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Russell v. Dart

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

May 25, 2018

KENNETH T. RUSSELL, Plaintiff,
v.
THOMAS DART et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo, Chief Judge

         Kenneth Russell ("Plaintiff") brings this action against Cook County ("Cook County"), Thomas Dart, Sheriff of Cook County ("Dart"), Printiss Jones, Superintendent of Division 9 at Cook County Jail ("Jones"), and several named and unknown Cook County correctional officers asserting claims under 42 U.S.C. § 1983 for the alleged deprivation of his constitutional rights and Illinois tort law. (R. 27, Second Am. Compl.) Cook County, Dart, and Jones move to dismiss several of Plaintiff s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and 735 III. Comp. Stat. 5/2-615. (R. 51, Mot.) For the reasons stated below, the Court grants the motion in part and denies it in part as set forth below.

         BACKGROUND[1]

         Plaintiffs claims arise out of a vicious attack he endured on November 15, 2016, while jailed at Cook County Jail ("CCJ"), awaiting sentencing in a criminal case. (R. 27, Second Am. Compl. ¶¶ 1, 9, 17.) At the time, Plaintiff was assigned to a cell in Division 9, Tier 3-E at CCJ. (Id.) Plaintiff is not a member of a gang, but his cellmate, Carlos Rivera ("Rivera"), was a known member of the Latin Kings. (Id. ¶¶ 1, 18, 20, 24.) Around 10:00 p.m. that evening, Plaintiff was in the shower along with other inmates, including Rivera. (Id. ¶¶ 21, 24.) Correctional Officer John Doe ("Officer Doe") was guarding the inmates and, Plaintiff alleges, could see and hear all their movements and conversations.[2] (Id. ¶ 22.) Another inmate gestured toward Plaintiff and said to Rivera, "Take care of that, " which Plaintiff claims is widely understood in the jail setting to be a gang command to physically injure someone. (Id. ¶ 25.) Plaintiff alleges that Officer Doe heard the command and understood it to be an immediate threat to Plaintiffs safety. (Id. ¶ 26.) Plaintiff also expressly told Officer Doe that he would be in danger if he went back into his cell with Rivera; Officer Doe responded that if Plaintiff did not return to his cell, Doe would spray him with mace. (Id. ¶ 30.) Under protest, Plaintiff returned to his cell. (Id.)

         Between 10:15-10:30 p.m., Plaintiff was standing at the door of his cell when Rivera approached and stabbed him multiple times in the front and back using two sharp objects, one in each hand. (Id. ¶ 31.) Plaintiff also received cuts to his hand and other areas of his body. (Id. ¶ 32.) To defend himself, Plaintiff grabbed one of the sharp objects and knocked the other out of Rivera's hand, then knocked Rivera to the floor. (Id.)

         Following the attack, Plaintiff lay on his bed, in severe pain and respiratory distress, and rapidly losing blood. (Id. ¶ 33.) When Officer Doe came to investigate, Plaintiff told Officer Doe that he had been stabbed and was having a seizure. (Id.) Officer Doe left the cell and never returned, instead allegedly waiting for his shift to end so that he would not have to take any action. (Id. ¶¶ 33, 36.) At approximately 11:00 p.m., Officer Doe's shift ended and he went off-duty. (Id. ¶ 37.) At the same time, Correctional Officers D. Ortiz ("Officer D. Ortiz") and J. Ortiz ("Officer J. Ortiz") came on duty for their 11:00 p.m. shift. (Id. ¶¶ 14, 37.) Around this time, other inmates began yelling for a guard to come to Plaintiffs cell. (Id. ¶ 38.) When no one came, someone started a fire to get the attention of guards. (Id.) Eventually, Officers D. Ortiz, J. Ortiz, and Correctional Officer Sergeant T. Shults ("Officer Shults") came to investigate and observed Plaintiff lying on the bottom bunk with blood on his pants and what appeared to be stab wounds to his chest. (Id. ¶¶ 2, 39.) Plaintiff told them that he had been stabbed by Rivera and was having breathing problems. (Id.) Officer Shults ordered Officers J. Ortiz and D. Ortiz to cuff Plaintiff s hands behind his back, which made it even more difficult for him to breathe. (Id. ¶ 41.) They then physically forced Plaintiff to stand upright, removed him from his cell, and dragged him down a flight of stairs to a day room and left him there. (Id. ¶ 43.) Plaintiff alleges that he waited in the day room for an unreasonably long time before receiving medical attention, needlessly pronging his suffering and aggravating his serious injuries. (Id. ¶¶ 43-44.) Eventually, Plaintiff was transported to Mount Sinai Hospital, where he began receiving medical attention shortly after 1:00 a.m. the following morning. (7c?. ¶ 46.)

         Plaintiff was diagnosed in the emergency room with wounds to the "anterior chest and right scapula" (shoulder blade) and a collapsed right lung. (Id. ¶ 47.) He had also lost a significant amount of blood. (Id.) He was intubated and, at approximately 2:30 a.m., underwent surgery. (Id. ¶¶ 47-48.) Plaintiff remained hospitalized for approximately six days and was discharged on November 21, 2016. (Id. ¶ 48.)

         Rivera was subsequently charged in state court with aggravated battery for attacking Plaintiff. (Id. ¶ 50.) However, at the same time, disciplinary charges were filed against Plaintiff, accusing him of fighting and committing arson. (Id. ¶ 51.) Plaintiff was ultimately found not guilty of these alleged disciplinary infractions because there was not "enough evidence to find [him] guilty." (Id.)

         As a result of the attack, Plaintiff suffered serious stab wounds, multiple cuts and bruises, a collapsed left lung, loss of blood, and a continuing loss of normal lung function. (Id. ¶ 52.) Plaintiff also suffered needlessly prolonged pain, respiratory distress, and loss of blood while awaiting medical attention. (Id.) Plaintiff continues to receive medical care for his compromised lung, and alleges that he is forced to breathe heavily through his mouth because it is difficult for him to get sufficient oxygen by breathing normally through his nose. (Id. ¶ 53.) He also cannot exercise like he used to, has gained unwanted weight as a result, and has difficulty doing his daily work in the prison kitchen due to shortness of breath.[3] (Id.) Plaintiff also alleges that he suffered, and continues to suffer, emotionally due to the attack and due to being left helpless, wounded, and in pain for an unnecessarily long time. (Id. ¶ 54.) Among other emotional traumas, he suffers increased anxiety from being confined to a cell with a cellmate and distrusts any cellmate out of fear for his own physical safety. (Id.)

         In his Second Amended Complaint, Plaintiff asserts several constitutional and state-law claims arising out of the attack. In Count I, Plaintiff asserts a claim against Cook County and Dart, in his official capacity, under the Eighth and Fourteenth Amendments and Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), alleging that they failed to create or implement constitutionally adequate policies and procedures to protect inmates from harm, ensure that injured inmates receive prompt and adequate emergency medical care, and provide meaningful grievance procedures. (Id. ¶J¶ 72-86.) Plaintiff alleges that the constitutionally inadequate policies and procedures at CCJ were enacted and/or approved by Cook County and Dart, or were so persistent and widespread that they constitute standard operating procedures at CCJ and were the moving force behind the constitutional violations that resulted in his injuries. (Id. ¶¶ 79-80.)

         In Count II, Plaintiff asserts a claim against Dart and Jones in their individual capacities under the Eighth and Fourteenth Amendments for failure to implement constitutionally adequate policies and procedures. (Id. ¶¶ 87-96, ) Plaintiff alleges that Dart and Jones were responsible for creating and implementing policies to ensure that conditions at CCJ meet minimal constitutional standards for protecting inmates and for ensuring that critically injured inmates receive emergency medical care. (Id. ¶¶ 89-90.) Plaintiff alleges that Dart and Jones personally devised, or failed to correct, policies that were deliberately indifferent to inmate safety and the needs of critically injured inmates. (Id. ¶¶ 92-94.)

         In Counts III and IV, Plaintiff asserts claims against Officers Doe, Shults, D. Ortiz, and J. Ortiz for deliberate indifference under the Eighth Amendment. (Id. ¶¶ 97-Ill.) Plaintiff claims that Officer Doe, by failing to protect Plaintiff before the attack despite understanding the threat to his safety and by failing to promptly call for medical attention after finding Plaintiff injured, acted with deliberate indifference to a substantial risk of harm to Plaintiff. (Id. ¶¶ 99-103.) Plaintiff claims that Officers Shults, D. Ortiz, and J. Ortiz also acted with deliberate indifference when, despite his serious injuries, they cuffed Plaintiffs hands behind his back, physically forced him to stand, dragged him out of his cell and down a flight of stairs, and left him in the day room for an unreasonable period of time. (Id. ¶¶ 108-109.)

         In Count V, Plaintiff asserts a tort claim against Officer Doe under Illinois law for negligent failure to prevent aggravated battery to Plaintiff. (Id. ¶¶ 112-19.) Plaintiff alleges that Officer Doe was aware before the attack that Plaintiff feared imminent bodily haim from Rivera and, as an employee and correctional officer at CCJ, had a duty and ability to protect him. (Id. ¶¶ 113-17.) Plaintiff claims that Officer Doe breached his duty by failing to protect him from-the attack by Rivera. (Id. ¶ 118.)

         In Count VI, Plaintiff asserts a tort claim against Officer Shults under Illinois law for negligent supervision of Officers D. Ortiz and J. Ortiz. (Id. ¶¶ 120-25.) Plaintiff alleges that Officer Shults had a duty to protect him, which included properly supervising Officers D. Ortiz and J. Ortiz in their handling of Plaintiff following the attack. (Id. ¶¶ 121-22.) Plaintiff alleges that Officer Shults failed to properly supervise Officers D. Ortiz and J. Ortiz by allowing- indeed, ordering-them to cuff Plaintiff s hands behind his back, force him to stand upright, drag him from his cell and down a flight of stairs, and leave him in the day room for an unreasonable period of time. (Id. ¶¶ 123-24.)

         In Count VII, Plaintiff asserts a tort claim against Cook County and Dart under Illinois law for negligent failure to preserve material evidence. (Id. ¶¶ 126-37.) Plaintiff alleges that on November 15, 2016, or shortly thereafter, both Cook County and Dart knew that Plaintiff had been attacked and had to be taken to a hospital for medical care. (Id. ¶ 128.) Plaintiff alleges that, as a result, they knew that records relating to the attack, including personnel records of on-duty correctional officers, were material evidence for a potential inmate grievance or lawsuit and had a duty to preserve such records. (Id. ¶¶ 127, 129, 134, ) In addition, Plaintiff alleges that he expressly put Cook County and Dart on notice of a potential civil suit when he filed a grievance in which he specifically requested that CCJ "save video tapes [related to the attack] for my lawyer." (Id. ¶ 130.) Plaintiff also alleges that Cook County and Dart are obligated by statute to maintain and preserve employment records for CCJ employees. (Id. ¶ 134.) Plaintiff alleges that CCJ maintains a record called the "Employee Roster" that identifies the guards on duty for each shift and would disclose the identity of Officer Doe, which Plaintiff does not presently know. (Id. ¶¶ 23, 135.) In response to Plaintiffs requests to produce the Employee Roster for November 15, 2016, the Cook County Assistant State's Attorney informed him that Cook County did have records that would show which guards were on duty in his cell block on November 15, 2016, but that "the County can't find them." (Id. ¶ 135.) The Assistant State's Attorney further informed Plaintiff that the Employee Roster for November 15 had been "misplaced." (Id. ΒΆ 136.) Defendants have produced an employment record known as an "Attendance Sheet, " but it does not show ...


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