# Sibley v. Dart

> District Court, N.D. Illinois · February 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10140181

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** February 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MOIRSCHE TERRELL SIBLEY (M21315), )
) Case No. 17-cv-6298
Plaintiff, )
) Judge Robert M. Dow, Jr.
v. )
)
THOMAS J. DART, et. al., )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER

Before the Court is the motion to dismiss Plaintiff’s second amended complaint for
failure to state a claim [33] filed by Defendants. For the reasons set forth below, the motion [33]
is granted in part and denied in part. Plaintiff is given until March 22, 2019 to file a third
amended complaint, in light of the change in law addressed below. Further status hearing set for
April 4, 2019 at 9:30 a.m.
I. Background
Plaintiff Moirsche Terrell Sibley brings this civil rights action under 42 U.S.C. § 1983,
alleging that Defendants violated his constitutional rights by subjecting him to unconstitutional
conditions of confinement and failing to provide medical care for his serious medical condition.
Plaintiff is a prisoner in the custody of the Illinois Department of Corrections (“IDOC”). [31, at
¶ 5.] All Defendants (with the exception of Cook County and Sheriff Thomas J. Dart) were at all
relevant times correctional officers at the Cook County Department of Corrections also known as
the Cook County Jail. [Id. at ¶¶ 6-27.] Although Plaintiff currently resides at the Statesville
Correctional Center [id.], this lawsuit relates to an incident that occurred on February 26, 2017
while Plaintiff was detained at the Cook County Jail pending trial. [Id. at ¶ 34.]
At approximately 11:20 p.m. on February 26, 2017, a fire in the vents of Division 10 of
the Cook County Jail created a thick chemical smelling smoke in Tier 2A (Plaintiff’s tier) and
the other tiers of Division 10. [Id. at ¶ 35.] There was no watchman present in tier 2A at the
time smoke first was observed, as Defendant Jonetta Jefferson had left her post. [Id. at ¶ 36.]
Plaintiff and other detainees began screaming for help as Tier 2A filled with smoke. [Id. at

¶ 37.] Nobody came for approximately 20 minutes. 1 During that time, Plaintiff lost
consciousness, experienced severe chest pains, and had difficulty breathing. [Id.]
Jefferson returned to her post approximately 20 minutes after smoke was first observed in
Tier 2A. [Id. at ¶ 36.] After seeing smoke in the tier, Jefferson again left the tier to call her
supervisors. [Id. at ¶ 38.] Approximately 10 to 15 minutes later, the jail began to evacuate
detainees from Tier 2A into the chapel area of the jail. [Id. at ¶ 39.] After being evacuated into
the chapel area, Plaintiff approached Defendant E. Velez to inform him that he has asthma and
needed to see a doctor or nurse due to smoke inhalation, which made Plaintiff light-headed and
dizzy. [Id. at ¶ 40.] Velez told Plaintiff that there was no medical staff available and walked

away. [Id.] Plaintiff waited in the chapel for two hours without receiving any medical attention.
[Id. at ¶ 41.] Plaintiff alleges that he became lightheaded and dizzy. [Id. at ¶ 42.] He was
vomiting, and he even lost consciousness for an extended period of time. [Id.]
Plaintiff alleges that all Defendants participated in or watched the transfer of Plaintiff and
other detainees back to Tier 2A, even though the detainees told Defendants that they did not
want to return to the smoke-filled tier. [Id. at ¶¶ 44-45, 48.] Defendant B. Judge even threatened
to spray Plaintiff and the other detainees with mace if they did not hurry onto the smoke-filled
tier. [Id. at ¶ 47.] While the detainees were being transferred back to Tier 2A, Plaintiff observed

1 Plaintiff alleges that nobody came for approximately 20 to 30 minutes, but Plaintiff also alleges that
Jefferson returned to her post approximately 20 minutes after smoke first was observed. [Id. at ¶¶ 36-37.]
Defendant John Brown choking and gasping for breath from the smoke. [Id. at ¶ 44.] Brown
also vomited into a toilet because of the smoke. [Id.] When detainees were forced to return to
Tier 2A, multiple Defendant officers refused to return to the tier because there still was too much
smoke. [Id. at ¶ 45.] The smoke (which had a chemical smell) remained in Tier 2A for at least 6
hours after Plaintiff was forced to return. [Id. at ¶ 43.]

II. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief
can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such
that the defendant is given “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) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must
be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v.
Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at

555). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements
of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper
“when the allegations in a complaint, however true, could not raise a claim of entitlement to
relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6),
the Court accepts as true all of Plaintiff’s well-pleaded factual allegations and draws all
reasonable inferences in Plaintiff’s favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d
614, 618 (7th Cir. 2007).
III. Analysis
Plaintiff brings individual capacity claims against numerous Defendants for alleged
unconstitutional conditions of confinement and for deliberate indifference to Plaintiff’s serious
medical needs. Because Plaintiff had not yet been tried when he was detained at Cook County
Jail, his conditions of confinement claims arise under the Fourteenth Amendment and not the

Eighth Amendment’s Cruel and Unusual Punishment Clause, which applies only to prisoners
who have been convicted and sentenced. Lewis v. Downey, 581 F.3d 467, 474 (7th Cir. 2009)
(holding that the plaintiff’s Eighth Amendment rights “had not yet vested” because he had not
been sentenced). Although the Seventh Circuit had long assessed pretrial detainees’ due process
rights under Eighth Amendment standards, that changed after the Supreme Court decision
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), “which held the due process standard for
excessive force claims by pretrial detainees is less demanding than the Eighth Amendment
standard for excessive force claims by convicted inmates.” McWilliams v. Cook Cty., 2018 WL
3970145, at *5 (N.D. Ill. Aug. 20, 2018) (summarizing Kingsley). Specifically, the Supreme

Court held that “a pretrial detainee must show only that the force purposely or knowingly used
against him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2473.
Although Kingsley already had been decided when Defendants filed their motion to
dismiss, the Seventh Circuit had not yet extended its holding beyond excessive force claims.
Before Plaintiff filed its response and Defendants filed their reply, however, the Seventh Circuit
issued its decision in Miranda v. Cty. of Lake, which extended Kingsley’s holding to medical-
care claims brought by pretrial detainees. 900 F.3d 335, 352 (7th Cir. 2018) (“We thus conclude
* * * that medical-care claims brought by pretrial detainees under the Fourteenth Amendment are
subject only to the objective unreasonableness inquiry identified in Kingsley.”). After Miranda,
district courts similarly have extended Kingsley’s holding to conditions of confinement claims
brought under the Fourteenth Amendment. See, e.g., McWilliams, 2018 WL 3970145, at *5. In
Plaintiff’s response and Defendants’ reply, the parties fail to address this change in law. To the
extent that the parties’ arguments are unaffected by this change in the law, the Court addresses
those arguments below. However, to the extent that Defendants’ motion to dismiss relies on

arguments called into question by Kingsley and Miranda, Defendants’ motion to dismiss is
denied without prejudice to refiling after Plaintiff has been given the opportunity to file a third
amended complaint,2 as discussed below. The Court now turns to the arguments raised by
Defendants in their motion to dismiss.
A. Count I
Plaintiff brings an unconstitutional conditions of confinement claim (Count I) against
Defendant Jefferson for leaving her post unattended in the period preceding the fire. Plaintiff
alleges that Jefferson subjected Plaintiff to a smoke-filled tier by leaving her post unattended.
[31, at ¶ 52.] “In cases involving the conditions of confinement in a prison, two elements are

required to establish a violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment: first, an objective showing that the conditions are sufficiently serious—i.e.,
that they deny the inmate the minimal civilized measure of life’s necessities creating an
excessive risk to the inmate’s health and safety—and second, a subjective showing of a
defendant’s culpable state of mind.” Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal
citations and quotation marks omitted). The culpable mental state required to state a claim under
the Eighth Amendment is “one of deliberate indifference to inmate health and safety.”
Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018) (quoting Haywood v. Hathaway, 842 F.3d

2 If Plaintiff wishes to stand on his second amended complaint, he may file a notice on the docket and
need not file a third amended complaint.
1026, 1031 (7th Cir. 2016)) (internal quotation marks omitted). To state a conditions of
confinement claim under the Fourteenth Amendment, however, a plaintiff need only allege that
“defendant’s conduct was objectively unreasonable”—in addition to alleging that the conditions
of confinement were sufficiently serious. McWilliams, 2018 WL 3970145, at *5. “Reasonable
safety” constitutes a minimal life necessity protected by the Eighth and Fourteenth Amendments.

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).
Defendants first argue that Count I should be dismissed because Plaintiff has not alleged
a sufficiently serious condition.3 However, Plaintiff alleges that there was a fire in his division
of the jail that caused a thick, chemical-smelling smoke to fill his tier. [Id. at ¶ 35.] The smoke
caused Plaintiff to lose consciousness, experience severe chest pains, vomit for an extended
period of time, and have difficulty breathing. [Id. at ¶¶ 37, 42.] Prison officials determined that
detainees should be evacuated because of the smoke, and they kept the detainees out of the tier
for approximately 2 hours because of the smoke.4 [Id. at ¶ 44.] The adverse effects of the smoke
were not limited to Plaintiff. After Plaintiff and other detainees were forced to return to their

tier, Plaintiff witnessed Defendant Brown choking and gasping for breath because of the smoke.

3 Defendants also argue that Plaintiff’s claims fail under the Prison Litigation Reform Act (“PLRA”)
because Plaintiff has not alleged a physical injury that is more than de minimis. Under the PLRA, “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody without a prior showing of physical injury or the
commission of a sexual act (as defined in section 2246 of Title 18).” 42 U.S.C.A. s 1997e(e). Still, the
Seventh Circuit has made clear that the PLRA does not require that prisoners allege a physical injury to a
state an Eighth Amendment claim. Myers v. Indiana Dep’t of Correction, 655 F. App’x 500, 503 (7th
Cir. 2016) (“The district judge was incorrect to state that, under 42 U.S.C. § 1997e(e), a prisoner must
allege a physical injury in order to state a claim for mental or emotional injury.”). “[A] physical injury is
merely a predicate for an award of damages for mental or emotional injury, not a filing prerequisite for
the federal civil action itself.” See Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003). The Court
sees no reason why the Fourteenth Amendment standard would be any more demanding.

4 The fact that a jail or prison conducts an evacuation alone does not establish a serious condition. It may
be prudent for such institutions to conduct an evacuation as a precautionary measure, even if there is no
actual threat or risk. Still, in light of the other facts alleged by Plaintiff here, the occurrence and duration
of the evacuation is a relevant fact.
[Id. at ¶ 44.] The smoke also caused Defendant Brown to vomit. [Id.] Drawing all reasonable
inferences in Plaintiff’s favor, Plaintiff has alleged a sufficiently serious condition to warrant
constitutional scrutiny.5
Still, in order to state a conditions of confinement claim against Defendant Jefferson,
Plaintiff must allege that Defendant Jefferson’s “conduct was objectively unreasonable.”

McWilliams, 2018 WL 3970145, at *5. The Court agrees that Plaintiff has not alleged that
Jefferson’s conduct violates the Eighth Amendment’s deliberate indifference standard. Plaintiff
alleges that Defendant Jefferson returned to the tier approximately 20 minutes after smoke was
observed. [31, at ¶ 36.] After seeing the smoke-filled tier, Jefferson left to call her supervisors.
[Id. at ¶ 38.] Plaintiff argues that Jefferson acted with deliberate indifference by abandoning her
post despite understanding the potential risks of doing so. [37, at 12.] But Plaintiff does not
allege any facts indicating that Jefferson was aware of any risk of fire. Nor does Plaintiff allege
facts indicating that Jefferson knew that her leaving the prisoners unattended for approximately
20 minutes would create any substantial risk of harm to Plaintiff or any other detainees.6 Still,

the parties do not address whether Jefferson’s “conduct was objectively unreasonable” under the
less-stringent Fourteenth Amendment standard. Although the Court has its doubts, given that

5 To be sure, the Court is not holding that exposure to smoke always amounts to a sufficiently serious
condition warranting constitutional scrutiny. Where a plaintiff alleges facts indicating that exposure to
smoke or other toxins was temporary and only resulted in minor ailments, an unconstitutional conditions
of confinement claim is not viable. See, e.g., Morissette v. DeTella, 1997 WL 619851, at *5 (N.D. Ill.
Sept. 29, 1997) (dizzy spells and headaches resulting from exposure to engine fumes for approximately
35 to 45 minutes did not amount to a constitutional violation); Powers v. Snyder, 484 F.3d 929, 932 (7th
Cir. 2007) (Generally, “[a] prison is not required to provide a completely smoke-free environment[.]”);
see also Alexander v. Tippah Cty., Miss., 351 F.3d 626, 631 (5th Cir. 2003) (vomiting in reaction to the
smell of sewage is not obviously a medical condition severe enough to warrant medical attention).

6 If Jefferson was away from her post for an extended period of time and knew of a possible danger to the
detainees, such conduct may amount to a constitutional violation. Solivan v. Dart, 897 F. Supp. 2d 694,
703 (N.D. Ill. 2012) (holding that plaintiff alleged a substantial risk of harm where a defendant left
inmates unattended for hours knowing of a significant risk (i.e., the ability of inmates to obstruct the
locking mechanisms on their cell doors)). But Plaintiff does not allege such facts here.
Plaintiff did not have the opportunity to defend his claim under the appropriate standard, the
Court denies Defendants’ motion to dismiss with leave to file another motion to dismiss under
the Kingsley and Miranda standards after Plaintiff has been given the opportunity to file a third
amended complaint.
B. Count II

Plaintiff brings an unconstitutional conditions of confinement claim (Count II) against
Defendants Jefferson, Judge, Velez, Willeda, Koedyker, Schous, Brown, Wells, Maddox, Ker,
Satduran, Belletierre, Thomas, Kos, Salerno, Brown, Benitez, Turner, Rodriguez, Schnolis, and
Cooper based on their conduct following the evacuation. Specifically, Plaintiff alleges that these
Defendants required Plaintiff “to return to the smoke-filled tier” in violation of his Fourteenth
Amendment rights.7 As discussed above, Plaintiff has alleged a sufficiently serious condition
warranting constitutional scrutiny.
Defendants argue, however, that Count II should be dismissed because Plaintiff uses
improper group pleading. “Section 1983 creates a cause of action based upon personal liability

and predicated upon fault. An individual cannot be held liable in a § 1983 action unless he
caused or participated in an alleged constitutional deprivation.” Wolf-Lillie v. Sonquist, 699 F.2d
864, 869 (7th Cir. 1983); see also Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010)
(“[I]ndividual liability under § 1983 requires ‘personal involvement in the alleged constitutional
deprivation.’” (quoting Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003))). A
“defendant will be deemed to have sufficient personal responsibility if he directed the conduct
causing the constitutional violation, or if it occurred with his knowledge or consent.” Rasho v.

7 In his second amended complaint, Plaintiff also alleges that these Defendants delayed the “evacuation
from the smoke-filled tier.” [31, at ¶ 60.] However, in his response brief, Plaintiff does not base any of
his arguments on the alleged delay. Given that Plaintiff alleges that Defendants began the evacuation as
early as 10 minutes after Defendant Jefferson left to call her supervisors [id. at ¶ 39], it seems unlikely
that Plaintiff could establish that the alleged delay amounts to deliberate indifference.
Elyea, 856 F.3d 469, 478 (7th Cir. 2017) (citation omitted). Still, a supervisory official cannot
be held liable for the conduct of his subordinates based on a theory of respondeat superior. See
Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002).
Plaintiff alleges generally that Defendants “forced” Plaintiff and others back onto the
smoke-filled tier or watched Plaintiff and others be “forced” back onto the smoke-filled tier. [31,

at ¶¶ 36, 48.] Plaintiff further alleges that some Defendants refused to return to the tier because
of the smoke. [Id. at ¶ 46.] Defendant Judge even threatened to spray Plaintiff and other
detainees with mace if they did not return to the smoke-filled tier. [Id. at ¶ 47.] The Court
recognizes that Plaintiff’s allegations with respect to all Defendants are not robust, but the
challenged conduct (i.e., forcing Plaintiff to return to his tier and/or allowing others to do so) is
relatively straightforward. Plaintiff alleges that each Defendant participated in this challenged
conduct. Cf. Earl v. Howard, 2017 WL 2779797, at *3 (N.D. Ill. June 27, 2017) (finding it
“implausible” that approximately 85 defendants were all liable for the wide-variety of
misconduct alleged). “Rule 8(a) is not so rigid that it requires a plaintiff, without the benefit of

discovery, to connect every single alleged instance of misconduct in the complaint to every
single specific officer. Such a pleading standard would effectively allow police officers to
violate constitutional rights with abandon as long as they ensured they could not be individually
identified, even if liability for acting in concert (or for aiding and abetting each other) would
otherwise apply.” Koh v. Graf, 2013 WL 5348326, at *4 (N.D. Ill. Sept. 24, 2013). The Court
notes that Plaintiff must eventually tie particular Defendants to particular injuries to survive
summary judgment. But at the motion to dismiss stage, Plaintiff’s group pleading—although not
ideal—is not prohibited.
That leaves the issue of whether Plaintiff sufficiently has alleged that Defendants violated
his Fourteenth Amendment rights. Although Plaintiff’s group pleading is permissible, that does
not mean that Plaintiff sufficiently alleged a Fourteenth Amendment claim against each
Defendant. Plaintiff must allege facts sufficient to establish that each Defendant “acted
purposefully, knowingly, or perhaps even recklessly” and that their “conduct was objectively

unreasonable.” McCann v. Ogle Cty., Illinois, 909 F.3d 881, 886 (7th Cir. 2018). Because
Plaintiff has not had the opportunity to address the correct legal standard, the Court denies
Defendants’ motion to dismiss Count III with leave to again move for dismissal under the
appropriate legal standard after Plaintiff has been given the opportunity to file a third amended
complaint.
C. Count IV
Plaintiff brings a Fourteenth Amendment claim for deliberate indifference to a serious
medical condition (Count IV) against Defendants Jefferson, Judge, Velez, Willeda, Koedyker,
Schous, Brown, Wells, Maddox, Ker, Satduran, Belletierre, Thomas, Kos, Salerno, Brown,

Benitez, Turner, Rodriguez, Schnolis, and Cooper. The Supreme Court has made clear that the
Eighth Amendment prohibits the deliberate indifference to the serious medical needs of
prisoners. Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“[D]eliberate indifference to a prisoner’s
serious illness or injury states a cause of action under § 1983.”). To establish an Eighth
Amendment claim on that basis, Plaintiff must allege that (1) his condition was objectively
serious, and (2) Defendants “were deliberately indifferent to his health or safety.” Orlowski v.
Milwaukee Cty., 872 F.3d 417, 423 (7th Cir. 2017) (citing Pinkston v. Madry, 440 F.3d 879, 891
(7th Cir. 2006)). To state a Fourteenth Amendment medical-care claim, however, Plaintiff need
not allege that Defendants’ acted with deliberate indifference; rather, Plaintiff need only allege
that Defendants’ conduct “was objectively unreasonable.” Miranda, 900 F.3d at 354.
Defendants argue that Plaintiff fails to allege that his condition was objectively serious.
“A serious medical condition is one that ‘has been diagnosed by a physician * * * or one that is
so obvious that even a lay person would perceive the need for a doctor’s attention.’” Orlowski,

872 F.3d at 423 (quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)). “A medical
condition need not be life-threatening to be serious; rather, it could be a condition that would
result in further significant injury or unnecessary and wanton infliction of pain if not treated.”
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Plaintiff alleges that he lost consciousness,
experienced severe chest pains, and had difficulty breathing while he waited approximately 30 to
35 minutes to be evacuated to the chapel area. [31, at ¶¶ 37-40.] Plaintiff alleges that after he
told Velez that he had asthma and needed medical attention, Velez told Plaintiff that no medical
staff was available. [Id. at ¶ 40.] Plaintiff waited in the chapel area for 2 hours without receiving
any medical attention. [Id. at ¶ 41.] Plaintiff became light headed, dizzy, and violently vomited

for an extended period of time. [Id. at ¶ 42.] These allegations are sufficient to establish that
Plaintiff had an objectively serious health condition. Orlowski v. Milwaukee Cty., 872 F.3d 417,
423 (7th Cir. 2017) (“Failure to breathe and failure to regain consciousness are undoubtedly life-
threatening medical conditions that are obvious to a layperson.”).
With respect to Defendant Velez, Plaintiff alleges that he informed Velez that “he has
asthma and [that] he needed to see a doctor or nurse due to his inhalation of smoke for a long
period of time, which made [Plaintiff] light-headed and dizzy.” [31, at ¶ 40.] Plaintiff further
alleges that Velez told Plaintiff that no medical staff was available and walked away. [Id.]
However, Plaintiff does not allege that Velez was aware that he had lost consciousness as a result
of his exposure to smoke. Nor does Plaintiff allege that Velez was aware that Plaintiff had
difficulty breathing as a result of his asthma and/or his exposure to the smoke. Although
Plaintiff informed Velez that he had asthma, he only indicated that the asthma caused him to feel
light-headed and dizzy. There is no indication that Velez knew or had reason to know about the
seriousness of Plaintiff’s condition. The Court therefore questions whether Plaintiff sufficiently

has alleged that Velez’s actions were objectively unreasonable. Because Plaintiff has not had the
opportunity to address this argument under the correct legal standard, however, the Court denies
Defendants’ motion to dismiss Count IV against Defendant Velez with leave to renew their
motion under the appropriate legal standard once Plaintiff has had the opportunity to file a third
amended complaint.
With respect to Defendant Judge, Plaintiff alleges that Judge threatened to spray him and
the other detainees with mace if they did not return to the smoke-filled tier. [31, at ¶ 47.] And
with respect to Defendant Brown, Plaintiff alleges that Brown himself experienced adverse
symptoms from the smoke, including choking, gasping for air, and vomiting. [Id. at ¶ 44.]

However, Plaintiff again does not allege that Defendants Judge or Brown knew of Plaintiff’s
serious medical condition. Nor does Plaintiff allege that Defendants Judge or Brown witnessed
Plaintiff experience any adverse symptoms from the smoke. Thus, the Court again questions
whether Plaintiff sufficiently has alleged that the actions of Defendants Judge and Brown were
objectively unreasonable. Because Plaintiff has not had the opportunity to address this argument
under the correct legal standard, the Court denies Defendants’ motion to dismiss Count IV
against Defendants Judge and Brown with leave to renew their motion under the appropriate
legal standard once Plaintiff has had the opportunity to file a third amended complaint.
With respect to the remaining Defendants, Plaintiff does not allege any facts indicating
that they “acted purposefully, knowingly, or perhaps even recklessly” or that their “conduct was
objectively unreasonable” with respect to Plaintiff’s alleged need for medical care. Although
some individuals allegedly had severe adverse reactions to the smoke (e.g., Plaintiff and
Defendant Brown), it is not clear that everyone exposed to the smoke had the same reaction.

Without any allegations regarding what the remaining Defendants knew about Plaintiff’s
condition or what Defendants should have been able to infer about Plaintiff’s condition, the
Court sees no basis for concluding that any Defendants other than Defendants Velez, Judge,
and/or Brown “acted purposefully, knowingly, or perhaps even recklessly” and that their
“conduct was objectively unreasonable.” Accordingly, the Court grants Defendants’ motion to
dismiss Count IV against Defendants Jefferson, Willeda, Koedyker, Schous, Wells, Maddox,
Ker, Satduran, Belletierre, Thomas, Kos, Salerno, Brown, Benitez, Turner, Rodriguez, Schnolis,
and Cooper. The Court denies Defendants’ motion to dismiss Count IV against Defendants
Velez, Judge, and Brown with leave to renew their motion under the appropriate legal standard

once Plaintiff has had the opportunity to file a third amended complaint.
D. Count III (Monell Claim)
Defendants move to dismiss Plaintiffs’ claim under Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978). “Under Monell, a local governmental entity
is liable for damages only if a plaintiff can show that the alleged constitutional violation occurred
as a result of an official policy, custom, or practice.” Clemons v. Dart, 2016 WL 890697, at *9
(N.D. Ill. Mar. 9, 2016). Thus, Monell “requires a plaintiff suing a municipality or comparable
entity to demonstrate that the entity's official policy, widespread custom, or action by an official
with policy-making authority was the ‘moving force’ behind his constitutional injury.” Dixon v.
Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016). Defendant argues that Plaintiff fails to allege
non-conclusory facts sufficient to establish such a policy, custom, or action.
Plaintiff argues that the Court should deny Defendants’ motion to dismiss his Monell
claim because Defendant Dart failed to provide direction for the safe evacuation and return of
detainees to their cells despite there having been other fires in Cook County Jail. Although
Plaintiff asserts in his response brief that “he is aware of prior fires [that] stared in the same
fashion” [37, at 15], the second amended complaint does not include any allegations regarding
any such fires. In fact, the second amended complaint does not include any factual allegations
regarding Cook County Jail’s fire safety policies (or lack thereof). Although the second
amended complaint includes conclusory allegations of an unconstitutional policy, custom, or
practice,® such conclusory allegations are insufficient to survive a motion to dismiss. Carmona
v. City of Chicago, 2018 WL 1468995, at *3 (N.D. Ill. Mar. 26, 2018) (sufficiently alleging a
Monell claim requires “more than bare factual allegations and conclusory recitals”). The Court
therefore grants Defendants’ motion to dismiss Plaintiff's Mone// claim (Count III).
IV. Conclusion
For the foregoing reasons, the motion [33] is granted in part and denied in part. Plaintiff
is given until March 22, 2019 to file a third amended complaint, in light of the change in law
addressed above. Further status hearing set for April 4, 2019 at 9:30 a.m.

Date: February 19, 2019
Robert M. Dow, Jr.
United States District Judge
* For example, Plaintiff alleges “Defendant had an unconstitutional policy, custom, or practice in direct
opposition to the purposes of Section 1983.” [31, at ]68.| But Plaintiff fails to allege any facts in
support of that assertion.
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10140181. Public record. Not legal advice.