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Missey v. City of Staunton

November 13, 2008

CHEYENNE MISSEY, BY AND THROUGH HER MOTHER, NATURAL GUARDIAN AND NEXT FRIEND SHELBY MISSEY, PLAINTIFF,
v.
CITY OF STAUNTON, ILLINOIS; FRED STEIN, INDIVIDUALLY, AND IN HIS CAPACITY AS MAYOR OF STAUNTON; HANK FEY, INDIVIDUALLY AND IN HIS CAPACITY AS THE PUBLIC WORKS DIRECTOR WITH THE CITY OF STAUNTON; AND MARILYN HERBECK, INDIVIDUALLY AND IN HER CAPACITY AS THE CITY CLERK OF THE CITY OF STAUNTON, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge

OPINION

This case is before the Court on the Defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Plaintiff's complaint.

I. BACKGROUND

This case was filed in the Seventh Judicial Circuit Court, Carlinville, Macoupin County, Illinois, and removed to this Court on September 23, 2008. On September 24, 2008, United States Magistrate Judge Byron G. Cudmore entered a Text Order granting the Plaintiff until October 24, 2008 to file objections to the Notice of Removal. On September 30, the Defendants filed the instant motion to dismiss. The Plaintiff has neither filed objections to the Notice of Removal nor responded to the motion.

In support of the motion to dismiss, the Defendants allege that although the Plaintiff's complaint is vague, it appears to allege that the Defendants failed to sufficiently warn that the public water was contaminated, thereby violating the Plaintiff's constitutional rights. The complaint alleges that on July 18, 2007, Plaintiff Cheyenne Missey was exposed to the bacteria Escherichia coli (E-Coli) from the public water in the City of Staunton, Illinois.

The Plaintiff further alleges that Defendants City of Staunton, Illinois; Fred Stein, individually and in his capacity as Mayor of Staunton; Hank Fey, individually and in his capacity as the Public Works Director with the City of Staunton; Marilyn Herbeck, individually and in her capacity as the City Clerk of the City of Staunton, were at all times aware of the dangerous parasites and failed to provide the townspeople with this pertinent information. Moreover, the Defendants are entities of local government and have a role in owning, operating, managing, directing and controlling the City Public Water Facility.

The complaint alleges that Cheyenne Missey was infected with E-Coli because of the Defendants' reckless disregard in failing to release pertinent information. She was hospitalized and spent several days in treatment for her infection. According to the complaint, Missey now faces future illness and damages as a result of the recklessness of the defendants' failing to release the information regarding the parasites contained in the drinking water. The Plaintiff claims this violated her constitutional rights.

The Plaintiff alleges that on July 18, 2007, the Defendants issued a boil order for the drinking water, but failed to notify the residents of Staunton about the dangers associated with the water contamination. She claims that Defendants acted with reckless disregard in not revealing this information to the public.

The complaint further alleges that Cheyenne Missey was hospitalized on July 27, 2007. She remained in the hospital for three days. After she was released, she remained on antibiotics and was told to return and have more testing on her blood. The Plaintiff soon returned to Oliver Anderson Hospital in Maryville, Illinois, for further treatment with antibiotics and more tests. She continued to take the antibiotics prescribed by her physicians until she was told to stop. The complaint alleges there is still reason to believe she will suffer permanent injuries as a result of the damages sustained from the bacteria and parasites to which she was exposed. The Plaintiff goes on to note the damage that may result because of the Defendants' alleged reckless disregard.

The Defendants have filed a motion to dismiss the Plaintiff's complaint. The Plaintiff did not respond to the Defendants' motion.

II. ANALYSIS

A plaintiff must first provide sufficient detail so as to give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v Twombly, U.S. , 127 S.Ct. 1955, 1964 (2007) (quotations and citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1965 (citation omitted). Although detailed allegations are not required, a plaintiff must do more than simply allege legal conclusions. Id. at 1964-65 (citations omitted). "A complaint must now include 'enough facts to state a claim to relief that is plausible on its face.'" Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008) (quoting Bell Atlantic, 539 F.3d at 788).

(A)

It appears that, to the extent the Plaintiff seeks to assert a federal claim, the claim is made pursuant to 42 U.S.C. ยง 1983, though the complaint does not specify that to be the case. The Defendants note the complaint does not say what constitutional rights were allegedly violated, nor under what statute the Plaintiff is suing. It states that ...


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