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Robertson v. Emery

March 8, 2010


The opinion of the court was delivered by: Joe Billy Mcdade Senior United States District Judge


Before the Court are the Motion to Dismiss or Strike and the Motion to Supplement the Motion to Dismiss or Strike filed by Defendants (Docs. 24 and 33). For the reasons set forth below, the Motion to Dismiss or Strike is GRANTED IN PART and DENIED IN PART and the Motion to Supplement is GRANTED.


The following facts are taken from the Complaint.

On April 5, 2004, Kelly M. Collins was with her husband, Arthur Melvin, in a hotel room in McLean, Illinois using heroin. In the early afternoon, Melvin was in medical distress and the McLean Fire Department responded to the hotel room. Melvin died from a heroin overdose later that afternoon. When police officers Jon Hofmann and Jeff Kretlow (Defendants herein) informed Collins of her husband's death, they noticed that she too appeared to be under the influence of narcotics. She admitted to police officers that she and her husband were using heroin. The police officers searched her room and van and found drugs. Collins subsequently was arrested and transported to the McLean County Detention Facility ("MCDF") where she was booked at 8:00 p.m.

At the MCDF, Collins came into contact with various correctional officers and medical personnel. Each person noticed or was informed that Collins was exhibiting signs of drug use including slurred speech, inability to stand without support, discolored skin and mouth, cool feeling skin, and perspiration, among other things. After being examined by a nurse at 9:30 p.m. Collins was placed on "15 minute checks." Throughout the course of the evening and night various Correctional Officers observed Plaintiff in the holding cell and observed increasingly bizarre behavior -- Collins had stripped off her clothes and the color of her skin turned purplish/blue. At 7:40 a.m. the next day, Plaintiff was again examined by two nurses who found Collins unresponsive and breathing heavily. Prison officials called 911 and Collins was transported to OSF St. Joseph Hospital. At 8:15 a.m. on April 6, 2004, Collins was pronounced dead

Melissa Robertson is Collins daughter. She is suing as her daughter, next friend, and as administrator of Collins' estate. As administrator of Collins' estate, she alleges that the individual Defendants were deliberately indifferent to a serious medical need in violation of the Eighth Amendment and pursuant to 42 U.S.C. § 1983 (Count 1). She further has alleged a claim of wrongful death and seeks damages on behalf of Collins' decedents (Count 2), a Survival Act claim which asserts that Collins' claims survive her death (Count 3), and a claim that she (Robertson) suffered the intentional infliction of emotional distress (Count 4). Finally, Plaintiff makes a claim for indemnification against McLean County (Count 5). Plaintiff thus seek compensatory and punitive damages for Collins' loss of life, Collins' pain and suffering, Collins' decedent's loss of her support and society, and Robertson's suffering and mental anguish.


Defendants seek dismissal or striking of the punitive damages prayer in Counts 1 through 4, striking of the prayer for attorney fees in Counts 2 through 4, and dismissal of Counts 2 through 4. Plaintiff acknowledges that she cannot seek punitive damages from McLean County on her 42 U.S.C. § 1983 claim (Count 1).*fn1

Plaintiff also acknowledges that she is not entitled to attorney fees on Counts 2 through 4. Therefore the only issues that remain unresolved are punitive damages with respect to Counts 2 through 4, and Defendant's argument that Counts 2 through 4 should be dismissed.

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must view the complaint in the light most favorable to the plaintiff, and the complaint's well-pleaded factual allegations must be accepted as true. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir.1995). Therefore, a complaint can only be dismissed if a plaintiff cannot prove any set of facts upon which relief can be granted. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir.1996). However, the Court is not bound by a plaintiff's legal conclusions. Nelson v. Monroe Reg'l Med. Ctr., 925 F.2d 1555, 1559 (7th Cir.1991). The purpose of a Rule 12(b)(6) motion is to question the availability of a legal formula justifying relief on the alleged facts. Maple Lanes, Inc. v. Messer, 186 F.3d 823, 824-25 (7th Cir.1999). Under Rule 12(f), the Court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

Defendants argue that Plaintiff's state law claims in Counts 2 and 3 are redundant of her § 1983 claim and must be stricken pursuant to 42 U.S.C. § 1988 and the holding in Bass v. Wallenstein, 769 F.2d 1173 (7th Cir. 1985).

In the § 1983 claim, Plaintiff seeks compensatory damages, punitive damages, and attorney fees for Defendants' deliberate indifference to Collins' medical needs that resulted in her suffering and death. Thomas v. Cook County Sheriff's Dept., 588 F.3d 445, 452 (7th Cir. 2009) ("A prison official violates a prisoner's Eighth Amendment rights... when he displays deliberate indifference to a serious medical need."). In the Wrongful Death Act claim, 740 ILL. COMP. STAT. 180/1, et seq., Plaintiff states that "decedent's children and other relations have suffered pecuniary damages" because of Collins' death. To prevail on this claim, Plaintiff must show that Defendants owed a duty to the decedent, that they breached that duty, that the breach caused decedent's death, and that the persons specified in the Act suffered pecuniary damages. Thompson v. City of Chicago, 472 F.3d 444, 457 (7th Cir. 2006). The Act provides that "the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person." 740 ILL. COMP. STAT. § 180/2. The Survival Act claim, 755 ILL. COMP. STAT. 5/27-6, seeks damages for the pain and suffering inflicted on Collins following Defendants' conduct and prior to her death. Ellig v. Delnor Community Hosp., 603 N.E.2d 1203, 1206-7 (Ill. App. Ct. 1992) (noting that a Survival Act claim preserves causes of action for personal injury that accrued prior to death).

Section 1988, which is more commonly cited for the subsection that provides for attorney fee awards to prevailing parties in civil rights litigation, provides in relevant part that civil rights law shall be enforced in conformity with other federal law; however to the extent that such federal law is "deficient in the provisions necessary to furnish suitable remedies...," this Court may adopt state law as long as it is not inconsistent with federal law. Essentially, because § 1983 does not contain a standard for the measure of damages, state law provides the rule, as long as it is consistent with federal law. In Bass by Lewis, Mary Lewis brought suit pursuant to § 1983 as the administrator of the estate of Johnny Lee Bass and alleged that Defendants violated Bass' Eighth Amendment rights (Bass died while in custody). Mary Lewis did not assert any claims pursuant to Illinois' Wrongful Death Act. The district court, however, instructed the jury that Lewis represented Bass' children and that if the defendant was liable it should assess damages in their favor -- the instruction tracked the measure of damages instruction ...

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