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Lopez v. Village of Carpentersville

December 22, 2009

OSBIEL LOPEZ, A MINOR, BY HIS MOTHER AND NEXT FRIEND, GLORIA LOPEZ AND GLORIA LOPEZ INDIVIDUALLY, PLAINTIFFS,
v.
VILLAGE OF CARPENTERSVILLE, A MUNICIPAL CORPORATION, DIANE GRAHAM, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, MARTIN GRUBER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, SHERMAN HOSPITAL, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, AND JENNY LENTZ, DEFENDANTS.



The opinion of the court was delivered by: James B. Zagel United States District Judge

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This case arises out of the alleged misconduct of paramedics toward a four-month-old child on the basis of his race. Plaintiffs filed their complaint on September 20, 2007, and subsequently filed their Amended Complaint on June 10, 2009. Defendants Sherman Hospital and Jenny Lentz ("Lentz") as well as the Village of Carpentersville ("Carpentersville"), Diane Graham ("Graham") and Martin Gruber ("Gruber") now come with motions to dismiss Plaintiffs' amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because the arguments asserted by all Defendants are substantially similar, I will address both motions in this Order. For the foregoing reasons I grant Defendants' motions to dismiss.

I. BACKGROUND

On September 18, 2006 four-month-old Osbiel Lopez ("Osbiel") suffered seizures that resulted in severe brain damage. Plaintiffs allege that had Osbiel received treatment earlier, his medical prognosis would have been better. Esther Carrera ("Esther") is a friend of Osbiel's mother, Gloria Lopez ("Gloria"), and, at the time of the seizure, had been baby-sitting for Osbiel, for approximately two weeks. Osbiel, Gloria, and Esther are all of Hispanic descent. Esther speaks little, if any, English.

At approximately 10:23 a.m. on September 18, 2006, Esther noticed that Osbiel was "not acting normally" and called emergency 911. The 911 operator requested a Spanish interpreter and Esther told the interpreter that Osbiel was pale, and looked like he "want[ed] to stop breathing." Subsequently, paramedics arrived and an interpreter was once again used via the telephone. Esther states that Osbiel's "eyes rolled into the back of his head and his body became very stiff in the presence of the paramedics." Esther alleges that although she had additional questions to ask the paramedics, they ended her call with the interpreter before she was able to make her inquiries. Also, after the paramedics ended the phone call with the interpreter, the paramedics had Esther sign a Release and Consent Not to Transfer Order that was written in English. Esther did not understand what she was signing, and attempts to contact Gloria were unsuccessful. The paramedics left without transferring Osbiel to the hospital; the ambulance report states that the child was acting normally when the paramedics departed.

The events described above took place in Carpentersville, Illinois. At this time, Plaintiffs allege that Carpentersville was engaged in a debate about illegal immigration and an ordinance titled "Illegal Alien Immigration Relief Act" (the "Act") had been proposed. Plaintiffs allege that one motivation for the proposed Act was Carpentersville's expenditure of $372,000 in 2005 on ambulance fees for illegal residents. The Act was criticized as being racist and "targeting Hispanics." Furthermore, Plaintiffs state that a local group in favor of the Act, Fox Valley Citizens for Legal Immigration, was allowed to conduct meetings in the Carpentersville Fire Station.

Plaintiffs allege nine counts in their amended complaint: (1) Count I alleges a violation of 42 U.S.C § 1983 by Graham and Gruber, (2) Count II alleges a violation of Plaintiffs' civil rights under 42 U.S.C § 1985 by Graham and Gruber; (3) Count III alleges a civil rights violation under 42 U.S.C § 1981 by Graham and Gruber; (4) Count IV alleges willful and wanton negligence by Graham, Gruber and Carpentersville; (5) Count V alleges a violation of 42 U.S.C § 1983 by Carpentersville; (6) Count VI alleges a civil rights violation under 42 U.S.C § 1985 by Carpentersville; (7) Count VII alleges a civil rights violation of 42 U.S.C § 1981 by Carpentersville; (8) Count VIII alleges negligence under the Illinois law against Sherman Hospital and Lentz; and (9) Count IX alleges a violation of the Illinois Family Expense Act 750 ILCS 65/15 by Carpentersville, Graham, Gruber, Sherman Hospital, and Lentz.

II. STANDARD OF REVIEW

A Motion to Dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of the complaint and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir.1998). I must take all facts alleged in Plaintiffs' complaint as true and draw all reasonable inferences from those facts in favor of Plaintiffs. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir.1992). Plaintiffs, for their part, must do more than solely recite the elements for a violation; they must plead with sufficient particularity so that their right to relief is more than mere conjecture. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs must plead their facts so that, when accepted as true, they show the plausibility of their claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiffs must do more than plead facts that are "consistent with Defendants' liability" because that only shows the possibility, not the plausibility, of their entitlement to relief. Id. (internal quotations omitted).

A motion to dismiss pursuant to Rule 12(b)(1) requires that I evaluate this Court's jurisdiction over the case at hand. Ensuring the existence of subject matter jurisdiction is the court's first duty in every lawsuit. McCready v. White, 417 F.3d 700, 702 (7th Cir.2005). In considering this motion, I must accept Plaintiffs' well-pleaded factual allegations as true and draw reasonable inferences from those allegations in Plaintiffs' favor. St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.2007).

III. DISCUSSION

Defendants argue that this is a paramedic malpractice action that belongs in state court. In support of this claim, Defendants state that there is no constitutional duty for a municipality or its employees to provide emergency medical services for its citizens. See, Archie v. City of Racine, 847 F.2d 1211, 1220 (7th Cir. 1988). Defendants ask this Court to decline to exercise supplemental jurisdiction over Plaintiffs' state claims pursuant to 28 U.S.C. ยง 1367(c)(2) because the issue of paramedic malpractice predominates this claim. Plaintiffs assert federal ...


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