United States District Court, N.D. Illinois, Eastern Division
Malcolm X. Blakemore (00610220), Plaintiff,
Tom Dart, et al., Defendants.
SHEILA FINNEGAN, Magistrate Judge.
Currently before the Court are a motion to dismiss filed by five of the seven Defendants in this case  and a letter request by Plaintiff seeking an extension of time to respond to the motion and recruitment of counsel to assist in responding to it . For reasons discussed below, the Court grants Plaintiff's request for additional time and extends the due date for his response to the motion to May 9, 2014. Defendants' reply is due May 23, 2014. The court denies without prejudice Plaintiff's request for an attorney, and provides information about the issues raised in the motion to dismiss that may assist Plaintiff in preparing his response.
Plaintiff filed this action under 42 U.S.C. § 1983 in March 2012, naming Sheriff Tom Dart as Defendant. Plaintiff alleged that on March 18, 2011, the bus transporting him back to Cook County Jail was hit by a bus leaving the facility. Plaintiff, who was asleep and handcuffed, was thrown to the floor and injured his neck, shoulder, and back. Plaintiff alleged that he complained to the transporting officer, who instructed Plaintiff to tell the officer at his unit. He then asked an officer in his unit to report the incident, but Plaintiff was never able to file a report. Plaintiff alleged that he filed a grievance to report the incident but never received a response, and that he requested medical attention but did not receive adequate care prior to being shipped to a different facility six weeks later. Finally, Plaintiff alleged that he was still having "issues" with his back, neck, and shoulder. (Doc. 1).
In an order entered on April 20, 2012, the district judge dismissed the complaint without prejudice but allowed Plaintiff to file an amended complaint and provided guidance concerning the potential claims and necessary factual allegations. (Doc. 6). Among other things, the order stated that Plaintiff needed to submit an amended complaint that "either states how Tom Dart was personally involved or that names as Defendants the individuals who were personally involved." ( Id. ).
On May 22, 2012, Plaintiff submitted an amended complaint that named Sheriff Dart in his official capacity and four John Doe officers. (Doc. 9). Plaintiff alleged that John Doe 1 was the transporting officer to whom he complained immediately after the accident, while John Doe 2 was the driver of his bus. Plaintiff alleged that he asked both to send him to Cermak for medical care following the accident. They told him to let the officer know when he returned to the unit. While waiting in the bull pen to be transported to his division, Plaintiff tried to speak to John Doe 3 (a lieutenant) but he likewise told Plaintiff to report the incident to the unit officer. When Plaintiff returned to the unit, he immediately told John Doe 4 (his unit officer) that he needed medical attention. The unit officer told him to "lock up and they would get to me" but no one did. ( Id. ). Plaintiff alleged that he "complained everyday to whomever I could" but got no results, so he obtained pain killers from inmates off the unit. Plaintiff then filed a grievance and put in for health care several times but never received proper care. Plaintiff noted in his amended complaint that he did not know actual names of the officers but was "being as descriptive as possible." ( Id. ).
On June 5, 2012, the district judge allowed Plaintiff to proceed with the amended complaint and requested the U.S. Marshal to serve Sheriff Dart. (Doc. 11). In this order, the court also stated: "Once an attorney enters an appearance for Dart, Plaintiff should forward discovery to the attorney to learn the name of the unit officer of his division at Cook County Jail and either submit another amended complaint or a motion to substitute in accordance with this order. The other John Doe Defendants are dismissed." The reason for their dismissal was that the other John Doe Defendants (other than the unit officer) were alleged to have "referred Plaintiff to his unit officer" and "at most ignored only Plaintiff's initial complaint of pain." ( Id. ). See Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (no deliberate indifference claim existed for an officer who investigated an inmate's complaints of pain and referred him to personnel who could better address those complaints).
On July 2, 2012, attorneys filed appearances for Sheriff Dart, (Doc. 15, 16), and sought an extension of time, until August 31, 2012, to answer or otherwise plead. (Doc. 17). The answer was then filed on August 31, 2012. (Doc. 24). On October 29, 2012, Plaintiff participated by telephone in a status hearing before the district judge. The judge noted in his order that day that Plaintiff "has now received the documents produced by defendant that should permit him to identify the individual who plaintiff claims refused him medical attention. Plaintiff has leave to file amended complaint, naming an additional defendant, by 12/10/12." (Doc. 30).
The district judge held another status hearing on September 5, 2012, with Plaintiff once again participating by phone. (Doc. 25). Defendants claim in their pending motion to dismiss that during the hearing, the court ordered Defendants to produce documents responsive to Plaintiff's oral and written discovery requests. (Doc. 72, at 4 of 9). Defendants further claim in their motion that on this same date, Assistant State's Attorney Kevin Mueller mailed to Plaintiff the "Officer's Living Unit Logs" for the specific living unit in which Plaintiff was housed at Cook County Jail on the day of the accident, March 18, 2011. As evidence of this, Defendants have provided as an exhibit to the motion to dismiss a letter from Mueller to Plaintiff dated September 5, 2012 stating:
Per our status call this morning with Judge Kennelly, to assist you in attempting to identify the particular unit officer at Cook County Jail that you reference in your complaint, enclosed please find documents bates-labeled SAO 001-SAO 004, which are Officer's Living Unit Logs for the specific living unit (DB) in which you were housed at Cook County Jail on the day of the accident, March 18, 2011.
(Doc. 72-1, at 2 of 3). Defendants claim in their motion that these documents provided "the names and badge numbers of the Correctional Officers that were assigned to and working within the tier, so as to provide the Plaintiff with the necessary information to identify and name proper[ly] Defendants and/or witnesses to the alleged incident." (Doc. 72, at 4 of 9). They also argue that the logs were the only records that Plaintiff requested in his effort to identify potential witnesses despite numerous status phone calls with Judge Kennelly and correspondence between Plaintiff and counsel for Defendants. ( Id. at 5 of 9).
On December 19, 2012, Judge Kennelly held another status hearing during which Plaintiff indicated that he "continues to be in segregation and does not have access to legal papers that he had prior to being place[d] in segregation." (Doc. 32). The court directed the clerk to mail Plaintiff an amended complaint form and stated: "The time for plaintiff to file an amended complaint, naming an additional defendant or defendants, is extended to 1/19/13." ( Id. ).
On January 25, 2013, the court received the second amended complaint, which named Sheriff Dart and "W. Collins - (unit officer)" as Defendants along with nine other individuals who were not identified by name. (Doc. 34). One such Defendant was described as "Division (II) medical unit (CCJ), " while the others were identified as John or Jane Does 1 through 8 and described as deputy sheriffs in the Cook County Jail. ( Id. ). According to the complaint, the new John/Jane Doe Defendants were unit officers to whom Plaintiff had reported his need for medical care on a particular day and shift: John/Jane Doe 1 (3/19/11; first shift); John/Jane Doe 2 (3/19/11; second shift); John/Jane Doe 3 (3/20/11; first shift); John/Jane Doe 4 (3/20/11; second shift); John/Jane Doe 5 (3/21/11; first shift); John/Jane Doe 6 (3/21/11; second shift); John/Jane Doe 7 (3/22/11; first shift); John/Jane Doe 8 (3/22/11; second shift). Plaintiff also alleged that he sent a "request slip" to the Division (II) medical unit "several times." ( Id. ). Again, Plaintiff noted that he had "used John/Jane Doe for the names I don't know but I was descriptive as possible." ( Id. ).
In an order dated February 11, 2013, the district judge allowed Plaintiff to proceed with the recently filed amended complaint against Unit Officer W. Collins and Sheriff Dart, but dismissed the other Defendants. (Doc. 36) ("The other listed Defendants, unknown officers who referred Plaintiff to his unit officer and who at most ignored only Plaintiff's initial complaint of pain, are dismissed."). During an April 16, 2013 status hearing, the court stated that "[b]oth sides are free to serve discovery requests ...