The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
This matter is before the Court on motion by the Sheriff of Cook County, Cook County, Unknown Cook County Sheriff's Deputies and Unknown Cermak employees) (collectively "Defendants") to dismiss the plaintiff's, Christopher Harrison ("Harrison"), complaint based on the defense of res judicata , pursuant to the final judgment in Phipps, et al. v. Sheriff of Cook County, et al., 07 C 3889 (the "Phipps Settlement"). Plaintiff objects to defendants' motion. For the following reasons, this Court grants defendants' motion in its entirety.
For purposes of defendants' motion, the Court accepts as true the factual allegations of the plaintiff's complaint. Plaintiff, a wheelchair bound paraplegic, was incarcerated at Cook County Jail as a pre-trial detainee from May 12, 2009 to June 8, 2009 and again from April 3, 2010 to April 30, 2010. On both occasions, plaintiff was incarcerated at Cook County Jail's Medical Unit. While there, Harrison made several requests for accommodations for his disability -- namely wheelchair accessible showers, toilets and beds -- but was not given such accommodations. As a result, Harrison was hospitalized numerous times and has, and still continues to suffer emotional and physical distress, including bed sores, infections, Methicillin-Resustant Staphylococcus Aureus (MRSA) and the inability to sleep throughout the night. As a result, Harrison brings forth this matter alleging violations of 42 U.S.C. § 1983 for failure to provide medical attention (count I) and of both Section 202 of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act for failure to provide reasonable accommodations for his disability (count II). Plaintiff also alleges a Monell claim (count III), an indemnity claim (count IV) and a respondeat superior claim against the Sheriff of Cook County (count V) and Cook County (count VI). In response, defendants' argue that res judicata bars all of plaintiff's claims and moves to dismiss this matter in full.
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. Christensen v. County of Boone, 483 F.3d 454, 458 (7th Cir. 2007). Pursuant to the federal notice pleading standard, a complaint need only provide "a short and plain statement of the claim" showing that the plaintiff is entitled to relief and sufficient to provide the defendant with fair notice of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). In order to withstand a motion to dismiss under 12(b)(6), a plaintiff's complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). For a claim to have facial plausibility, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, the complaint need not set forth "detailed factual allegations," but it must plead facts that "raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). It should also be noted that during this stage, "litigants may plead themselves out of court by alleging facts that may establish defendants' entitlement to prevail." Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998).
The defendants only argument to dismiss this matter is that all of plaintiff's claims are barred by res judicata. "For res judicata to apply under Illinois law there must exist: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) the same cause of action; and (3) the same parties or their 'privies.' Chicago Title Land Trust Co., v. Potash Corp. Saskatchewan Sales Ltd., 664 F.3d 1075, 1079 (7th Cir. 2011) (citing Hudson v. City of Chicago, 228 Ill. 2d 462, 321 Ill. Dec 306, 889 N.E. 2d 210, 215 (2008). Furthermore, if the three necessary elements are present, "res judicata will bar not only every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that suit." Id.
Defendants contend that on July 12, 2007, the Phipps lawsuit was filed and was eventually certified as a class action on behalf of "all former and current wheelchair bound inmates at the Cook County Department of Corrections who, from July 11, 2005 through June 15, 2010, were subjected to discrimination because of their disability in violation of § 202 of the ADA and § 504 of the Rehabilitation Act." Phipps Dkt., No. 72 at 1-2; 319 at ¶¶ 9, 10. On June 24, 2010, a settlement agreement was approved by the court in the Phipps matter and a final order was entered on September 17, 2011 and the case was terminated. Phipps, Dkt. No. 316, 321-22.
Plaintiff's complaint establishes that he was a wheelchair bound inmate at the Cook County Department of Corrections from May 12, 2009 to June 8, 2009 and again from April 3, 2010 to April 30, 2010. Accordingly, defendants argue that he has, established through his own pleadings, that he was a class member in the Phipps lawsuit.
Pursuant to the settlement agreement in Phipps, the "Notice and Claims Procedure" provided that all class members were to submit their claim form or their "optout" requests by September 1, 2010. Phipps, Dkt. No. 319, ¶¶ 17-18. Plaintiff has not alleged that he opted out of the Phipps settlement at any time. As such, defendants assert that plaintiff is bound by the settlement agreement that was reached in the Phipps settlement and should be dismissed.
Plaintiff objects to defendants arguments on three grounds. First, plaintiff argues that the affirmative defense of res judicata is inappropriately raised in defendants' 12(b)(6) motion to dismiss. Instead, plaintiff suggests that res judicata is an affirmative defense and should be raised in a responsive pleading.
The Seventh Circuit has held that "it is incorrect to grant a motion to dismiss under Rule 12(b)(6) on the basis of an affirmative defense." Mcready v. eBay, Inc., 453 F.3d 882, 892 n. 2 (7th Cir. 2006). An exception to this rule is when a plaintiff "admit[s] all of the ingredients of an impenetrable defense" in his complaint and thereby pleads himself out of court. Xechem, Inc. v. Bristol-Myers-Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). In this case, defendants assert their res judicata defense entirely based upon facts alleged in plaintiff's complaint. Therefore, because defendants rely on the plaintiff's own disclosures in ...