The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
In the early hours of July 24, 1998, police officer employees
of the City of Chicago (the "City") responded to a report of a
shooting in the 1200 block of North Washtenaw. At approximately
2:10 a.m., the officers arrived on the scene of the shooting,
where Hector Rivera was lying on the floor, bleeding from
multiple gunshot wounds. According to the allegations in the
complaint, when the officers arrived, witnesses to the shooting
informed them that Mr. Rivera was in need of immediate medical
care, but the officers waited for nearly an hour an a half, until
3:33 a.m., to summon medical care. Mr. Rivera died, and Angelina
Torres, the administrator of his estate, sues for willful and
wanton conduct under the Illinois Wrongful Death Act and the
Survival Act, and for the violation of Mr. Rivera's rights under
42 U.S.C. § 1983.*fn1 The City removed the case to
federal court and now moves to dismiss for failure to state a
On a motion to dismiss, I accept all well-pleaded factual
allegations of the plaintiff and draw all reasonable inferences
in favor of the plaintiff. Colfax Corp. v. Illinois State Toll
Highway Auth., 79 F.3d 631, 632 (7th Cir. 1996). Dismissal is
only appropriate if it appears beyond doubt that the plaintiff
can prove no set of facts which would entitle her to relief.
Id. Under federal notice pleading, the complaint need not
allege any facts; Bennett v. Schmidt, 153 F.3d 516, 518 (7th
Cir. 1998); the plaintiff may plead conclusions, Jackson v.
Marion County, 66 F.3d 151, 153 (7th Cir. 1995).
The City argues that Torres fails to state a claim under
42 U.S.C. § 1983 for municipal violations because her complaint
fails to specify a municipal policy or a constitutional injury. A
municipality cannot be held liable for the actions of individual
employees under § 1983 based on a theory of respondeat superior.
Monell v. Department of Soc. Servs. of the City of New York,
436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A
municipality may, however, be liable if the plaintiff can show
that he or she suffered a constitutional deprivation that was
caused by an official policy, custom, or usage of the
municipality. Id. at 690-91, 98 S.Ct. 2018.
The City attacks Torres' pleadings as excessively
conclusionary. However, federal pleading is "notice" pleading,
and plaintiffs may plead conclusions. Jackson v. Marion County,
66 F.3d 151, 153 (7th Cir. 1995). Under Fed.R.Civ.P. 8(a)(2), the
plaintiff need only include a "short and plain statement of the
claim showing that the pleader is entitled to relief." Unlike
"fact" pleading, required in some states, "notice" pleading does
not require the plaintiff to "plead law or match facts to every
element of a legal theory." Bennett v. Schmidt, 153 F.3d 516,
518 (7th Cir. 1998). Indeed, "a complaint is not required to
allege all, or any, of the facts logically entailed by the
claim. . . . A plaintiff does not have to plead evidence. . . ."
Id. (quoting American Nurses' Assn. v. Illinois,
783 F.2d 716, 727 (7th Cir. 1986)) (emphasis in original).
The Supreme Court has expressly rejected a heightened pleading
standard for § 1983 claims against municipalities. Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Although
after Leatherman the Seventh Circuit stated that "[b]oilerplate
allegations of a municipal policy, entirely lacking in any
factual support that a city policy does exist, are insufficient,"
Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. 1994)
(quoting Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194,
202 (7th Cir. 1985)), cited in Lanigan v. Village of East Hazel
Crest, 110 F.3d 467, 479 (7th Cir. 1997), — and I followed this
in Mosby v. Bell, 60 F. Supp.2d 788, 790 (N.D.Ill. 1999) — it
recently held that such "boilerplate" allegations are indeed
sufficient.*fn2 McCormick v. City of Chicago, 230 F.3d 319,
324-25 (7th Cir. 2000). Conclusory language in the complaint was
sufficient to put the City on notice of the claims even though it
did not plead facts. Id. at 325.
The Illinois Tort Immunity Act provides that a public entity
cannot be liable for "failure to establish a police department or
otherwise provide police protection service, or, if police
protection is provided, for failure to provide adequate police
protection or service. . . ." 745 ILCS 10/4-102. It also
immunizes public employees "serving in a position involving the
determination of policy or the exercise of discretion [from
liability] for an injury resulting from his act or omission in
determining policy when acting in the exercise of such discretion
even though abused." 745 ILCS 10/2-201. Neither § 4-102 nor §
2-201 provides an exception for willful and wanton conduct.
Hernandez v. Kirksey, 306 Ill. App.3d 912, 239 Ill.Dec. 915,
715 N.E.2d 669, 672 (Ill.App. 1999) (§ 4-102); Harinek v. 161 N.
Clark St. Ltd. P'ship, 181 Ill.2d 335, 230 Ill.Dec. 11,
692 N.E.2d 1177, 1184 (1998) (§ 2-201).
A public employee is not liable for negligence "in the
execution or enforcement of any law," but he is liable if his
"act or omission constitutes willful and wanton conduct." 745
ILCS 10/2-202. "Willful and wanton conduct" is defined by the
Tort Immunity Act as "a course of action which shows an actual or
deliberate intention to cause harm or which, if not intentional,
shows an utter indifference to or conscious disregard for the
safety of others or their property." 745 ILCS 10/1-210. Torres
alleged, and I must take it as true for the purposes of this
motion, that the officers' conduct was willful and wanton.
Even if she had not specifically alleged willful and wanton
conduct, Illinois courts have consistently held that the failure
to provide medical care upon request is willful and wanton. See
Singleton v. City of Chicago, No. 99 C 0059, 2000 WL 224619, at
*2 (N.D.Ill. Feb. 25, 2000) (Gettleman, J.). According to the
complaint, Mr. Rivera was lying on the ground, bleeding from
multiple gunshot wounds, and witnesses to the shooting requested
medical assistance when the officers arrived, but the officers
waited nearly an hour and a half to ...