The opinion of the court was delivered by: Reagan, District Judge:
Before the Court is Defendants Health Professionals, Ltd., Dr. Jogendra Chhabra and Nurse Marilynn Ann (Lynn) Reynolds' Motion to Dismiss Plaintiff's Fourth Amended Complaint, or in the Alternative, for Summary Judgment (Docs. 191, 192). Plaintiff Jaclyn Currie has filed a response (Doc. 203), to which Defendants have filed a reply*fn1 (Doc. 204).
I. The Nature of the Case and Relevant Procedural History
In December 2008, Phillip Okoro, who was being held in the Williamson
County Jail, died as a result of diabetic ketoacidosis.*fn2
Plaintiff Jaclyn Currie, as administrator of Okoro's estate,
and as the personal representative of his heirs, brought suit on
October 14, 2009 (Doc. 2). Plaintiff filed suit against jail
officials, the contract healthcare providers and their employer,
Health Professionals, Ltd., and Williamson County, Illinois.
Williamson County and the jail officials were denied summary judgment and shortly thereafter reached a settlement agreement with Plaintiff (which has yet to be approved by the Court). The settlement was reached just hours after the Court ruled that the federal civil rights claims were governed by the Fourth Amendment's "objectively unreasonable" standard, which is applicable to arrestees who have not had a probable cause hearing, rather than the "deliberate indifference" standard that applies to pretrial detainees by way of the Fourteenth Amendment. See Gerstein v. Pugh, 420 U.S. 103, 123-125 (1975); Lopez v. City of Chicago, 464 F.3d 711, 718 -719 (7th Cir. 2006); Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007).
The Complaint, and the First, Second and Third Amended Complaints all alleged "deliberate indifference," the standard associated with the Fourteenth Amendment and applicable to pretrial detainees. No specific provision of the Constitution was ever cited. Okoro's custodial and legal status apparently did not come into question until after the close of discovery, when Plaintiff responded to the Williamson County defendants' motion for summary judgment relative to the Second Amended Complaint and questioned which legal standard was applicable (Doc. 97, pp. 21-23). The medical defendants, Health Professionals, Ltd., Dr. Chhabra and Nurse Reynolds, had never sought summary judgment or otherwise attacked Plaintiff's pleadings.
In light of the Court's March 22, 2012, Order, and because the Williamson County defendants' various claims and defendants were no longer in the case, and for other "housekeeping" reasons, Plaintiff was directed to file a Third Amended Complaint in advance of trial, which was set to begin on April 2, 2012.*fn3 The Third Amended Complaint did not alter the way the Section 1983 constitutional claims were pleaded; therefore, the medical defendants' motion to dismiss was granted, without prejudice. The Fourth Amended Complaint (Doc. 180) now controls.
Defendants now, for the first time, assert qualified immunity. II. Applicable Procedural Standards
Defendants move to dismiss the Fourth Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim; in the alternative, they seek summary judgment pursuant to Rule 56. The Court will treat the motion as a motion to dismiss. Defendants' arguments are all framed consistent with a Rule 12(b)(6) motion directed at the pleadings, and the Court need not look beyond the Fourth Amended Complaint to decide all of the issues raised.
Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). In making this assessment, the District Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. Tricontinental Industries, Inc., Ltd. V. Price Waterhouse Coopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Although federal complaints need only plead claims (not facts), "plaintiffs are not required to plead legal theories, even in the new world of pleading that is developing in the wake of Bell Atlantic v. Twombly and Ashcroft v. Iqbal." Del Marcelle v. Brown County Corp., 680 F.3d 887, 909 (7th Cir. 2012) (full citations omitted); see also Crawford-El v. Britton, 523 U.S. 574, 595 (1998) (pleading standard is not altered in anticipation of a qualified immunity defense).
In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit emphasized that even though Bell Atlantic v. Twombly "retooled federal pleading standards," notice pleading is still all that is required. "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id. Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008) (the allegations "must be enough to raise a right to relief above the speculative level"). III. Timing of the Motion
As a preliminary matter, before delving into the issues and analysis, the Court must address Plaintiff's objection that Defendants' motion to dismiss is untimely. Plaintiff characterizes the motion as "a last-ditch effort to avoid trial," and argues that these Defendants have waived their right to assert qualified immunity by waiting until the month before trial.
Plaintiff's protestations are disingenuous. Plaintiff pleaded "deliberate indifference" through the Third Amended Complaint, and only requested that the Court decide the appropriate standard in response to the Williamson County defendants' motion for summary judgment (Doc. 97, p. 21). At that time, Plaintiff described the issue as "largely academic" (Doc. 97, p. 22). Two weeks after contending the Fourth Amendment was applicable, Plaintiff stated, "This is a case about whether Phillip Okoro received the medical care required under the Fourteenth Amendment to the U.S. Constitution . . ." (Doc. 119, p. 1). Plaintiff cannot have it both ways. Nevertheless, the Court recognizes that Defendants did not make a Rule 12(b)(6) challenge to the previous three permutations of the complaint.
In Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008), the Court of Appeals recognized that "[t]he pleading standard is no different simply because qualified immunity may be raised as an affirmative defense," "the rule that qualified immunity must be resolved at the earliest possible stage must be tempered by the notice pleading requirements of Rule 8. Id. at 1090 (internal citations omitted). It was not until the Fourth Amended Complaint, filed May 25, 2012, that Plaintiff's pleadings reasonably suggested that the Fourth Amendment was applicable, as opposed to the Fourteenth Amendment.
In McGee v. Bauer, 956 F.2d 730 (7th Cir. 1992). The Court of Appeals for the Seventh Circuit faced a somewhat similar situation, where the parties went to trial on the fifth amended complaint; the defendant raising qualified immunity had been added, dismissed, and added again as a party to the case. The appellate court concluded that qualified immunity had not been waived, even though it was not asserted until the directed verdict stage of trial. "Having been the cause of this shifting litigation, [the plaintiff] may not now claim waiver on the part of [the defendant]." Id. at 734. Accordingly, this Court concludes that Defendants have not waived qualified immunity as a defense.
Defendants Health Professionals, Ltd., Dr. Chhabra and Nurse Reynolds move to dismiss Count One through Three of the Fourth Amended Complaint-the civil rights claims under 42 U.S.C. § 1983. Put succinctly, Defendants Chhabra and Reynolds contend that, relative to Counts Two and Three, they are entitled to qualified immunity as a matter of law because the Fourth Amendment has not been applied to licensed medical professionals subcontracted to care for state detainees. Defendant Health Professionals, Ltd. ("HPL") asserts that Count One cannot stand because HPL cannot practice medicine under Illinois law, and the Fourth Amendment standard cannot be extended to apply to HPL. ...