VIRGINIA M. KENDALL, District Judge.
Plaintiff Nicholas Solivan ("Solivan") filed suit against Thomas Dart, ("Dart"), Commander Michael Dembosz ("Dembosz"), Sergeant H. Thompson ("Thompson"), Officer Richard Revolorio ("Revolorio"), and the County of Cook, Illinois ("Cook County") (collectively "Defendants"), for violations of 42 U.S.C. § 1983. Solivan alleges that he was a pre-trial detainee in the Cook County Department of Corrections whom the Defendants' failed to protect in violation of his constitutional rights. Defendants filed a Motion to Dismiss contending that Solivan failed to allege the requisite knowledge and culpability to state a claim of deliberate indifference. Additionally, Defendants contend that the claims against newly-added Dembosz, Thompson, Revolorio and Cook County are time-barred by the applicable Illinois statute of limitations for § 1983 claims. For the following reasons, the Court denies the Motion to Dismiss with respect to Revolorio in Count I; grants the Motion with respect to Dart, Dembosz, Thompson and Cook County in Count I; and grants the Motion with respect to Count II. The Court also permits Solivan leave the file an Amended Complaint within 14 days to allege an indemnification charge against the County relating to Count I against Revolorio.
The following facts are taken from Solivan's Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss.
At approximately 3:30 p.m., seven unnamed African American inmates entered Solivan's cell and began striking him on his head and body causing severe injuries to his right eye, bleeding from his ear, numerous contusions to his face, and fractures of his lower back that left him in a wheelchair for the following 10 months. (¶ 23, 44). Solivan screamed for the duration of the five-minute attack as well as for the next two and a half hours. (¶¶ 24-25). The first time that a correctional officer attended to Solivan in his cell was at approximately 6:15 p.m. (¶ 25).
Deputy Revolorio was the Tier officer assigned to Solivan's tier during the time of the incident, and was solely responsible for 38 detainees. (¶¶ 7, 29). Revolorio was stationed in the control room, commonly referred to as the "bubble," where he could not see into the cells nor into the common areas where inmates might be walking outside of their cells. (¶¶ 22, 26). From the bubble, Revolorio could not hear if any noise was coming from the cells because the television in the day room was very loud where the inmates were also working out. (¶ 27). The only area from which an officer could personally observe the common areas and cells was the catwalk, and Revolorio was aware that the inmates knew when there was no officer on the catwalk. (¶ 28). Revolorio remained in the bubble from 3:30 p.m. to 6:18 p.m., which violated several Cook County Jail Standards ("Jail Standards"), including requiring personal observation by an officer
Solivan describes several additional prison conditions that he believes resulted in his alleged attack. Solivan contends that there were no light bulbs in his cell, no intercoms or emergency call buttons in the cells, and no overhead cameras on the Tier. (¶¶ 34-36). Most important for the incident, Solivan explains that cell doors could be manipulated by inmates by inserting toothpaste caps or bottle caps to obstruct the locking mechanism, though they would register as locked on the central panel in the bubble, as seen by Revolorio. (¶ 37). Solivan alleges that Revolorio knew of this problem with the cell doors long before the date of the incident, as the problem was discussed almost every day at roll call, as well as due to the bimonthly fights that erupted in Tier C Section 2. (¶ 38-39). Solivan alleges that Revolorio remained in the bubble from 3:30 p.m. to 6:18 p.m. though he knew there would be no direct supervision of the inmates, knew that the inmates knew this, and knew that if any inmate were attacked in his cell he would be unable to see or hear what happened. (¶ 41).
Solivan initially filed suit pro se on March 30, 2010, against Dart and several John Doe officers, whom he described as being on duty at the time of the incident on March 3, 2009. (Doc. 5). Solivan then hired counsel, who filed his appearance on November 29, 2010. (Doc. 38). In Solivan's First Amended Complaint, Solivan named as Defendants Cook County and Dart in his official capacity. Solivan also substituted the John Doe officers with Commander Dembosz, Thompson and Revolorio in their individual capacities.
When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true ... `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the defendant
A pretrial detainee is constitutionally protected from undue punishment by the due process guarantee of the Fourteenth Amendment.
Defendants argue that Solivan's addition of the individual capacity claims against the newly-named Defendants Dembosz, Thompson and Revolorio violates Rule 15(c) and is barred by the applicable state of limitations. Section 1983 claims in Illinois are governed by Illinois' two-year statute of limitations on personal injury actions. See Williams v. Lampe, 399 F.3d 867, 870 (7th Cir.2005). It is undisputed that Solivan named Dart and several John Doe defendants before the statute of limitations expired and Solivan argues that his amendment relates back to the original pro se Complaint under Rule 15(c)(1).
To substitute the John Does with Dembosz, Thompson and Revolorio as individual defendants, Solivan's amendment must satisfy Federal Rule of Civil Procedure 15(c)(1), which allows amendment to a pleading that would otherwise be time-barred when the amendment relates back to the date of the original pleading.
Here, the incident occurred on March 3, 2009, and Solivan timely filed his § 1983 suit on March 30, 2010, against Dart and several "John Doe" officers who were working their shift between 3 p.m. and 11 p.m. on that date, with specificity as to their duties save for their names.
Defendants claim Solivan's action did not provide adequate notice, citing to Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.1980). However, more recent law dictates that the focus of Rule 15(c)(1)(c) is on the defendant rather than the plaintiff. See Krupski v. Costa Crociere S.p.A., ___ U.S. ___, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Since Krupski, "[t]he only two inquiries that the district court is now permitted to make in deciding whether an amended complaint relates back to the date of the original one are, first, whether the defendant who is sought to be added by the amendment knew or should have known that the plaintiff, had it not been for a mistake, would have sued him instead or in addition to suing the named defendant; and second, whether, even if so, the delay in the plaintiff's discovering his mistake impaired the new defendant's ability to defend himself." Joseph v. Elan Motorsports Technologies Racing Corp., 638 F.3d 555, 559-60 (7th Cir.2011), reh'g denied (Mar. 31, 2011), (Posner, J.) (reversing district court's dismissal, due to the proposed amendment's failure to relate back its substituted defendant after the statute of limitations had expired, in light of Krupski)
In Wood, the court denied the amendment as not relating back because nearly six years had elapsed between the date the plaintiff took a police officer's deposition and the date he sought to amend the complaint to name the officer as a party defendant when the remaining named defendants were all jailers. 618 F.2d at 1230. In contrast here, Solivan displayed diligence when he timely filed his pro se Complaint and repeatedly sought the names of the officers he cited as John Does in his timely pro se filings with the Court. He identified the John Doe officers as best he could based on their shift times on specific dates and at specific posts in the MCC and based on the incident log number for his injuries. See footnote 4, supra. He filed his pro se Complaint on March 30, 2010, and yet as of December 1, 2010, the Court noted that it was unclear whether Dart had yet provided the identities of the John Doe officers to Solivan, in response to his repeated requests for their names. (Docs. 5, 37). Based on Solivan's repeated inquiries to the MCC, which are documented in the Record as motions to compel to which Dart and Cook County counsel remained relatively unresponsive, and motions for extensions of time due to Cook County's delay in providing the officers' names, it is evident that the officers he identified by shift date and time knew or should have known that he sought to name them individually as defendants in his suit.
Although Solivan's counsel appears to have been careless in amending the pro se Complaint despite having identified the officers, the Seventh Circuit held that while a plaintiff's carelessness in failing to discover his mistake is relevant to a defendant's claim of prejudice, "carelessness is no longer a ground independent of prejudice for refusing to allow relation back." Joseph, 638 F.3d at 560. Furthermore, Dembosz, Thompson and Revolorio do not argue that they experienced delays in service or insufficient notice so that they would be prejudiced in defending on the merits. See also Woods v. Ind. Univ.-Purdue Univ. at Indianapolis, 996 F.2d 880, 888 (7th Cir.1993) ("The statute of limitations does not insulate from suit an individual who did not initially receive service (or other notice) in the correct capacity, so long as no prejudice resulted."). Therefore, they should not be insulated from suit by an inmate who diligently sought their names to properly prosecute his claim. Therefore, the Court finds that Solivan has satisfied Rule 15(c)(1) in that his naming Defendants Dembosz, Thompson and Revolorio relates back to his original filing.
Solivan, as a pretrial detainee, was constitutionally protected from punishment by the due process guarantee of the Fourteenth Amendment, and his claim is analyzed under the cruel and unusual punishment clause of the Eighth Amendment. Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.2003) (pretrial detainee was "entitled to at least the same protection against deliberate indifference to his basic needs as is available to convicted prisoners under the Eighth Amendment"). Jail officials "have a duty ... to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825,
The objective prong, a deprivation of life's minimal necessities, includes "reasonable safety." DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). To claim that prison officials failed to prevent a violation of an inmate's need for safety under the objective prong, a plaintiff must demonstrate "conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 832-33, 114 S.Ct. 1970 ("[G]ratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective [nor] squares with evolving standards of decency."). Solivan claims that the prison conditions presented a substantial risk of serious harm by Revolorio's failure to leave the bubble during his shift, from where he could not see into the cells, nor into the common areas where inmates might be walking outside of their cells, nor hear any noise coming from the cells. (¶¶ 22, 26, 27). Revolorio's failure to leave the bubble for almost three hours, if true, violated Jail Standards that require a visual check every 30 minutes, and left the catwalk — the only vantage point from which an officer could personally observe the common areas and cells — unmanned by an officer. (¶¶ 28, 30-33). Although pleading a violation of a state jail standard, in and of itself, does not state an Eighth Amendment claim, Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir.1986), Solivan has presented factual allegations that, if true, indicate that inmates are left visually and audibly unsupervised for hours, knowing that a substantial risk of harm is present. In addition, Solivan contends that there were no light bulbs in his cell, no intercoms or emergency call buttons in the cells, and no overhead cameras on the Tier. (¶¶ 34-36). If taken as true that cell doors could be manipulated by inmates by inserting toothpaste caps or bottle caps to obstruct the locking mechanism, and they would still register as locked on the central panel in the bubble, these circumstances could nave created a substantial risk of harm that materialized when Solivan was attacked inside his cell and screamed for two-and-a-half-hours without an officer coming to his aid. Giving Solivan the benefit of the inferences to which he is entitled at the pleading stage, Revolorio may have been visually and audibly disconnected from the inmates to such an extent that attacks could occur in a dark area that he believed was locked, while knowing that the inmates knew the limits of his supervision. Solivan states that the harm he suffered was significant: severe injuries to his right eye, bleeding from his ear, numerous contusions on his face, and fractures to his lower back that left him in a wheelchair for the following 10 months. The attack that Solivan endured was severe and presumably unwarranted. See, e.g., Pippion v. Peters, 1994 WL 530801, 1994 U.S. Dist.
The Court's inquiry cannot stop there, as the second element of the officers' actual state of mind of "deliberate indifference" to the deprivation must also be sufficiently pled. Deliberate indifference is something approaching total unconcern for a plaintiff's welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992), citing McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir.1991). A defendant must have "actual knowledge of impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant's failure to prevent it." Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir.), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986) (abrogated on other grounds); see Sellers v. Henman, 41 F.3d 1100 (7th Cir. 1994); Duane, 959 F.2d at 677. Such total disregard for a prisoner's safety is the "functional equivalent of wanting harm to come to the prisoner." McGill, 944 F.2d at 347. The Seventh Circuit has also defined "deliberate indifference" in more vivid terms:
Billman v. Indiana Dep't of Corr., 56 F.3d 785, 788 (7th Cir.1995) (citations omitted). Solivan pleads that as a pre-trial detainee, he was the only person of Hispanic origin housed in the maximum security Tier C, Deck 2, while the significant majority of the other inmates were African-American. (Doc. 68, ¶ 17). These circumstances, Solivan argues, puts him in an "identifiable group of prisoners who are singled out for attack" which would obviate the need to establish Defendants' actual state of mind. See Farmer, 511 U.S. at 843-844, 114 S.Ct. 1970. When making reasonable inferences in favor of Solivan, it is plausible that he faced an identifiable risk as a Hispanic pre-trial detainee housed in the maximum security ward of the CCDOC, of which the majority were African-American and knew that from within his cell, his beating would not be seen or heard by the only guard on duty for three hours. At this stage, Solivan has pled sufficient facts that, if true, would support a claim for relief. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir.1995) (remanding case when pro se plaintiff's claim of "imminent potential" for assault by her mentally-ill cellmate was dismissed by district court for failure to plead "deliberate indifference"). Consequently, the Court finds that Count I of Solivan's Complaint is sufficiently pled with regard to his
Nonetheless, Count I fails to plead any facts that involve Thompson, Dembosz or Dart despite naming them in the claim as jointly and severally liable for compensatory damages. Consequently, Count I is dismissed with respect to Thompson, Dembosz and Dart.
As for Count II, Solivan alleges that Revolorio's supervisor, Thompson, knew of the aforementioned cell conditions that posed a substantial risk of serious harm and violated Jail Standards, but failed to supervise Revolorio, which constitutes deliberate indifference. (Doc. 68, ¶ 70-74). Count II also alleges that Dembosz was the shift commander at the time of the incident and supervisor to both Thompson and Revolorio, and failed to correct the security problem posed by the cell doors and the violations of the Jail Standards; allowed Revolorio to violate the Jail Standards requiring visual checks every 30 minutes; knew the inmates had received maximum security ratings but failed to supervise his subordinates properly, and failed to investigate why Solivan was injured and never read the USAO Report; behavior which constituted deliberate indifference. (¶¶ 62-69). Section 1983 creates a cause of action for damages based on personal liability; thus a plaintiff must show a defendant's personal involvement or participation, or direct responsibility for the unsafe conditions of which he complains. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir.1986). The doctrine of respondeat superior, under which a supervisor may be held liable for an employee's actions, has no application to Section 1983 actions. Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir.2010). Solivan has failed to state sufficient facts with which the Court could infer that Dembosz and Thompson had personal knowledge of the circumstances on March 9, 2009, in that Solivan's cell remained open, and that several inmates entered and beat him and that Solivan was left without aid for two and a half hours. Consequently, neither Thompson nor Dembosz can be held liable for deliberate indifference and Count II against them is dismissed.
Count II also alleges that Dart, in his official capacity, never took steps to correct severe understaffing or to implement policies for improving the security features of the cells at CCDOC, despite his knowledge of the USAO Report, thereby constituting deliberate indifference to the prison conditions posing a substantial risk of serious harm. (¶¶ 58-60). It is unclear to the Court, and to Defendants, whether Solivan's counsel meant for this claim to be converted into an individual claim when he made his oral argument before the Court. If the claim is to be converted into an individual claim, the Complaint does not state facts from which the Court could infer that Dart had any personal knowledge of or direct personal involvement in the events that led to Solivan's injuries on March 3, 2009. That Dart is Revolorio's, Dembosz's and Thompson's superior does not make him liable for their actions under the doctrine of respondeat superior. Gayton v. McCoy, 593 F.3d at 622. In the alternative, in the proper circumstances, a prisoner could maintain an official capacity claim against Dart. An official capacity damage claim against a municipal official "is not a suit against the official as an individual; the real party in interest is the entity." Wilson v. Civil Town of Clayton, Indiana, 839 F.2d 375, 382 (7th Cir.1988). Municipalities cannot be held liable for damages under section 1983 unless a governmental policy or custom caused the alleged violation of the plaintiff's rights. Monell v. Department of Social Services, 436 U.S. 658,
In addition, Solivan clarified in his Response to Defendants' Motion to Dismiss that his claim against Cook County was based on its role as a necessary and indispensable party to the suit to indemnify Dart, Dembosz, Thompson and Revolorio. Therefore, the Court grants Solivan leave to amend his Second Amended Complaint to allege an indemnification charge against Cook County.
For the foregoing reasons, the Court denies the Motion to Dismiss with respect to Revolorio in Count I; grants the Motion with respect to Dart, Dembosz, Thompson and Cook County in Count I; and grants the Motion with respect to Count II. The Court also permits Solivan leave the file an Amended Complaint within 14 days to allege an indemnification charge against the County relating to Count I against Revolorio.
