The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Defendant City of Chicago (the "City") has moved to dismiss certain allegations*fn1 in Counts III and IV of Plaintiff Janell Salgado's First Amended Complaint (the "Complaint"), which brings claims arising from Victor Angel Flores' death while in the custody of the Chicago Police Department ("CPD") under 42 U.S.C. § 1983, the Illinois Survival Act, 755 Ill. Comp. Stat. 5/27-6, and the Illinois Wrongful Death Act, 740 Ill. Comp. Stat. 180/1, et seq. The City's motion contends that nearly all of Salgado's state law claims are barred by the Illinois Local Governmental and Governmental Employees' Tort Immunity Act ("Immunity Act"), 745 Ill. Comp. Stat. 10/2-109, -201; 10/4-103. The sufficiency of Salgado's pleadings with respect to her § 1983 claims is not at issue here.
The Complaint alleges that Victor Angel Flores was arrested by Chicago Police officers John and James Doe pursuant to a previously issued warrant on June 28, 2007.
Compl. ¶¶ 5, 12. Flores suffered from bipolar disorder. Compl. ¶ 4. Prior to and during Flores' arrest, John and Jane Doe were informed of Flores' medical condition and the fact that Flores was then presently suicidal. Compl. ¶¶ 7-10. After Flores surrendered, John and James Doe took him to the CPD station located at 3151 W. Harrison St., Chicago, where Mary Doe assisted in booking Flores. Compl. ¶ 15. Flores died while in custody. Compl. ¶ 17. Counts III and IV of the Complaint allege numerous actions and omissions by the City and John, Jane, and Mary Doe (the "Officers") which precipitated Flores' death. Compl., Counts III, IV.
In relevant part the Immunity Act shields public employees who make public policy from liability in tort for exercising the discretion which enables them to effect their duties. See 745 Ill. Comp. Stat. 10/2-201. Municipalities are shielded from liability if an employee is immune under the act. See id. at 2-109. Additionally, Illinois courts have clarified that a finding of immunity under § 2-201 requires a showing that the act or omission at issue involved both a determination of policy and an exercise of discretion. See Van Meter v. Darien Park Dist., 799 N.E.2d 273, 281 (Ill. 2003).
The City also asserts that another provision of the immunity act, § 4-103, immunizes it from some of Salgado's allegations. This section removes liability for failure to provide sufficient equipment, personnel or supervision at a detention or correction facility. Finally, in reply*fn2 the City raises two new specific immunities which it contends are applicable here. The first applies to public employees who fail to diagnose illnesses and the second shields employees of a municipality who make inadequate or inaccurate physical or mental examinations. 745 Ill. Comp. Stat. 10/6-105, -106(a).
a. Defendants' Argument Under § 4-103
Paragraphs 42(a)-(c1) of the Complaint allege that the unnamed officers were responsible for Flores' death either because they took affirmative actions while he was in the officers' custody or because they failed to follow a CPD rule or order that forbade the Officers from the course of action (or inaction) that they took. Compl. ¶¶ 42 (a)-(c1). Paragraph 42(a), for example, alleges that the Officers "failed to remove all items, such as belts, drawstrings, laces, articles of clothing or similar items from decedent's person/possession, when defendants knew these items could be used to harm oneself and when defendants knew that decedent was at substantial risk of harming himself." Compl. ¶ 42(a). Paragraph 42(a1) makes the same allegations, but additionally alleges that such actions were taken in abrogation of a "CPD rule, general order, guideline and/or policy and procedure" requiring the officers to remove the items.
As to Paragraphs 42(a) and (b), the City argues that it is immune from such claims because they relate to "injuries suffered in its lockup," (Mot. 5 ) based on § 4-103 of the Immunity Act which provides that Neither a local public entity nor a public employee is liable for failure to provide a jail, detention or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, supervision or facilities therein. 745 Ill. Comp. Stat. 10/4-103. Though a very broad reading of this section might support the City's argument for dismissal, the court construes the Immunity Act strictly because it was enacted in derogation of the common law, see Van Meter v. Darien Park Dist., 799 N.E.2d 273, 279 (Ill. 2003), and the plain language of the statute belies the City's expansive interpretation. The City implies that it is immune because of the location of the defendant at the time of the act (i.e., in detention), but § 4-103 does not grant such blanket immunity. Instead, the section specifically shields claims based on the sufficiency of detention facilities, their personnel and the supervision provided in them. Paragraph 42(a) makes allegations related to Defendants' failure to remove items of clothing from Flores at the police station; paragraph 42(b) alleges that the Officers:
Placed decedent in a jail cell/detention area in which there were strings, laces, belts, fixtures, articles of clothing, bed sheets, towels or similar items that defendant knew decedent could use to harm himself and when defendants knew that decedent was at a substantial risk of harming himself.
Compl. ¶ 42(b). While these allegations concede Flores' presence in detention, they make no claim as to the sufficiency of the facility, but rather question the propriety of the decision to place a detainee in Flores' precarious mental condition in such an environment. These allegations are more closely related to charges that Flores should have been sent to a hospital rather than detained, and are not therefore barred by a plain reading of § 4-103.
The City's reliance on Hayes v. City of Des Plaines, 182 F.R.D. 546 (N.D. Ill. 1998) for a countervailing interpretation of § 4-103 is misplaced. Hayes ruled on a motion to dismiss the City of Des Plaines' affirmative defenses (which relied on various sections of the Immunity Act). Accordingly, the Hayes court held that a fact finder could possibly make determinations that would render the City immune and dismissal was therefore inappropriate absent discovery. If Hayes counsels any ...