United States District Court, N.D. Illinois, Eastern Division
Areli Yasmin Hernandez Avitia, Independent Administrator of the Estate of Jairo Avitia, Plaintiff,
Thomas Dart, et al., Defendants.
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge.
Areli Yasmin Hernandez Avitia's brother committed suicide
while a pretrial detainee at the Cook County Jail. Plaintiff
believes that her brother's death was the result of
inadequate medical care provided by those working at the
jail, and brings claims under both federal and state law.
Defendants Thomas Dart, the Sheriff of Cook County, and
employees of the sheriff's office move to dismiss for
failure to state a claim, , and defendants Cook County
and employees of the County's Cermak Health Services
department filed a partial motion to dismiss. . For the
following reasons, those motions are granted in part and
denied in part.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain factual allegations that plausibly suggest a
right to relief. Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 558 (2009)). “The purpose
of a motion to dismiss is to test the sufficiency of the
complaint, not to decide the merits.” Triad
Assocs., Inc. v. Chicago Hous. Authority, 892 F.2d 583,
586 (7th Cir. 1989). When analyzing a motion under Rule
12(b)(6), a court must construe all factual allegations as
true and draw all reasonable inferences in the
plaintiff's favor, but a court need not accept legal
conclusions or conclusory allegations. Virnich, 664
F.3d at 212 (citing Ashcroft v. Iqbal, 556 U.S. 662,
Areli Yasmin Hernandez Avitia serves as independent
administrator of the estate of her brother, Jairo Avitia.
 ¶ 3. On January 24, 2015, Mr. Avitia was placed
in the Cook County Department of Corrections as a pretrial
detainee.  ¶ 8. As part of the intake process, Mr.
Avitia underwent a physical and mental health evaluation
conducted by defendants Lena Colon and Anita Johnson,
employees of Cermak Health Services of Cook County. 
¶¶ 7, 10. According to the complaint, Colon and
Johnson either failed to identify or deliberately disregarded
Mr. Avitia's unstable mental health and risk of suicide,
even though he had been referred for a psychological
evaluation.  ¶ 10. Nevertheless, a medical alert for
Mr. Avitia was entered that afternoon (by whom is unknown),
signaling a need for additional monitoring.  ¶ 11.
his need for mental health treatment and supervision, Mr.
Avitia was placed in the general population section of the
jail.  ¶ 12. Defendants Fay Flemister, Gerard Meyer,
and Katie Harrison, supervisors at the jail who were
responsible for scheduling shifts for the guards, assigned
correctional officers Laura Pliego and Anthony Garner to
watch multiple tiers of cells at once.  ¶¶ 6,
29, 31. As a result, none of the officers or supervisors
checked up on Mr. Avitia closely or regularly.  ¶
32. The next day, Mr. Avitia hanged himself, and he died four
days later.  ¶¶ 16-17.
plaintiff's second amended complaint, after her first was
dismissed for failure to state a claim. See .
Plaintiff amended the complaint to provide more details
concerning each defendant's role with respect to claims
against the individual defendants, and some additional facts
related to the policies and practices in place at the jail.
Like the first amended complaint, the second alleges multiple
facts in the alternative, and multiple defendants are lumped
together under the same claims without distinction, though
some of them might have nothing to do with the culpable acts
alleged. Plaintiff claims that the complaint is necessarily
vague, because she does not know the internal processes of
the jail, and there is some merit to that explanation. While
plaintiff has a ways to go before proving any claims against
defendants, the amended complaint does, as explained below,
give the individual defendants sufficient notice of the
nature of the claims alleged.
brings claims under 42 U.S.C. § 1983 against the
correctional officers, their supervisors, and Cook County
(Count I), against Colon and Johnson (Count II), and against
Sheriff Dart and Cook County (Count III) for deliberate
indifference to Mr. Avitia's medical needs. She also brings
claims for willful and wanton conduct under Illinois law
against the correctional officers, their supervisors, and
Cook County (Counts IV and V) and against Colon, Johnson, and
Cook County (Counts VI and VII).
state a claim for inadequate medical care under the Eighth
and Fourteenth Amendments, plaintiff must allege (1) an
objectively serious medical need, and (2) a prison
official's deliberate indifference to that condition.
Thomas v. Cook Cty. Sheriff's Dep't, 604
F.3d 293, 301 (7th Cir. 2010). The sheriff's office
defendants do not dispute whether Mr. Avitia alleged an
objectively serious medical need, but they do question
whether the complaint plausibly alleges deliberate
indifference with respect to the correctional officers,
Pliego and Garner (and other “Unknown Correctional
Officers”), or their supervisors, Flemister, Meyer, and
Harrison. “Deliberate indifference occurs when a
defendant realizes that a substantial risk of serious harm to
a prisoner exists, but then disregards that risk.”
Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir.
2015). The sheriff's office defendants argue that the
complaint does not allege the requisite mental state-that
they knew that Mr. Avitia had a serious medical need-or that
they disregarded the risk posed by that need.
the complaint is not a model of clarity, it does allege that
the individual sheriff's office defendants were aware of
Mr. Avitia's medical needs and ignored them. Plaintiff
alleges, at least in the alternative, that they knew of the
risk to Mr. Avitia's health because of the medical alert
“related to [his] monitoring.”  ¶ 11.
Beyond a connection to the monitoring of Mr. Avitia, the
precise meaning of the medical alert is not alleged. Mr.
Avitia was also referred for a psychological evaluation on
the same day, (see  ¶¶ 10, 28), but
the complaint does not make clear whether that referral is
related to the medical alert. However, it can be reasonably
inferred from the complaint that the medical alert indicated
the existence of a medical condition that called for a
particular monitoring protocol- one that differed from the
protocol actually instituted. It can also be inferred that
the medical alert was communicated to the individual
sheriff's office defendants, establishing their
subjective knowledge of Mr. Avitia's medical need.
Plaintiff also argues that those defendants' subjective
knowledge can be inferred based on their observation of Mr.
Avitia's erratic behavior, but the complaint's vague
allegation of erratic behavior does not plausibly suggest
that the correctional officers or supervisors would have
identified a risk of suicide merely by watching him.
also alleges that the individual sheriff's office
defendants disregarded the risk of harm to Mr. Avitia by
failing to monitor him closely, send him for further
evaluation, or provide him with appropriate medical
attention. The supervisors, Flemister, Meyer, and Harrison,
assigned the correctional officers to
“cross-watch” the tiers of cells-to monitor
multiple tiers at once-which was presumably inadequate to
address Mr. Avitia's needs. And neither the supervisors
nor the correctional officers referred him for the mental
health treatment he needed, or treated him any differently
than others at the jail who did not face a risk of suicide.
The complaint need not allege any more to provide defendants
with fair notice of the nature of the claims against them.
After inferring that the medical alert was communicated to
the individual sheriff's office defendants, that the
alert conveyed information regarding Mr. Avitia's serious
medical need, and that the defendants ignored that need, I
conclude that the complaint states a claim under § 1983