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Cruz v. Cross

September 10, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


On January 19, 2010, Plaintiff Jose Cruz filed a five count Second Amended Complaint against Defendants Dennis Cross, Kenyon Bailey, Sandra Griffin, and Troy Dunlap, four correctional officers at Stateville Correctional Center ("Stateville"). Plaintiff's claims arise out of an incident that occurred in October 2006 while Plaintiff was incarcerated at Stateville. Currently before the Court is Defendant Cross's motion to dismiss Counts III and IV of Plaintiff's Second Amended Complaint [31]. For the reasons set forth below, Defendant's motion to dismiss [31] is granted in part and denied in part.

I. Background*fn1

Plaintiff has been diagnosed with attention deficit disorder and has difficulty concentrating, is easily frustrated, and at times exhibits aggressive, violent, and suicidal tendencies. Plaintiff also has a history of depression and hyperactivity. As a result of those challenges, Plaintiff has been hospitalized approximately ten times and has been treated by various psychiatrists. Over the course of his life, Plaintiff has been prescribed various medications to help him control his emotions and behavior, including Ritalin, Valporic Acid, Elavil, Risperdal, Trazodone, Prozac, Depakote, Tegretol, Thorazine, Metylphenadite, Inderal LA, and Clonidine. According to Debbie Bruno, a clinician at Streamwood Residential Center in Elgin, Illinois, who treated Plaintiff in October 1999, "[h]is mood and behavior are drastically different when he complies with his medication."

Between late April and early May 2006, Plaintiff was imprisoned at Stateville. On May 19, 2006, Plaintiff was transferred to Dixon Correctional Center where the staff psychiatrists and mental health professionals prescribed and provided Plaintiff with a number of medications before settling on Depakote. In or around mid-September 2006, Plaintiff was transferred to Cook County Correctional Center ("Cook County") for further psychological evaluation. While he was incarcerated at Cook County, Plaintiff met with physicians and received his prescribed medication. On October 16, 2006, Cruz was transferred from Cook County back to Stateville and placed in a cell in the NRC building of the B-Unit. A Stateville physician prescribed Plaintiff Depakene on October 17, 2006.

On October 18, 2006, Defendant Cross, a correctional officer assigned to the NRC building of the B-Unit at Stateville, served Plaintiff lunch in his cell. Plaintiff had not yet received his medication, and asked Cross if he could see a prison psychiatrist or other medical staff to arrange to get the medication. Cross ignored Plaintiff's requests. Plaintiff then asked to speak with Cross's supervising lieutenant, a request that Cross also ignored. Cross returned to Plaintiff's cell after lunch to collect his lunch tray. At that time Plaintiff again asked to receive his medication and to see a psychiatrist. When Cross ignored Plaintiff's request, Plaintiff refused to surrender his lunch tray. After several demands for the return of the lunch tray, Cross verbally assaulted and threatened Plaintiff. Cross then entered Plaintiff's cell, where Plaintiff stood passively holding his hands behind his back. Cross wrapped his handcuffs around his fists and began striking Plaintiff. Plaintiff used his hands and then his lunch tray to deflect the blows. Cross continued to beat Plaintiff, and Plaintiff screamed for help and hit Cross in the head with his lunch tray. Cross grabbed Plaintiff by the neck, choking him, and Plaintiff eventually dropped the lunch tray. When Cross released Plaintiff, Plaintiff tried to flee his cell. While Plaintiff and Cross were wrestling on the ground outside Plaintiff's cell, Bailey, Griffin, and Dunlap arrived on the scene and restrained Plaintiff by handcuffing him behind his back. After Plaintiff already had been restrained, Griffin sprayed Plaintiff in the eyes with pepper gas. Defendants then continued assaulting Plaintiff by repeatedly kicking him in the face and ribs.

Defendants finally dragged Plaintiff to a holding area where a tactical team arrived to record Plaintiff on video. With the tactical team present, Plaintiff was taken to a shower to wash off the chemicals from the pepper gas. Following the shower, Plaintiff was evaluated by the medical staff. After his visit with the medical staff, Plaintiff was placed on suicide watch and, later that day, was transferred to Pontiac Correctional Center.

Plaintiff filed the instant suit on August 26, 2008. On January 19, 2010, Cruz filed a five count Second Amended Complaint alleging (1) a Section 1983 claim against all Defendants for excessive force in violation of the Eighth and Fourteenth Amendments; (2) a Section 1983 claim against Cross for acting with deliberate indifference to Plaintiff's medical needs in violation of the Eighth Amendment; (3) a state law claims assault and battery claim against all Defendants; (4) a state law negligence claim against Cross; and (5) a claim for fees and costs pursuant to 42 U.S.C. § 1988. Cross seeks dismissal of Counts III and IV on the grounds that Plaintiff's state law claims are barred by state sovereign immunity.

II. Legal Standard on Rule 12(b)(6) Motion to Dismiss*fn2

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). However, a Plaintiff need not include all essential facts in his complaint; rather, he may add them in an affidavit or brief in order to overcome a motion to dismiss as long as they are consistent with the initial allegations. Help at Home, Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 752-53 (7th Cir. 2001); Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997) ("[F]acts alleged in a brief in opposition to a motion to dismiss * * * as well as factual allegations contained in other court filings of a pro se plaintiff may be considered when evaluating the sufficiency of a complaint so long as they are consistent with the allegations of the complaint.").

"Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth, 507 F.3d at 618.

III. Analysis

Defendant seeks dismissal of Counts III and IV on the ground that Plaintiff's state law tort claims are barred by state sovereign immunity. Under Illinois law, sovereign immunity is a statutory, rather than a constitutional, creature. The State Lawsuit Immunity Act provides that the State shall not be made a defendant in any Court except as provided in either the Public Labor Relations Act (not at issue here) or the Court of Claims Act. 745 ILCS 5/1. The Court of Claims Act vests exclusive jurisdiction in the Court of Claims in all actions "against the State founded upon any law of the State of Illinois." 705 ILCS 505/8(a). Thus, Illinois waives sovereign immunity only in the Court of Claims. Turner v. Miller, 301 F.3d 599, 602 (7th Cir. 2002) (quoting Currie v. Lao, 592 N.E.2d 977, 980 (Ill. 1992)).

Under Illinois law, a claim against an individual will be considered a claim against the state, even when the individual is sued in his or her individual capacity, if "judgment for the plaintiff could operate to control the actions of the State or subject it to liability." See Currie v. Lao, 592 N.E.2d 977, 980 (Ill. 1992); Feldman v. Ho, 171 F.3d 494, 498 (7th Cir. 1999). The question for purposes of this Court's jurisdiction, ...

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