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Michael Miller v. Sheriff John E. Zaruba

April 28, 2011

MICHAEL MILLER, PLAINTIFF,
v.
SHERIFF JOHN E. ZARUBA, UNKNOWN DUPAGE COUNTY DEPUTY SHERIFFS, DEPUTY SHERIFF USHMAN, JAMES CORCORAN, AND DUPAGE COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Miller ("Miller") filed suit against Sheriff John Zaruba ("Zaruba"), unknown DuPage County Deputy Sheriffs ("Deputy Sheriffs"), Deputy Sheriff Ushman ("Ushman"), James Corcoran ("Corcoran"), and DuPage County (together "Defendants"). Specifically, Count I alleges that Ushman failed to protect Miller in violation of 42 U.S.C. § 1983 ("§ 1983"); Count II alleges that Ushman failed to intervene in violation of § 1983; Count III alleges that Corcoran acted with deliberate indifference to Miller's serious medical needs in violation of § 1983; Count IV alleges a Monell claim against Zaruba; Count V alleges that Ushman and Corcoran negligently inflicted emotional distress in violation of Illinois law; Count VI alleges that Ushman and Corcoran intentionally inflicted emotional distress in violation of Illinois law; Count VII alleges that Zaruba breached his duty to hire, train, and supervise his employees in violation of Illinois law 730 ILCS 125/3; Count VIII alleges a respondeat superior claim against Zaruba; Count IX alleges an indemnification claim against Zaruba; and Count X alleges an indemnification claim against DuPage County.

Zaruba moves to dismiss Counts V, VI, VII, and X as well as Miller's request for punitive damages against him; Ushman moves to dismiss Count V; Corcoran moves to dismiss Counts V and VI; and DuPage County moves to dismiss itself as a party. For the following reasons, the Court grants in part and denies in part Defendants's Motions to Dismiss: the Court grants Ushman's Motion to Dismiss Count V; grants Corcoran's Motion to Dismiss Counts V and VI; grants Zaruba's Motion to Dismiss Counts VI and VII; grants in part and denies in part Zaruba's Motion to Dismiss Count VIII; denies Zaruba's Motion to Dismiss Count V and denies Zaruba and DuPage County's Motion to Dismiss Count X.

STATEMENT OF FACTS

The following facts are taken from Miller's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

Miller was arrested by Villa Park, Illinois police officers on June 30, 2009 and taken to the DuPage County Jail ("Jail") for violating an order of protection forbidding him from having contact with his wife. (Compl. ¶ 10.) Miller was unable to pay bond and was subsequently detained until November 17, 2010. (Id.)

Miller was originally housed in the misdemeanor pod of the Jail, where he used the telephones to call his estranged wife. (Id. ¶¶ 11-12.) After a July 22, 2009 hearing regarding a charge of violating the order of protection, Miller was placed in administrative segregation in the psychiatric ward. (Id. ¶¶ 13-14.) Miller never received psychiatric treatment nor were there any incidents indicating that Miller should be housed in the psychiatric ward. (Id. ¶ 16.)

Stuart Rothberg ("Rothberg") was assigned to a cell adjacent to Miller's at the end of September 2009 in the psychiatric ward. (Id. ¶ 17.) Miller believed that Rothberg suffered from psychiatric illness in September 2009 and that he had a history of violent behavior. (Id. ¶¶ 18-19.) Rothberg had been involved in several violent incidents involving Jail inmates and staff and was known by Jail staff to be dangerous to others. (Id. ¶ 19.) Rothberg was required to wear a yellow wristband at all times indicating the need to keep him segregated. (Id. ¶ 20.) Miller had no contact with Rothberg and was never in Rothberg's presence without Jail supervision prior to October 23, 2009. (Id. ¶ 21.)

On Friday October 23, 2009, Miller and Rothberg, along with other inmates from their pod, were escorted to the gym by an unknown Deputy Sheriff and locked in. (Id. ¶ 22.) No Deputy Sheriffs were present in the gym, though they were able to monitor and observe the inmates from a control booth with a large window and video feed. (Id.) This was the first time that Miller and Rothberg were in the gym together and, to the best of Miller's knowledge, the first time that Rothberg was allowed in the gym with other inmates. (Id. ¶ 23.)

While in the gym, Miller noticed Rothberg "acting crazy" and eating dust and wrappers from the floor. (Id. ¶ 24.) Miller approached the gym's metal intercom and spoke with Ushman, who was in the control booth, about Rothberg's behavior. (Id. ¶ 25.) While Miller was speaking with Ushman, Rothberg leapt from a weightlifting bench onto Miller's back, driving Miller's head into the metal intercom and rendering Miller unconscious. (Id. ¶ 26.) Rothberg then punched and kicked Miller, lacerating Miller's head and fracturing several of Miller's teeth. (Id. ¶ 27.)

Ushman called for supervisors, escorts, and nurses to respond. (Id. ¶ 28.) Miller was taken, unconscious, to the Jail infirmary where he was treated by Corcoran, the Jail's chief psychiatrist. (Id. ¶ 29.) Corcoran noted in Miller's medical file that there were contusions and swelling on both sides of Miller's nose and that Miller complained that his nose was broken. (Id. ¶ 30.)

Corcoran gave Miller Tylenol and a five-day prescription for Motrin. (Id. ¶ 32.) Miller showered and returned to his cell without further medical care. (Id.)

On Monday, October 26, 2009, Miller was moved from the psychiatric ward to receiving for observation, neurological checks, and facial x-rays. (Id. ¶ 33.)

Ushman filed a report noting that Miller chipped a tooth and that the gym required "significant ...


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