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Aleman v. Dart

November 23, 2010

ALVERO ALEMAN, PLAINTIFF,
v.
THOMAS DART, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Alvero Aleman, originally pro se, brings this action against Cook County, Cook County Sheriff Thomas Dart, Salvador Godinez, Dr. Avery Hart, Dr. David Fagus, and Dr. Michael Puisis. Now represented by counsel and on his second amended complaint, Plaintiff's current ten-count complaint alleges that Defendants failed to provide him with adequate medical care while he was a pre-trial detainee in the Cook County Department of Corrections in violation of 42 U.S.C. § 1983. Plaintiff also alleges a state law claim for Indemnification (Count X).

Defendants Dart and Godinez have moved to dismiss Plaintiff's claims against them in their official and individual capacities [64]. Additionally, Defendants Hart, Fagus, and Puisis, have moved to dismiss Plaintiff's claims against them [67]. For the reasons stated below, the Court denies both motions [64 & 67].

I. Background*fn1

From December 6, 2006 through August 8, 2008, Plaintiff was a pretrial detainee at the Cook County Jail ("CCJ"). Second Amended Complaint ("SAC") at ¶¶ 5, 15. On October 18, 2007, Plaintiff slipped while descending a flight of stairs and suffered a fracture in his left middle finger. Id. at ¶¶ 19, 23. Plaintiff was taken to Cermak Health Services' Emergency Room, where the Cermak medical staff recommended x-rays and pain medication. The emergency room record indicates that Plaintiff was to be transferred to "JSH Hand Clinic" the following day. However, Plaintiff was not taken to Stroger Hospital until six weeks after he broke his hand. Plaintiff alleges that on at least eight separate occasions, Cook County medical personnel failed to transfer him to Stroger Hospital even though he was scheduled for appointments. Furthermore, although surgery was recommended, Plaintiff was never operated on. Plaintiff alleges that due to the actions and inactions of Defendants, Plaintiff did not receive necessary medical attention after the accident, and the injury to Plaintiff's hand was never properly treated. Id. at ¶¶ 20-62. As a result, Plaintiff has suffered and continues to suffer considerable pain and has substantially lost the use of his left hand. Id. at ¶ 2.

Plaintiff's lawsuit is based on allegations that the care that he received at Cook County Jail fell below the minimum standards of care mandated by the United States Constitution. Plaintiff has alleged that Defendants' failure toenact procedures and adopt safeguards to prevent the denial of adequate medical care to pretrialdetainees, such as Plaintiff, directly caused his injuries. Id. at ¶¶ 70-77, 79-86, 88-95, 97-104, 106-12, 114-20, 122-28, 130-36, 138-47. The factual bases for Plaintiff's case rests, in part, on a report issued by the United States Department of Justice (the "DOJ Report"),*fn2 which details a "myriad of unconstitutional practices" applicable to Plaintiff's situation and concludes that the CCJ "is not adequately providing for the safety and well-being of inmates." Id. at ¶ 64; DOJ Report, 55-1 at 3 & 5.

There are two groups of defendants in this case. The "Sheriff Defendants" are Tom Dart, the Sheriff of Cook County, and Salvador Godinez, the Director of the Cook County Department of Corrections. The "County Defendants" are Dr. Avery Hart, Medical Director of Cermak; Dr. David Fagus, Chief Operating Officer of Cermak; Dr. Michael Puisis, Chief Operating Officer of Cermak; and Cook County.

II. Legal Standard on a Rule 12(b)(6) Motion

A motion to dismiss pursuant to Federal Rule of Civil Procedure 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). "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, 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 of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

Section 1983 creates a cause of action against "[e]very person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The § 1983 claims of a pretrial detainee are analyzed under the Fourteenth Amendment's Due Process Clause rather than under the Eighth Amendment. Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002). Nonetheless, the claim is still "analyzed under the Eighth Amendment test." Henderson v. Sheahan, 196 F.3d 839, 844 n. 2 (7th Cir. 1999).

There are two ways in which a government actor may be sued: in his official capacity (Monell) or his individual (sometimes called "personal") capacity. Generally, an official capacity suit is brought against a high-ranking official as a means of challenging an unconstitutional policy, practice, or custom. See Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). Suing a government employee in his official capacity is akin to suing the entity that employs him and the standard for liability is the same. See, e.g., Kentucky v. Graham, 473 U.S. 159 (1985). By contrast, an individual capacity suit requires a showing of personal involvement by the government actor. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).

A. Law of the Case

Plaintiff contends that Defendants' arguments are barred by the "law of the case" doctrine because the Court previously conducted a preliminary review of Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A. However, the issues presented and ruled on in the Court's § 1915A review of the Plaintiff's pro se amended complaint are not analogous to the issues presented in the current motions to dismiss. Several differences exist between the amended complaint and ...


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