United States District Court, N.D. Illinois
March 12, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Angelo Elizzar, who is now represented by appointed
counsel, filed a pro se complaint alleging a denial of adequate medical
care while he was housed in the Winnebago County Jail. The complaint's
caption names as defendants "Richard Meyers, Nurse Practitioner, [and]
Medical Doctor." The body of the complaint adds nothing by way of further
identifying the unnamed defendants. Meyers, who is the Sheriff of
Winnebago County, has moved to dismiss the complaint against him pursuant
to Fed.R.Civ.P. 12(b)(6), contending it does not contain sufficient
allegations to state a claim against him in either his individual or
official capacities and that he has qualified immunity for any claims of
deficient medical care. Plaintiff has filed a response brief via his
Because the complaint is pro se, the court must liberally construe it.
McCormick v. City of Chicago. 230 F.3d 319, 325 (7th Cir. 2000). A motion
to dismiss under Rule 12(b)(6) tests whether the plaintiff has properly
stated a claim upon which relief could be granted and not whether the
plaintiff will ultimately prevail on the merits. James v. City of
Chicago. 2003 WL 21673953, *1 (N.D. Ill. July 16, 2003). In ruling on
such a motion, the court must construe all well-pleaded allegations as
true and draw all reasonable inferences in favor of the plaintiff.
James, at *1. A motion to dismiss will not be granted unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claims which would entitle him to relief. James. at *1.
Here, plaintiff has not identified Meyers as the sheriff let alone
alleged whether he is suing him in either his individual or official
capacities. That alone makes the complaint deficient as to Meyers.
Moreover, if he is seeking to sue him individually, he must allege that
Meyers either participated in, directed, or knew of and consented to, the
alleged wrongdoing. See James. ay *4. This he has not done.
If, on the other hand, plaintiff intends to sue Meyers in his official
capacity, he must allege his claimed constitutional violation occurred
pursuant to an official policy, custom, or practice. See James, at *4.
Again, he has failed to do so.
Because plaintiff has failed to allege a proper (or any) basis for
holding Meyers liable either individually or officially, the court grants
Meyers' motion to dismiss on that basis. The court further dismisses the
entire complaint for failing to specifically name or identify any other
defendants. The dismissal of the complaint is without prejudice to
plaintiff, who is represented by counsel, filing an amended complaint
within 30 days of the date of this order naming the particular
defendants, including Meyers, who he alleges violated his constitutional
rights. See Donald v. Cook County Sheriff's Dept.. 95 F.3d 548, 555-56
(7th Cir. 1996).
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