The opinion of the court was delivered by: Judge George W. Lindberg
MEMORANDUM OPINION AND ORDER
Plaintiff, Stanley Norris, an inmate presently incarcerated at Lawrence Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. In his second amended complaint, Plaintiff alleges that the Defendants, Cook County Sheriff Tom Dart, Superintendent Michael Miller, and Correctional Officer Hobbs (hereinafter, "Defendants"), violated his constitutional rights by denying him access to a low bunk. He alleges that he is a diabetic and is prescribed psychotropic medications, and that he fell out of a high bunk, resulting in back pain, nerve pain in his legs, and high blood pressure. On initial review pursuant to 28 U.S.C. § 1915A, the Court determined that Plaintiff had also stated a claim under the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. Plaintiff had named Salvador Godinez in his original complaint, but Defendant Godinez was dismissed as a Defendant on October 5, 2009.
Presently before the Court are Defendants' motions to dismiss Plaintiff's second amended complaint for failure to state a claim. Defendants Dart and Hobbs filed their motion [#19] on January 29, 2010, and Defendant Miller filed his motion [#34] on March 17, 2010, adopting the amended memorandum filed by Defendants Dart and Hobbs. For the reasons stated in this order, Defendants' motions to dismiss are granted in part and denied in part.
It is well established that pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). Fact pleading is not necessary to state a claim for relief. Thompson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to " 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, (1957)).
The allegations "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, 526 F.3d at 1084 (quotation omitted). In making this determination, the complaint is construed in the light most favorable to the plaintiff, accepting as true the well-pleaded allegations, and drawing all reasonable inferences in the plaintiff's favor. Tamayo, 526 F.3d at 1081. However, a plaintiff can plead himself or herself out of court by pleading facts that undermine the allegations set forth in the complaint. See, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006).
Plaintiff alleges the following facts in his second amended complaint, which are accepted as true for purposes of the motions to dismiss. On June 13, 2009 he was moved from Division 10, Unit 2A at the Cook County Jail, to Unit 1A because Unit 2A was being painted. Plaintiff is an insulin dependent diabetic, has high blood pressure, high cholesterol, damaged nerves in his foot, and is prescribed psychotropic medication. Due to his various ailments, Plaintiff had been assigned a low bunk permit.
When Plaintiff arrived at Unit 1A, he showed Defendant Hobbs his low bunk permit. She told him that no low bunks were presently available, but that he would be given one when one became available. When Plaintiff complained that a low bunk was not available, Defendant Hobbs told him he would have to discuss his issue with someone else. Plaintiff both had to sleep on the floor, where rats were present, and had to climb in the top bunk.
On June 14, 2009 Plaintiff fell out of the top bunk, sustaining damage to his back, and resulting in nerve pain in his legs and aggravation of his high blood pressure. Plaintiff is in constant pain.
With respect to Defendants Dart and Miller, Plaintiff alleges that they have failed to implement customs and policies dealing with low bunk permits. Plaintiff alleges a failure to provide step ladders and safety rails on upper bunks. He further alleges a custom and policy of failing to provide inmates who suffer from mental health issues with single bunk cells. His final allegation is that Defendants Dart and Miller have no procedures in place for educating staff regarding low bunk permits.
Plaintiff states that Defendants violated his constitutional rights by not protecting him from harm while incarcerated within the IDOC. He alleges a violation of his Fourteenth Amendment right to equal protection. He further alleges that his Eighth Amendment rights were violated because Defendants were deliberately indifferent to a serious threat to his health and safety. He does not specify whether he brings suit against Defendants in their individual or official capacity.
A. Defendants' Motions to Dismiss any Individual Capacity Claims against Defendants Dart and Miller
Defendants argue collectively in their two motions that Plaintiff fails to state a § 1983 claim against Defendants Dart and Miller in their individual capacities. Plaintiff's allegations as to both Defendants are that they instituted a custom and policy of failing to provide step ladders and safety rails for upper bunks, failed to institute a policy regarding low bunk permits, and generally have created no policy for handling mentally ill or disabled inmates. Plaintiff does not ...