United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, UNITED STATES DISTRICT JUDGE.
Kylie DiDonato brings this suit against paramedic/emergency
medical technician (“EMT”) Tim Panatera and the
City of Chicago based on an alleged incident in
Panatera's home. DiDonato claims that after she slipped
in a puddle of water in Panatera's bathroom and hit her
head on the bathtub, Panatera failed to provide her with
proper medical care and instead sexually assaulted her while
she was in and out of consciousness. Panatera and the City of
Chicago separately move to dismiss DiDonato's Section
1983 claim (Count IV) and her claim for willful and wanton
misconduct (Count V) under Rule 12(b)(6).
reasons stated here, the Court grants the City's [Dkt.
17] and Panatera's [Dkt. 19] motions to dismiss as to the
Section 1983 claims only. DiDonato's Section 1983 claims
are dismissed without prejudice as to both defendants.
DiDonato may amend her complaint consistent with this
Opinion, if possible, within 21 days of the publication of
following factual allegations are taken from the complaint
(Dkt. 1-1) and are assumed true for purposes of this motion.
W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670,
675 (7th Cir. 2016).
Tim Panatera is a paramedic/EMT employed by the City of
Chicago. (Dkt. 1-1 ¶ 8.) On March 18, 2018, Panatera
invited Plaintiff Kylie DiDonato to his home in Chicago.
(Id. ¶ 10-11.) Either late that evening or
sometime after midnight, DiDonato slipped and fell in a
puddle of water on Panatera's bathroom floor and hit the
back of her head on the bathtub. (Id. ¶ 12-13,
15, 27.) DiDonato lost a “considerable” amount of
blood and suffered a concussion from the fall. (Id.
entered the bathroom just after DiDonato fell, saw her
bleeding, and said, “holy shit, that's bad.”
(Id. ¶ 20.) Panatera picked DiDonato up from
the floor, placed her in the bathtub to rinse the blood from
her head, and wrapped her head with an unsterile bathroom
towel. (Id. ¶ 21.) Panatera did not provide
DiDonato with any further medical assistance-he did not call
911, contact his EMT unit, or take her to the emergency room
for treatment. (Id. ¶¶ 21-25.)
then helped DiDonato into his bed. (Id. ¶ 26.)
DiDonato was barely conscious. (Id. ¶ 28.)
Panatera “attempt[ed] to mount her in a sexual manner,
” at which point she lost consciousness. (Id.)
Panatera woke DiDonato up the next morning. (Id.
¶ 29.) They were still in his bed. (Id.) While
DiDonato was still in pain, groggy, and covered in dried
blood, Panatera sexually assaulted her and had non-consensual
sexual intercourse with her. (Id.) DiDonato lost
consciousness again and stayed in Panatera's bed until
the late afternoon, when he woke her up and told her it was
time to leave. (Id. ¶ 30.) Panatera collected
DiDonato's belongings, put a hat on her head to cover the
dried blood, and drove her to her home in the west suburbs.
(Id. ¶ 31.) When DiDonato got home, she
contacted a friend who came over immediately and took her to
the Adventist Hinsdale Hospital emergency room. (Id.
¶ 33-34.) DiDonato was treated for head trauma and a
concussion. (Id. ¶ 34.)
DiDonato visited Panatera's home, she heard him having a
phone conversation with his work partner about work-related
issues. (Id. ¶ 18.) Panatera was “on
call” for his job as a Chicago EMT at the time of the
call. (Id. ¶ 19.)
filed suit against Panatera in the Circuit Court of Cook
County, Illinois on December 7, 2018. (See Dkt. 17.)
She filed an amended complaint on March 18, 2019, adding the
City of Chicago as a defendant. (Dkt. 1-1.) She brings claims
against Panatera for negligence (Count I), assault (Count
II), and battery (Count III), and claims against both
Panatera and the City of Chicago for deliberate indifference
under 42 U.S.C. § 1983 (Count IV) and willful and wanton
misconduct (Count V). The City of Chicago timely removed the
case to this court on the basis of federal question
jurisdiction. See 28 U.S.C. § 1441(a); 1446.
Panatera and the City of Chicago now separately move to
dismiss the Section 1983 and willful and wanton misconduct
claims under Rule 12(b)(6).
overcome a Rule 12(b)(6) motion, “a complaint must
‘state a claim to relief that is plausible on its
face.'” Adams v. City of Indianapolis, 742
F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 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.”
W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670,
675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). The Court accepts the complaint's
factual allegations as true and draw all permissible
inferences in Plaintiffs' favor. Id. However,
“[w]hile a plaintiff need not plead ‘detailed
factual allegations' to survive a motion to dismiss, she
still must provide more than mere ‘labels and
conclusions or a formulaic recitation of the elements of a
cause of action' for her complaint to be considered
adequate under [Rule] 8.” Bell v. City of
Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (quoting
Iqbal, 556 U.S. at 678).
Section 1983 claim, DiDonato alleges that Panatera
intentionally failed to provide her with necessary medical
care in violation of her constitutional rights. (Dkt. 1-1
¶ 47.) Both defendants argue that DiDonato's claim
fails because there is generally no constitutional right to
medical care and DiDonato has failed to plead facts showing
that she qualifies for either of the two exceptions to that
general rule. Panatera separately argues that DiDonato's
claim fails because he was not acting under color of state
law during the alleged events. The City separately argues
that even if DiDonato states a Section 1983 claim ...