The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Motion to Dismiss (d/e 10) filed by the state Defendants Illinois Department of Corrections (Department) and Menard Correctional Center (Menard); and by the individual Defendants Roger E. Walker Jr., Chris Fleming, Eugene McAdory, Jr., Richard Ferrell and Thomas Mezo (Individual Defendants) (collectively the Moving Defendants).*fn1 The Plaintiff Sherree Daczewitz, individually and as the Administrator of the estate of her late son Joshua Daczewitz, filed an eight count Complaint for damages arising from the death of Joshua Daczewitz while he was a prisoner at Menard. Complaint at Law (d/e 1). The Moving Defendants move to dismiss all claims against the Department and Menard, the official capacity claims against Walker and McAdory, and all claims against them in Counts I and III-VI of the Complaint. For the reasons set forth below, the Motion is ALLOWED.
The Department operates Menard. Defendant Walker is the Director of the Department. Defendant McAdory is the Warden of Menard. The remainder of the Individual Defendants are correctional officers at Menard. Daczewitz alleges that the Individual Defendants were charged with the responsibility of maintaining Menard. She alleges that the Individual Defendants were acting within the scope of their employment and under color of law. She further alleges that they performed their duties by virtue of the statutes, ordinances, regulations, customs and usages of the state of Illinois and the United States.
According to Daczewitz, Joshua Daczewitz and Corey Fox were inmates at Menard in February 2004. Fox was a convicted murderer and had been on death row. Fox advised correctional officers that he was not to have a cell-mate because he would harm any individual placed in his cell. Fox had a security/aggression rating of 95. Joshua Daczewitz had a security/aggression rating of 11.
On February 21, 2004, Joshua Daczewitz was assigned to be Fox's cell-mate and was placed in Fox's cell. Joshua Daczewitz and Fox both told one or more of the Individual Defendants, including Ferrell, that Joshua Daczewitz must be removed from Fox's cell or else Fox would harm Joshua Daczewitz. Ferrell stated that he could not do anything about Joshua Daczewitz being assigned to Fox's cell. On or about February 26, 2004, Fox told Fleming and other correctional officers that if Joshua Daczewitz was not moved, Fox would kill him. On February 27, 2004, Fox told one or more of the Individual Defendants, including Fleming, that Joshua Daczewitz should be moved or else Fox would harm him. Daczewitz alleges that these communications put the Defendants on notice that Joshua Daczewitz's life was in danger. The Defendants had a duty to protect Joshua Daczewitz from violence at the hands of other prisoners. Daczewitz alleges that they did nothing. Daczewitz alleges that they were deliberately indifferent to Joshua Daczewitz's plight. Daczewitz alleges that on or about February 28, 2004, Fox murdered Joshua Daczewitz. Daczewitz alleges that the Defendants thereby violated Joshua Daczewitz's Eighth Amendment right against cruel and unusual punishment.
Based on these allegations, Daczewitz asserts eight claims against the Defendants. Count I alleges that the Defendants violated Joshua Daczewitz's civil rights and therefore violated 42 U.S.C. § 1983. Count II alleges that the Defendants violated Joshua Daczewitz's constitutional rights. Counts III and VI assert claims under the Illinois Wrongful Death Act. 740 ILCS 1 80/1. Count IV and V assert claims under the Illinois Survival Statute. 755 ILCS 5/27-6. Counts VII and VIII assert claims against Fox that are not at issue in this Motion. The Moving Defendants move to dismiss all claims against them, except the claims in Count II brought against the Individual Defendants in their individual capacities.
For purposes of this Motion, the Court must accept as true all of Daczewitz's well-pleaded factual allegations and draw all inferences in the light most favorable to Daczewitz. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996).
Daczewitz's Complaint should not be dismissed unless it appears beyond doubt that she can prove no set of facts that would entitle her to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). When read in the light most favorable to Daczewitz, she can proceed against the Moving Defendants only on the claims in Count II of her Complaint, and only against the Individual Defendants in their individual capacities.
A. Menard and the Department
Daczewitz asserts claims against Menard and the Department under 42 U.S.C. § 1983 and Illinois law. Menard and the Department are arms of the state and, as such, are not persons who can be sued for damages under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 62 (1989). Further, the state law claims against Menard and the Department must be brought in the Illinois Court of Claims and cannot be brought here. 705 ILCS 505/8; Turner v. Miller, 301 F.3d 599, 602 (7th Cir. 2002). The claims against Menard and the Department are dismissed.
B. Official Capacity Claims
Daczewitz brings claims against Walker and McAdory in their individual and official capacities. An action against a state official in his official capacity is an action against the state. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The official capacity claims, therefore, are dismissed for the same reasons that the claims against Menard and the Department are dismissed. Daczewitz may only ...