scheme or through the state official's exercise of discretion, render a voluntarily committed patient unable to care for himself or herself such that the state is charged with a duty not to infringe upon the due process rights of the patient. Accordingly, the court finds that the complaint states a claim under § 1983 and is not dismissed on this basis.
Defendants next claim they enjoy qualified immunity from the § 1983 suit for their actions. In order to penetrate defendants' shield of qualified immunity as government officials performing discretionary functions, plaintiff bears the burden of demonstrating that the defendants' conduct violated clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir. 1987). A right is clearly established when "the contours of the right [are] sufficiently clear that a reasonable official would understand that [the act in which he is engaging] violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Thus, liability attaches if the unlawfulness of the official's act is objectively apparent given the pre-existing law at the time of the act. Id.; Pounds v. Griepenstroh, 970 F.2d 338, 340 (7th Cir. 1992), cert. denied, 122 L. Ed. 2d 654, 113 S. Ct. 1256 (1993).
Plaintiff must show that Cassara's right was "sufficiently particularized" in regard to the precise facts facing defendants when they acted. See McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir. 1992); Landstrom v. Illinois Dep't of Children & Family Servs., 892 F.2d 670, 676 (7th Cir. 1990). In other words, was the law as to the rights of a person in Cassara's position apparent "in relation to the specific facts confronting [defendants] when [they] acted"? McDonald, 966 F.2d at 293 (quoting Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 102 L. Ed. 2d 534, 109 S. Ct. 497 (1988)); Polenz v. Parrott, 883 F.2d 551, 554 (7th Cir. 1989). The court must examine all relevant precedents in evaluating defendants' qualified immunity. Elder v. Holloway, 127 L. Ed. 2d 344, 114 S. Ct. 1019, 1021 (1994).
It is a clearly established right of an individual who is in state custody, whether for penal reasons or not, to be free from a state actor's deliberate indifference to that individual's serious medical needs. Hall v. Ryan, 957 F.2d 402, 404-05 (7th Cir. 1992); see also Youngberg, 457 U.S. at 315-16. But for the distinction defendants advance concerning the involuntary versus voluntary nature of a mental health patient's confinement, the actions in which plaintiff alleges defendants engaged would be actionable under § 1983. See Hall, 957 F.2d at 406. The duty of a state official not to be deliberately indifferent to the suicide risk of a confined individual is thus clearly established law. See id. at 404-05; Bragado, 788 F. Supp. at 372.
For the court to accept defendants' position, a state official could, with impunity from liability, permit all voluntarily committed patients to be used in uncontrolled, arbitrary medical experimentation and claim that their constitutional rights were not clearly established, yet at the same time know that directing the same actions toward an involuntarily committed person would be clearly illegal. The court's example, reductio ad absurdum, at least illustrates the point. From the standpoint of the victim to a constitutional deprivation, the right is clearly established. And the state officials are well apprised of that legal right through judicial precedent. Thus, state officials' awareness of a patient's risk of immediate suicide while the patient is under their custodial care, coupled with their deliberate indifference as to that patient's death, constitutes sufficient culpability such that qualified immunity should not protect their actions. State officials' knowledge of the voluntary nature of a patient's confinement should not effect their culpability, just as their ignorance of the involuntary nature of a patient's confinement would not effect whether the plaintiff's right was clearly established and the state officials' actions clearly illegal.
This holding is not inconsistent with the central purpose of qualified immunity. Qualified immunity protects public officials "'front undue interference with their duties and from potentially disabling threats of liability.'" Elder, 114 S. Ct. at 1022 (citing Harlow, 457 U.S. at 806). "The purpose of [qualified immunity] is to protect officials from legal surprises." Nelson v. Streeter, 16 F.3d 145, 151 (7th Cir. 1994). The absence of case law directly on point does not necessarily establish immunity. Id. Therefore, imputing state officials with the knowledge, objectively viewed, that they owe no less of a duty to voluntarily committed patients as they owe to involuntarily committed patients will not interfere with their official duties. It is reasonably foreseeable that patients under the state's care may commit suicide if the state officials are deliberately indifferent to their known suicidal conditions while housed at the state's custodial mental health center. Accordingly, defendants are not entitled to qualified immunity under the facts as pleaded in the complaint.
Defendants Jackson and Turner--but not Cast--also claim qualified immunity under state law. State officials and employees are entitled to qualified immunity from personal liability under Illinois tort law for discretionary acts. Hanzel Constr., Inc. v. Wehde & Southwick, Inc., 130 Ill. App. 3d 196, 474 N.E.2d 38, 41-42, 85 Ill. Dec. 624 (1985). "In determining whether an act is discretionary for public official immunity purposes, the act, in addition to involving skill or judgment, must be governmental in character." Janes v. Albergo, 254 Ill. App. 3d 951, 626 N.E.2d 1127, 1138, 193 Ill. Dec. 576 (1993). That is, the actions and duties involved in the case must be "unique to a particular public office." Id. The duties of a physician in his or her diagnosis and treatment of an individual are not unique to a particular public office and are thus not the type of activities protected by public official immunity. Id.; see also Madden v. Kuehn, 56 Ill. App. 3d 997, 372 N.E.2d 1131, 1134-35, 14 Ill. Dec. 852 (1978). Officials who are "'engaged in the same endeavors and functions as those performed by their counterparts in private practice'" are not protected by public official immunity. Janes, 626 N.E.2d at 1138 (quoting Watson v. St. Annes Hosp., 68 Ill. App. 3d 1048, 386 N.E.2d 885, 890, 25 Ill. Dec. 411 (1979)).
The complaint alleges that all defendants had a duty to protect the individuals in their custody or in restraint and seclusion. While many of the allegations concern a failure to implement procedures and policies, the complaint does allege involvement on the part of all remaining defendants regarding the treatment of Cassara while he was subject to defendants' care and custody. Specifically, the complaint's allegations include that defendants failed to monitor or inspect Cassara and failed to remove the comb and socks from Cassara when they placed him in the restraint/seclusion room. Although the precise individual roles in the care and treatment of Cassara are not alleged, the court can infer at the pleading stage of this case that each of these remaining defendants was an active participant in Cassara's care, placement, and treatment. The facts which may tend to provide the basis for distinguishing this case from Janes and Madden, and place it more in line with Midamerica Trust Co. v. Moffatt, 158 Ill. App. 3d 372, 511 N.E.2d 964, 969, 110 Ill. Dec. 787 (1987) or Kilcoyne v. Paelmo, 204 Ill. App. 3d 139, 562 N.E.2d 231, 234, 149 Ill. Dec. 767 (1990) are not apparent on the face of the complaint.
The court now turns to plaintiff's state law claims. Counts II and III of the complaint allege, respectively, a claim for wrongful death under the Illinois Wrongful Death Act, 740 ILCS 180/0.01 et seq. and rights under the Illinois Survival Act, 755 ILCS 5/27-6. Plaintiff concedes that count II must be amended to include the correct beneficiary and thus count II is dismissed on that basis. Further, plaintiff has failed to meet the requirements under Illinois law for healing art malpractice cases. Under 735 ILCS 5/2-622, a plaintiff must attach to a complaint an affidavit from a knowledgeable health professional attesting that there is a reasonable and meritorious cause for filing an action. This requirement is applicable to federal district court filings. Landstrom v. Illinois Department of Children and Family Servs., 699 F. Supp. 1270, 1282 (N.D. Ill. 1988), aff'd, 892 F.2d 670 (7th Cir. 1990). Plaintiff's failure to comply with 735 ILCS 5/2-622 requires dismissal of count II without prejudice.
As for count III, there are sufficient allegations that, as a proximate and direct result of the defendants' negligence, Cassara suffered pain and suffering prior to his death. A complaint's mere vagueness or lack of detail is not sufficient to justify a dismissal, Strauss, 760 F.2d at 767, and a complaint need not specify the correct legal theory nor point to the right statute to survive a motion to dismiss, Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134-35 (7th Cir. 1992) (citing Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992)). Further, the court will not ignore the allegation of self-strangulation by use of socks and a comb. Accordingly, the absence of factual specificity in the complaint as to Cassara's pain and suffering preceding his death and the failure of the complaint to cite correctly to 755 ILCS 5/27-6 are not sufficient to warrant dismissal. Nonetheless, in so far as the survival action depends upon the malpractice action alleged in count II, and no affidavit pursuant to 735 ILCS 5/2-622 was filed, count III is dismissed without prejudice.
For the foregoing reasons, defendants' motions to dismiss are denied in part and granted in part. Counts II and III are dismissed without prejudice.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
DATED: May 19, 1994
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