At the courthouse in Rolling Meadows Fitzgibbons was in the custody of Sheriff's employees. There an unknown deputy merely gave Fitzgibbons something to drink after being told of Fitzgibbons' diabetic condition and of his need for insulin. That deputy made no effort to retrieve Fitzgibbons' medication from Village's Police Station or to obtain medical care for him.
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
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.
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)).
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 light of Sheriff's substantive objections) by a filing on or before March 17, 1997.
Sheriff urges that Counts II and III must be dismissed because he is immune from tort liability for negligence on the facts of this case under Sections 4-103 and 4-105 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10/4-103 and 4-105. Here is Section 4- 103:
Neither a local public entity nor a public employee is liable for failure to provide a jail, detention or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, supervision or facilities therein. Nothing in this Section requires the periodic inspection of prisoners.