United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Ronald Brainer brings this action pursuant to 42 U.S.C.
§ 1983 against Cook County Jail Officers and Counselors
Regina Senese, Tariq Lucas, Hubert Thompson, Jeaneane Booker,
Lester Hampton, John Mueller, and Cook County Sheriff Thomas
Dart (collectively, “defendants”). Plaintiff
alleges deliberate indifference to substantial risk of harm
and to his medical needs in violation of his Fourteenth
Amendment rights following an altercation with another
inmate. Defendants have moved to dismiss the second amended
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons set forth below, defendants'
motion to dismiss (Dkt. 40) is denied.
relevant times, Brainer was a pre-trial detainee at the Cook
County Jail. On June 24, 2014, Brainer was involved in a
physical altercation with another inmate named B. Schulten
that was broken up by two unknown officers. After that
altercation, Brainer told those officers that Schulten had
threatened his life and that he feared for his safety. No.
action was taken to re-locate Brainer or Schulten to a
different housing unit.
that night, while Brainer was resting in his bed, inmate
Schulten stabbed him in his right temple and ear. Defendant
Officer Senese was on duty at the time of the attack, but did
not witness the attack. Eventually, Officer Senese removed
Brainer from the housing unit for questioning by defendant
Officer Lucas. Defendant Officer Thompson was also made aware
of the attack at this time.
hours after the attack, Brainer was taken to Cermak Health
Services for medical treatment, at which point it was
determined that he needed to be transported to Stroger
Hospital. At Stroger, Brainer's wound was stitched up.
Despite complaints of hearing loss, his hearing was not
tested at that time. After treatment, Brainer was transported
back to Cermak Health Services, placed in the same waiting
room as inmate Schulten, and subjected to further threats.
After being released from Cermak, Brainer was returned to the
same housing unit where Schulten continued to reside.
26, 2014, Brainer prepared a grievance relating to the attack
and defendants' failure to protect him from harm. The
grievance was received by defendant Booker, but no action was
taken. On July 10, 2014, Brainer filed another grievance,
complaining of continued threats and harassment by Schulten,
but again no action was taken. At some point between the
attack and August 9, 2014, Brainer also wrote a letter to
defendant Sheriff Dart complaining about his health and
safety. He received no response from Sheriff Dart. Between
July 30, 2014 and August 9, 2014, Schulten was finally moved
to a different housing unit. After the attack, Brainer also
continued to complain of hearing loss and repeatedly asked to
see a physician or have his hearing tested. His requests were
8, 2016, Brainer filed a pro se complaint against
defendants Dart, Booker, Hampton, Hurb, Jane Does 1-5, and
John Does 1-5 alleging failure to protect under 42 U.S.C.
§ 1983 and failure to properly address his grievances.
(Dkt. 1.) The Clerk of Court quickly informed Brainer that
his complaint included personal identifiers and was thus not
in compliance with Federal Rule of Civil Procedure 5.2.
Brainer's almost identical amended complaint (this time
without personal identifiers) was received on July 11, 2016.
(Dkt. 9.) Around that same time, Brainer filed a motion for
attorney representation. (Dkt. 7.)
September 8, 2016, after the initial screening required for
pro se prisoner complaints, see 28 U.S.C.
§1915A(a), the District Court issued an order finding
that Bainer's amended complaint did not state a cause of
action for failure to address his grievances. (Dkt. 10 at
3-4.) The Court did find, however, that Brainer had stated a
colorable cause of action for failure to protect against
defendant Dart. (Id. at 3.) Further, the Court noted
that Brainer “arguably may be able to state a failure
to protect claim against some or all of the unknown
correctional officers.” (Id.) The Court
advised Brainer, however, that he could not proceed against
any unknown officers until he identified them and named them
in an amended complaint. (Id.)
Brainer was further advised that he should attempt to
identify the unknown officers as soon as possible “in
light of the two-year statute of limitations and applicable
tolling rules.” (Id.) In the same order, the
District Court granted Brainer's motion for attorney
representation, and appointed Joseph Korn to represent him.
(Id. at 4.)
November 2, 2016, attorney Korn filed a motion seeking relief
from the appointment, arguing that he lacked the necessary
competence to represent Brainer in this § 1983 case.
(Dkt. 14.) The District Court denied that motion at a hearing
on November 10, 2016, and granted Brainer until January 13,
2017 to file an amended complaint. (Dkt. 17.) Brainer's
counsel also sought and was granted leave to issue subpoenas
to the Cook County Sheriff's Office and Cook County
Health and Hospital Systems seeking additional information
about Brainer's allegations and the unknown officers.
(Dkt. 23.) Subsequently, Brainer was granted two additional
extensions of time to file his amended complaint. (Dkt. 27
eventually filed his second amended complaint (the operative
pleading) on May 1, 2017 against defendants Senese, Lucas,
Thompson, Booker, Hampton, Mueller, and Dart alleging the
facts enumerated above. (Dkt. 31.) Count I alleges deliberate
indifference to a substantial risk of harm against defendants
Senese, Lucas, Thompson, Booker, Hampton, and Mueller. Count
III alleges deliberate indifference to a serious medical need
against Senese, Lucas, Thompson, Booker, and Hampton. Counts
II and IV allege Monell claims against Sheriff Dart
based on the causes of action pled in Counts I and III,
now seek to dismiss certain claims under Rule 12(b)(6)
arguing that plaintiff's claims are (1) barred by the
two-year statute of limitations; (2) legally insufficient
pursuant to Babcock v. White, 102 F.3d 267 (7th Cir.
1996); and (3) fail to properly allege a policy or practice
against Sheriff Dart. Each issue is addressed in turn below.
Standard on a Rule 12(b)(6) Motion to Dismiss
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint for failure to state a claim
upon which relief may be granted. Hallinan v. Fraternal
Order of Police of Chicago Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, it must contain enough facts to state a claim
for relief that is plausible on its face. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 570). When
ruling on a 12(b)(6) motion to dismiss, the Court construes
the complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts alleged and drawing
all possible inferences in the plaintiff's favor.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
Statute of Limitations
first argue that plaintiff's § 1983 claims against
Senese, Lucas, Thompson, and Mueller must be dismissed as
time-barred under the applicable two-year statute of
limitations. According to defendants, plaintiff's
cause of action began to accrue on June 24, 2014, the date of
the incident with inmate Schulten. Defendants argue that
because plaintiff failed to specifically name defendants
Senese, Lucas, Thompson, and Mueller until May 1, 2017, well
after the two-year statute of limitations had expired, his
claims against those defendants must fail. Plaintiff responds
that the second amended ...