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McNeil v. Carter

January 24, 2001

WILLIAM MCNEIL,
PLAINTIFF-APPELLANT,
v.
LAMARK CARTER, WARDEN, KUL B. SOOD, PAULINE PEILER, NICOLE BELL, C. JOHNSON, D. NANCE, AND A. FABIANOWICZ, EACH INDIV. AND IN HIS OR HER OFFICIAL CAPACITY,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 98--MR--1073 Honorable Edwin Grabiec Judge, Presiding

The opinion of the court was delivered by: Presiding Justice Homer

The plaintiff, inmate William McNeil, filed a complaint against defendants Lamark Carter, warden at Joliet Correctional Center; Doctor Kul B. Sood, medical director; nurses Pauline Peiler and Nicole Bell; and several staff members at the prison. Count I of the complaint alleged that the defendants knowingly and intentionally violated the Unified Code of Corrections (Code) (730 ILCS 5/1--1--1 et seq. (West 1998)), resulting in injury to the plaintiff. Count II claimed that Dr. Sood, nurse Bell and several correctional officers committed a tortious assault against McNeil by refusing to feed him. The trial court dismissed the complaint with prejudice. We affirm.

BACKGROUND

The plaintiff was incarcerated with the Department of Corrections beginning in 1982. Upon admission, he was given a medical examination. The examination revealed the plaintiff was in good health and had no communicable diseases or infections. In March of 1989, the plaintiff was diagnosed with hepatitis B. One year later, he tested positive for tuberculosis. According to the plaintiff, he also suffers from renal insufficiency, hypertension and low blood sugar. The plaintiff's renal failure allegedly resulted from a kidney infection he contracted when a cellmate used the plaintiff's drinking cup. The cellmate had a "throat virus." The plaintiff became aware of his renal condition in 1993. To properly treat his renal insufficiency, the plaintiff was placed on a special diet.

In October of 1998, the plaintiff refused to eat the dietary meals provided to him. On more than one occasion, he told the correctional officers who delivered the meal that he would not eat it. He claimed that the food on the tray was detrimental to his renal condition and his hypertension. The officers informed him that they were ordered to provide the plaintiff with the diet tray. He wrote to Dr. Sood and asked the doctor to take him off the diet because he thought his diet should be closely monitored by a dietitian. The guards continued to provide the plaintiff with dietary trays. The plaintiff refused to eat the meals. He told nurse Peiler that he was not eating because the staff refused to feed him.

During that same month, the correctional officers informed the plaintiff that he had been assigned a cellmate and would have to move. The plaintiff refused to move into a shared cell, claiming that he was contagious. A staff nurse advised the plaintiff that he could only infect his cellmate if they engaged in sexual intercourse or shared intravenous drug needles.

The plaintiff filed a complaint against the defendants in December of 1998. In count I of his complaint, the plaintiff alleged that: (1) the defendants insufficiently tested the prisoners for communicable diseases, or in the alternative ignored the results of the tests, and forced infectious inmates to share cells with healthy inmates; and (2) Dr. Sood incorrectly ordered the plaintiff to be given a special diet and failed to have someone monitor his condition while he was on the diet. The plaintiff claimed that these acts constituted knowing and intentional violations of sections 1--1--2 (purpose), 3--2--2 (powers and duties), 3--8--2 (social evaluation of inmates), and 3--8--7 (disciplinary procedures) of the Code. 730 ILCS 5/1--1--2, 3--2--2, 3--8--2, & 3--8--7 (West 1998).

Count II of the complaint alleged that the defendants committed the intentional tort of assault by denying the plaintiff food. The plaintiff did not allege any immediate physical or emotional injury as a result of the denial.

The defendants sought separate counsel and filed two motions to dismiss pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (West 1998)). The defendants claimed that the cause should be dismissed for several reasons, including that: (1) the Code did not grant the plaintiff a private cause of action; (2) the statute of limitations barred several of the plaintiff's allegations; (3) the plaintiff's second claim was substantially insufficient in the law; and (4) the court lacked jurisdiction over the subject matter because both claims were barred by the doctrine of sovereign immunity. The trial court dismissed the complaint for "the reasons advanced by the defendants."

STANDARD OF REVIEW

In ruling on a motion to dismiss under section 2--619, the court must consider all well-pled facts in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 700 N.E.2d 202 (1998). Our review of a trial court's dismissal of a complaint is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732 (1993).

DISCUSSION

Initially, we note that the plaintiff argues negligent delegation of medical duties in his brief on appeal. He also insists that the defendants should be held liable on a theory of vicarious liability for negligent supervision. However, his complaint filed before the trial court does not mention a general negligence cause of action. Since such claims were raised for the first time on appeal, we will not address their merits. See Archer Daniels Midland Co. v. Department of Revenue, 170 Ill. App. 3d 1014, 524 N.E.2d 1010 (1988). Instead, we focus our discussion on the claims the plaintiff raised in the complaint below and the propriety of their dismissal.

The plaintiff first argues that the trial court erred in dismissing count I of his complaint. He maintains that, contrary to the defendants' contention, the ...


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