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September 14, 1981


The opinion of the court was delivered by: Kocoras, District Judge:


Plaintiff, Oscar Wright, brings this action against Sergeant Robert Stickler, a North Chicago police officer, Edward Chrapowski, Chief of Police for the City of North Chicago, and the City of North Chicago for violating his Fourteenth Amendment rights secured through 42 U.S.C. § 1983. This court notes that some of plaintiff's allegations invoke his Eighth Amendment rights. Jurisdiction is based upon 28 U.S.C. § 1331 and 1343. The defendants have moved to dismiss the First Amended Complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

Count I seeks both compensatory and punitive damages against Sgt. Stickler and the City of North Chicago because of Stickler's refusal to provide plaintiff with medical treatment. Count II alleges that defendant Chrapowski as Chief of Police knowingly allowed conditions in the lock-up to become unsafe and unsanitary, and that those conditions substantially contributed to plaintiff's illness. Count III is also directed against Chief Chrapowski; it alleges that Sgt. Stickler had been subject of several complaints of abusive conduct and maltreatment of citizens and that he had compiled an employment history indicating that he was likely to engage in further abuse of citizens. Despite his knowledge of Stickler's employment history, Chief Chrapowski failed either to assign him to duties where the opportunity to abuse citizens would not arise or to suspend him from the force. Count IV charges the City of North Chicago with knowledge of Sgt. Stickler's employment history. By failing to supervise its police employees properly, the City thereby encouraged and permitted Sgt. Stickler to remain in a position from which he could continue to abuse citizens. Count V states that it was the custom and policy of the City of North Chicago to maintain its lock-up in an unclean and unsanitary manner which endangered the health of its residents, and that such conditions substantially contributed to plaintiff's illness.

Claim Against Sgt. Stickler

In support of the motion to dismiss, defendants contend that plaintiff's allegations concerning Sgt. Stickler's denial of medical attention do not plead the facts with the requisite specificity for a cause of action. In addition, defendants assert that plaintiff's allegations do not rise to the level of a constitutional deprivation of civil rights.

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Seventh Circuit Court of Appeals recently applied Rule 8(a) to a claim under 42 U.S.C. § 1983 in Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). The accepted rule in appraising the sufficiency of the complaint is that it "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. 644 F.2d at 655 citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In reviewing a dismissal on the pleadings all allegations in the complaint are taken as true and the complaint is construed liberally in favor of the party opposing the motion to dismiss. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). A complaint need not set down in detail all the particularities of a plaintiff's claim against a defendant. Id. 537 F.2d at 858.

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. Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974), cert. denied sub. nom Thomas v. Cannon, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). In determining whether medical care was in fact essential, the court applied the following test:

  [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 SUGGEST the
  presence of these factors. Id. 493 F.2d at 158.
  (emphasis supplied)

Accord: Doyle v. Unicare Health Serv., Inc., Aurora Center, 399 F. Supp. 69, 72-73 (N.D.Ill. 1975). Significantly, the complaint need only suggest, rather than specifically allege or prove, the foregoing elements in order to withstand dismissal.

In his first amended complaint, plaintiff Wright asserts that he became "seriously ill" while in defendant Stickler's custody. Plaintiff supports his assertion with the specific statement that he was "unable to urinate and had severe abdominal pains." Because the complaint sufficiently describes the nature of plaintiff's symptoms, this court finds that a physician exercising ordinary skill at the time of the request would have concluded that Wright evidenced a serious disease or injury. Further, plaintiff's symptoms indicated that the potential for harm was substantial by reason of delay in medical treatment. Finally, plaintiff's assertion that he was subsequently confined to a hospital suggests that such harm did result.

Defendants contend that Sgt. Stickler was willing to provide plaintiff with an opportunity to see a doctor if plaintiff or his family could find one to visit the jail; Stickler also would permit plaintiff to enter a hospital if a doctor so ordered. Because Sgt. Stickler displayed a willingness to provide plaintiff with medical care, defendant argues that plaintiff's claim is not of constitutional magnitude. However, the Seventh Circuit's language in Thomas v. Pate, supra, 493 F.2d at 158 provides guidance: "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." This court notes that the Supreme Court cited the Thomas case with approval when it held that deliberate indifference to serious medical needs of prisoners in violation of the Eighth Amendment may be manifested by prison guards in intentionally denying or delaying access to medical care. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983. Id. 429 U.S. at 105, 97 S.Ct. at 291.

Given the common difficulty in today's society of finding a physician willing or able to visit a patient outside of a clinic or hospital, it is not surprising that Stickler's position resulted in Wright's failure to receive prompt medical attention. The difficulty in securing medical attention increases where a person is in jail and may not have an established relationship with a doctor. An individual incarcerated, whether for a term of life or merely for the night to "dry out" in the local drunk tank, becomes both vulnerable and dependent upon the state to provide certain simple and basic human needs such as medical care. Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972). Consequently, the allegations in Count I suggest that Sgt. ...

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