The officers then put Mr. Ramirez face down on his belly, still
cuffed behind his back, in a squadrol, an automobile that is used
by police as both a squad car and an ambulance. He was left
unsupervised in this position while he was transported to St.
Anthony De Padua Hospital in Chicago, which has no trauma center.
The officers did not clear his air passage or make sure that he
was still breathing. Upon arrival, they put him in a wheelchair,
still handcuffed, and rolled him into the emergency room. A
physician noted that he appeared to be dead. Resuscitation
efforts failed, and he was pronounced dead sixteen minutes after
arrival. An autopsy determined that the cause of death was
asphyxiation from being handcuffed while intoxicated on alcohol
and cocaine. Mr. Ramirez was survived by four minor children and
I begin by addressing paramedics Janozik's and Leon's motion to
dismiss. In deciding a motion to dismiss for failure to state a
claim upon which relief can be granted under Fed. R. Civ. P
12(b)(6) the only question is whether the complaint raised
allegations that, if proven, would entitle the plaintiff to
relief. See Int'l Marketing, Ltd. v. Archer-Daniels-Midland Co.,
Inc., 192 F.3d 724, 729 (7th Cir. 1999) (citing Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
On a motion to dismiss, I read a complaint liberally and "accept
as true the well-pleaded allegations of the complaint and the
inferences that may be reasonably drawn from those allegations."
Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999)
(internal citations omitted).
Without offering any explanation for their behavior towards Mr.
Ramirez, paramedics Janozik and Leon argue first, with respect to
the § 1983 claims, that they had no responsibility to provide him
with medical care because they did not have him in their custody.
Mr. Ramirez's § 1983 claims implicate the Fourteenth Amendment
due process clause, which requires state action. The paramedics
cite DeShaney v. Winnebago Dep't of Social Services,
489 U.S. 189, 199-202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), for the
proposition that there is no federal constitutional duty of care
where the plaintiff is not in custody or control of the state
actor. The paramedics argue that because Mr. Ramirez was not in
their custody but that of the Chicago Police Department, they
did not "suddenly acquire a duty to treat a man who was not in
their custody," an argument of breathtaking cynicism.
I agree with the plaintiffs, however, that the paramedics,
public employees who were dispatched specifically to aid Mr.
Ramirez, "suddenly acquired" a constitutional obligation to aid
him when the police defendants, also public employees, took him
into custody on behalf of the City of Chicago, and he was injured
in the process. Chicago Fire Department paramedics have a duty to
aid persons who are injured while in custody of the Chicago
Police, or indeed, the Cook County Sheriff or the Illinois State
Police. State action cannot be diluted by being dispersed over
The paramedics' argument makes no sense because the Police
Department is the agency designated by the state to take persons
into custody, while the Fire Department is designated with the
responsibility, among other things, to provide medical care for
persons in need. On the paramedics' argument, Chicago Fire
Department employees can never have any constitutional duty to
provide anyone in police custody with medical care. But the
Supreme Court has said that due process "require[s] the
responsible government or governmental agency to provide medical
care to persons . . . who have been injured while being
apprehended by the police." City of Revere v. Mass. Gen'l
Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605(1985).
The Fire Department and the employees tapped for the job
therefore had a constitutional duty to provide Mr.
Ramirez with medical care while in police custody.
Further, the paramedics' argument contradicts the Seventh
Circuit's reading of DeShaney in a similar set of facts. The
panel there rejected a closely analogous no-duty claim, saying:
Although the state has no general constitutional duty
to provide rescue services, the government may not
cut off all sources of private aid or self-help, and
then decline to provide replacement services. If [the
plaintiff] was in custody from the time the
paramedics arrived — that is, if he was not free to
seek other forms of assistance — then the paramedics
might be liable for violating [his] right to due
process by failing to treat his injuries.
Salazar v. City of Chicago, 940 F.2d 233, 237 (7th Cir. 1991)
(citing DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998). The
Seventh Circuit expressly did not limit the liability of the
paramedics to cases where persons were in their custody, but
extended it to include persons who in the custody of police when
the paramedics arrived. The paramedics here attempt to
distinguish Salazar by saying that the defendants' attorney
there conceded that the plaintiff should be treated as a pretrial
detainee, id., which was not conceded here. The difference is
immaterial. Mr. Ramirez, handcuffed and on his face, was
certainly in custody and unable to seek other aid, something the
paramedic defendants here do not deny. My rejection of this
argument also disposes of the contention that the plaintiffs'
state law claim should be dismissed because he was not in their
custody. It doesn't matter as long as he was state custody.
The paramedics then contend that they did not act under color
of law, as required by § 1983. They argue that for a deprivation
of constitutional right to be "under color of law," the
deprivation must be caused, first, by the exercise of some right
or privilege created by the State, and, second, by a person who
may fairly be said to be a state actor. Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).
While they concede that, as government employees, they were state
actors, they deny that they acted in virtue of a right or
privilege created by the state.
But the phrase "`under color of law' in § 1983 actions is now
so broad that it means the same thing as `state action.'" Thomas
v. Pearl, 998 F.2d 447, 450 (7th Cir. 1993) (citing Lugar, 457
U.S. at 935, 102 S.Ct. 2744, 73 L.Ed.2d 482). There is a good
deal of case law concerning when the conduct of a private person
counts as state action, something about which the courts have
become rather demanding, but the paramedics here offer the novel
theory that, although they are public employees acting in the
course of their normal duties, they did not act under color of
state law because any private paramedic might have done as much —
or, in their case, as little. This argument is a curious
inversion of the doctrine that a private person does not engage
in state action unless it is a public function. See Blum v.
Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 73 L.Ed.2d 534
(1982). The Supreme Court has rejected precisely this inversion
in the context of a duty to provide medical care:*fn2 "[T]he
fact that a state employee's role parallels one in the private
sector is not, by itself, reason to conclude that the former is
not acting under color of state law in performing
his duties." West v. Atkins, 487 U.S. 42, 57 n. 15, 108 S.Ct.
2250, 101 L.Ed.2d 40 (1981) (citing Griffin v. Maryland,
378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964)) ("If an
individual is possessed of state authority and purports to act
under that authority, his action is state action. It is
irrelevant that he might have taken the same action had he acted
in a purely private capacity. . . .").
Finally, even if the paramedic defendants were not state
actors, that would not get them off the hook if, as private
individuals, they conspired or acted jointly with state
officials, here, the police, who did act under color of state
law, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90
S.Ct. 1598, 26 L.Ed.2d 142 (1970), as plaintiffs here allege and
I must therefore accept for the purposes of a motion to dismiss.
The paramedics then argue that they are entitled to qualified
immunity. Qualified immunity should be granted when the
official's conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982). The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right. Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987). The very action in question need not have previously been
held unlawful, but in the light of pre-existing law, the
unlawfulness must be apparent. Id. Qualified immunity protects
"all but the plainly incompetent or those who knowingly violate
the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092,
89 L.Ed.2d 271 (1986). The plaintiffs argue that it was not
apparent from previously existing law that they had a
constitutional duty to treat Mr. Ramirez, and so they did not
knowingly violate the law, and are therefore protected by
However, it would have been apparent to a reasonable Fire
Department paramedic that he had the duty to provide medical care
to a person in the custody of the police. The commonsense,
natural, and obvious view is that taken in Salazar: if the
plaintiff was in custody when the paramedics arrived, and so not
free to seek other forms of assistance, then "the paramedics
might be liable for violating [his] right to due process by
failing to treat his injuries." 940 F.2d at 237; see also City
of Revere, 463 U.S. at 244, 103 S.Ct. 2979; DeShaney, 489 U.S.
at 199-200, 109 S.Ct. 998. The paramedics' arguments to the
contrary are tortured, implausible, or have been expressly
rejected by the Supreme Court. The Constitution does not always
require the decent thing; sometimes it even protects abhorrent
behavior, but not here. In this case, a reasonable person would
have known that the right thing was also demanded by the law.
The paramedics argue, finally, that the plaintiffs' state
claims fail as a matter of law because of the statutory tort
immunity that Illinois makes available for governmental employees
in certain circumstances. The paramedics invoke 745 ILCS
10/5-101, which immunizes a local public entity that
"complete[ly] fail[s] to provide fire protection or other
emergency services" to the public, Pierce v. Village of
Divernon, 17 F.3d 1074, 1077 (7th Cir. 1994), but not one that
"fail[s] to provide sufficient `facilities' to suppress or
contain a fire." Id. (emphasis added). As Judge Coar of this
court has held, when "the City undertook to provide emergency
services . . ., it no longer `completely failed' to provide
[such] services and any subsequent actions fell outside the scope
of the immunity provisions." Harrell v. City of Chicago Heights,
Illinois, 945 F. Supp. 1112, 1116 (N.D.Ill. 1996). Moreover,
"there are no provisions in the Tort Immunity Act that grant tort
immunity to a local public entity that has undertaken to provide
rescue or emergency services to the public for
injuries resulting from the failure to rescue individuals. . . ."
Id. The paramedics also invoke 745 ILCS 10/6-106, but this is
inapplicable, since it immunizes public employees from tort
liability in connection with "diagnosis [or] treatment of mental
or physical illness or addiction," but not from liability in
connection with refusal to diagnose or treat an illness or
Finally, as the plaintiffs argue, Illinois law provides for
liability for persons licensed to provide emergency medical
services whose "acts or omissions . . . constitute willful and
wanton misconduct." 210 ILCS 50/3.150. An act is willful or
wanton if it is intentional or if it is committed under
circumstances exhibiting a reckless disregard for the safety of
others. Meck v. Paramedic Services of Illinois, 231 Ill.Dec.
202, 695 N.E.2d 1321, 1325 (1998). The paramedics do not deny
that they either intentionally refused to help Mr. Ramirez or
exhibited a reckless disregard for his safety. They contend,
rather, that § 50/3.150 applies only to treatment and not to
refusal to treat, but this flies in the face of the statutory
language, which covers "omissions." I therefore deny the motion
to dismiss the plaintiffs' state law claims.
The individual police officers move to dismiss several of the
plaintiffs' claims and several of the plaintiffs as parties from
certain claims. First, they argue that the state Wrongful Death
Act claim (Count XV in the amended complaint) should be dismissed
against Yolanda and Maria Eva Ramirez because the Act provides
that "every action shall be brought by and in the name of
personal representatives of such deceased person and the amounts
recovered shall be for the exclusive benefit of the surviving
spouse and next of kin. . . ."*fn3 740 ILCS 180/1. Children can
be "next of kin" in Illinois. See Porter v. Klein Construction
Co., 113 Ill.Dec. 836, 515 N.E.2d 821, 823 (1987) (parents not
the next of kin when a decedent leaves children) (citing Wilcox
v. Bierd, 162 N.E. 170 (1928), overruled on other grounds by
McDaniel v. Bullard 216 N.E.2d 140 (1966)). The officers do not
allege that Omar Ramirez left a surviving spouse or dispute that
the minor children cannot be represented by guardians. The motion
to dismiss Yolanda and Maria Eva Ramirez as guardians of the next
of kin must be denied.
Second, the officers contend that Yolanda and Maria Eva
Ramirez, as guardians of Omar Ramirez's minor children, lack
standing to bring federal causes of action against the individual
officers (count IX in the amended complaint), because the proper
party to bring these claims is Jesus Ramirez as personal
representative and administrator of the estate of the
deceased.*fn4 Section 1983 is silent on the question whether a
decedent's constitutional claims survive his death, so I am to
look to the most closely analogous state law to determine
survivability. Bass v. Wallenstein, 769 F.2d 1173, 1188 (7th
Cir. 1985). I may not, however, mold the constitutional claim to
fit within the parameters of state law. Id.
The Illinois Survival Act does not create a statutory cause of
action but merely allows a representative of the decedent to
maintain those actions he might have brought while alive. Nat'l
Bank of Bloomington v. Norfolk & Western Ry., 23 Ill.Dec. 48,
383 N.E.2d 919, 923 (Ill. 1978). The guardians represent the next
of kin and not the decedent's estate, and so they lack standing
under the Survival Act. The motion is therefore granted insofar
as their federal claims as guardians of the next of kin depend on
the Survival Act. However, insofar as Omar Ramirez's
claims under these counts could be maintained by his next of kin
through their guardians under the Wrongful Death Act, the motion
is denied.*fn5 See Spence v. Staras, 507 F.2d 554, 558 (7th
Cir. 1974) (citing Murphy v. Martin Oil Co., 308 N.E.2d 583
(Ill. 1974)) (lawsuit my survive under Wrongful Death Act as well
as Survival Act). Under the Wrongful Death Act, the guardians
cannot recover on behalf of the next of kin for Mr. Ramirez's
pain and suffering, as under the Survival Act, but they can
recover for the wrongful death itself, see Fetzer v. Wood, 155
Ill.Dec. 626, 569 N.E.2d 1237, 1242 (1991), but that is all they
ask to do in the amended complaint. There may be other bases of
recovery as well. See Nat'l Bank of Bloomington, 23 Ill.Dec.
48, 383 N.E.2d at 923 ("The Wrongful Death Act is not the
exclusive remedy when death results from a given tortious act.").
Third, the officers ask that I dismiss Count XI in the amended
complaint, alleging a violation of a duty to protect Mr. Ramirez
created in virtue of the special relationship created by their
putting him in danger. They argue that the imposition of such
duties contravenes the immunities provided to governmental
entities under the Tort Immunity Act. However, the Illinois
Supreme Court has said that "the special duty doctrine may not
operate to impose liability upon a public entity after a court
has found that entity immune from liability under the Tort
Immunity Act." Harinek, 230 Ill.Dec. 11, 692 N.E.2d 1177,
1183-84 (Ill. 1998). I have not determined that the City of
Chicago or the individual officers are immune from liability
under the Act, so the principle invoked is inapplicable here, and
the motion is denied.
Fourth, the officers ask me to strike the request for punitive
damages from Counts XI-XIV in the amended complaint, which are
all common law causes of action, on the grounds that punitive
damages are not recoverable under the Illinois Survival Act in
actions based upon the common law. See Ballweg v. City of
Springfield, 102 Ill.Dec. 360, 499 N.E.2d 1373, 1377 (1986)
(recovery under the Survival Act limited to compensatory
damages). There are two exceptions to the general rule of
abatement of punitive-damage claims: (1) when a statutory basis
exists for such claims or when such claims are an integral
component of the regulatory scheme and of the remedy which is
available under it; or (2) when strong equitable considerations
favor survival. Raisl v. Elwood Industries, Inc., 89 Ill. Dec.
100, 479 N.E.2d 1106, 1110 (1985). Punitive damages against
individuals are an integral part of the regulatory scheme of §
1983. It is "generally established that individual public
officers [are] liable for punitive damages for their misconduct
on the same basis as other individual defendants." Smith v.
Wade, 461 U.S. 30, 35, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).
Municipalities are not liable for punitive damages under § 1983,
but that is in part because "deterrence of constitutional
violations would be adequately accomplished by allowing punitive
damage awards directly against the responsible individuals."
Bell v. City of Milwaukee, 746 F.2d 1205, 1271 (7th Cir. 1984).
If I were to disallow the survival of the punitive damages
against the individual officers, the deterrent purpose of § 1983
would be compromised. Therefore this motion must be also denied.
I DENY (1) the paramedics' motions to dismiss the plaintiffs'
federal and state claims against them. I also DENY (2) the
officers' motion to dismiss Yolanda and Maria Eva Ramirez as
guardians of Omar Ramirez's minor children from Count XV in the
amended complaint, the Wrongful Death Act claim. The officers'
motion (3) to dismiss the claims of Yolanda and Maria
Eva Ramirez, as guardians of Omar Ramirez's minor children, in
Count IX in the amended complaint, is GRANTED IN PART, insofar as
the survival of these causes of actions depends on the Survival
Act, but DENIED IN PART insofar as Omar Ramirez's claims could be
maintained by his next of kin through their guardians under the
Wrongful Death Act or other applicable statutes. The officers'
motion (4) to dismiss Count XI in the amended complaint, the
state law special duty claims, is DENIED, and the motion (5) to
strike the plaintiffs' request for punitive damages from Counts
XI-XIV in the amended complaint is also DENIED. The officers'
motion (6) to dismiss Jesus Ramirez's prayer for funeral
expenses, being unopposed, is GRANTED. Finally, the plaintiffs'
motion (7) to amend the complaint is GRANTED.