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September 3, 1986


The opinion of the court was delivered by: Foreman, Chief Judge:


This matter is before the Court on defendants' Motion to Dismiss in Part and for Partial Summary Judgment. On April 17, 1986 this Court granted in part and denied in part defendants' motion to dismiss plaintiffs' initial complaint. Prior to the Court's ruling on April 17, plaintiffs filed their first amended complaint, which defendants now move to dismiss. The Court then issued an Order, which stated that its rulings on the initial complaint were applicable to the amended complaint, and which also allowed defendants to file another motion "as to any part of the amended complaint that raises new issues." The primary purpose of entering that Order was to inform defendants that they could not object, in a later motion to dismiss, to any matters already ruled on by this Court.

Plaintiffs argue that defendants have waived the defenses they now raise since those defenses were available, but were not asserted, in defendants' first motion to dismiss. The Court first notes that defendants raised the defense of failure to state a claim in their original motion to dismiss, although the particular issues they now raise, with respect to that defense, were not asserted in their original motion. In any event, the defenses raised in defendants' pending motion are asserted pursuant to Rule 12(b)(6), and are not waiveable. See Fed.R.Civ.P. 12(h)(1) & (2). Although the proper procedure for raising the defenses now at issue is in a motion for judgment on the pleadings, "since the objection [of failure to state a claim] is so basic and is not waived, the Court might properly entertain the second motion [to dismiss] if convinced that it is not interposed for delay and that the disposition of the case on the merits can be expedited by so doing." 2A Moore's Federal Practice ¶ 12.22 at 12-192. In the instant case, the Court finds that defendants' motion is not interposed for delay and that disposition of the case will be expedited by reaching the merits of defendants' motion. The specific issues, therefore, are addressed below.

This case involves the death of Michael Strandell, who committed suicide while confined at the Jackson County Jail on March 17, 1984. The facts of the case are fully set forth in this Court's prior opinion and will not be repeated here. See Strandell v. Jackson County, Illinois, 634 F. Supp. 824 (S.D.Ill. 1986).

I. Liability Of Jackson County

Defendants request this Court to reconsider its earlier ruling that plaintiffs have stated a claim for relief against Jackson County under 42 U.S.C. § 1983. Municipal liability may only be imposed for unconstitutional actions that are inflicted pursuant to a governmental "policy or custom." Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Defendants argue that Jackson County's liability is premised upon allegations of inadequate staffing, overcrowding, inadequate training, and failure to adopt procedures for the screening and treatment of intoxicated and suicidal pretrial detainees. Such allegations, defendants contend, constitute "negative" policies, and as such, are insufficient to support a Monell claim of governmental liability. Defendants cite City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) in support of their argument. Defendants also note that the United States Supreme Court has granted a writ of certiorari to determine whether "negative" policies state a claim against a municipality under section 1983. See City of Springfield v. Kibbe, cert. granted, ___ U.S. ___, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986).

In the plurality opinion in Tuttle, the Supreme Court stated:

  [T]he word "policy" generally implies a course of
  action consciously chosen from among various
  alternatives; it is therefore difficult in one
  sense even to accept the submission that someone
  pursues a "policy" of "inadequate training,"
  unless evidence be adduced which proves that the
  inadequacies resulted from conscious choice
  — that is, proof that the policymakers
  deliberately chose a training program which would
  prove inadequate.

Tuttle, 105 S.Ct. at 2436. In a more recent decision, the Supreme Court also suggested that the word policy implies "a deliberate choice to follow a course of action. . . ." Pembauer v. City of Cinncinnati, ___ U.S. ___, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986).

In the present case, however, plaintiffs allege, for example, that defendants "have refused to alter the in-take and processing system for intoxicated pre-trial detainees," and "have refused to establish a detoxification unit . . . in which to treat and house intoxicated pre-trial detainees" despite recommendations by architects and jail consultants that such arrangements be established, and despite the history of similar suicides and suicide attempts at the jail. (Plaintiffs' Complaint, ¶¶ 41-49). Plaintiffs, in effect, allege that defendants were aware of the need to improve the operation of the jail, but nevertheless deliberately chose to operate the jail in a manner that endangered the health and safety of pretrial detainees. Plaintiffs have, therefore, adequately alleged a "policy" as defined by the Supreme Court in Tuttle and Pembauer, and their allegations are thus sufficient to withstand defendants' motion to dismiss. See also Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (conscious decision by city officials not to increase jail staff, when officials knew that failure to do so would impair the delivery of proper medical care to detainees, constituted a "policy" for purposes of establishing municipal liability).

Additionally, as noted by plaintiffs, "local governments . . . may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision-making channels." Monell, 436 U.S. at 690-91, 98 S.Ct. at 2036. Thus, "[a] § 1983 plaintiff . . . may be able to recover from a municipality without adducing evidence of an affirmative decision by policymakers if able to prove that the challenged action was pursuant to a state `custom or usage.'" Pembauer, 106 S.Ct. at 1299 n. 10 (emphasis added). See also Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986) (longstanding practice of maintaining inadequate jail facilities constituted a city custom or usage). Plaintiffs allege that Jackson County's policies and customs subjected the decedent to a deprivation of his constitutional rights. Under Monell and Pembauer, such allegations are sufficient to state a claim against the County.

The Court further notes that in several post-Tuttle decisions also involving jail house conditions, deaths and suicides, other courts have sustained claims against municipalities based on allegations very similar to those in the present case. See, e.g., Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182 (5th Cir. 1986); Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir. 1986); Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir. 1985); Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985). Therefore, for the reasons stated above, defendants' motion for reconsideration as to Jackson County's liability is denied.

II. Liberty Interest

Defendants also request this Court to reconsider its earlier ruling that the mandatory language of the Illinois County Jail Standards creates a protected liberty interest in an expectation of certain minimal standards and treatment. In support of its request, defendants contend that 1) the Jackson County Jail was not required to be in compliance with the standards relating to the physical nature of the jail until January 1, 1986; 2) Illinois case law holds that the jail standards create no duty on the part of the jailors to comply with those standards; and 3) since plaintiffs cannot, under state law, seek injunctive relief to enforce compliance with the Illinois County Jail Standards, they cannot establish any "claim of entitlement" under state law.

The Illinois County Jail Standards provide, in section 8-8:

  Compliance: All requirements of a physical nature
  shall be complied with by the following dates:
  (A) Jails built in 1950 or before shall be in
  compliance by January 1, 1986.

Plaintiffs allege in their complaint that the Jackson County Jail was built in 1926, but have failed to address defendants' argument that the jail standards regulating the physical condition of the jail were inapplicable at the time Michael Strandell died. Since defendants were given until January, 1986 to comply with the standards regarding physical conditions, and since Michael Strandell's death occurred on March 17, 1984, the Court agrees with defendants that no liberty interest may be premised on those standards. As noted in Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982), no liberty interest is created where prison officials are given discretion under state law to act or not act. Id. at 1100. "The existence of such discretion `preclude[s] the implication of a liberty interest deserving of due process protection.'" Id. (citations omitted).

Defendants contend that even those standards not governing physical requirements fail to give rise to a liberty interest. (The Court previously held that the jail standards created a liberty interest in an expectation of treatment that protects the safety, health and well-being of pretrial detainees. See Strandell, 634 F. Supp. at 828-29). The Court disagrees with defendants' assertion. Dezort v. Village of Hinsdale, 35 Ill. App.3d 703, 342 N.E.2d 468 (1976), a case cited by defendants in support of their claim that the jail standards create no entitlement to have those standards followed, was concerned with the legal duty owed by jailors in a negligence case. Dezort is simply irrelevant to the question of whether a protectable liberty interest has been established.

Likewise, the Court disagrees with defendants' contention that because an individual inmate cannot, under state law, demand compliance with the jail standards, there is no "claim of entitlement" to have those standards followed. (Under Illinois law, the State Department of Corrections is given the right to enforce compliance with the jail standards.) Defendants cite no authority for their proposition that "[i]n order to assert a claim of entitlement to compliance with the Jail Standards, it is necessary to analyze whether Illinois law recognizes an individual inmate's right to demand compliance with those standards." (Defendants' Reply Memorandum, p. 11). As noted by plaintiffs, the determination of whether a liberty interest exists is not dependent upon the "intricacies of state law enforcement mechanisms." (Plaintiffs' Sur-Reply, p. 11).

Therefore, defendants' motion for reconsideration is granted only insofar as the Court holds that Michael Strandell had no liberty interest in an expectation of certain ...

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