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GLASS v. FAIRMAN

February 12, 1998

Charles Glass, Plaintiff,
v.
J.W. Fairman, Cermak Health Services, K. Vick, C.B. Elmer, R. Gliwa and M. Fuller, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendants Cermak Health Services and J.W. Fairman's Motion to Dismiss Plaintiff's Second Amended Complaint. For the following reasons, Defendants' motion is granted. *fn1"

 I. BACKGROUND *fn2"

 On July 27, 1993, Chicago Police Officers arrested Glass. The arresting officers failed to thoroughly search Glass, who was inebriated, for weapons and contraband before placing him into a holding cell. One of the officers handcuffed Glass' arm to a wall inside the holding cell where he remained awaiting processing into the jail complex. Glass informed the arresting officers that he was epileptic and that he believed that a seizure was oncoming. Glass momentarily blacked out. When he regained consciousness, he discovered that he was on fire and screamed for help. It is unclear from Glass' Second Amended Complaint what caused Glass to momentarily black-out, and what caused the fire.

 After officers, other than the arresting officers, extinguished the fire, Glass was transported to the Loyola University Medical Center Burn Unit where he underwent surgery and received treatment for severe burns. Thereafter, the Cook County Sheriff took Glass into custody and transported him to the Cook County Department of Corrections ("CCDOC"). While at CCDOC, Glass received follow-up medical treatment for his burns at Cermak. Cermak is a county medical facility adjacent to CCDOC which provides medical care to CCDOC's inmates and staff.

 In Count II, Glass purports to allege federal and state claims against Cermak and Fairman. Allegedly, Cermak and its personnel under Fairman's direction provided Glass with inadequate medical treatment. As a result, Glass allegedly required a second skin graft, and suffered physical and psychological discomfort.

 II. DISCUSSION

 The court will deny a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) unless "it is impossible [for the plaintiff] to prevail 'under any set of facts that could be proved consistent with [his] allegations.'" See Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)). In reviewing the plaintiff's complaint, the court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. See Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). With these standards and principles in mind, the court turns to the merits of Glass' Second Amended Complaint.

 A. Section 1983 Claim

 Generally, in order to state a cognizable § 1983 claim, Glass must allege that (1) a person acting under color of state law engaged in conduct that (2) deprived him of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983; see also Starnes v. Capital Cities Media, Inc., 39 F.3d 1394, 1396 (7th Cir. 1994).

 1. Cermak

 Glass alleges that Cermak and its personnel provided inadequate medical treatment thereby violating the Fifth, Eighth, and Fourteenth Amendments to the Constitution. Cermak argues that it should be dismissed because it is not a suable "person" under § 1983. Cermak contends that it is a Cook County department under the jurisdiction of the Cook County Board of Commissioners, and therefore is not a suable entity.

 Since Cermak is located in Illinois, the court must look to Illinois law to determine whether it is a suable entity. See Fed. R. Civ. P. 17(b). In order to be a suable entity under Illinois law, "'defendant must have a legal existence, either natural or artificial.'" Bailes v. Streator Police Dept., 1997 U.S. Dist. LEXIS 3789, No 96 C 5610, 1997 WL 162907, at *3 (N.D. Ill. March 27, 1997) (citation omitted); see also Hedges v. County of Cook, 1997 U.S. Dist. LEXIS 7132, No. 96 C 6228, 1997 WL 269632, at *1 (N.D. Ill. May 13, 1997). "Departments within a governing body lack the required separate legal existence to be held accountable." Williams v. Fairman, 1996 U.S. Dist. LEXIS 4013, No. 94 C 206, 1996 WL 164289, at *1 (N.D. Ill. April 2, 1996); see also Thurman v. Cermak Health Serv., 1994 U.S. Dist. LEXIS 16584, No. 94 C 404, 1994 WL 659276, at *1 (N.D. Ill. Nov. 13, 1994) ("A county hospital, which has no legal existence separate and apart from the county cannot be sued under § 1983."). Several District Courts have found that Cermak is a Cook County department with no legal existence separate from the county. See Flores v. Cook County ...


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