tenuous, they are sufficient at this stage of the
proceedings.

See Warren, 2010 WL 4883923, at *7 (complaint names persons allegedly

responsible for detainee’s death and plausibly supports an inference that these persons had

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subjective knowledge of the risk to detainee’s health); see also Atkins, 2015 WL 3862724, at *3
n.3 (noting difference between “supervisory liability” and respondeat superior liability).
Accordingly, defendants’ motion to dismiss on the basis of impermissible group pleading is
denied.
III.

Scope of Employment
Defendants also argue that plaintiffs’ state law claims should be dismissed because Officer

Aguirre was acting beyond her scope of employment, and, therefore, her employers should not be
held liable as defendants. In other words, her actions were personal in nature. Defendants contend
that a municipality may only be held liable for the tortious conduct of an officer when that officer
is acting within the scope of her employment. Plaintiffs respond that their state law claims (Count
VII – Breach of Duty in Hiring, Training, and Supervising (Negligence); Count VIII – Breach of
Duty in Authorizing Service Weapons for Corrections Officers (Willful and Wanton Conduct);
Count XI – Breach of Duty in Hiring (Willful and Wanton Conduct); Count X – Breach of Duty
in Failing to Terminate (Willful and Wanton Conduct); and Count XI – Loss of Consortium) are
against defendants for defendants’ own actions and failures to act; plaintiffs are not trying to
impute Officer Aguirre’s liability to them. The Court agrees and finds that, at this stage, plaintiffs
may proceed with their state law claims against the remaining defendants. See LaPorta v. City of
Chi., 102 F. Supp. 3d 1014, 1019 (N.D. Ill. Apr. 24, 2015) (allowing plaintiff to proceed on claim
of willful and wanton conduct for failure to train or supervise).
CONCLUSION
For these reasons, defendants’ motion to dismiss is granted in part and denied in part.
Defendants’ motion to dismiss is granted as to plaintiffs’ state law claims against defendants Cara
Smith, Nneka Jones, George Turner, Superintendent Johnsen, Sergeant Phillips, Sergeant Monroe,

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and Juanita Peterson. These claims are dismissed with prejudice. Defendants’ motion to dismiss
is otherwise denied. Status set for September 26, 2019 at 9:30 a.m.

SO ORDERED.

ENTERED: September 13, 2019

______________________
HON. JORGE ALONSO
United States District Judge

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