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Ayoubi v. Dart

United States District Court, N.D. Illinois

March 16, 2015

Firas Munir Ayoubi (#XXXX-XXXXXXX), Plaintiff,
v.
Tom Dart, et. al, Defendants.

ORDER

CHARLES R. NORGLE, Sr., District Judge.

Defendants' motion to dismiss [32] is denied. Plaintiff's motion for leave to file a second amended complaint [39] is granted. The second amended complaint may proceed with its claims of deliberate indifference and negligence against the Defendants listed therein, all of whom have already been served. Defendants are given 30 days from the date of this order to answer the second amended complaint or otherwise plead. The other claims in the second amended complaint are dismissed. Plaintiff's motion for a copy of the Court's Local Rules without payment [34] is granted, and the Clerk is directed to send Plaintiff a copy. Plaintiff's motion for attorney representation [36] is denied without prejudice. A status hearing is set for April 10, 2015, at 10:00 a.m.

STATEMENT

Plaintiff Firas Ayoubi, a pretrial detainee at the Cook County Jail, filed this civil rights action against Cook County Sheriff Tom Dart, Cook County Department of Corrections Executive Director Murphy, Superintendents Menella, Queen, and Everheart, and Cermak Director Dr. Kahn. Plaintiff alleges that, in December of 2012, inmates with contagious diseases, who had been labeled quarantine/isolation, " were housed in Division 5 along with Plaintiff and other inmates. Plaintiff states that the Defendants were aware that contagious inmates were being housed with non-contagious inmates; that he was not moved despite his requests; and that he contracted an illness, which caused high fever and extensive coughing for two weeks.

The Court previously allowed Plaintiff's amended complaint to proceed with claims of deliberate indifference. The Court, however, did not address the amended complaint's additional state-law claims of assault and battery.

Currently before the Court is Defendants' motion to dismiss the state-law claims. They contend: (1) the state-law claims are time-barred, (2) the amended complaint's allegations do not support claims of assault and battery, and (3) the claims are barred by the Illinois Tort Immunities Act. Plaintiff both responded to the motion to dismiss and submitted a second amended complaint. The second amended complaint provides more details about the December 2012 transfer of contagious inmates into Plaintiff's jail division, as well as each Defendant's involvement. Plaintiff again asserts state-law claims of assault and battery, and he adds three more state-law claims: negligence, intentional infliction of emotional distress, and a claim against the Defendants' performance bonds. The Defendants have neither replied to Plaintiff's response to the motion to dismiss nor addressed Plaintiff's motion for leave to file a second amended complaint.

Defendants' Motion to Dismiss and Plaintiff's Second Amended Complaint:

An amended complaint, if allowed, moots a motion to dismiss a prior complaint. See Daniel v. Cook County, No. 12 C 9049, 2014 WL 334635 at *3 (N.D. Ill. Jan. 20, 2014); see also Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1204-05 (7th Cir. 1998) (an amended complaint supersedes a prior complaint). Because Plaintiff filed his second amended complaint more than "21 days after service of [Defendants'] motion under Rule 12(b), " he must obtain leave to file it. Fed.R.Civ.P. 15(a)(1)(B). The Court grants such leave based on the following considerations: (1) the second amended complaint adds no Defendants but, instead, clarifies Plaintiff's claims against each Defendant; (2) the additional state-law claims are based upon the same facts giving rise to Plaintiff's other claims, (3) there appear to be no bad faith or dilatory motives by Plaintiff, and (4) allowing the second amended complaint should cause no undue prejudice to Defendants (though this case began at the end of 2013, it does not appear that the parties are near the end of discovery). See Fed.R.Civ.P. 15(a)(2)(a "court should freely give leave [to amend] when justice so requires"); King v. Kramer, 763 F.3d 635, 643-44 (7th Cir. 2014) (factors to consider when granting leave to amend are "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party").

Having allowed the second amended complaint, the Court must conduct an initial review in accordance with 28 U.S.C. 1915A. Under Section 1915A, courts are required to screen all prisoners' ยง 1983 complaints against a governmental officer or employee and dismiss the complaint, or any claim therein, if the complaint or claim is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a party who is immune from such relief. See Jones v. Bock, 549 U.S. 199, 214 (2007); Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).

As indicated above, the second amended complaint names the following Defendants: Cook County Sheriff Tom Dart, Cook County Department of Corrections Executive Director Murphy, Superintendents Menella, Queen, and Everheart, and Cermak Director Dr. Kahn. Plaintiff again alleges that, in December of 2012, inmates with contagious diseases and who had been labeled "quarantine/isolation" were transferred to Division 5 along where Plaintiff and other uninfected inmates were housed. Plaintiff states that the Defendants were aware that contagious and uninfected inmates were using the same water fountains, phones, tables, toilets, showers, and air; that he was not moved despite his requests; and that he contracted an illness, which caused high fever and extreme coughing for two weeks. According to Plaintiff, Dr. Kahn and Superintendents Manella and Everheart oversaw the placement of contagious inmates in Plaintiff's division, Superintendent Queen and Director Murphy authorized this transfer of contagious inmates into Plaintiff's division, and Sheriff Dart, as well as the other Defendants, were aware of the transfer because a physician's assistant documented it and referred it to the Defendants. Based on these allegations, Plaintiff asserts constitutional claims of deliberate indifference and state-law claims of battery, assault, negligence, intentional infliction of emotional distress, and a claim against the Defendants' performance bonds.

Deliberate Indifference:

As noted in the Court's prior initial-review orders, Plaintiff's allegations support claims of deliberate indifference against the Defendants. To state a deliberate indifference claim, a plaintiff must allege facts demonstrating both: (1) an objectively substantial risk of serious harm (which Plaintiff alleges), and (2) subjective knowledge by state officials of that risk but a refusal to take reasonable action to address it (which Plaintiff also alleges). Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 829 (7th Cir. 2009); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) ("exposure of inmates to a serious, communicable disease" can amount to a constitutional violation). The second amended complaint may thus proceed with its claims of deliberate indifference against the Defendants.

Battery and Assault:

Plaintiff's state-law battery claim cannot proceed. "Under Illinois law, battery is the unauthorized touching' of another that offends a reasonable sense of personal dignity.'" Chelios v. Heavener, 520 F.3d 678, 692-93 (7th Cir. 2008) (quoting Cohen v. Smith, 648 N.E.2d 329, 332 ( Ill. App. 5th Dis. 1995)); see also Kling v. Landry, 686 N.E.2d 33, 41 (Ill.App.2d Dist. 1997) ("to state a cause of action for intentional battery, a plaintiff must allege a willful touching of another person without the consent of the person who is ...


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