The opinion of the court was delivered by: GEORGE MAROVICH, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Margaret Lidia Burzynska ("Burzynska") filed a
one-count Complaint against Will County, Will County Sheriff's
Department, Sheriff Brendan D. Ward, and Defendants Doe 1 through
Doe 7, alleging Defendants subjected Burzynska, or caused her to
be subjected, to a deprivation of her rights, privileges or
immunities guaranteed by the Constitution and federal laws under
42 U.S.C. § 1983 ("§ 1983") and Illinois state law 725 Ill. Comp.
Stat. 5/103-2(c) ("103-2(c)"). Will County moves to dismiss the
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1),
(4), (5), and (6). For the reasons set forth below, the Will
County's Motion to Dismiss is granted.
The Complaint alleges the following relevant facts which, for
the purposes of deciding this motion, are taken as true. Hishon
v. King & Spaulding, 467 U.S. 63, 73 (1984). On March 10, 2001,
the family of Burzynska, a prisoner in the county jail in Joliet, Will County, Illinois, appeared before the Honorable
Judge Kinney alleging that Defendants were failing to administer
Burzynska's medication while she was imprisoned in the county
jail. Burzynska's family stated that they informed Defendants on
March 9, 2001 and on March 10, 2001, that Burzynska had a history
of cerebral vascular accidents and strokes. Burzynska's family
requested and was granted the immediate release of Burzynska.
Judge Kinney placed a call to order the immediate release of the
patient during the morning of March 10, 2001. Burzynska was not
released and at 2 pm she allegedly suffered a major health
incident. No further details have been included as to the nature
and extent of the injury.
Burzynska alleges that the individual Defendants, through the
scope of their employment, subjected, or caused to be subjected,
her to a deprivation of her rights, privileges or immunities
secured by the Constitution and federal laws under § 1983 and
103-2(c). Will County moves to dismiss Burzynska's Complaint
arguing that she has no claim under the theory of respondeat
superior. Burzynska argues that Will County misstated the basis
of her claim. She states that any references made to the agents
or employees of the county in the Complaint were used to notify
Will County that the claim is based on the concept of custom and
usage rather than respondeat superior. Will County argues that
Burzynska's Complaint is insufficient since it contains nothing
to lead Will County to the conclusion that custom and usage is
the basis of the Complaint.
I. Standard for a Motion to Dismiss
When considering a motion to dismiss, a court must view the
complaint's allegations in the light most favorable to the
plaintiff, and all well-pleaded facts in the complaint must be accepted as true. Wilson v. Formigoni,
42 F.3d 1060, 1062 (7th Cir. 1994). To withstand a motion to
dismiss, a complaint must allege facts which sufficiently set
forth the essential elements of the cause of action. Gray v.
County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). Dismissal
is proper only if it appears beyond a doubt that a plaintiff can
prove no set of facts in support of a claim which would entitle
her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Will County contends that Burzynska's § 1983 claim is based on
respondeat superior, which provides no remedy at law. A local
government is liable under § 1983 only where the execution of an
official government policy or custom caused the alleged
constitutional injury. Monell v. Department of Social Services
of New York, 436 U.S. 658, 638 (1978). A municipality cannot be
held liable solely because it employs a tortfeasor. Bd. of the
County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403
(1996). Therefore, a municipality cannot be held liable under §
1983 based upon the respondeat superior theory. Monell, 436
U.S. at 691. A municipality can be held liable under § 1983 only
if: (1) an express policy, that when enforced, causes a
constitutional deprivation; (2) a widespread practice that,
although not authorized by written law or express municipal
policy, is "so permanent and well settled as to constitute a
`custom or usage' with the force of law;" or (3) an allegation
that the constitutional injury was caused by a person with `final
policymaking authority'." Baskin v. City of Des Plaines,
138 F.3d 701, 704-705 (7th Cir. 1998).
Applying this rule to the case at bar, Burzynska has no claim
against Will County, a municipality, under the theory of
respondent superior for the alleged torts committed by Will County's employees during the scope of employment. Burzynska
merely alleges that the acts of the employees that caused the
denial of medication to Burzynska were executed "during the scope
and course of their employment." Complaint at ¶ 6. Burzynska has
not identified an express policy, widespread practice, or
decision by a final making authority which caused the employees
to deny the prisoner medical attention. Burzynska's claim is
apparently based only on the fact that the municipality employed
a tortfeasor and therefore she fails to state a cause of action.
Burzynska contends that Will County misstated the allegations
of the Complaint and asserts that the basis of the Complaint is
founded on custom and practice. Will County contends that
Burzynska has failed to state a sufficient custom and practice
cause of action pursuant to Federal Rule of Civil Procedure
8(a)(2). Rule 8(a)(2) requires a complaint to direct the
defendant to the factual cause of the plaintiff's alleged injury.
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.
1995). In pleading § 1983 municipal liability claims, plaintiffs
need not allege all, or any, of the facts logically entailed by
the claim. Id. A complaint does not fail to state a claim
merely because it does not set forth a complete and convincing
picture of the alleged wrongdoing. Id. However, allegations of
a municipal policy, which are totally lacking in any factual
support that a municipal policy does exist are insufficient.
In the case at bar, Burzynska's Complaint does not satisfy the
requirements of a notice pleading. The Complaint does not direct
Will County as to the nature of the claim or to the grounds upon
which it rests. Not only is the Complaint lacking any factual
basis to support any claims on custom or practice, it contains no
allegations that a municipal policy exists. Therefore, it does
not sufficiently notify Will County that the alleged violation of § 1983 is based on the municipality's custom or
practices. Although a municipality can potentially be sued by
administering a policy, practice, or custom, Burzynska's claims
clearly do not meet the minimum requirements of notice pursuant
to Fed.R.Civ.P. 12(b)(6).
The remaining Defendants, Will County Sheriff's Department,
Brendan D. Ward as then Sheriff, and Defendants Doe 1 through Doe
7, have not been served. Service was required to be completed by
October 12, 2003, 120 days after the Complaint was filed.
Sellers v. United States, 902 F.2d 598, 603 ...