The opinion of the court was delivered by: Charles P. Kocoras, Chief Judge, United States District Court
This matter comes before the court on Defendants Deborah Seeman's and Sam Bucalo's Rule 12(b)(6) motion to dismiss. For the reasons set forth below, the motion is granted in part and denied in part.
Because this is a motion to dismiss, we accept all well pleaded facts and allegations in the Complaint as true and draw all reasonable inferences in a light most favorable to Plaintiff Denise Collins. See Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Ms. Collins, individually and as personal representative of her son Picky Collins' estate, is suing Defendants Captain Deborah Seeman, Officer Steven Schuck, and Officer Sam Bucalo, with respect to alleged actions and inactions involving Picky's suicide death at the Sheridan Correctional Center (the "SCC"). All three defendants were SCC personnel during the relevant time period. Ms. Collins claims that, while incarcerated, Picky Collins underwent psychiatric treatment, received counseling, and took psychotropic medications. According to the Complaint, Ricky was diagnosed with major depression as recently as May 2000. Picky allegedly slashed his wrists with his own glasses and was eventually separated from other prisoners. On the evening of September 27, 2000, Officer Schuck observed Picky sitting on the edge of his bed shaking back and forth. Ricky allegedly told him that he felt suicidal and wanted to talk to a counselor. Officer Schuck told Picky that the crisis counselor would not be available for twenty minutes. Schtick notified the counselor that Picky needed help and informed Captain Seeman of the situation. Captain Seeman instructed the correctional officers in Picky's cell block to keep Picky on "suicide check." The Illinois Department of Corrections ("IDOC") and SCC policy requires guards to make a suicide check every 15-20 minutes. Later that evening, Officer Bucalo responded to cries from prisoners near Picky's cell only to find him hanging by his neck from a bed sheet. The Complaint asserts four counts. Counts I and II are pursuant to 42 U.S.C. § 1983. Count III and excessive risk to inmate health or safety.'" 41 F.3d 1100, 1102 (7th Cir. 1994) (quoting Farmer v. Brennan, 114 S.Ct. 1970, 1979 (1994)). This is what Ms. Collins alleges happened — Seeman was aware of the situation, but nevertheless acted with deliberate indifference to Ricky's safety. Accordingly, the section 1983 claims against Seeman in her individual capacity cannot be dismissed.
Counts III and IV are Illinois' statutory tort actions against Captain Seeman in her official and individual capacities and against Officer Bucalo in his official capacity. (Complaint ¶¶ 9-10). Count III is a Survival Act claim under 755 ILCS § 5/27-6. Count IV is a Family Expense Act claim under 740 ILCS § 1015.*fn1 To the extent that these counts are against Seeman and Bucalo in their official capacities, they are against the state and barred from adjudication in this court. The Illinois Court of Claims Act only waives the State's sovereign immunity in tort actions against it to the extent that such claims are pursued in the Illinois Court of Claims. 705 ILCS § 505/8(d). The state tort claims against Seeman and Bucalo in their official capacities are, therefore, dismissed.
In Counts III and IV, Ms. Collins also asserts state tort claims against Captain Seeman in her individual capacity. (Complaint ¶ 9). Because the tort charges arise out her breach of a duty imposed upon her solely because of her job at the SCC, sovereign immunity bars them from adjudication in any court other than the Illinois Court of Claims. See Turner v. Miller, 301 F.3d 599, 602 (7th Cir. 2002) ("Where a charged act of negligence `arose out of the State employee's breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action' in any court other than the Illinois Court of Claims.") (quoting Currie v. Lao, 592 N.E.2d 977, 980 (Ill. 1992)). In Turner, an inmate at Stateville Correctional Center sued prison officials in federal court on account of his being shocked by exposed electrical wires while showering. Id. at 600-01. The inmate sued for violation of the Eighth Amendment under section 1983 and for negligence under state law. Id. at 600. On appeal, the Seventh Circuit dismissed the state law negligence claim on sovereign immunity grounds, noting that "the relationship between [the plaintiff] and the defendants would not have had a source outside the employment status of the defendants, and whatever duty was owed by the defendants to [the plaintiff] existed because of [his] status as a prisoner and his presence at Stateville Correctional Center." Id. at 602. Under the controlling law and analogous facts of Turner, Ms. Collins' state law claims against Seeman in her individual capacity cannot be pursued in this court.
Based on the foregoing analysis, the motion to dismiss is granted in part and denied in part. The section 1983 claims against Seeman and Bucalo are dismissed except those against Seeman in her individual capacity. All of the ...