United States District Court, N.D. Illinois, Eastern Division
September 30, 2004.
BENJAMIN BINKLEY, a minor, by his parent and next best friend, REBECCA BINKLEY; and REBECCA BINKLEY, individually, Plaintiffs,
EDWARD HOSPITAL d/b/a EDWARD HOSPITAL & HEALTH SERVICES, an Illinois not-for-profit corporation; CHARTER LINDEN OAKS BEHAVIORAL HEALTH SYSTEM d/b/a LINDEN OAKS HOSPITAL, an Illinois corporation; ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES; DuPAGE COUNTY HEALTH DEPARTMENT; RIAZ BABER, M.D., BRUCE ANDERSON; SHOBA SINHA, M.D.; JENNIFER BEISNER; STEPHANIE BRENNAN; MARGARET JONES; GLORIANA ACOLATSE; and DEBBIE McEVILLY, Defendants.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motions of Defendants
Stephanie Brennan, Edward Hospital, Linden Oaks Hospital, Bruce
Anderson, DuPage County Health Department, Jennifer Beisner,
Illinois Department of Children and Family Services, Debbie
McEvilly, Gloriana Acolatse, and Margaret Jones to dismiss the
Plaintiffs' First Amendment Complaint pursuant to Fed.R. Civ. P.
12(b)(6). For the following reasons, the motions are granted in
part and denied in part. BACKGROUND
Plaintiffs Benjamin Binkley ("Benjamin"), a minor, and Rebecca
Binkley ("Mrs. Binkley"), his mother (hereinafter collectively
referred to as "Plaintiffs") have filed their First Amended
Complaint ("Complaint"). In this Complaint, the Plaintiffs allege
that on March 23, 2003, Benjamin presented to the emergency room
at Linden Oaks Hospital, where he was examined by the on-call
physician, Dr. Shoba Sinha ("Dr. Sinha"). Dr. Sinha allegedly
determined that Benjamin had an emergency medical condition and
that such a condition was mental illness or emotional disturbance
of such severity that hospitalization was necessary. At
approximately 2:30 a.m. on March 23, 2003, Benjamin was admitted
to the locked adolescent inpatient unit at Linden Oaks Hospital.
The next day, Mrs. Binkley allegedly reported to Diana Halley
("Halley"), an employee of Linden Oaks Hospital, that Benjamin's
health insurance would expire at midnight on the tenth day of
admission and that Mrs. Binkley believed Benjamin was in need of
long term residential care for his severe mental illness. Halley
allegedly noted in Benjamin's medical chart that his insurance
would soon be exhausted. Plaintiffs further allege that, due to
Mrs. Binkley's inability to pay for extended medical care, Linden
Oaks ceased all efforts to provide reasonable and necessary
medical care to Benjamin. In addition, Plaintiffs contend that
Dr. Sinha and Dr. Riaz Baber ("Dr. Baber") falsified Benjamin's
medical record in order to make Benjamin's severe mental illness
appear stabilized, when in fact it was not. During the time that
Benjamin was admitted in Linden Oaks Hospital, Mrs. Binkley
allegedly made multiple requests to Drs. Baber, Sinha, and Bruce
Anderson ("Anderson"), the facility director of Linden Oaks
Hospital, for a transfer of Benjamin to a state operated mental health
facility; however, these requests were refused.
On April 5, 2000, Benjamin's attending physician, Dr. Baber,
informed Mrs. Binkley that Benjamin's medical condition was
stable and that Benjamin would be discharged from Linden Oaks
Hospital the next day. Plaintiffs, however, allege that Benjamin
was on suicide and assault precautions and was receiving fifteen
minute checks by the hospital staff to ensure his safety and the
safety of others.
Mrs. Binkley refused to accept Benjamin for discharge on April
6, 2000 believing that he suffered from severe unstabilized
mental illness. On April 7, 2000, Mrs. Binkley was notified by
Anderson and Paula Albright ("Albright"), associate general
counsel for Edward Hospital, that if Mrs. Binkley did not accept
Benjamin for discharge on that date, Albright would notify the
Illinois Department of Children and Family Services ("DCFS") that
Mrs. Binkley was neglecting her child. Plaintiffs further allege
that Albright and Anderson notified Mrs. Binkley that they would
pursue her for present and future unpaid medical bills.
On April 8, 2000, allegedly at the request of Anderson and
Albright, DCFS investigator Margaret Jones ("Jones") recommended
that Mrs. Binkley be "indicated for child abuse, child
abandonment, and medical neglect of Benjamin," and that Benjamin
be discharged from the hospital and placed in jail. Furthermore,
Plaintiffs allege that Sheryl Duer ("Duer"), an employee of
Linden Oaks Hospital, contacted Stephanie Brennan ("Brennan"), an
employee of the DuPage County Health Department ("Health
Department"), to evaluate Benjamin for a transfer to a state
operated mental health facility. According to the complaint,
Brennan allegedly recommended that Benjamin have no further inpatient hospitalization, and no further
psychological assessment for continuing hospitalization, despite
the fact that Benjamin's medical record was allegedly replete
with behaviors consistent with severe mental illness. Thereafter,
on April 10, 2000, Dr. Baber discharged Benjamin from Linden Oaks
Hospital. Upon discharge, Benjamin was then taken to jail, where
Plaintiffs allege that he was deprived of his right to medical
care and education.
Apparently while Benjamin was in jail, Gloriana Acolatse
("Acolatse"), a DCFS caseworker, recommended that Benjamin be
placed in shelter care at the Center House for Boys. Plaintiffs
allege that Benjamin was deprived of his right to medical care
and education while at the Center House for Boys. Debbie McEvilly
("McEvilly"), another DCFS caseworker, took over Benjamin's case,
and recommended that Benjamin remain in shelter care at the
Center House for Boys instead of obtaining the in-patient
psychiatric treatment that Benjamin allegedly required. Benjamin
remained at the Center House for Boys until May 10, 2000, when
Benjamin's treating physician, Dr. Schwartz, allegedly ordered
that Benjamin be admitted to Glen Oaks Hospital. However,
Plaintiffs allege that Jennifer Beisner ("Beisner"), a DCFS
evaluator, blocked Benjamin's admission into Glen Oaks Hospital.
According to Plaintiffs, Beisner then called the police and had
Benjamin put back in jail, where Benjamin spent two weeks,
allegedly without the necessary medical care or education. On May
24, 2000, Benjamin was admitted to Maryville Academy.
Plaintiffs further allege that on September 11, 2001, the
Honorable Stanley Austin of the Eighteenth Judicial Circuit,
DuPage County, Illinois entered an order finding that, at the
time of Benjamin's discharge from Linden Oaks Hospital, Benjamin
was a dependent minor and was without proper medical or other remedial
care recognized under State law, or other care necessary for his
well-being, through no fault, neglect or lack of concern by his
parents, guardian, or custodian.
Count III of the First Amended Complaint alleges a medical
malpractice claim against Anderson. Count IV alleges that Edward
Hospital, Linden Oaks Hospital, and Anderson violated provisions
of the Emergency Medical Treatment and Labor Act,
42 U.S.C. § 1395dd(b)(1) when they "dumped" Benjamin from Linden Oaks
Hospital. In Count V, Plaintiffs allege that Brennan violated
42 U.S.C. § 1983. Under Count VI, Plaintiffs further allege
violations of 42 U.S.C. § 1983 by the Health Department. Counts
VII, VIII, IX, and X each allege a violation of 42 U.S.C. § 1983
against Jones, Acolatse, McEvilly, and Beisner respectively.
Count XI presents a pendent state medical malpractice claim
against Linden Oaks Hospital. Count XII alleges a pendent state
civil conspiracy claim against all Defendants. Count XIII alleges
a pendent claim for intentional infliction of emotional distress
against all Defendants. Count XIV requests injunctive relief
against DCFS. Lastly, Count XV alleges a violation of
42 U.S.C. § 1983 against DCFS employees, Jones, Acolatse, and McEvilly.
When deciding a motion to dismiss, this Court accepts as true
all "well-pleaded factual allegations and view[s] them, along
with the reasonable inferences to be drawn from them, in the
light most favorable to [the plaintiff]." Cornfield v.
Consolidated High School Dist. No. 230, 991 F.2d 1316, 1324 (7th
Cir. 1993). Moreover, we must keep in mind that 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."
American Nurses' Association v. State of Illinois, 783 F.2d 716, 727 (7th Cir.
1986). At the same time, a court must grant a motion to dismiss
if it "appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also
Jackson v. E.J. Brach Corp., 176 F.3d 971, 978 (7th Cir. 1999)
("a complaint which consists of conclusory allegations
unsupported by factual assertions fails even the liberal
standard" of federal notice pleading requirements). In addition,
a court is not bound by the legal characterizations that the
plaintiff assigns to those facts. Republic Steel Corp. v.
Pennsylvania Engineering Corp., 785 F.2d 174, 183 (7th Cir.
I. EMTALA Claims
In Count IV, the Plaintiffs allege a claim under the Emergency
Medical Treatment and Active Labor Act ("EMTALA"),
42 U.S.C. § 1395(dd) et seq. against Defendants Edward Hospital, Linden
Oaks Hospital, and Anderson. Furthermore, Plaintiffs appear to
allege violations of EMTALA by other individual defendants in
this action in their claims brought under 42 U.S.C. § 1983.
A. EMTALA Claim Against Individual Defendants
As an initial matter, EMTALA "creates a cause of action only
against a participating hospital. The statutory definition of
participating hospital does not encompass an individual
physician." King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994).
Plaintiffs concede this point in their response briefs and have
agreed to withdraw the EMTALA claim as against Anderson.
Accordingly, Plaintiffs have failed to state an EMTALA claim
against Anderson, and this Court grants Defendant Anderson's
motion to dismiss Count IV against him. Furthermore, Plaintiffs
have agreed to withdraw their claims for a violation of EMTALA in Count X, which is brought
under 42 U.S.C. § 1983. While it is not entirely clear what
Plaintiffs allege. If Plaintiffs are attempting to allege a
violation of EMTALA through an action under 42 U.S.C. 1983
against individual defendant Beisner, that claim is also
dismissed with prejudice.
B. EMTALA Claim Against Edward Hospital and Linden Oaks
Because the EMTALA claims have been dismissed against the
individual defendants, the remaining EMTALA claims now properly
lie only against Edward Hospital and Linden Oaks Hospital.
Section 42 U.S.C. § 1395dd(b)(1) states as follows:
(b) Necessary stabilizing treatment for emergency
medical conditions and labor
(1) In general
If any individual (whether or not eligible for
benefits under this subchapter) comes to a hospital
and the hospital determines that the individual has
an emergency medical condition, the hospital must
(A) within the staff and facilities available at the
hospital, for such further medical examination and
such treatment as may be required to stabilize the
medical condition, or
(B) for transfer of the individual to another medical
facility in accordance with subsection (c) of this
Additionally, 42 U.S.C. § 1395dd(e)(3)(A) defines the term "to
stabilize" as follows:
`To stabilize' means, with respect to an emergency
medical condition . . . to provide such medical
treatment of the condition as may be necessary to
assure, within reasonable medical probability, that
no material deterioration of the condition is likely
to result from or occur during the transfer [which
includes the discharge of individuals] of the
individual from a facility.
Therefore, in order to state a claim under EMTALA, a plaintiff
must establish that he "(1) went to the defendant's emergency
room (2) with an emergency medical condition, and that the
hospital either (3) did not adequately screen him to determine
whether he had such a condition, or (4) discharged or transferred
him before the emergency condition had been stabilized." Deberry
v. Sherman Hospital Association, 741 F.Supp. 1302, 1305 (N.D.
In this case, Plaintiffs allege that Benjamin "presented to the
emergency department at Linden Oaks [Hospital]" on March 23,
2000. Furthermore, the Plaintiffs assert that Dr. Sinha examined
Benjamin, determined that he has an "emergency medical condition,
and that such condition was a mental illness or emotional
disturbance of such severity that hospitalization was necessary
and that as such Benjamin was likely to benefit from inpatient
treatment, as Benjamin was aggressive and threatening in
behavior." Benjamin was then treated for nineteen days at Linden
Oaks Hospital, the final nine of which were not covered by
Benjamin's insurance. Thereafter, on April 10, 2000, Linden Oaks
Hospital discharged Benjamin in an allegedly unstabilized
In sum, Plaintiffs have alleged that Benjamin went to Linden
Oaks Hospital's emergency room with an emergency medical
condition and that the hospital discharged him before the
emergency condition was stabilized. At this point in the
litigation, and viewing all of these asserted facts in a light
most favorable to the Plaintiffs, Count IV sufficiently states a
claim under EMTALA against Linden Oaks Hospital.
Furthermore, Plaintiffs have sufficiently stated a claim
against Edward Hospital for a violation of EMTALA because Edward
Hospital is the parent company of Linden Oaks Hospital.
Plaintiffs have alleged that Edward Hospital created and owns
Linden Oaks Hospital for the purpose of furnishing health care services
of a different type than those provided by Edward Hospital.
Accordingly, Defendants Edward Hospital's and Linden Oaks
Hospital's motion to dismiss Count IV is denied.
II. Counts Alleging Violations Under § 1983
Counts V X and XV are brought under 42 U.S.C. § 1983 ("§
1983"). These counts allege that various county and state workers
deprived both Benjamin and Mrs. Binkley of certain rights that
are protectable under § 1983.
In order to state a claim for a violation of 42 U.S.C. 1983, a
plaintiff must allege that a defendant's actions were taken under
color of state law and that those actions deprived plaintiff of a
constitutional right. Parratt v. Taylor, 451 U.S. 527 (1981).
However, Section 1983 does not delineate constitutional rights.
In Gonzaga v. Doe, 536 U.S. 273 (2002), the Supreme Court
§ 1983 merely provides a mechanism for enforcing
individual rights `secured' elsewhere, i.e., rights
independently `secured by the Constitution and laws'
of the United States. `[O]ne cannot go into court and
claim a `violation of § 1983' for § 1983 by itself
does not protect anyone against anything.
Id. at 284 (citations omitted).
Plaintiffs allege that Defendants, acting under the color of
state law, violated "constitutional rights . . . guaranteed to
Benjamin under the Fourteenth Amendment to the United States
Constitution." Counts V X, which allege a violation of
Benjamin's rights by Beisner, Jones, Acolatse, McEvilly, Brennan,
and DuPage County Health Department can be whittled down to three
general claims. First, Plaintiffs contend that Benjamin was
"involuntarily committed" while at Linden Oaks Hospital, in jail,
and at the Center House for Boys ("Center House"). According to the Plaintiffs,
because he was involuntarily committed to these places, he had a
right to individualized rehabilitative mental health treatment
and special education services.
Second, Plaintiffs allege that Beisner, Jones, Acolatse,
McEvilly, and Brennan each violated Benjamin's procedural due
process rights because, "upon information and belief," none were
"qualified certifiers" as defined by law. Plaintiffs also attempt
to hold the DuPage County Health Department liable for allowing
unqualified individuals to perform mental health services.
Plaintiffs again assert that Benjamin has a liberty interest to
individualized mental health treatment and special education
services, and that because the Defendants were not qualified
certifiers, he was denied his rights without proper procedure.
Third, Plaintiffs claim that they have a cause of action under
§ 1983 for the State's alleged violation of conditions imposed
upon it by the federal government, associated with federal funds
the State received to provide such services. Specifically,
Plaintiffs allege that they have rights under the Federal
Developmental Disabilities Act, 42 U.S.C. § 15024(c)(G)(5), and
42 U.S.C. § 300x-1, which are enforceable under § 1983.
Finally, Plaintiffs allege a § 1983 violation against Jones,
Acolatse and McEvilly for their alleged wrongful actions against
Mrs. Brennan. Plaintiffs allege that these DCFS workers
"indicated" Mrs. Binkley as a child abuser and neglector in an
attempt to coerce her into accepting Benjamin for discharge to
his home. Plaintiffs claim that these actions violated Mrs.
Brennan's liberty interest.
We will address each of these arguments in turn. A. Benjamin's Liberty Interest In Receiving Rehabilitative
Mental Health Treatment
Plaintiffs first allege that Benjamin was an involuntarily
committed mental patient and had a liberty interest under the
Fourteenth Amendment's Due Process Clause to rehabilitative
mental health treatment. The Supreme Court has held that the
State has an affirmative duty to provide services to the
involuntarily committed. DeShaney v. Winnebago County Dept. of
Social Services, 489 U.S. 189 (1989). The DeShaney Court held
that "the substantive component of the Fourteenth Amendment's Due
Process Clause requires the State to provide involuntarily
committed mental patients with such services as are necessary to
ensure their `reasonable safety' from themselves and others."
Id. at 196.
There exists an "affirmative duty by the State actor to provide
basic human needs e.g., food, shelter, medical care, and
reasonable safety." Estelle v. Gamble, 97 S. Ct. 285, 290-91
(1976). However, such "affirmative duty to protect arises not
from the State's knowledge of the individual's predicament or
from its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own
behalf." Id. at 290-91.
While it is questionable whether Benjamin was, indeed,
involuntarily committed (especially in the Linden Oaks setting)
and not free to act on his own behalf, Plaintiffs allege that he
was involuntarily committed. At this stage of the litigation, we
must accept their allegations as true. Plaintiffs further allege
that Benjamin did not receive the individualized care and
treatment that he required for his mental condition. Therefore,
the Defendants' alleged failure to provide necessary mental
health care to Benjamin could be a deprivation of his liberty interest, in violation of
his substantive due process rights under the Fourteenth
Amendment. Therefore, we believe that Plaintiffs have stated a
cause of action for violation of Benjamin's liberty interest, and
the motions to dismiss are denied on this ground.
B. Procedural Due Process Rights
Plaintiffs next argue that Benjamin's procedural due process
rights have been violated because Defendants did not follow the
requirements imposed by certain state statutes. These statutes
require that, if admission is sought to a State-operated mental
health facility, the individual seeking admission must be
examined by a "qualified certifier." 405 ILCS 5/3-504 and 3-601.1
In this case, Plaintiffs allege that Defendants Brennan, Beisner,
Jones, Acolatse and McEvilly did not possess the qualifications
necessary to be a qualified certifier. Thus, Plaintiffs argue
that these Defendants had no business making recommendations
regarding Benjamin's mental health services.
A State statute can create a liberty interest that could
trigger a Constitutional violation for deprivation of procedural
due process if fair procedures are not followed to deprive a
plaintiff of that interest. See Kraushaar v. Flanigan,
45 F.3d 1040, 1048 (7th Cir. 1995). "[C]ourts will find a liberty
interest only if the state's statute or regulation used language
of an unmistakably mandatory character, requiring that certain
procedures `shall,' `will' or `must' be employed." Kraushaar,
45 F.3d at 1048.
In this case, the State statutes at issue (405 ILCS 5/3-504 and
3-601.1) do use such mandatory language. Section 5/3-504(a)
states that "no minor shall be admitted to a State-operated
mental health center until a written statement . . . has been
obtained from a qualified certifier." Likewise, Section 5/3-601.1
states "[i]f admission is sought to a State-operated mental health facility . . . the petition
shall be accompanied by a written statement executed by a
qualified certifier." (emphasis added).
Plaintiffs claim that Benjamin was denied procedural due
process by the failure to have: a) a qualified certifier
personally examine Benjamin; and b) a written statement executed
by a qualified certifier accompany his petition to a
State-operated mental health facility. Because the State statutes
in question use mandatory language, we find that these statutes
could create a liberty interest that could trigger a
Constitutional violation for deprivation of procedural due
process if the proper procedures were not followed. Therefore,
Benjamin may have been denied the process due him by having
unqualified certifiers examine him and make recommendations about
his mental health treatment.
For these reasons, we find that Plaintiffs have stated a cause
of action under § 1983 for a violation of procedural due process.
C. Violation of Conditions Imposed By Federal Law
Next, Plaintiffs allege that they have a cause of action under
§ 1983 for the State's alleged violation of conditions imposed
upon it by the federal government in conjunction with federal
funds the State receives to provide mental health services.
Plaintiffs may have rights under the Federal Developmental
Disabilities Act, which are enforceable under § 1983. Mihalcik
v. Lensink, 732 F. Supp. 299, 303-04 (D.Conn. 1990). At least
one court has held that a State's failure to provide such
required services violated the Federal Developmental Disabilities
Act, which gives rise to a private right of action under § 1983.
See, e.g., Martin v. Voinovich, 840 F. Supp. 1175, 1203-04
(S.D. Ohio 1993). In this case, Plaintiffs allege that the State actors failed to
provide Benjamin with comprehensive community based mental health
services. As mentioned above, a State's failure to provide such
required services can give rise to a private cause of action
under § 1983 for the State's violation of conditions imposed upon
it by the federal government, associated with federal funds the
State receives to provide such services. See Martin,
840 F. Supp. 1175; Mihalcik, 732 F. Supp. 299. Therefore, Defendants'
motions to dismiss Plaintiffs' § 1983 claims on this ground are
D. Mrs. Brennan's Liberty Interest
Finally, Plaintiffs allege a violation of § 1983 because DCFS
"indicated" Mrs. Binkley as a child abuser and neglector, based
upon the recommendation of Jones, Acolatse, and McEvilly. DCFS
allegedly placed Mrs. Binkley's name in the State registry of
"indicated" child abusers, under the Abused and Neglected Child
Reporting Act, 325 ILCS 5/1, et. seq.
Courts have held that a person has a liberty interest in not
being listed as a child abuser and neglector, because that would
damage a person's reputation. See Bohn v. Dakota County,
772 F.2d 1433, 1436, n. 4 (8th Cir. 1985); Cavarretta v. DCFS,
277 Ill. App. 3d 16, 24-25 (2nd Dist. 1996). In Cavarretta,
the Court held that DCFS violated a person's liberty interest
when it placed the person's name in the State registry of
"indicated" child abusers. 277 Ill. App. 3d at 24-25.
We conclude that Mrs. Brennan's reputation and liberty interest
could have been violated by the actions of the DCFS personnel in
wrongfully reporting her as a child abuser and neglector.
Therefore, we find that Plaintiffs have stated a cause of action
under § 1983 for a violation of Mrs. Brennan's liberty interest. E. DuPage County Health Department's Motion
Defendant DuPage County Health Department argues that it cannot
be held liable under § 1983 because it is not vicariously liable
for the torts of its employees. It is well established that the
"language of § 1983 . . . cannot be easily read to impose
liability vicariously on governing bodies solely on the basis of
the existence of an employer-employee relationship with a
tortfeasor." Monell v. Dept. of Social Services of City of New
York, 436 U.S. 658 (1978).
However, when the execution of a government's policy or custom,
whether made by its lawmakers or by those whose acts may fairly
be said to represent official policy, inflicts the injury, the
government as an entity is responsible under § 1983. Monell at
694. "The plaintiff who wants a judgment against the municipality
under [Section 1983] must be able to trace the action of the
employees who actually injured him to a policy or other action of
the municipality itself." Bethesda Lutheran Homes and Services,
Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998).
Here, Plaintiffs have alleged independent improper actions on
behalf of the Health Department itself which could constitute a
custom or policy. Plaintiffs allege that the Health Department
intentionally allowed unqualified individuals to perform mental
health evaluations, ensured that its mental health evaluators do
not classify people as mentally ill and failed to maintain
appropriate community mental health facilities. Plaintiffs allege
that these actions are the standard operating procedure of the
Health Department. We find that these allegations sufficiently
allege that a policy or custom of the municipality itself caused
injury to Plaintiffs. For these reasons, DuPage County Health
Department's motion to dismiss the § 1983 claims against it is
denied. In sum, we conclude that Plaintiffs have properly alleged
causes of action for violations of § 1983. Therefore, the motions
to dismiss Counts V, VI, VII, VIII, IX, X, and XV for failure to
state a cause of action are denied.
III. Civil Conspiracy
In Count XII, Plaintiffs attempt to state a claim based upon
civil conspiracy. Plaintiffs claim that all Defendants
participated in "a common scheme to commit an unlawful act or a
lawful act in an unlawful manner in order to deprive Benjamin of
appropriate medical and psychological care."
In Illinois, civil conspiracy consists of a combination of two
or more persons for the purpose of accomplishing, by some
collaborating action, either an unlawful purpose or a lawful
purpose by unlawful means. Adcock v. Brakegate, Ltd.,
164 Ill.2d 54, 62-63 (1994). Plaintiffs need to allege both an
agreement between the conspirators and an act in furtherance of
the agreement. Id. See also Webb v. Local 73, Service Employees
International Union, 2002 WL 31049841 (N.D. Ill. 2002).
In this case, Plaintiffs' complaint lacks any factual
allegations necessary to establish the nature of the alleged
agreement between the Defendants. Moreover, the complaint is
devoid of any facts to show how the Defendants worked together to
carry out this alleged common scheme. Merely "[l]umping all
defendants acts together, [and] adding the word `conspiracy' adds
nothing" to substantiate such a claim. Stanley v. Litscher,
213 F.3d 340 (7th Cir. 2000); Indeck North American Power Fund
v. Norweb, Plc., 316 Ill. App. 3d 416 (1st Dist. 2000).
For these reasons, we find that Plaintiffs have failed to state
a claim for relief based upon civil conspiracy. If discovery
should reveal proof of the existence of an agreement between the parties, Plaintiffs would be able to
replead their claim for civil conspiracy at that point.
Therefore, Count XII is dismissed against all Defendants.
IV. Intentional Infliction Of Emotional Distress
Count XIII alleges a cause of action for intentional infliction
of emotional distress against all Defendants. In Illinois, a
plaintiff asserting an intentional infliction of emotional
distress claim must allege that: 1) the defendant's conduct was
extreme and outrageous; 2) defendant intended (or knew with high
probability) that his or her actions would cause severe emotional
distress; and 3) the defendant's conduct in fact caused severe
emotional distress. Welsh v. Commonwealth Edison Co.,
306 Ill. App. 3d 148, 154, 713 N.E.2d 679 (1999); Public Finance Corp. v.
Davis, 66 Ill.2d 85 (1976).
In this case, Plaintiffs allege that "Defendants, individually
and collectively, abused their position of authority by their
direct or indirect reckless, extreme, intentional and outrageous
conduct toward Benjamin," We find that, viewing the complaint in
the light most favorable to Plaintiffs, the alleged abuse of
Benjamin's rights could constitute conduct on the part of
Defendants that is extreme in degree and goes beyond all possible
bounds of decency. Therefore, we deny the motions to dismiss the
intentional infliction of emotional distress claim.
Moreover, Defendants are not afforded immunity under the
Illinois Tort Immunity Act, 745 ILCS 10/6-107(a)(1), for this
tort because Plaintiffs have alleged bad faith, improper motives
and other elements of intentional, willful and wanton misconduct
on the part of these Defendants. See Briggs v. North Shore
Sanitary Dist., 914 F. Supp. 245, 252 (N.D. Ill. 1996) (Illinois
Tort Immunity Act does not protect employees from willful and
wanton misconduct). Likewise, we do not believe that Defendants are entitled to
immunity under 745 ILCS 10/6-106(a) at this time. Plaintiffs
allege that an initial diagnosis of mental illness was made at
Linden Oaks Hospital and that the subsequent examinations of
Benjamin were not properly made. Some courts have held that once
an initial diagnosis is made and treatment prescribed for it,
there is no immunity if the subsequent prescription or
examination was incorrectly made. See American Nat. Bank & Trust
Co. of Chicago v. Cook County, 327 Ill. App. 3d 212, 213
(1st Dist. 2001).
Therefore, we deny the motions to dismiss the intentional
infliction of emotional distress claims on the basis of immunity.
However, this issue can be revisited at the summary judgment
stage after the completion of discovery.
V. Injunctive Relief
In Count XIV of the complaint, Plaintiffs seek a preliminary
injunction against Defendant DCFS requesting: 1) that DCFS
fulfill its statutory mandate to provide community based
outpatient treatment for severe mental illness in DuPage County;
2) a copy of Plaintiffs' records; 3) payment of Plaintiffs'
medical bills; and 4) a retraction of its alleged previous
finding that Mrs. Binkley is a child abuser and neglector.
In order to obtain a preliminary injunction, a plaintiff must
show: 1) he has no adequate remedy at law or will suffer
irreparable harm if the injunction is denied; 2) balance of harms
in favor of the plaintiff; 3) a likelihood of success on the
merits; and 4) issuance of the injunction will not harm the
public's interest. Roland Machinery Co. v. Dresser Industries,
Inc., 749 F.2d 380, 382-83 (7th Cir. 1984).
In this case, Plaintiffs have failed to plead any of the
necessary elements of a preliminary injunction. For this reason,
the motion to dismiss Count XIV is granted. VI. Eleventh Amendment And Sovereign Immunity
Defendants DCFS, Jones, Acolatse and McEvilly have filed a
motion to dismiss the allegations against them on the basis that
they are barred by the Eleventh Amendment. The Eleventh Amendment
prohibits a federal court from imposing retrospective monetary
relief on a State for past violation of a federal law. Edelman
v. Jordan, 415 U.S. 651, 678 (1974).
DCFS is a State agency. It is established by State statute and
is funded by the State. Ill. Rev. Stat. Ch. 23, ¶ 2051, et seq.
Therefore, the claims against DCFS and DCFS employees in their
official capacities seeking retrospective monetary damages is a
suit against the State. The Eleventh Amendment prohibits this
Court from granting Plaintiffs the retrospective money damages
they seek from DCFS and the DCFS employees in their official
capacities. Therefore, the federal claims against DCFS and
against the individual DCFS employees in their official
capacities are dismissed for lack of subject matter jurisdiction.
However, Plaintiffs also have filed suit against DCFS employees
Jones, Acolatse, and McEvilly in their individual capacities.
Many courts have held that the Eleventh Amendment is not a bar to
a suit against State actors in their individual capacities. See,
e.g., Haler v. Melo, 502 U.S. 21, 30-31 (1991). Therefore, the
DCFS Defendants' motion to dismiss the federal claims against
them in their individual capacities is denied.
The DCFS Defendants next argue that they are immune from the
state law claims of conspiracy and intentional infliction of
emotional distress under the doctrine of sovereign immunity.
Sovereign immunity "protects the State from interference in its performance of the functions of government and preserves its
control over State coffers." Send Park Nursing Ctr. v. Miller,
104 Ill.2d 169, 188 (1984).
The Illinois State Lawsuit Immunity act, 745 ILCS 5/1 provides
that the State of Illinois is immune from suit in any court,
except as provided in the Illinois Court of Claims Act,
705 ILCS 505/8, which vests jurisdiction over state tort claims against
the State in the Illinois Court of Claims. It is clear that these
state immunity rules apply to Plaintiffs' state law claims in
federal court. See Reichmann v. Sheahan, 270 F.3d 430, 441
(7th Cir. 2001).
For these reasons, we find that DCFS and its employees are
entitled to sovereign immunity on the state law claims in Counts
XII and XIII. These claims must be pursued in state court
regardless of any subject matter jurisdiction we have over
federal claims in this court. See Centagon, Inc. v. Sheahan,
142 F. Supp.2d 1077, 1083 (N.D. Ill 2001). Therefore, Counts XII
and XIII are dismissed against DCFS, Jones, McEvilly, and
VII. Qualified Immunity
Defendants Jones, McEvilly and Acolatse next argue that they
are entitled to qualified immunity. Qualified immunity protects
government officials from individual liability under § 1983 for
actions taken while performing discretionary functions, unless
their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).
Therefore, before defendants can be liable, `[t]he contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987). In this case, Plaintiffs allege that these DCFS employees
performed evaluations of Benjamin and made recommendations
knowing them to be false. Plaintiffs allege that Jones
recommended that Mrs. Brennan be indicated for child abuse, when
she knew that fact to be false. Plaintiffs allege that Jones had
Benjamin sent to jail when she knew he did not belong there. In
the end, it may turn out that the DCFS employees were merely
doing their jobs conducting evaluations and making
recommendations. However, it may also turn out that they
knowingly made false and wrong recommendations in order to harm
Plaintiffs and deny them of their constitutional rights.
In this case, we do not yet know enough facts to determine
whether clearly established rules of law were violated. Once the
facts are uncovered, the DCFS employees' actions "may turn out to
be so severe and obviously wrong that the defendants should have
known they were violating . . . [Benjamin's] constitutional
rights. Brokaw v. Mercer County, 235 F.3d 1000, 1023 (7th
Cir. 2000). Therefore, Defendants Jones, McEvilly, and Acolatse's
motion to dismiss on the basis of qualified immunity is denied.
VIII. Medical Malpractice Against Anderson
In Count III, Plaintiffs purport to state a claim for medical
malpractice against Defendant Bruce Anderson. However, nowhere in
the Complaint do Plaintiffs plead that Mr. Anderson is a
physician. Moreover, they do not allege that he provided medical
care or owed a duty to comply with the medical standard of care.
Therefore, Defendants' motion to dismiss Count III is granted. IX. Claims Against Defendants Baber And Sinha
On March 31, 2004, we dismissed Count I (medical malpractice)
against Defendant Riaz Baber, Count II (medical malpractice)
against Defendant Shoba Sinha, Count XII (civil conspiracy)
against Sinha and Baber; and Count XIII (intentional infliction
of emotional distress) against Sinha and Baber without prejudice.
In our Opinion, we indicated that "at the time we decide the
remaining pending motions to dismiss filed by the other
defendants in this case, if it is determined that Plaintiffs have
adequately alleged federal causes of action against other
defendants, we will reconsider whether to exercise supplemental
jurisdiction over the state law claims of Defendants Sinha and
Now that this day is upon us and we have decided that the
Complaint does state federal causes of action against other
defendants, we will exercise supplemental jurisdiction over the
state law claims of Defendants Sinha and Baber. Therefore, Counts
I and XIII are reinstated against Defendant Baber. Counts II and
XIII are reinstated against Defendant Sinha. We decline to
reinstate Count XII (civil conspiracy) because Plaintiffs have
failed to adequately allege a cause of action for civil
conspiracy as mentioned earlier in this Opinion.
For the foregoing reasons, we grant in part and deny in part
the motions to dismiss Plaintiffs' complaint brought by
Defendants Edward Hospital, Linden Oaks, and Bruce Anderson's
motion to dismiss (# 49-1) is granted as to the medical
malpractice claims against Anderson (Count III), denied as to
EMTALA claims against Edward Hospital and Linden Oaks Hospital(Count IV), granted as to the EMTALA claims against
Anderson (Count IV), granted as to the conspiracy claims (Count
XII), and denied as to the intentional infliction of emotional
distress claims (Count XIII);
Defendant DuPage County Health Department's motion to dismiss
(# 52-1) is denied as to the § 1983 claims (Count VI), denied as
to the intentional infliction of emotional distress claim (Count
XIII), and granted as to the conspiracy claim (Count XII);
Defendant Jennifer Beisner's motion to dismiss (# 65-1) is
granted as to the EMTALA claims in Count X, denied as to the §
1983 claims in Count X, granted as to the conspiracy claim (Count
XII), and denied as to the intentional infliction of emotional
distress claim (Count XIII);
Defendants Illinois Department of Children and Family Services
(DCFS), Debbie McEvilly, Gloriana Acolatse and Margaret Jones'
motion to dismiss (# 50-1) is granted as to all federal claims
against DCFS and Defendants Jones, McEvilly and Acolatse in their
official capacities (Counts VII, VIII, IX, and XV) because such
claims are barred by the Eleventh Amendment. However, Counts VII,
VIII, IX and XV remain against Defendants Jones, McEvilly and
Acolatse in their individual capacities. Counts XII and XIII are
dismissed against DCFS, Jones, McEvilly, and Acolatse on the
basis of sovereign immunity. Count XIV for preliminary injunction
against DCFS is dismissed for failure to state a claim. The
motion is denied in all other respects; and
Defendant Stephanie Brennan's motion to dismiss (# 54-1) is
denied as to the § 1983 claim (Count V), granted as to the
conspiracy claim (Count XII), and denied as to the intentional
infliction of emotional distress claim (Count XIII). Counts II and XIII are reinstated against Defendant Shoba
Sinha. Counts I and XIII are reinstated against Defendant Riaz
This case is set for status on October 21, 2004 at 9:00 a.m.
It is so ordered.
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