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EGEBERGH v. SHEAHAN

February 24, 1997

KATHLEEN F. EGEBERGH, Individually and as Special Administratrix of the estate of EDWARD J. FITZGIBBONS, deceased, Plaintiff,
v.
MICHAEL SHEAHAN, as Sheriff of Cook County, VILLAGE OF MOUNT PROSPECT, COMMANDER DAVID NICHOLSON, individually and as agent of VILLAGE OF MOUNT PROSPECT, Defendants.



The opinion of the court was delivered by: SHADUR

 Kathleen Egebergh ("Egebergh") has sued several defendants over the death of her brother Edward Fitzgibbons ("Fitzgibbons") on July 22, 1996 while he was in defendants' custody. Cook County Sheriff Michael Sheahan ("Sheriff") has moved to dismiss Counts I through III of the First Amended Complaint ("FAC"). For the reasons set forth in this memorandum opinion and order, the motion is granted in part and denied in part.

 Facts1

 Fitzgibbons was a diabetic who required two daily insulin shots and proper nutrition to control his condition. On July 21, 1996 he was arrested on a shoplifting charge and was detained by the Police Department ("Department") of the Village of Mount Prospect ("Village"), which employed Commander David Nicholson ("Nicholson").

 On July 22, 1996 Fitzgibbons was in Village's custody under Nicholson's supervision when he told the latter of his diabetic condition and of his immediate need of an insulin injection. Nicholson refused and "deprived [Fitzgibbons] of his medication" (FAC P 10). Although not explicitly alleged, it may be inferred from that and other allegations that Fitzgibbons carried his medication with him and that Department employees confiscated it when he was placed in detention.

 On that same day Fitzgibbons was transported to a bond hearing in Rolling Meadows. It is not clear whether Village's employees or Sheriff's employees supervised the transport. In any event, Nicholson refused to permit Fitzgibbons' insulin to be transported to the hearing with him, so the medication remained behind at the Mount Prospect Police Station.

 As a result of defendants' refusal (or informed failure) to permit Fitzgibbons to receive his insulin shot, he suffered an adverse diabetic reaction and died later that day. Based on those events, the FAC *fn2" asserts a series of claims against all defendants: one under 42 U.S.C. § 1983 ("Section 1983") in Count I, one for negligence - wrongful death in Count II, one for negligence - survival in Count III, one for willful and wanton conduct - wrongful death in Count IV and one for willful and wanton conduct - survival in Count V. Sheriff has now moved to dismiss Counts I through III.

 Motion-to-Dismiss Standards

 On Sheriff's Fed. R. Civ. P. ("Rule") 12(b)(6) motion, all of the Complaint's well-pleaded allegations must be credited, with all reasonable inferences drawn in Egebergh's favor (see, e.g., Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th Cir. 1994)). Dismissal is proper only if it is clear from the Complaint that no set of facts consistent with its allegations would entitle Egebergh to relief ( Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). *fn3"

 Section 1983 Claim

 Sheriff argues that he cannot be held liable in either his individual or his official capacity based on the FAC's allegations. Egebergh does not respond to those arguments -- instead she merely acknowledges that Count I is not stated as well as it might be and requests leave to replead it "to cure any defects that may exist."

 That position really amounts to an admission that Sheriff's arguments are well-founded. And because Egebergh has declined to make any substantive argument in defense of Count I, this Court declines to make them for her. Sheriff is therefore dismissed from Count I without prejudice to Egebergh's repleading that claim (if she can in ...


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