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Bailey v. City of Chicago

May 5, 2009

ANTWAIN BAILEY, PLAINTIFF,
v.
CITY OF CHICAGO, D.W. PEARSON, K.K. KRIZKA, R. BROWN, COOK COUNTY, RITA AGARWALA, SARAH H. SHEIKH, DR. KEITH PHAM, DR. PETER J. EGOFSKE, DANIEL PARK,REBECCA ROTH, CHRISTINA SALCHER, YVETTE SCULLY, DR. ADAM RUSH, E. GALE CRUZE, R. BLOND, LAURA GOMEZ, SHARON HILL, JIMMIE SINGLETON, JANET WATTS, T. GROSS, C. HERNANDEZ, DR. KAPOTAS DR. SMULKSTYS, C. ZAWTIZ, BARBARA DAVIS, YU YAN, COOK COUNTY SHERIFF'S DEPARTMENT, BLUNT, REYES, GONZALEZ, SPANN, BAILEY, DUNN, FABIAN, SKINNER, MCCULLOUGH, AND HALL, DEFENDANTS.



The opinion of the court was delivered by: George M. Marovich United States District Judge

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Antwain Bailey ("Bailey") filed suit against a laundry list of defendants. In three separate motions (one filed by defendant Cook County, one filed by defendant Cook County Sheriff's Department, and one filed by defendants Dr. Kapotas, Dr. Smulkstys, C. Zawtiz, Barbara Davis and Yan Yu) defendants move to dismiss Count V based on the statute of limitations.

I. Background

The Court takes as true the allegations in plaintiff's second amended complaint.

On August 7, 2006, plaintiff Bailey was arrested and charged with possession of a stolen vehicle and unlawful use of a weapon. When police officers attempted to apprehend Bailey, the police officers intentionally caused plaintiff to crash the motorcycle he was driving. A police officer ran over Bailey's leg, causing him pain and injury.

Plaintiff was transported (it is unclear by whom) to Christ Hospital, where his leg was treated. Plaintiff's treatment involved two surgeries and the implantation of a steel rod in his leg. When Christ Hospital discharged plaintiff, he was taken to the Cook County Department of Corrections. Staff at Cermak Hospital put plaintiff's leg in a hard cast, which was to remain on his leg for approximately one week.

Plaintiff's condition deteriorated over the next four weeks, during which time plaintiff's hard cast was not removed. Plaintiff suffered extreme pain from his leg injury. Plaintiff's hard cast became soft due to dripping from his leg. Plaintiff's toes "turn[ed] color." Despite plaintiff's continual requests for medical treatment, plaintiff did not receive medical treatment.

At some point (when is not clear from the complaint), plaintiff was treated at Cermak Hospital, where someone (who is not clear from the complaint) discovered that plaintiff's leg was gangrenous. Plaintiff was taken to Stroger Hospital. Despite several surgeries, doctors (it is unclear who) were unable to save plaintiff's leg. On February 14, 2007, plaintiff's leg was amputated. (Again, it is not clear from the complaint what health care professionals were involved.)

Plaintiff filed this suit asserting claims under 42 U.S.C. § 1983 and for intentional infliction of emotional distress. Several defendants have moved to dismiss Count V, the claim for intentional infliction of emotional distress, based on the statute of limitations.

II. Standard on a Motion to Ddismiss

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombley, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Bell Atlantic, 127 S.Ct. at 1964-1965. A complaint must include enough factual allegations to "raise a right to relief above a speculative level." Bell Atlantic, 127 S.Ct. at 1965. "After Bell Atlantic, it is no longer sufficient for a complaint 'to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting Equal Employment Opportunity Comm'n v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)).

III. Discussion

In Count V, plaintiff alleges that certain (it is not entirely clear which) defendants subjected him to intentional infliction of emotional ...


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