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Miller v. Kienlen

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

March 10, 2017

AARON MILLER, Plaintiff,


          Joan B. Gottschall, Judge

         This suit stems from Aaron Miller's (“Miller”) pretrial detention in the Cook County Department of Corrections (“CCDOC”) from the time of his arrest until March 14, 2014, when he was transferred to another facility. (See 6th Am. Compl. ¶ 4, ECF No. 77.) Before the court is a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss all but two of the fifteen counts pleaded in Miller's sixth amended complaint. Except for Miller's claims against Cook County (“the County”), the motion is denied.


         Even though the plaintiff's sixth amended complaint is his live pleading, the court has not passed on the sufficiency of any of Miller's prior complaints. Miller represented himself when he commenced this action. The court granted him leave to proceed without prepayment of fees, see 28 U.S.C. § 1915(a), and recruited counsel to represent him. (ECF No. 5 at 1.) Though motions to dismiss some of Miller's prior complaints were filed, Miller ultimately amended those complaints with leave of court, mooting the motions. (E.g., ECF Nos. 35-36.) While briefing on the motion to dismiss Miller's fifth amended complaint was ongoing, one of Miller's attorneys withdrew. (ECF No. 65 at 1.) The court recruited new counsel to represent Miller, denied the motion to dismiss as moot, and authorized Miller to file an amended complaint with the assistance of new counsel. (ECF No. 68 at 1-2.)

         In his sixth amended complaint (ECF No. 77), which the court will refer to as the complaint for simplicity's sake, Miller names Cook County as a defendant (¶ 18) along with three medical providers (¶¶ 5-7), and twelve individuals who worked at the CCDOC variously as sergeants, commanders, and correctional officers (¶¶ 8-17). Miller dropped the Cook County Sheriff (“the Sheriff”) and the Cook County Sheriff's Office as defendants in this complaint; he had named one or both of them in every prior complaint.

         Miller sues the individual defendants in their individual capacities. (6th Am. Compl. ¶¶ 5-17.) He names an additional John Doe defendant, “Officer Jarowski or John Doe” (“Jarowski”). (Id. at 1.) Despite the efforts of Miller's counsel and defendants' counsel, the intended officer has not been identified or served. (Id. at 1 n1.) As a result, the pending motion to dismiss does not address Counts One and Two because they pertain only to Jarowski (Mot. to Dismiss 3, ECF No. 80), and neither does this order.

         In his complaint, Miller pleads claims for constitutional violations under 42 U.S.C. § 1983; violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and battery claims under Illinois law for which he invokes this court's supplemental jurisdiction, see 28 U.S.C. § 1367(a); 6th Am. Compl. ¶ 2. The constitutional and ADA issues raised include prison guards' refusal to transport Miller to court because he used a medically prescribed wheelchair, guards' use of excessive force, retaliation, and deliberate indifference by CCDOC medical personnel to Miller's serious medical needs. Because this is a Rule 12(b)(6)

         motion, the court recites the well-pleaded factual allegations in the complaint in the light most favorable to Miller and accepts them as true. See, e.g., Manistee Apts., LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016).

         Miller suffered multiple gunshot wounds during his arrest. (6th Am. Compl. ¶ 4.)

         Miller received a prescription from a medical provider authorizing him to use a walker to move short distances and a wheelchair to travel longer distances. (¶ 20.) Miller also had a gastrointestinal tube (“GI tube” or “g-tube”) while he was at the Cook County jail. (¶ 53.) Miller has also been diagnosed with epilepsy. (¶ 52.)

Due to emergency abdominal surgery performed in June 2011, Mr. Miller's abdominal wall has an opening, where his g-tube was inserted until it fell out following his fall in March 2013. Miller has a large incisional ventral hernia and percutaneous fistula communicating with his stomach secondary to his non-healing g-tube site. This results in an open wound which continues to this day to leak fluids. His stomach muscles are detached as a result of earlier surgery dating from his initial incarceration and have not yet been successfully reconnected.

(Compl. ¶ 63.)

         A. Medical Treatment

         Physician's orders required Miller's bandages to be changed twice each day. (¶ 89.) Defendant Elizabeth Jefferson (“Jefferson”), a nurse, disregarded those orders and changed Miller's bandages no more than once every two or three days. (¶ 90.) Miller developed infections and sores on an ongoing basis as a result. (¶ 91.) Nurses, including Jefferson, also refused to provide him with a physician-prescribed painkiller for arm pain related to a gunshot wound, prescribed medication for his epilepsy, depression, anxiety, and neck pain. (¶¶ 92-93.)

         Defendant Officer Cruz also prevented Miller from obtaining prescribed medication on January 5, 2014. (¶ 94.)

         Repeatedly, doctors at Cook County hospital tried to schedule Miller for reconstructive surgery but to no avail. (See 6th Am. Compl. ¶¶ 65-67.) Though defendant Dr. Mohammed Mansour (“Mansour”) examined Miller approximately fifteen times during the relevant time period (¶ 66), CCDOC officials refused to facilitate Miller's surgery (¶ 67; see also ¶¶ 68-69 (alleging CCDOC officials refused to abide by Cook County hospital officials' recommendations for presurgery dietary restrictions)).

         B. Fall From Bunk

         In March 2013, a physician treating Miller for epilepsy had ordered that he sleep only on the lower bunk because of the danger of a seizure. (¶ 52.) Despite knowing of his physician's order, correctional officers, including defendant Duran, ordered Miller to sleep on the top bunk. (¶ 55.) Miller suffered serious injuries, including his GI tube falling out and aggravation of his fistula, when he fell from the top bunk during a seizure on March 24, 2013. (¶¶ 56-57.) Corrections officers at the CCDOC nevertheless continued to require Miller to sleep on the top bunk after he fell. (¶ 58.) He fell twice more. (Id.)

         C. Court Appearances

         Two of the defendants, Sheahan and Mundt, refused to take Miller to a scheduled court appearance in a criminal proceeding because he needed to use a wheelchair. (¶¶ 34, 41.) This happened on at least two dates. (¶¶ 34, 35.)

         D. Excessive Force

         Defendant Majousch struck Miller in the stomach during a pat down on July 2, 2013. (¶ 72.) When Miller told Majousch about the condition of his abdomen, Majousch slapped Miller in the face. (¶ 73.) Majousch's supervisor, defendant Crump, sat a few feet away and saw what happened but did not intervene, ignoring Miller's request to file battery charges. (¶¶ 74-75.) Shortly after the July 2 incident, Miller had diarrhea with blood in his stool. (¶ 76.) Blood also leaked from his GI tube site. (Id.) In retaliation for Miller's grieving the incident, Majousch falsified a disciplinary ticket against Miller, which led to him being placed in administrative segregation. (See 6th Am. Compl. ¶¶ 81-84.)[1]

         Miller filed grievances about his medical care in August and October 2013. (¶ 99, 101.) In retaliation, CCDOC officers pounded on Miller's stomach wound during pat downs and humiliated him. (¶ 102.) Miller also links the refusal to arrange his reconstructive surgery to his grievances. (¶ 100.)

         In late 2013, defendant Toledo kicked Miller's walker away from him. (¶ 46.) Toledo retaliated against Miller for complaining in February 2012 that Toledo was physically abusing him. (¶ 46.) On February 26, 2014, Miller was waiting in “the bullpen” for a scheduled appointment with his surgeon. (¶ 108.) Miller overheard someone say that his doctor was ready to see him. (¶ 109.) Miller informed Cruz that the surgeon was ready to see him, but Cruz first ignored him and then began hitting Miller on his chest and stomach. (¶¶ 109-10.) Cruz and defendant Michalski “then moved Miller to another bullpen and handcuffed him in a torturous[2]way.” (¶ 111.) Miller asked to use the bathroom; ...

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