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PETTIFORD v. SHEAHAN

March 25, 2004.

CELLO PETTIFORD, Plaintiff,
v.
MICHAEL SHEAHAN, Cook County Sheriff; COUNTY OF COOK, ILLINOIS; RICHARD REMUS; JAMES EDWARDS; LEROY MOORE; TYRONE EVERHART; ABRAHAM MARTINEZ; HENRY TROKA; ALAN HAMPTON; OFFICER K. SOLECKI; SAUL WEINSTEIN; and JOHN DOES 1-45, Defendants



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

In a second amended complaint, plaintiff Cello Pettiford has alleged, that he was physically attacked by guards at the Cook County Jail, causing personal injuries and destruction of personal properly including legal materials, and that employees of the Cook County Sheriff's Department as well as Cook County and certain individuals at Cook County Hospital covered up the alleged beating incident, in violation of 42 U.S.C. § 1983 and the Racketeer Influence and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962. Specifically, Count I alleges a § 1983 claim against defendants Remus, Hampton, Martinet, Everhart, Solecki, and John Does 1-24 for use of excessive force. Count II alleges a § 1983 claim against defendants Edwards and Moore for deliberate indifference to plaintiff's medical needs in violation of the Fourteenth Amendment.*fn1 In Count Ill, plaintiff alleges a § 1983 claim against defendant Troka for denial of Page 2 access to the courts. Count IV alleges a § 1983 claim against defendants Sheahan, Weinstein, Remus, Edwards, Solecki and John Does 25-34 for the alleged cover-up of the beating by sheriff's employees. Count V alleges a § 1.983 claim against defendant Cook County for the alleged cover-up by Cook County employees. Count VI alleges a RICO claim against defendants Remus, Edwards, Solecki, Weinstein and all the John Does. Count VT1 alleges a RICO conspiracy claim by the same defendants. Count VIII alleges intentional infliction of emotional distress against defendants Remus, Hampton, Martinez, Everhart, Solecki and John Does 1-24. Finally, Count DC. alleges an indemnification claim against defendant Cook County pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947 (7th Cir. 2003). All of the defendants have challenged the complaint on both procedural and substantive grounds pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, those motions are granted in part and denied in part.

FACTUAL AND PROCEDURAL BACKGROUND

  In his second amended complaint, plaintiff alleges the following facts which, for purposes of the pending motions to dismiss, are accepted as true. In February 1999 plaintiff was a detaince held in Division 9 at Cook County Jail awaiting retrial after an earlier conviction had been set aside by the Illinois Appellate Court. Plaintiff had been continually incarcerated at the jail between April 4, 1995, and May 26, 2000, and then from February 22, 2001, through November 25, 2002, In February 1999, defendants Remus, Everhart, Hampton, Martinez and Solccki were part of a Special Operations Response Team ("SORT) which was responsible for searching Division 9 for weapons, drugs and contraband. On February 24, 1999, a SORT team, led by Remus and including Martinez, Hampton, Everhart and others, went to Division 9 and ordered the assigned tier officers, including defendant Solecki, to unlock the cells and then leave. Page 3 Three or four SORT officers, led by Martinez, then entered plaintiff's cell and beat him on his head, neck and body as they forced him out, Remus struck plaintiff on the head with a gloved fist. Other detainces were also thrown from their cells, repeatedly hit, and made to stand along the outside wall.

  As plaintiff was forced out of his cell, certain officers "trashed his personal belongings," including papers, legal materials, and photographs of his children and other personal effects. SORT guards threw away or destroyed plaintiffs possessions. Other SORT officers, including Hampton, struck plaintiff with fists and a wooden baton on his head, back and neck causing him to urinate on himself. He was forced to recite profanities including the phrase "SORT runs this motherfucker." in the middle of the dayroom plaintiff was ordered to strip naked in front of at least one female K-y officer. Plaintiff was then threatened by unmuzzled guard dogs while the SORT officers laughed and shouted obscenities, Remus then climbed onto a table and shouted "I get paid whether I come here or not. You can get paid when I leave, cause I don't give a damn about lawsuits. We are going to kick your asses every time we have to come here." The SORT officers then ordered plaintiff back to his cell where he was once again beaten with a baton.

  Plaintiff was seriously injured, losing consciousness. His cell mate continually requested medical care for plaintiff hut was ignored. Several hours later, after a shift change, plaintiff was found semi-conscious and in tears. Paramedics from Cermak Medical Center, a subdivision of Cook County that provides medical services for detainces, were summoned. They took plaintiff to the Cermak medical facility where he was diagnosed with blunt head trauma and a concussion. He was then taken to Cook County Hospital emergency trauma center and placed under observation. Plaintiff was released the following day with instructions for follow-up medical Page 4 care. Although jail personnel, including defendant Edwards, were specifically informed of plaintiff's treatment requirements, they refused to comply with the doctor's instructions, Plaintiff received no medical care between February 25, 1999, and March 2, 1999., when plaintiff finally got a message to doctors at the Division 9 dispensary, informing them that plaintiff was to be receiving treatment for severe headaches, dizziness and frequent vomiting. A Division 9 doctor treated plaintiff for post-concussion syndrome and gave him an appointment to be seen nightly and monitored for two weeks. The guards ignored the doctor's orders.

  Plaintiff filed an emergency grievance about the February 24 attack and denial of medical care. After receiving no response he and several other, inmates on March 26, 1999, filed a lawsuit in the Circuit Court of Cook County (the "First State Court Action"), naming the County of Cook, Sheahan, Ernest Velasco, Remus, Edwards and various unnamed members of SORT listed as John Doe defendants. That complaint sought damages for the beating and subsequent denial of medical care. Defendants Sheahan and Velasco. moved to dismiss pursuant to § 2-619 of the Illinois Code of Civil Procedure based on Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1977), and lack of any alleged personal involvement in the attack. That motion was granted on December 21, 1999, as to each defendant both individually and in their official capacities. On September 18, 2001, the First State Court Action was dismissed as to the remaining defendants for want of prosecution.

  On June 6, 1999, plaintiff filed a second state court action, again naming, among others, Sheahan, Velasco, Remus and Edwards. The complaint alleges a series of assaults and denial of medical treatment at the hands of SORT officers starting in 1998 and continuing through the date of the complaint. The complaint makes reference to the February 24, 1999, beating and Page 5 subsequent denial of medical care, but makes no claim regarding that specific incident, The complaint was dismissed for want of prosecution on February 28, 2000, Plaintiff's appeal of the dismissal was also dismissed for want of prosecution.

  On May 30, 2000, plaintiff filed an action in this federal court, No. 00 C 3225 (the "First Federal Action"), again naming Sheahan, Velasco, Troka, and Edwards, again complaining about physical assaults by SORT members while incarcerated at Cook County Jail between 1998 and the date of the complaint. Again, the complaint details the February 24, 1999, beating and lack of medical care, as well as the destruction of plaintiff's legal papers. Again, however, the complaint made no claim with respect to the February 24, 1999, incident. This complaint was dismissed by this court for want of prosecution on December 19, 2000. Plaintiff's motion to vacate the dismissal was also denied.

  In July 2001, plaintiff filed a third state court action naming Sheahan in his official capacity, alleging violations during 2001, That case was dismissed on defendant's motion on February 11, 2002. Plaintiff's was granted 30 days to move for reconsideration or appeal. He failed to do so.

  Finally, plaintiff filed the original complaint in the instant action on February 28, 2002, On April 18, 2002, the court dismissed without prejudice because it appeared that the claims were barred by the two year statute of limitations and by the doctrine of res judicata based on the earlier federal action. Plaintiff moved for reconsideration and in an opinion dated July 2, 2002. the court held that the dismissal of the first federal action barred all "causes of action" that were brought or could have been brought in that. case. Plaintiff was granted leave to file an amended complaint but admonished not to add new defendants or new causes of action. Page 6

  Plaintiff filed an amended complaint, and defendants moved to dismiss. Plaintiff, now represented by counsel, agreed that Sheahan was improperly named and sought, leave to file a second amended complaint. Defendants objected, arguing that the proposed second amended complaint contained new defendants and new causes of action including the RICO claims, in violation of the court's July 2, 2002, order. Acknowledging that the second amended complaint was broader than anticipated when the court entered its July 2, 2002, order, the court nonetheless in the exercise of its jurisdiction granted plaintiff leave to file, recognizing mat plaintiff, who had proceeded pro se through much of the early portions of the litigation, was now represented by counsel.

  In addition to the allegations surrounding the February 24, 1999, beating, the second amended complaint also alleges a litany of further beatings and destruction of property committed by SORT members allegedly as retaliation for plaintiff's complaints regarding the February 24, 1999, incident. Defendant Troka was allegedly present at least one of the subsequent beatings and also allegedly received on August 23, 2001, a notice that plaintiff was to be deposed in the state court action, Troka failed to forward that notice to plaintiff until the evening before the deposition was to take place. Plaintiff attended the deposition but complained to the assistant states attorney about interference with his ability to prosecute his case.

  The second amended complaint also alleges that "defendants made a concerted effort to cover-up' the February 24, 1999, incident," Edwards and Solccki allegedly altered or made false entries in log books and records to indicate that SORT was not in Division 9 on February 24, 1999, and that no incidents occurred on that date. None of the SORT members, including defendants Remus, Everhart, Hampton and Martinez wrote reports of the incident, an Page 7 alleged violation of Cook County Department of Corrections ("CCDOC") requirements. Plaintiff also alleges that defendant Edwards and Moore denied him medical care in order to hide the incident.

  Despite defendants' alleged efforts to cover-up, only one week later the John Howard Association wrote to jail personnel requesting an investigation. Two days later, investigator Charles Holman was directed to photograph injuries of another victim, Bert Barrios. On March 1.5, 1999, Rudolpho Gomez was assigned to investigate the incident. After a month of little progress the investigation was turned over to Holman, but the file contained no photographs of Barrios, and Holman received a letter from Edwards stating that he found only a small bruise on Barrios's wrist.

  The second amended complaint alleges generally that Holman's investigation was "hampered by institutional resistance." Nonetheless, Holman interviewed more than 35 alleged victims and reviewed officer's logs, discovering discrepancies between the statements of SORT officers and regular tier officers. Despite the alleged cover-up, the logs show that SORT entered Division 9 with dogs on February 24, 1999, and that detainees had later requested medical attention.

  Holman completed his preliminary report on June 20, 1999, and it was promptly forwarded to the Sheriff's inspector general's office with a notation that further inquiries should be made. It lay dormant in the inspector general's office for almost two years. Then in May 2001, Holman was ordered to lake a copy to the Sheriff's inspector general, who within a few days ordered Holman to reopen his investigation, Holman then interviewed over 20 CCDOC employee witnesses, about 50 CCDOC employees accused of participating in the beating and Page 8 eight to ten additional detainees. Holman also attempted to interview the Cermak paramedics responsible for treating the beaten inmates, but those paramedics refused and neither their supervisors, including the Cermak medical director and the Cook County inspector general, would require them to cooperate.

  Holman's supervisor was defendant Weinstein, then chief of Internal Affairs Division ("IAD"), Plaintiff alleges that Weinstein worked to undermined and delay Holman's report by pressuring Holman to provide interviewees with questions ahead of time, and then urged Holman to downgrade the report's proposed charges, Holman's report recommended charges against ten CCDOC employees and eight Cook County/Cermak employees. The report alleged 29 violations against Remus alone, concluding that he entered Division 9 "with the intention of administering corporal punishment" and failed to "enforce humane treatment . . . by directing his SORT supervisors and SORT team members to administer corporal punishment to detainees," The report further found that Remus himself had administered corporal punishment to detainees, including plaintiff. Nine other employees, including defendants Edwards, Troka and Everhart, were cited for filing false reports and bringing in the dogs. The report recommended that five officers and Remus be terminated.

  The report also found that seven paramedics and a paramedic supervisor impeded the investigation by refusing to be interviewed, failing to initiate a triage and medical report for the detainees treated, ...


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