United States District Court, N.D. Illinois, Eastern Division
RICHARD A. BRANDES, Plaintiff
TED UCHIEK, WILLIAM KINVILLE, SHERIFF MARK C. CURRAN, ERIC MIZUNO, ARMOR CORRECTIONAL HEALTH SERVICES, INC., and COUNTY OF LAKE, IL, Defendants.
L. Alonso United States District Judge
Mark Curran, Ted Uchiek, William Kinville and the County of
Lake's Motion to Dismiss the Second Amended Complaint
 and Defendants Mizuno and Armor Correctional Health
Services, Inc.'s Motion to Dismiss Plaintiff's Second
Amended Complaint  are granted. Plaintiff is given one
last chance to amend his complaint by February 14, 2018 to
state a claim or this case will be dismissed with prejudice.
Status hearing previously set for January 23, 2018 is
stricken and reset to March 15, 2018, at 9:30 a.m.
brought a pro se complaint alleging that he received
constitutionally deficient medical care while incarcerated at
Lake County Correctional Facility. After recruited counsel
amended the complaint, Defendants moved to dismiss for
failure to state a claim. Recruited counsel subsequently
withdrew from the case. New counsel was recruited for
plaintiff, and a second amended complaint was filed.
Defendants now move to dismiss the second amended complaint.
alleges that he was an inmate at the Lake County Correctional
Facility from about January 13, 2016 to July 2016. [Dkt 41
¶ 2.] He complains that as early as February 12, 2016 he
requested treatment, diagnosis, and relief from the pain
associated with the growth of painful bumps on both of his
feet that was later diagnosed to be Plantar Fibromatosis.
[Dkt 41 ¶¶ 2, 9, 11, 12.] According to Plaintiff,
Defendants failed to timely schedule a doctor visit for
Plaintiff, failed to timely schedule Plaintiff for surgery,
failed to provide Plaintiff with appropriate shoes and/or
proper and effective pain medication, failed to provide
timely replacement of Plaintiff's dressings, and refused
to allow Plaintiff to use a wheelchair less than a month
after the surgery he ultimately underwent. [Id.
¶ 14.] Plaintiff alleges that Defendants' actions
demonstrate deliberate indifference to his serious medical
condition, causing Plaintiff to unnecessarily experience
severe pain. [Id. ¶¶ 13-16.]
Mark Curran, Ted Uchiek, William Kinville and the County of
Lake (“the Sheriff Defendants”) move to dismiss
the Second Amended Complaint on the basis that it fails to
state a claim against them for deliberate indifference, and
that no claim could be stated against them because they are
entitled to rely on the medical providers at the jail. [Dkt
42] Defendants Dr. Eric Mizuno and Armor Correctional Health
Services, Inc. (the “Medical Defendants”), also
move to dismiss the complaint on the basis that it fails to
state a claim against them, fails to allege any personal
involvement by Dr. Mizuno in the alleged constitutional
deprivation, and fails to state a claim against Armor under
Monell v. N.Y. Dep't of Soc. Servs., 436 U.S.
658, 694 (1978). [Dkt 44.]
initial matter, the Court declines both sets of
defendants' invitation to consider the allegations of the
first amended complaint in weighing the sufficiency of the
second one. “It is axiomatic that an amended complaint
supersedes an original complaint and renders the original
complaint void.” Flannery v. Recording Industry
Ass'n of America, 354 F.3d 632, 638 n. 1 (7th Cir.
2004). Regardless, as both sets of defendants acknowledge,
the second amended complaint is “essentially the same
in substance” as the last one. [Dkt 44 at 3;
accord dkt 42 at 4.] It is the substance of the
operative complaint that is tested by the current motions to
Federal Rule of Civil Procedure 8(a)(2), a complaint must
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The
short and plain statement under Rule 8(a)(2) must “give
the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
Under the federal notice pleading standards, a
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative
level.” Id. Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
attempts to state a claim for deliberate indifference.
“Prison officials violate the Eighth Amendment's
proscription against cruel and unusual punishment when they
display ‘deliberate indifference to serious medical
needs of prisoners.'” Greeno v. Daley, 414
F.3d 645, 652 (7th Cir. 2005) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). A pretrial
detainee's Fourteenth Amendment due process rights to
medical care are “at least as great as the Eighth
Amendment protections available to a convicted
prisoner.” City of Revere v. Massachusetts Gen.
Hosp., 463 U.S. 239, 244 (1983); see also Estate of
Miller v. Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012). To
state a claim based on deliberate indifference, the plaintiff
must allege facts indicating that “his medical
condition is ‘objectively, sufficiently serious.”
Lewis v. McLean, 864 F.3d 556, 563 (7th Cir. 2017)
(quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)); see also McDonald v. Hardy, 821 F.3d 882,
889 (7th Cir. 2016) (an objectively serious medical condition
is one that has been diagnosed by a doctor as needing
treatment, or a condition so serious that even a lay person
would easily recognize the need for medical attention).
Plaintiff must also allege “that prison officials acted
with a ‘sufficiently culpable state of mind, ' -
i.e., that they both knew of and disregarded an
excessive risk to inmate health.” Lewis, 864
F.3d at 563 (quoting Farmer, 511 U.S. at 834)
(internal citation omitted). Prison officials may exhibit
deliberate indifference to a known condition through
inaction, see Gayton v. McCoy, 593 F.3d 610, 623-24
(7th Cir. 2010), or by delaying treatment and thus
aggravating an injury or needlessly prolonging an
inmate's pain, see Lewis v. McLean, 864 F.3d
556, 563 (7th Cir. 2017); Gomez v. Randle, 680 F.3d
859, 865-66 (7th Cir. 2012). Deliberate indifference rests on
an intentional or essentially criminally reckless standard,
rather than merely negligent conduct. See McGee v.
Adams, 721 F.3d 474, 480-81 (7th Cir. 2013). A plaintiff
must show that the prison official was on “sufficient
notice to alert him or her to ‘an excessive risk to
inmate health or safety.'” Vance v.
Peters, 97 F.3d 987, 993 (7th Cir. 1996) (quoting
Farmer, 511 U.S. at 834).
second amended complaint, Plaintiff complains of
defendants' delays in his treatment collectively, and
inadequacies in his medical care not attributed to any
particular defendant. He alleges that he experienced great
pain as a result. Plaintiff fails to allege however whether
and when any particular defendant knew of his condition, or
that any particular defendant caused or in any way
participated in the lack of care about which he complains.
Indeed, in the one place where Plaintiff makes allegations
against each of the defendants respectively, he does so only
to identify their supervisory roles. [Dkt 41 ¶ 3-5.]
Specifically, he alleges that each of the Sheriff Defendants
had “direct supervisory responsibility” either
for “the care of inmates in custody, ” or
“for fulfilling the County's duties to inmates and
the Plaintiff on a day to day basis.” [Id.] As
to the Medical Defendants, Plaintiff only alleges that Dr.
Mizuno had “direct responsibility for the diagnosis,
care and treatment of the Plaintiff.” [Id.
¶ 6.] Plaintiff alleges even less as to Armor
Correctional Health Services, stating only that it was a
contract healthcare services provider to inmates at the jail,
and that Dr. Mizuno was “provided” to the jail
pursuant to the contract. [Id. ¶ 7.]
second amended complaint fails to state a claim. “The
Rules of Civil Procedure set up a system of notice pleading.
Each defendant is entitled to know what he or she did that is
asserted to be wrongful.” Bank of America, N.A. v.
Knight, 725 F.3d 815, 818 (7th Cir. 2013). Section 1983
liability is dependent on personal liability and predicated
on fault; an individual may be held liable under § 1983
only if he caused or participated in a constitutional
deprivation. See Kuhn v. Goodlow, 678 F.3d 552, 556
(7th Cir. 2012); Pepper v. Vill. of Oak Park, 430
F.3d 809, 810 (7th Cir. 2005). Without any allegations as to
who did what, Plaintiff fails to state a colorable claim of
deliberate indifference to a serious medical need against any
claim against Sheriff Curran and Armor fail for another
reason. Contrary to Plaintiff's argument, there is no
respondeat superior (supervisory) liability under
§ 1983. See. See Arnett v. Webster,
658 F.3d 742, 751 (7th Cir. 2011) (citing Iqbal, 556
U.S. 677). Supervisors can be held responsible for the
constitutional violations of their subordinates only if the
violations occurred at the supervisor's direction or with
his or her knowledge and consent. See Hildebrandt v. Ill.
Dep't of Nat. Res., 347 F.3d 1014, 1039 (7th Cir.
2003). To the extent Plaintiff seeks to bring a claim against
Sheriff Curran individually (or any other defendant) in his
supervisory role, he must allege sufficient material from
which it can plausibly be said that the violation occurred at
his direction or with his knowledge and consent. Id.
To the extent that Plaintiff seeks to bring a claim against
Sheriff Curran in his official capacity, it is treated as a
claim against the Lake County Sheriff's Office, not the
individual employee or office holder. See Walker v.
Sheahan, 526 F.3d 973, 977 (7th Cir. 2008). A
governmental unit, in turn, cannot be held liable under
§ 1983 unless the deprivation of constitutional rights
is caused by its own policy or custom. See id;
Monell, 436 U.S. at 694.
a private corporation like Armor that has contracted to
provide essential government services such as health care for
prisoners also cannot be held liable under § 1983 unless
the constitutional violation was caused by an
unconstitutional policy or custom of the corporation itself.
See Shields v. Ill. Dep't. of Corr., 746 F.3d
782, 789 (7th Cir. 2014). Instead, Plaintiff can state a
§ 1983 claim against Armor by alleging that “his
injury was caused by [an Armor] policy, custom, or practice
of deliberate indifference to medical needs, or a series of
bad acts that together raise the inference of such a
policy.” Id. at 796. Contrary to
Plaintiff's argument, the mere recitation of the timeline
in which he sought and received services is insufficient to
state such a claim. Instead, Plaintiff must allege that:
“(1) the [defendant] had an express policy that, when
enforced, causes a constitutional deprivation; (2) the
[defendant] had a widespread practice that, although not
authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage
within the force of law; or (3) plaintiff's
constitutional injury was caused by a person with final
policymaking authority.” McCormick v. City of
Chicago, 230 F.3d 319, 324 (7th Cir. 2000). Plaintiff
makes no such allegations.
has already been given leave to amend his complaint. In this
court's discretion, Plaintiff is given yet another chance
to state a viable claim. Any amended complaint must provide
sufficient detail to determine what each defendant allegedly
did that denied him of a constitutional right. To the extent
that Plaintiff seeks to bring a claim against an individual
defendant in his or her supervisory capacity, Plaintiff must
state what the supervisor knew or to what he or she
consented. To the extent Plaintiff intends to state a
Monell claim against any ...