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Newell v. Kankakee County Sheriff's Dep't

United States District Court, C.D. Illinois

October 9, 2013

CECIL NEWELL, Plaintiff,
v.
KANKAKEE COUNTY SHERIFF'S DEPARTMENT, et al., Defendant

For Cecil Newell, along with any other similarly situated individuals, Plaintiff: Robin Gail Remley, LEAD ATTORNEY, LAW OFFICE OF ROBIN REMLEY LLC, Munster, IN.

For Jerome Combs Detention Center, Kankakee County Sheriff's Department, Timothy Bukowski, Sheriff, Michael Downey, Chief of Corrections, Jeffrey Long, MD, Charee Sangster, Defendants: Michael W Condon, LEAD ATTORNEY, Matthew J Hafeli, HERVAS CONDON & BERSANI PC, Itasca, IL.

OPINION

Page 974

ORDER ON MOTION TO DISMISS

HAROLD A. BAKER, UNITED STATES DISTRICT JUDGE.

The plaintiff, Cecil Newell, commenced this action pursuant to the Civil Rights Act, 42 U.S.C. § 1983, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq . Defendants Timothy Bukowski, Michael Downey, Jerome Combs Detention Center (" JCDC" ), Kankakee County Sheriff's Department, Jeffrey Long, and Charee Sangster filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiff did not respond by the May 9, 2013, deadline set through the court's CM/ECF system. Approximately two weeks after the deadline passed, the court set a new deadline of June 6, 2013 for the plaintiff to respond or file an amended complaint. The court stated that if the plaintiff did not respond or amend his complaint by the deadline, the court would presume that the plaintiff abandoned the litigation and would dismiss the case for failure to prosecute. See Order, d/e 12.

The plaintiff then requested an extension to July 19, 2013, to respond or amend

Page 975

the complaint. The court granted an extension to June 25, 2013. On that date, the plaintiff filed an amended complaint [14], adding new defendants and allegations. There are now approximately twenty-five defendants in the case. The docket does not reflect service of process or an entry of appearance for some of those defendants, including federal defendants who were named in the original complaint.

Defendants Kankakee County Sheriff's Department, Timothy Bukowski, Michael Downey, Charee Sangster, and newly-named defendants Jeffrey Long, Clyde Dayhoff, Heather Gill, Tiniki White, Adam Graves, Sonya Hanson, Andrew Delude, Matthew Meehan and Ward Adams (collectively, the " movants" ) have filed a motion to dismiss the amended complaint. (JCDC is not named as a defendant in the amended complaint.) Various defendants have not been identified by name, and there is no indication in the docket that defendants U.S. Marshal Service and deputy marshals Jeff Goble and Dean Lanter have been served. (The U.S. Marshal Service was named in the original complaint filed on January 18, 2013. The time for serving that defendant expired many months ago.)

For the following reasons, the motion to dismiss [20] is denied.

FACTS

In July and August 2011, the plaintiff was a federal detainee from Indiana who was housed at JCDC in Kankakee, Illinois. (The east border of Kankakee County, Illinois, is on the Illinois-Indiana state line.) Newell states that he has multiple disabilities that he sustained in an auto accident in 2006. Newell has weakness and numbness in his left side and, in July 2011, he partially dragged his left leg. He also had incontinence with urine and bowel movements and required the use of adult diapers. In addition, he was unable to stand still without assistance, which made showering and using the toilet difficult. Newell also had asthma and took daily medications and/or treatments.

Despite his obvious disabilities and medical issues, Newell claims that he was assigned to a regular dorm on the top floor of the jail, and a top bunk. He had to hop on one leg to go up or down the stairs and needed assistance from other inmates to get into and out of his bunk. Newell was not given adult diapers until his third day at the jail. Even then, he was not given an adequate supply of diapers and would sometimes sit in a soiled diaper for days, and in clothes with urine and feces on them. He was not given enough biohazard bags, and the soiled diapers and bags piled up in his cell. On July 24, 2011, there was no one to assist Newell and he fell while attempting to get out of his bunk. He sat for two hours until someone came to help ...


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