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Solivan v. Dart

United States District Court, N.D. Illinois, Eastern Division

September 14, 2012

Nicholas SOLIVAN, Plaintiff,
v.
Thomas DART, et al., Defendants.

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Robert Edward Lewin, Law Offices of Robert E. Lewin, Skokie, IL, for Plaintiff.

Amrith Kaur Aakre, Chicago, ID, Kevin Jon Mueller, Scott Andrew Nehls, James Charles Pullos, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Plaintiff Nicholas Solivan (" Solivan" ) filed suit against Thomas Dart, (" Dart" ), Commander Michael Dembosz (" Dembosz" ), Sergeant H. Thompson (" Thompson" ), Officer Richard Revolorio (" Revolorio" ), and the County of Cook, Illinois (" Cook County" ) (collectively " Defendants" ), for violations of 42 U.S.C. § 1983. Solivan alleges that he was a pre-trial detainee in the Cook County Department of Corrections whom the Defendants' failed to protect in violation of his constitutional rights. Defendants filed a Motion to Dismiss contending that Solivan failed to allege the requisite knowledge and culpability to state a claim of deliberate indifference. Additionally, Defendants contend that the claims against newly-added Dembosz, Thompson, Revolorio and Cook County are time-barred by the applicable Illinois statute of limitations for § 1983 claims. For the following reasons, the Court denies the Motion to Dismiss with respect to Revolorio in Count I; grants the Motion with respect to Dart, Dembosz, Thompson and Cook County in Count I; and grants the Motion with respect to Count II. The Court also permits Solivan leave the file an Amended Complaint within 14 days to allege an indemnification charge against the County relating to Count I against Revolorio.

I. STATEMENT OF FACTS

The following facts are taken from Solivan's Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss.[1] See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995).

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On March 3, 2009, Solivan was a pre-trial detainee housed in Division One of the Cook County Department of Corrections (" CCDOC" ) in Chicago, Illinois. (Doc. 68, ¶¶ 2, 14). Division One is considered maximum security and houses some of the most dangerous criminals in CCDOC. (¶ 16). Solivan was the only person of Hispanic origin housed in Tier C, Deck 2, while the significant majority of the other inmates were African-American. (¶ 17). At the time, Division One employed a " half and half policy" so that only one half of the inmates on an individual tier were permitted to be out of their cells and in the dayroom at a given time. (¶ 18). On the date in question, Solivan's cell was in the half of cells that were open between 3:30 and 6:30 p.m. (¶ 19). On that day, Solivan's cellmate exited their cell, while Solivan stayed and believed that he had locked the door. (¶ 20). Meanwhile, the inmates from the opened cells were allowed to walk the hallways, the designated common area and the day room. (¶ 21).

At approximately 3:30 p.m., seven unnamed African American inmates entered Solivan's cell and began striking him on his head and body causing severe injuries to his right eye, bleeding from his ear, numerous contusions to his face, and fractures of his lower back that left him in a wheelchair for the following 10 months. (¶ 23, 44). Solivan screamed for the duration of the five-minute attack as well as for the next two and a half hours. (¶¶ 24-25). The first time that a correctional officer attended to Solivan in his cell was at approximately 6:15 p.m. (¶ 25).

Deputy Revolorio was the Tier officer assigned to Solivan's tier during the time of the incident, and was solely responsible for 38 detainees. (¶¶ 7, 29). Revolorio was stationed in the control room, commonly referred to as the " bubble," where he could not see into the cells nor into the common areas where inmates might be walking outside of their cells. (¶¶ 22, 26). From the bubble, Revolorio could not hear if any noise was coming from the cells because the television in the day room was very loud where the inmates were also working out. (¶ 27). The only area from which an officer could personally observe the common areas and cells was the catwalk, and Revolorio was aware that the inmates knew when there was no officer on the catwalk. (¶ ...


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