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May 19, 1994

THE ESTATE OF FRANK BERNARD CASSARA, by its special administrator, MICHAEL J. CASSARA, Plaintiffs,
STATE OF ILLINOIS, ABDUL BASIT, individually, and as Facility Director; JUDITH CAST, individually and as an employee of the Defendant State of Illinois; PAUL JACKSON, individually and as an employee of the Defendant, State of Illinois; EMMA TURNER, individually and as an employee of the Defendant, State of Illinois; and OTHER UNKNOWN EMPLOYEES, individually and as employees of the Defendant, State of Illinois, Defendants.

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the motions of defendants Paul Jackson, Emma Turner, and Judith Cast (collectively "defendants") to dismiss plaintiff's complaint. For the reasons set forth below, the motions are denied in part and granted in part.


 On February 19, 1993, Frank Bernard Cassara ("Cassara") was taken by ambulance to Christ Community Hospital for evaluation after he requested emergency assistance. Cassara was subsequently restrained and transferred to the Tinley Park Mental Health Center ("Mental Health Center") after he evinced suicidal behavior. Cassara voluntarily committed himself into the Mental Health Center and requested treatment pursuant to the Illinois Mental Health Developmental Disabilities Act, 405 ILCS 5/3-400. The Mental Health Center is a state-operated medical institution created under the laws of Illinois. Defendants are members of the staff of the Mental Health Center and are state employees.

 At the Mental Health Center, Cassara was placed on suicide precautions watch. After becoming aggressive and confrontational with the staff and other patients, Cassara was placed in a restraint/seclusion room for close observation. Pursuant to statute, seclusion is used only as a therapeutic measure to prevent a recipient from causing physical harm to himself or physical abuse to others. 405 ILCS 5/2-109. Seclusion is employed only upon written order of a physician. Id. Moreover, a qualified person must observe the person placed in seclusion at all times. Id.

 On February 22, 1993, Cassara was found dead in the restraint/seclusion room, having taken his life by strangulation. Plaintiff alleges that defendants failed to observe Cassara, or failed to prevent him from harming himself during his extended period of time in seclusion. The staff at the Mental Health Center also failed to expropriate the items Cassara eventually utilized in implementing his suicide: a comb and pair of socks.

 Plaintiff is the special administrator of the Estate of Cassara. Plaintiff brought this suit pursuant to 42 U.S.C. § 1983 and under state law alleging that defendants took affirmative actions which permitted the death of Cassara, or failed to follow or enforce policies which would have prevented the death of Cassara, in violation of the Fourteenth Amendment. The court has dismissed the State of Illinois from this suit and has dismissed the Facility Director of the Mental Health Center, Abdul Basit. See 843 F. Supp. 411 (N.D. Ill. 1994).

 On February 11, 1994, defendants Jackson and Turner filed a joint motion to dismiss, asserting that plaintiff's complaint fails to state a claim for which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Cast did the same on February 25, 1994. In regard to the § 1983 claims, defendants maintain that plaintiff fails to allege a constitutional violation and that, in any event, they enjoy qualified immunity for their actions. Defendants further maintain that the state claims should be dismissed because plaintiff failed to meet the requirements under Illinois law for a healing art malpractice case and because plaintiff failed to allege that Cassara experienced conscious pain and suffering prior to his death.

 On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the allegations of the complaint, as well as all reasonable inferences drawn therefrom, are accepted as true. Stephenson v. Stone, 21 F.3d 159, 1994 U.S. App. LEXIS 6471 *2 (7th Cir. 1994). Because federal courts simply require "notice pleading," this court must construe pleadings liberally. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993). A complaint's mere vagueness or lack of detail is not sufficient to justify a dismissal. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Furthermore, the ambiguities in a complaint are resolved favorable to plaintiffs, not defendants. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir. 1994). The complaint, however, must state either direct or inferential allegations concerning all material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979). Accordingly, a party fails to state a claim upon which relief may be granted only if that party can prove no set of facts upon which to grant legal relief. Ross v. Creighton Univ., 957 F.2d 410, 413 (7th Cir. 1992).

 To establish liability under § 1983, plaintiff must show that defendants acted under the color of state law and deprived Cassara of a federal right. 42 U.S.C. § 1983. Defendants essentially maintain that plaintiff has failed to allege a violation of a federal constitutional right. More specifically, defendants claim that there is no basis for plaintiff to claim Cassara was deprived of his due process rights during his stay at the Mental Health Center because Cassara was a voluntary patient. As a person voluntarily restrained by state actors, Cassara's due process rights are not implicated.

 The Due Process Clause of the Fourteenth Amendment, upon which plaintiff relies as the source of Cassara's federal right, provides that "no state shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. While the Fourteenth Amendment forbids the state itself to deprive individuals of life, liberty, or property without due process of law, the amendment does not compel a state to protect its citizens' life, liberty, or property from encroachment by private actors. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). Accordingly, a general right to governmental aid does not arise from the due process clauses contained in either the Fifth or Fourteenth Amendment, even if such aid were necessary to secure an individual's life, liberty and property. Id. at 196; Harris v. McRae, 448 U.S. 297, 317, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980).

 Although the state has no general duty under the Due Process Clause to protect individuals, it is required to provide conditions of reasonable care and safety to patients who are involuntarily committed into a state mental health facility. Youngberg v. Romeo, 457 U.S. 307, 324, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982); see also City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 244, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983) (deliberate indifference by officials to serious medical need or injury of pretrial detainee constitutes punishment without due process). This duty encompasses the prevention of suicides by those in a state or municipality's custody. See, e.g., Bragado v. City of Zion/Police Dep't, 788 F. Supp. 366, 371 (N.D. Ill. 1992). The duty, however, arises only when the State affirmatively exercises its power and restrains an individual's liberty so that he is unable to care for himself. Youngberg, 457 U.S. at 317. The ...

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