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BOYCE v. FAIRMAN

October 29, 1998

CHESTER BOYCE, Plaintiff,
v.
J.W. FAIRMAN, et al., Defendants,



The opinion of the court was delivered by: LEVIN

MEMORANDUM OPINION AND ORDER

 At issue before the court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6). The Motion was brought by Defendants J.W. Fairman ("Fairman"), Former Executive Director of the Cook County Department of Corrections, and Lt. Jeffery Malek ("Malek") and Lt. Leroy Moore ("Moore") of the Cook County Department of Corrections ("CCDC"). For the reasons stated below, Defendants' Motion is denied as to Counts I and III and granted as to Count II with prejudice. *fn1"

 FACTUAL SUMMARY

 On or about June 1, 1994, Plaintiff Chester Boyce ("Boyce"), an inmate at the CCDC, was attacked by several inmates in cell 4 of Division I, Cell Block C, Tier C-4 and beaten by those inmates for about twenty minutes. (Compl. PP 14-15.) As a result of the attack, Boyce suffered sever injuries to his body, face and particularly his eyes. Boyce was told by his assailants that he would be killed if he reported the attack to CCDC officials. (Compl. P 16.) On the following day, Boyce's condition was observed by an officer at CCDC who reported the matter to Defendant Lt. Moore. However, Defendant Moore allegedly refused to see Boyce or to investigate the matter. (Compl. PP 18-20.) Sergeant Healey and Lt. Moore arrived on the Tier but refused to see Boyce. Lt. Moore refused to investigate the matter, stating: "The nigger is still alive, ain't he?" (Compl. PP 19-20.) From June 1 through June 7, 1994, Boyce remained in his cell in an attempt to avoid further attack by other inmates. On June 7, 1994, Boyce went to the security bars and asked a tier officer to see the Tier Sergeant in order to request a move to another tier. (Compl. PP 21-22.)

 On June 8, 1994, after being observed by a tier officer, Boyce was sent to the Cermak Health Care Unit, where Dr. Patrirnakos examined his injured eye. (Compl. PP 24-25.) Dr. Patrirnakos prescribed eye drops for Boyce and said that he would like to conduct a follow-up examination of his eye the next day. Boyce was then returned to CCDC and directed to return to his cell in Tier C-4. Boyce told Defendant Malek that he had been attacked in Tier C-4 and that he was in fear for his life on Tier C-4. He asked Defendant Malek to place him in protective custody, but Malek allegedly refused to do so and ordered his return to Tier C-4. *fn2" (Compl. PP 28-30.)

 On June 14, 1998, "yard" was called at the CCDC. Boyce asked to be excused from "yard" because he was afraid of being attacked. However, his refusal was denied because the tier officer said that "yard" was mandatory and all inmates had to go. Boyce was subsequently attacked by several inmates upon returning from "yard" on the stairwell leading to the tiers. (Compl. PP 33-37.) On or about June 28, 1998, Boyce was reassigned to Division G-2-H. (Compl. PP 41-42.)

 Plaintiff's eye was re-injured as a result of the June 14 attack. On numerous occasions following this June 14 attack, Plaintiff asked the named Defendants for permission to see the eye doctor at sick call. These requests were denied. (Compl. P 44.) Plaintiff was finally given permission to see a doctor on September 1, 1994, at which time Dr. Patrirnakos prescribed bifocals. Nevertheless, Plaintiff lost total permanent vision in his left eye about two weeks after his meeting with Dr. Patrirnakos. (Compl. PP 44, 47-48.)

 In Count I of the First Amended Complaint, Plaintiff alleges that movants and other named defendants' failure to place him in protective custody resulted in an attack on him by inmates and injury to his eye in violation of his civil rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges that following the initial assault on him, movants were informed of this serious inmate assault on him, informed that he was in fear of his life, and were requested by him to be placed in protective custody. Movants denied Plaintiff's request to be placed in protective custody, and as a result, he was shortly thereafter attacked again by inmates and suffered further injury on or about June 14, 1994. (Compl. PP 69-71.) In Count II, Plaintiff alleges that movants neglected their duties under Illinois law by failing to put him in protective custody after the initial inmate attack, which resulted in severe and permanent damage to his body. In Count III, Plaintiff alleges that movants breached their duty to provide adequate medical care to him in violation of his civil rights pursuant to 42 U.S.C. § 1983. As is pertinent here, he claims that movants had a duty to provide medical care to him following the attack he suffered on June 14, 1994. He also alleges that movants were aware of the seriousness of the condition of his eye following the June 14, 1994 attack. (Compl. PP 78-79.) Defendant/movants move to dismiss Counts I, II and III of Plaintiff's First Amended Complaint against them.

 STANDARD OF REVIEW

 On a motion to dismiss, the court takes all of the well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff. See, e.g., Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 401 (7th Cir. 1996). A complaint will not be dismissed on a motion to dismiss unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him or her to relief. Id. A complaint need not set forth all relevant facts or recite the law. All that is required is a short and plain statement showing that the party is entitled to relief. FED.R.CIV.P. 8(a); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). A plaintiff in a suit in federal court need not plead facts. Conclusions may be pleaded as long as the defendant has at least minimal notice of the claim. FED.R.CIV.P. 8(a)(2); Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.1995).

 The Seventh Circuit has recently held:

 
Under the federal rule of notice pleading, "'all the Rules require is 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.'" Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote and citation omitted)) (emphasis added). For fair notice to be given, "a complaint must at least 'include the operative facts upon which a plaintiff bases his claim.'" Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.1986) (quoting Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 198 (7th Cir.1985)). A plaintiff "need not plead facts; he can plead conclusions. [However,] the conclusions must provide the defendant with at least minimal notice of the claim." Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.1995). The issue we review is whether "sufficient facts [have been] pleaded to allow the district court to understand the gravamen of the plaintiff's complaint." Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir.1996).

 Kyle v. Morton High School, et al., 144 F.3d 448, 454-55 (7th Cir.1998); See also Bennett v. Schmidt, 153 ...


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