United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Johnson Coleman United States District Court Judge.
plaintiff, Jeremiah John Cherry, brings this suit against
Cook County Sheriff Thomas Dart in his official and
individual capacity, alleging that Dart violated his Eight
Amendment and Fourteenth Amendment rights. Dart now move this
Court to dismiss this case for failure to state a claim on
which relief may be granted. For the reasons set forth below,
that motion  is granted and Cherry's third amended
complaint is dismissed without prejudice as set forth below.
following allegations from the third amended complaint are
taken as true for the purpose of ruling on the present
motion. Cherry has been an inmate in the Cook County prison
system since January 21, 2013. In 2014, Cherry began to
suffer from medical issues including hives, hand numbness,
partial blindness, and swelling of the face, lips, and
tongue. These symptoms arose repeatedly and required multiple
hospitalizations after they interfered with Cherry's
ability to breathe. In April 2015, Cherry was sent to the
Stroger Hospital for an allergy test. Following that test, a
jail physician informed Cherry that his reactions were likely
due to mold exposure, but that only an expert could make that
determination. At a subsequent visit to Stroger, it was
determined that Cherry experienced adverse allergic reactions
to dust mites, mold, and cockroaches.
was not allowed to subsequently return to Stroger to see an
allergy specialist, and his grievances concerning his
condition have all been denied or ignored by prison
employees. Cherry was housed in Division 1 of the Cook County
Jail for three years, and during that time he personally
observed mold colonizing the walls and ceiling.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint, not
the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to
relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Although Rule 8 does not require a plaintiff to plead
particularized facts, the complaint must allege factual
“allegations that raise a right to relief above the
speculative level.” Arnett v. Webster, 658
F.3d 742, 751-52 (7th Cir. 2011). Put differently, Rule 8
“does not require ‘detailed factual allegations,
' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009), see also Fed. R. Civ.
P. 8(a). When ruling on a motion to dismiss, the Court must
accept all well-pleaded factual allegations in the complaint
as true and draw all reasonable inferences in the
plaintiff's favor. Park v. Ind. Univ. Sch. of
Dentistry, 692 F.3d 828, 830 (7th Cir. 2012).
order to find governmental agencies or employees liable in
their official capacities in a Section 1983 action, a
plaintiff must show that he suffered injuries of a
constitutional magnitude as a result of an official policy,
practice, or custom. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). In order to state a viable official capacity claim, a
plaintiff must therefore allege that his injury was caused by
(1) an express policy that, when enforced, causes a
constitutional deprivation, (2) a widespread practice that,
although not expressly authorized, is so permanent and well
settled as to constitute a custom or usage with the force of
law, or (3) a person with final policymaking authority.
Houskins v. Sheahan, 549 F.3d 480, 493 (7th Cir.
2008). Although a plaintiff asserting a Monell claim
is not held to a heightened pleading standard, a plaintiff
must plead factual content sufficient to support a reasonable
inference that the defendant maintained a policy, custom, or
practice that caused a constitutional violation. McCauley
v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
Cherry has not alleged the existence of any policy or
widespread practice giving rise to the constitutional harm
that he alleges. The specific constitutional harm that Cherry
alleges is predicated upon his allergy to mold and his
subsequent exposure to mold in the Cook County Jail. Cherry,
in his response, asserts that he has sufficiently alleged a
Monell claim because he has alleged that Dart had a
custom of allowing mold to colonize in Division 1 jail cells.
This allegation, however, does not comport with Cherry's
complaint, which alleges harm based on the combination of
permitting mold to colonize the cells and placing prisoners
like Cherry who are allergic to mold in those cells.
Cherry's allegation regarding the mold, moreover, is a
single allegation of localized unconstitutional conduct that
is insufficient to establish the existence of a policy or
custom. Summers v. Sheahan, 883 F.Supp. 1163, 1172
(N.D. Ill. 1995) (Castillo, J.) (citing City of Oklahoma
v. Tuttle, 471 U.S. 808, 822-823, 105 S.Ct. 2427, 85
L.Ed.2d 791 (1985)). Cherry also has not plausibly alleged
that Sheriff Dart was the cause of his constitutional injury.
Although Cherry alleges that Dart “knowingly allowed
mold to colonize the interior of Division I, ” Cherry
offers no factual allegations suggesting that Dart had
knowledge of the mold in Cherry's cell, of the grievances
that Cherry filed, or of Cherry's mold allergy. Cherry
has therefore failed to sufficiently allege a claim against
Dart in his official capacity.
also alleges that Sheriff Dart violated his constitutional
rights while acting in his individual capacity. In order to
proceed against a defendant in their individual capacity, a
plaintiff must show that the defendant was personally
involved in depriving him of his constitutional rights.
Hildebrandt v. Ill. Dept. of Natural Res., 347 F.3d
1014, 1039 (7th Cir. 2003). The conduct giving rise to the
constitutional deprivation must occur at the defendant's
direction or with his knowledge and consent. Id.
(quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th
Cir. 1995)). Here, Cherry has failed to allege any facts
sufficient to suggest that Dart had knowledge of the mold in
Division I or the plaintiff's medical needs, or that he
in any way consented to the allegedly unconstitutional
conduct at issue. See Antonelli v. Sheahan, 81 F.3d
1422, 1429 (7th Cir. 1995) (affirming the dismissal of counts
alleging localized, non-systematic constitutional violations
that the Sheriff could not be expected to have known of or
participated in). Although Cherry argues that Dart was given
“fair warning” of the adverse effect that mold
had on him when he was sent to Cermak Health Services, Cherry
has not plausibly alleged that Dart personally had any
knowledge of that visit, of the mold growing in Division I,
or of the health risk that that mold would pose to Cherry.
foregoing reasons, Dart's motion to dismiss  is
granted. This Court acknowledges that it has previously
dismissed a prior version of Cherry's complaint for
failure to state a claim. Nevertheless, in light of
Antonelli v. Sheahan this Court is reluctant to
dismiss Cherry's claims with prejudice at this juncture
in the proceeding. Cherry's claims of a mold infestation
constitute the sort of systematic constitutional violation
contemplated by Antonelli and, in this Court's
estimation, the manifest interest of justice warrants
affording Cherry one final opportunity to adequately state
his constitutional claim notwithstanding the fact that Cherry
has been represented by appointed counsel throughout this
proceeding. See Antonelli v. Sheahan, 81 F.3d 1422,
1428-29 (7th Cir. 1996) (recognizing that the dismissal of a
pro se complaint on grounds that it fails to allege the
active personal involvement of an official is inappropriate
where the official's position justifies an inference that
the official had some direct involvement in the alleged
violation, such as when the claim concerns potentially
systematic constitutional violations). Accordingly,
Cherry's third amended complaint is dismissed without
prejudice. Cherry ...