The opinion of the court was delivered by: Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff John Adkisson brought suit pursuant to 42 U.S.C. § 1983 against Defendants Thomas Dart, Sheriff of Cook County; and John Tedesco, an officer of the Cook County Department of Corrections ("CCDC"). Plaintiff alleges that Tedesco assaulted Plaintiff while he was in the custody of the CCDC. Before the Court is Defendants' Motion to Dismiss.
The following facts are taken from Plaintiff's First Amended Complaint and are assumed to be true for purposes of this motion.
Adkisson is a transsexual, identifying himself as a female though he is physically male. At all times relevant to this case, Adkisson was in the custody of the CCDC as a pretrial detainee. On April 20, 2009, Adkisson was being processed in Division 9 of the CCDC. While Adkisson was being processed, Tedesco began making anti-gay slurs towards Adkisson. After the processing, Tedesco told the processing officers, "I've got this one," indicating that he would escort Adkisson to his tier. Tedesco then took Adkisson to the south elevator, which did not have a camera installed, rather than the north elevator, which did. Once in the elevator, Tedesco said to Adkisson, "Now run your mouth." Tedesco then slapped Adkisson two or three times in the head. The slaps caused bruising and scratching. Tedesco then took Adkisson to his tier, where Tedesco told another officer, "I had to slap the bitch around."
Adkisson sought medical treatment, but his request was denied. In the days following the assault, Tedesco told Adkisson that Tedesco would make Adkisson's life "hell" if Adkisson complained about Tedesco's conduct. Tedesco had other officers open Adkisson's mail. After Adkisson went to a lieutenant to complain about Tedesco's conduct, Tedesco had other officers enter Adkisson's cell and destroy certain of Adkisson's belongings, including legal papers. Tedesco also caused other officers to make threats against Adkisson.
Adkisson brings three counts against Tedesco, both in his individual and official capacities: cruel and unusual punishment in violation of the Eighth Amendment (Count I); punishment in violation of the Fourteenth Amendment (Count II); and retaliation in violation of the First and Fourteenth Amendments (Count III). Adkisson also brings one count against Sheriff Dart in his official capacity: punishment in violation of the Eighth and Fourteenth Amendments (Count IV).
In ruling on a motion to dismiss, the court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Sprint Spectrum L.P. v. City of Carmel, Ind., 361 F.3d 998, 1001 (7th Cir. 2004). Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To meet Rule 8(a)(2)'s requirements, the complaint must describe the claim in sufficient detail 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) (Bell Atlantic) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff's allegations "must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court."
E.E.O.C. v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atlantic, 550 U.S. 544, 127 S. Ct. at 1965, 1973 n. 14).
Defendants argue that Plaintiff's Eighth Amendment claims must be dismissed because, as a pretrial detainee, Adkisson had not yet gained the protections of the Eighth Amendment. See Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009) (Lewis). Rather, an excessive force claim of a pretrial detainee is properly brought under the Due Process Clause of the Fourteenth Amendment. Id. at 473-74. Plaintiff concedes the argument. Count I is therefore dismissed.
Defendants next argue that Plaintiff's excessive-force claim under the Fourteenth Amendment must be dismissed because the force allegedly used by Tedesco was de minimis. Defendants cite a number of Seventh Circuit opinions in which the court held that injuries to prisoners, supposedly comparable to the injuries suffered by Adkisson here, were not of a sufficient magnitude to support a claim for excessive force.
Defendants' argument fails for at least two reasons. First, the cases cited by Defendants were all decided under the Eighth Amendment's ban on cruel and unusual punishment. But excessive-force claims brought under the Fourteenth Amendment are evaluated under a different standard: "the Due Process Clause, which prohibits all 'punishment,' affords broader protection than the Eighth Amendment's protection against only punishment that is 'cruel ...