Miller v. DuPage County Sheriff et al

Filing 48

MEMORANDUM Opinion and Order: Plaintiff's motion to alter judgment 35 is denied. Plaintiff's motion for leave to file a second amended complaint is denied. 37 Signed by the Honorable Thomas M. Durkin on 2/20/2019:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RANGER MILLER,
Plaintiff,
v.
DUPAGE COUNTY, ET AL.,
Defendants.

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No. 18 C 2072
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
On March 21, 2018, Plaintiff Ranger Miller, through counsel, sued defendants
DuPage County, John Zaruba (Sheriff of DuPage County), and a number of “officer
defendants” (Lieutenant J. Prosper, Sergeant Brian Stuckey, Sergeant Jodi Ritter,
Deputies Sean M. Blase, Keven Keith, Deborah DeYoung, Paul Dante, Steve Messina,
Corporal Quinna Odom, and other unknown deputies) for failing to protect Miller
from another inmate who attacked him with a shaving blade. R. 1. On August 8, 2018,
this Court granted defendant DuPage County and Zaruba’s motion to dismiss Miller’s
complaint, R. 11, without prejudice. R. 24. On September 17, 2018, Miller filed an
amended complaint, R. 29, which the Court struck and dismissed shortly thereafter.
R. 34. Currently before the Court is Miller’s motion to amend or alter judgment under
Federal Rule of Civil Procedure 59(e). R. 35. In his motion, Miller seeks leave to file
a second amended complaint before this Court changing his theory of the case based
on newly-discovered evidence. Id. Because Miller cannot satisfy the requirements of
Rule 59(e), the Court denies his motion.

Background
The Court assumes familiarity with the allegations in Miller’s complaint and
amended complaint and the law set forth in its two prior opinions dismissing them,
but reviews them briefly here for completeness. R. 24; R. 35. The Court’s opinion
dismissing Miller’s initial complaint held that: 1) Miller did not identify in his 42
U.S.C. § 1983 deliberate indifference claim whether he was suing Sheriff Zaruba and
the officer defendants in their individual capacities or in their official capacities,
creating a threshold vagueness issue, R. 24 at 4; 2) Miller had not stated a deliberate
indifference claim regardless of whether he was suing these defendants in their
official or individual capacities, Id. at 4-7; 3) without the deliberate indifference claim,
Miller’s claim for indemnification by DuPage County necessarily failed, Id. at 7; and
4) without any remaining federal claims, the Court would not exercise supplemental
jurisdiction over Miller’s state law aggravated battery claim against the inmate who
assaulted him, Id. In concluding that Miller had not stated a claim for deliberate
indifference against the defendants in their individual capacities, the Court explained
that Miller had “not plead facts supporting personal involvement and subjective
awareness of risk on the part of each individual defendant,” and that “he must do so
to proceed against them in their individual capacities.” Id. at 6. In its order, the Court
gave Miller express permission to, if appropriate, file a motion for leave to file an
amended complaint that “attach[ed] a redlined comparison between the complaint
and the amended complaint, and [was] supported by a brief of no more than five pages

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describing how the proposed amended complaint cures the deficiencies in the current
complaint.” Id. at 7-8.
Miller thereafter filed an amended complaint without the required motion,
redline or memorandum. R. 29. After the Court reminded him to do so, Miller filed
the memorandum and redline, but still did not file an accompanying motion to amend.
R. 32; R. 33. In his amended complaint and accompanying memorandum, Miller
clarified that he was suing the officer defendants only in their “official capacity” in
Count I. R. 32 at 2; 33 ¶ 24. Because Miller’s amended complaint continued to suffer
from fatal deficiencies identified in the Court’s order dismissing the original
complaint, the Court struck Miller’s amended complaint and dismissed the case
without prejudice to Miller bringing any viable state law claims in state court. R. 34.
In doing so, the Court explained as it had in its original order that “[a]n official
capacity suit is tantamount to a claim against the government entity itself” that can
proceed only under a Monell theory, and even in his more detailed amended
complaint, Miller had not plausibly alleged such a claim, having failed to tie his
allegations “to the policy, customs, or practices of the institution as a whole.” Id. at 4
(citing Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015)). The Court once
again declined to exercise supplemental jurisdiction over Miller’s remaining claim
plead under state law—this time, a negligence claim against Sheriff Zaruba under
Illinois Counties Code, 55 ILCS 5/3-6016. Id. at 4-5.
Now, in Count I of his proposed second amended complaint, Miller advances a
new theory under Section 1983: that the defendant correctional officers failed in their

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individual capacities to protect him from his fellow inmate attacker in violation of the
Fourteenth Amendment despite that they were aware of the “strong likelihood” of
harm by his attacker. R. 37-1 ¶¶ 20-37. Miller’s proposed second amended complaint
also repeats Count II from his amended complaint, alleging negligence by Sheriff
Zaruba. 1
Analysis
Federal Rule of Civil Procedure 59(e) provides relief only if a plaintiff either:
1) establishes a manifest error of law or fact; or 2) presents newly discovered evidence.
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007). “[I]t is well-settled
that a Rule 59(e) motion is not properly utilized to ‘advance arguments or theories
that could and should have been made before the district court rendered a judgment.”
Id. at 512 (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th
Cir. 1995)); see also Fannon v. Guidant Corp., 583 F.3d 995, 1002 (7th Cir. 2009) (A
party filing a Rule 59(e) motion “has a hard row to hoe, because normally Rule 59(e)
motions may not be used to cure defects that could have been addressed earlier.”).
Here, Miller alleges in his reply brief that his proposed second amended
complaint is founded upon newly discovered evidence “obtained through a FOIA
request to the Sheriff’s Office after the filing of the initial complaint.” R. 45 at 1-2.
Miller argues that this information allowed him to plead his new theory against the
individual defendants under Section 1983, because it demonstrates their knowledge

Miller continues to name DuPage County in his case caption but does not name the
County in either Count of his proposed Second Amended Complaint.

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of his attacker’s propensity for violence, and failure to take measures to protect him.
Id. at 2. But Miller neither indicates when he sent the Freedom of Information Act
request, nor when he received a response. The Court notes that, pursuant to statute,
a FOIA request for non-commercial purposes must be responded to within 5 business
days after its receipt. 5 ILCS 140/3(d). While an extension for certain reasons is
possible, the extension is short: FOIA requires a response “not more than 5 business
days from the original due date.” 5 ILCS 140/3(e). Miller filed his initial complaint on
March 21, 2018. R. 1. He filed the current motion on October 25, 2018. R. 1; R. 35.
Miller does not allege that DuPage County delayed in its response to his FOIA request
or that he otherwise could not have obtained the information upon which he now
seeks to rely sooner. Accordingly, the Court is hard-pressed to find a reason to allow
him another bite at the apple. Particularly where, as here, he is represented by
counsel and has already had two bites—and significant direction from the Court
through its two earlier opinions.
Moreover, the Court has concerns about the second amended complaint in any
event. The Court has already cautioned Miller but will do so again here that 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). The statement must give
defendant “fair notice” of the claim and the basis for it, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), and 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

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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).
Having re-pleaded his deliberate indifference claim against the officers in their
individual capacities, Miller purports to state a claim under Section 1983 and the
Fourteenth Amendment. However, as this Court has instructed Miller previously,
individual-capacity liability under Section 1983 requires a defendant’s personal
involvement in the alleged constitutional violation. Palmer v. Marion County, 327
F.3d 588, 594 (7th Cir. 2003). The Due Process Clause simply does not provide for
individual liability for deliberate indifference to the safety and welfare of a pre-trial
detainee like Miller unless the defendant was “aware of a substantial risk of serious
injury to [the plaintiff] but nevertheless failed to take appropriate steps to protect
him from a known danger.” Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007).
Indeed, “a prison official cannot be individually liable if he was not actually
subjectively aware of [the risk of harm], even if he should have been aware of a risk
that harm would befall an inmate.” Everett v. Baldwin, 2016 WL 8711476, at *6 (N.D.
Ill. Jan. 15, 2016) (emphasis added).
Here, Miller alleges that defendant Lieutenant Prosper’s investigative report
indicated that Miller’s attacker “ha[d] shown a willingness to severely injure another
inmate,” and “made statements prior to being incarcerated about harming law
enforcement officers” demonstrating his personal awareness. R. 37-1 ¶ 24. Yet Miller
still fails to plead facts supporting the personal involvement and subjective

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awareness of risk on the part of any other individual defendant, referring generally
instead to what “Defendants” knew, without explanation, and that each was either
serving at DuPage County Jail where Miller was being held or were supervisors
there, without more. See R. 37-1 ¶¶ 21-37. 2 The Court agrees with defendants Zaruba
and DuPage County that “being on duty in a jail or being the supervisor in the jail at
the time of the injury does not provide a sufficient legal basis for individual liability,”
and questions the viability of Miller’s second amended complaint on that basis. R. 40
at 7.
Finally, Miller’s state law negligence claim against Zaruba appears to be
barred by the statute of limitations, as the events giving rise to his claim occurred on
June 30, 2017, and he did not file that claim until over a year later in September
2018. See 745 ILCS 10/8-101(a) (“No civil action . . . may be commenced in any court
against a local entity or any of its employees for any injury unless it is commenced
within one year from the date that the injury was received or the cause of action
accrued.”). Thus, because Miller cannot satisfy the requirements of Federal Rule of
Civil Procedure 59(e), and because the Court continues to have doubts about the
sufficiency of Miller’s proposed pleading in any event, the Court must deny Miller’s
motion.

Moreover, the proposed second amended complaint does not indicate whether
Lieutenant Prosper had the information regarding Miller’s attacker prior to the
attack, or whether it was simply the result of his investigation.

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Conclusion
For these reasons, the Court denies Miller’s motion to amend or alter judgment
[35].
ENTERED:

_______________________
Honorable Thomas M. Durkin
United States District Judge
Dated: February 20, 2019

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