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September 30, 2004.

BENJAMIN BINKLEY, a minor, by his parent and next best friend, REBECCA BINKLEY; and REBECCA BINKLEY, individually, Plaintiffs,

The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


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. 1986).

  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 Hospital

  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 provide either —
(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 section.
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. Ill. 1990).

  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 condition.

  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 emphasized that:
§ 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 ...

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