The opinion of the court was delivered by: Will, District Judge.
The named plaintiffs, Rosemary Doyle, as Administrator for the
estate of Mary Ann Hawken, deceased, and Barbara Hawken, as
sister and next friend of Mary Ann Hawken, bring this action
against Unicare Health Services, Inc. (Unicare), and various of
its directors and employees, for alleged violations of Mary Ann
Hawken's civil rights, 42 U.S.C. § 1983, 1985(3) and 1986.
Unicare, a privately owned, for profit, health care facility,
licensed by the State of Illinois, contracted to provide
full-time supervision and care to Mary Ann Hawken, a mentally
retarded adult. Asserting that the defendants breached their
obligation to Mary Ann Hawken by denying her necessary medical
attention, thereby contributing to her death, the plaintiffs now
seek monetary damages in the amount of $1,000,000. Federal
jurisdiction is founded upon 28 U.S.C. § 1343. Plaintiffs also
join two pendent claims, one sounding in tort for alleged
malpractice, and the second, for breach of contract for failure
to provide the decedent with promised programs, services, and
Defendants move to dismiss these claims charging (1) lack of
jurisdiction, and (2) failure to state a valid cause of action.
For the reasons set forth hereinafter, the defendants' motions
will be granted.
The plaintiffs' factual allegations reflect that, on February
1, 1971, they entered into a written agreement with Unicare,
whereby it would provide full-time care and treatment for Mary
Ann Hawken's physical and emotional needs. Pursuant to this
agreement, the defendants allegedly received payments from the
deceased, her relatives, the Social Security Administration, and
the State of Illinois.
On May 18, 1973, Mary Ann Hawken allegedly fell and injured her
head. Defendants took Ms. Hawken to the Mercy
Center for Health Care Services located in North Aurora,
Illinois, where her head wound was treated and sutured. Upon
return to the Aurora Center, she apparently became weak,
nauseated, and complained to defendants that she was suffering
increased discomfort and pain. After several unanswered
entreaties for help, the deceased allegedly suffered a seizure.
The defendants allegedly still refused to administer any
medicine, call a doctor, or return Mary Ann to the hospital. On
May 20, 1973, having received no further treatment, Mary Ann
Hawken died at the Aurora Center. The plaintiffs claim that Mary
Ann's death was directly and proximately caused by defendants'
reckless and intentional disregard for her condition, their
intentional refusal to give her necessary treatment, and their
refusal to obey and comply with the laws and regulations
promulgated by the State of Illinois which define the standards
for medical treatment required for residents of a sheltered care
The defendants raise two challenges to the plaintiffs' § 1983
claim; first, that the conduct described in plaintiffs' complaint
does not give rise to a valid claim of deprivation of any rights,
privileges, or immunities as contemplated by the Civil Rights
Act, and second, that Unicare was not acting under the color of
state law, and therefore is not subject to suit under § 1983.
Regarding the first challenge, the courts have generally
recognized that custodial institutions under the aegis of the
State have a constitutional obligation to ensure that an inmate
is secure in his life and person while confined there. Spence v.
Staras, 507 F.2d 554 (7th Cir. 1974); see also, Brazier v.
Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921,
82 S.Ct. 243, 7 L.Ed.2d 136 (1961). This has been interpreted to
require these institutions to provide necessary and reasonable
medical treatment to those entrusted to their care. Thomas v.
Pate, 493 F.2d 151 (7th Cir. 1974); Accord, La Batt v. Twomey,
513 F.2d 641 (7th Cir. 1974).
The institution's duty, however, is tempered, or conditioned,
by its broad discretion in determining the nature and extent of
medical treatment to be afforded its residents. The courts have
refused to entertain § 1983 lawsuits where the plaintiff merely
charges dissatisfaction with the adequacy of the treatment
received, Thomas, supra, or that it was administered negligently.
Scharfenberger v. Holmes, 384 F. Supp. 1269 (W.D.Ky. 1974). The
courts have carefully avoided second-guessing licensed physicians
as to the propriety of their prescribed treatment.
As expressed in Thomas, supra, 493 F.2d at 158, however, in the
. . a claim of medical mistreatment rises to
fourteenth amendment proportions when it asserts a
refusal to provide essential medical care after a
prisoner brings his medical complaint to the
attention of prison authorities. . . . In the
ultimate determination whether medical care was in
fact essential, the question would be, we think,
whether it had been proved that a physician
exercising ordinary skill and care at the time of the
request for medical care would have concluded that
the symptoms of the prisoner evidenced a serious
disease or injury; that the potential for harm by
reason of delay or denial of medical care was
substantial; and that such harm did result. In
deciding at the pleading stage whether a claim has
been stated, the court must consider whether the
factual allegations of the complaint suggests the
presence of these factors. [citations omitted]
We also think that it is sufficient to allege facts
which suggest that the medical care provided is so
clearly inadequate as to amount to a refusal to
provide essential care or is so blatantly
inappropriate as to evidence intentional mistreatment
likely to seriously aggravate
the prisoner's condition. [citations omitted]
If the defendants were acting under "color of state law," as
required for jurisdiction under § 1983 at the time in question,
the plaintiffs' complaint states a valid cause of action for
refusal to supply essential medical treatment.
Accepting plaintiffs' factual allegations as true, they set
forth that (1) the deceased was a mentally retarded adult
entrusted to the defendants' care, (2) she received a head injury
sufficient to require emergency treatment, (3) after receiving
initial treatment she experienced additional pain and discomfort
which she brought to the attention of the defendants without
recourse, (4) she then suffered a seizure which defendants knew
about and still refused additional treatment, and (5) she
ultimately died without receiving any further treatment. Based
upon these allegations, the plaintiffs contend that defendants,
although aware of Mary Ann Hawken's deteriorating physical
condition, knowingly, willfully, and wantonly refused to procure
readily available medical treatment which would have saved Mary
Ann Hawken's life, in violation of their contractural, ...