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November 16, 1994

JOHN and JANE DOE, on their own behalf and on behalf of all others similarly situated, Plaintiffs,


The opinion of the court was delivered by: SUZANNE B. CONLON

John and Jane Doe (collectively "plaintiffs") sue the City of Chicago ("the city"), the City of Chicago Department of Police ("the police department"), Dr. James J. Bransfield, and U.S. Occupational Health, Inc. ("USOH") (collectively "defendants"). Plaintiffs' second amended complaint ("the complaint") alleges that defendants tested plaintiffs for the Human Immunodeficiency Virus ("HIV") after plaintiffs applied for positions as Chicago police officers. Plaintiffs claim that their applications were rejected after plaintiffs tested positive for HIV.

 Plaintiffs assert claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, the Illinois AIDS Confidentiality Act, 410 ILCS 305/5, and Illinois common law. Plaintiffs seek compensatory and punitive damages, declaratory and injunctive relief, and attorneys' fees. Plaintiffs also seek to pursue their claims in a class action suit. The city, Dr. Bransfield, and USOH move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1).


 For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the complaint as true. See, e.g., Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). Plaintiffs are applicants for positions as police officers. John Doe applied for a position as a police officer in 1989; Jane Doe applied for a position in 1991. Complaint, PP 12, 13. Both plaintiffs passed the written test required of all candidates and were given "Well Qualified" status by the police department. Id., PP 13, 24. Both also passed a required psychological examination. Id., PP 14, 25.

 Plaintiffs were required to take a physical examination. John Doe received a letter prior to the physical purporting to be a conditional offer of employment. The offer was conditioned on the completion of a background investigation and Doe passing both the physical examination and the Illinois law enforcement physical fitness test. Complaint, P 16. Jane Doe received no conditional offer of employment prior to undergoing the physical examination. Id., P 27.

 USOH conducted HIV testing on both plaintiffs as part of the physical examination. Id., PP 18, 30. Neither plaintiff gave consent to the HIV test or were provided counseling prior to or during the test. Id. Plaintiffs were subsequently notified that they had tested positive for HIV. Id., PP 19, 33. John Doe was notified of his status by Dr. Bransfield. Id., PP 19. Defendants did not provide plaintiffs counseling regarding the results of the HIV test. Id., PP 20, 34. Thereafter, the processing of plaintiffs' employment applications stopped, and both candidates were denied employment by the police department. Id., PP 22, 35. After this action was filed, Jane Doe's application was reopened. Id., P 36.

 Plaintiffs allege that defendants maintain a "custom, practice, or policy" of: (1) testing candidates for HIV as a condition of employment without medical justification; (2) requiring a physical examination prior to providing candidates with a valid conditional offer of employment; (3) failing to obtain consent or provide counseling with regard to HIV tests; and (4) refusing to hire candidates solely because of their HIV-positive status. Complaint, P 10. Plaintiffs further assert that defendants subjected them to HIV testing pursuant to this custom. Id., P 11.


 I. Motions To Dismiss

 When considering a motion to dismiss, the court must accept all well-pleaded facts as true, and must draw all inferences in favor of the non-moving party. See Bontkowski v. First National Bank, 998 F.2d 459, 461 (7th Cir.), cert. denied, 126 L. Ed. 2d 567, 114 S. Ct. 602 (1993). In ruling on a motion to dismiss, the court considers whether relief is possible under any set of facts that could be established consistent with the allegations in the complaint. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). A claim may be dismissed only if it is beyond doubt that under no set of facts would plaintiffs' allegations entitle them to relief. See, e.g., Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993).

 II. Defects In The Complaint

 Defendants allege that plaintiffs fail to state their particular claims and also assert a number of defects in the complaint as a whole. Defendants' arguments regarding the entire complaint are considered first.

 A. Rules 8 and 10

 The city moves to dismiss the second amended complaint for failure to comply with rules 8 and 10(b) of the Federal Rules of Civil Procedure. Rule 8 provides, in relevant part, that any claim shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Rule 8 also states that "each averment of a pleading shall be simple, concise, and direct." Fed. R. Civ. P. 8(e)(1). Rule 10(b) requires that "all averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances . . . . Each claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth." Fed. R. Civ. P. 10(b).

 The city notes that the second amended complaint does not set forth each legal claim in a separate count. The city asserts that the complaint "combines all factual allegations and legal claims into one incomprehensible mass and leaves it to defendants to determine which allegations support which claims." City's Motion, P 4. The city also argues that some of plaintiffs' claims may be barred by applicable statute of limitations, but that the failure of plaintiffs to include relevant dates fails to provide notice of this possible defense.

 The city's argument is meritless. Rules 8 and 10(b) require only "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The second amended complaint sets out, in numbered paragraphs, particular factual allegations. Included in these factual allegations are the approximate dates when plaintiffs applied for positions as police officers and when plaintiffs received notice that they had been disqualified. See Complaint, PP 12-21, 23-35. The complaint concludes with the assertion of claims in numbered paragraphs that state the legal grounds on which relief is sought. Id., PP 46-51. Advancing the claims asserted against defendants in separate counts would have made the complaint clearer. However, plaintiffs' allegations are clear enough to provide sufficient notice. Accordingly, plaintiffs have complied with Rules 8 and 10(b).

 B. Proper Parties

 The city asserts that the claims against the police department must be dismissed. The police department is a department of the city without a separate legal existence. The police department is therefore not a suable entity, and all claims brought against it must be dismissed. See Jordan v. Chicago, Dep't of Police, 505 F. Supp. 1, 3 (N.D. Ill. 1980). Accordingly, the claims against the police department are dismissed.

 The city argues that the claims against Dr. Bransfield in his official capacity must also be dismissed. The complaint names Dr. Bransfield as a defendant in both his official and personal capacities. Complaint, P 7. The city notes that claims against municipal officials in their official capacities are treated as claims against the municipality itself. See Kentucky v. Graham, 473 U.S. 159, 169, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). The city argues that the claim against Dr. Bransfield in his official capacity must therefore be dismissed as redundant.

 There is no basis for dismissing the claims against Dr. Bransfield in his official capacity. Official-capacity suits against municipal officials are cognizable only if the plaintiff would otherwise have a cause of action against the municipality itself; however, this does not imply that official capacity suits may never be maintained when the municipality is also a party. See, e.g., Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991); Wilson v. Civil Town of Clayton, 839 F.2d 375, 382 (7th Cir. 1988). The particular claims brought against Dr. Bransfield in his official capacity must be dismissed if those claims cannot be asserted against the city. However, plaintiffs official-capacity claims will not be dismissed for redundancy.

 C. 735 ILCS 5/2-622

 Dr. Bransfield and USOH allege that the complaint must be dismissed for failure to comply with Section 2-622 of the Illinois Code of Civil Procedure. Section 2-622 states, in relevant part:

In any action . . . in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney . . . shall file an affidavit . . . declaring one of the following
1. That the affiant has consulted and reviewed the facts of the case with a health professional . . . .
2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action . . . .

 735 ILCS 5/2-622. Dr. Bransfield and USOH contend that plaintiffs' claims are barred by their failure to attach a Section 2-622 affidavit to the complaint.

 Rule 2-622, as a state procedural rule, is plainly inapplicable to plaintiffs' federal claims. Federal courts applying the requirements of Rule 2-622 have done so only in diversity cases. Rule 2-622 is applied in diversity cases because exempting malpractice suits arising under Illinois substantive law from the requirements of Illinois procedural law would encourage forum shopping. See Thomas v. Kishawaukee Valley Medical Group, 1986 WL 11381 (N.D. Ill. Oct. 6, 1986) at 2. No similar danger of forum-shopping occurs in suits arising under federal law where the federal courts have original jurisdiction. Therefore, Rule 2-622 does not apply to plaintiffs' federal claims.

 The section is also not applicable to plaintiffs' state law claims. Cases construing section 2-622 have recognized that it is designed to deter the filing of frivolous medical malpractice lawsuits. See Woodard v. Krans, 234 Ill. App. 3d 690, 600 N.E.2d 477, 487, 175 Ill. Dec. 546 (1992); Cato v. Attar, 210 Ill. App. 3d 996, 569 N.E.2d 1111, 1113, 155 Ill. Dec. 500 (1991). The provisions of this statute also apply to negligence suits against medical professionals. Woodard, 600 N.E.2d at 487. Plaintiffs do not assert malpractice claims against defendants. Instead, they allege violations of the Illinois statutes governing AIDS testing and assert a claim for infliction of emotional distress. Accordingly, plaintiffs' failure to comply with 735 ILCS 2/622 does not bar plaintiffs' state law claims.

 III. The Americans With Disabilities Act

 Defendants move to dismiss any claims arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Dr. Bransfield and the city note that plaintiffs fail to allege that they exhausted their remedies before the EEOC, as required by the ADA. See, generally, EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n. 3 (7th Cir. 1993). USOH states that plaintiff cannot state a claim against it because it is not a "covered entity" with regard to plaintiffs.

 Plaintiffs do not dispute defendants' allegations. Instead, plaintiffs deny that the complaint contains an ADA claim against defendants. Plaintiffs state that the complaint refers to the ADA only because the standards and guidelines promulgated under the ADA apply to the Rehabilitation Act. See 29 U.S.C. § 794(d). The court accepts plaintiffs' explanation of the complaint's reference to the ADA. Because the complaint contains no ADA claim, defendants' motions to dismiss the ADA claims are moot.

 IV. The Rehabilitation Act

 Section 504 of the Rehabilitation Act ("Section 504") provides, in relevant part:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .

 29 U.S.C. § 794(a). In order to state a claim under Section 504, plaintiff must allege (1) the existence of a state program receiving federal financial assistance, (2) that plaintiff is an intended beneficiary of the federal assistance, and (3) that plaintiff is a qualified handicapped person who was subjected to discrimination solely by reason of his or her handicap. Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1231-32 (7th Cir. 1980); John A. v. Gill, 565 F. Supp. 372, 384 (N.D. Ill. 1983). The standards used to identify violations of Section 504 are the same standards applied under the Americans with Disabilities Act. 29 U.S.C. § 794(d).

 A. HIV Testing and Section 504

 The city argues that the alleged HIV testing of plaintiffs cannot violate Section 504. The city contends that nothing in the statute prohibits medical testing before or after a conditional offer of employment.

 Regulations promulgated under Section 504 establish the circumstances under which a recipient of federal funds may conduct medical tests of applicants to the funded program. ...

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